[INTERVIEW] Academics, Lawyers Deserve Appointment As S’Court Justices – Afam Osigwe

A Senior Advocate of Nigeria and former secretary of the Nigerian Bar Association, Afam Osigwe, shares his thoughts with SOLOMON ODENIYI on the poor welfare of judicial officers, prison congestion, and the delay in the dispensation of justice, among sundry issues

In the retirement speech of Justice Muhammad Dattijo, he said the Chief Justice of Nigeria had too much power as the Chairman of the Federal Judicial Service Commission, the National Judicial Institute, and the Legal Practitioners Privileges Committee. What is your take on this?

During the Nigerian Bar Association Conference in 2011, which was held in Port Harcourt, the NBA under the leadership of J.B. Daudu made recommendations for the amendment of the constitution to remove the CJN as the head of the National Judicial Council since the CJN is still subject to discipline by the NJC, which he heads. I support his position but I think the CJN should be the head of the Federal Judicial Service Commission. However, the power of the CJN to appoint a larger percentage of members should be watered down to allow some independent bodies and some civil society organisations to have a better say in the appointment process to the Federal Judicial Service Commission.

I have always opined that it is somewhat of an anomaly that the Chief Justice of Nigeria is the Chairman of the FJSC, which recommends justices for appointment to the NJC for consideration. And then, the same person who has chaired the FJSC moves over to the NJC as the chairman to deliberate on recommendations made by the FJSC, which he also chairs. I think there is merit in looking at the over-centralisation of power in the CJN. I recall that Justice Dattijo made reference to the National Judicial Institute and the Legal Practitioners Privileges Committee. I think that proper amendments need to be recommended to the National Assembly.

If they find them worthy, they should consider them. However, the one that I think is of utmost importance is the composition of the FJSC and NJC. There is a need to give them some level of independence and separate their heads from one person. I say this with no particular reference to the current occupant of the seat. I believe in building an institution and ensuring that the institution brings out provisions, regulations, and recommendations that people will see have passed through an objective test, but since the same person heads the recommending body and the appointing body, it gives the impression that objectivity and independence of thought have not been gladly exercised in the process.

The number of justices of the Supreme Court has reduced to 10 with Justice Dattijo’s retirement. Don’t you think there is a need for the Federal Government to be concerned, and what do you think are the challenges or barriers in appointing more justices to the apex court?

I don’t think the Federal Government alone needs to be worried; Nigerians should be worried. Some of the vacancies on the court’s bench have been going on for more than a year and a half. So, it makes you wonder why the vacancies have yet to be filled. Some died and some retired, and they have not been replaced. It is worrisome that we have vacancies, and we also have to talk about the proactiveness of the respective bodies before making a recommendation to the President for the appointment of these justices. We also have to talk about the fact that we seem to appoint Justices who spend very little time in the court.

The apex court had its full complement for the first time around 2020, and within three years, it had been reduced to 10. What does that tell you? It brings to the fore the age of persons who get appointed to that court and the process of appointing them. I am of the view that our insistence on appointing only justices from the Court of Appeal is largely responsible for it. Now, this becomes clear when you take into cognizance the fact that those who get appointed by the Court of Appeal are usually justices who have less than three to four years to retire. So, you bring about 11 justices who will retire around the same time. You will now be in a situation where under a year, about six to eight justices will be retired, and we keep crying about the depletion in the number of Supreme Court justices.

So, we need to have a situation whereby, we broaden the scope of the appointment process to include those who are in academic and private practice and also pay particular reference to the age of the people being brought to the court to avoid bringing people who will spend just two years and retire. While bringing them in, we should ensure that the minimum they can spend in court is five years so that they won’t retire at the same time and will have a lot of time to stay in court.

We should not think that only Appeal Court justices are competent or should be appointed to the Supreme Court, as this creates a problem for us. We should appoint lawyers in legal practice, even High Court judges if they have merit to be appointed to the Supreme Court bench. We will continue to have a reduction in the number if we retain this current system. Professors of Law should be brought in to deepen the knowledge of the Supreme Court.

But will they be able to understand the workings of the court at that level, especially when giving judgment?

Everybody can learn how to write judgments, and even if they don’t know, train them. They are not novices in law. Those who wrote the Nigerian constitution knew that a person who has spent 15 years practising law should be able to write a judgment, and that is why they did not state that only justices of the Court of Appeal should be employed. Let us do the right thing and bring in the right people from across the board as long as they have what it will take and are of good age and in good health.

Taslim Elias was appointed to the Supreme Court from a private bar. Also, Anthony Aniagolu served as the Chief Judge of Anambra State from 1976 to 1978 and was a justice of the Nigerian Supreme Court from 1978 to 1987. These people did brilliantly well, and we have many examples of them in the past. The military seems to have done well in appointments to the Supreme Court. They appointed people who were much younger and stayed for longer periods. We must begin to look at how long the justices to be appointed can stay and what they can contribute to the court.

Justice Dattijo said the government failed to appoint replacements for justices from two regions before the election tribunal. Don’t you think it is an aberration not to have all regions represented for a presidential election judgment by the Supreme Court?

That will suggest that the decision of the court is based on where people are from and not the issue for determination. I didn’t know it to be a fact that each region must be represented in the panel. We don’t know the process by which the Chief Justice set up the panel and I wouldn’t want us to make it the issue of region. I believe the apex court deals with facts and law and not based on the region the appellants are from. I will not want to join those with the argument that the decision of the election tribunal would be different based on the composition. That will be very unfair to the court, and I won’t want to be a part of that.

Several litigation have followed the 2023 general elections and people are beginning to complain that they are becoming too much. The CJN also complained that political cases were becoming too much for them to handle. What can be done to reduce the number of political matters in court after elections?

The political parties have refused to be democratic and to be guided by the due process of law. A lot of arbitrariness of these political parties has led to an increase in the number of cases in our courts. With the amendment of the Electoral Act in 2022, many thought it would cure some of the defects in the previous Act, but the 2022 Act has engendered much more litigation than the previous one. So, we have to look at how the parties’ internal democracy works, and how they select their candidates. We also need to look at the propriety of continuing to litigate intraparty disputes. Also, whether the court should be involved in how political parties reach their decision on who they choose to sponsor as candidates.

Another point is that many politicians are bad losers. When they don’t win, they refuse to congratulate those who win and even when the process is right, they will still want to go to court than accept defeat. Another thing we may need to look at is the penchant of our society not to let things go, but to ensure that everything ends in a fight.

Also, the system is a quantity-driven one rather than a quality-driven one. For instance, for you to apply for a SAN title, you must get four Supreme Court judgments, five Court of Appeal judgments, and 20 judgments of the High Court. Every lawyer, especially at the affiliate level, tries to pluck every matter into the Court of Appeal so that they will get requisite judgments and be able to apply. We should have a situation where we look at some other criteria for applying for the award of the rank. If we take a second look at it, we would be able to limit the number of cases. Another one is the failure of our court to let the losing party that has unfairly brought the matter to court bear the cost of the winning party. So, it is against public policy that when a man has lost a case, he should not bear the cost of the other person. In the Western world, if you bring a person to court and the court finds out that there is no reason for the person to be sued, you pay the legal cost incurred by the person. So, somebody makes you pay for a lawyer in a case that is status barred or it has no business in court, and is allowed to walk away?

There must be consequences for the action. People who litigate a matter that has no business in court should be made to pay for their actions. Lawyers ought to advise their clients that they have no case, but then they must file a case and charge a fee to do so. There should be appropriate sanctions for this or the court should award a cost against them. When we take a proactive measure, maybe we will be able to reduce the number of people who go to court. Until we do that, I’m afraid the number of cases will continue to mount.

Politicians have continued to amend the Electoral Act and the constitution so that their cases can be prioritised before the court by making them time-bound so that the court will stop other activities and hear them. Commercial, criminal, and other cases are not given that priority.

Nobody will come to invest in Nigeria if they know that their commercial disputes will not be expeditiously resolved in case they have one. We must handle our cases in a way that will not affect our foreign direct investment, or even for the populace to have confidence that our court will not only cater to the politicians, but also to the commercial rights of the people.

There has been public outcry about the welfare packages of judges in the country. Is the claim that judges in Nigeria earn less than their counterparts in other parts of the world true?

I agree with them. I read a report that a justice takes home about N850,000 and then the Chief Registrar of the Supreme Court takes home about N1.2m. If you want your judges to give fair judgments and not subscribe to corruption, I think they should be well paid so that they will not have any excuse to be tempted to look at other means to address their welfare. It’s an unfortunate fact that the salary of judges was last reviewed in 2007. The constitution said that the salaries of judges must be periodically reviewed and presented to the National Assembly for backing.

What I think is that we should have a law that will automatically allow the Revenue Mobilisation Allocation and Fiscal Commission to review it by a certain percentage, so that we don’t have to go back to the National Assembly. When the salary was last reviewed in 2007, I think the dollar was less than N120, and now, in 2023, 16 years after, the naira exchange rate tolls at N1,125. So, this is about the extent to which we have reduced the purchasing power of the take-home pay of these judges. We should be able to bring it to the current economic reality because the institution doesn’t allow them to do any other business. So, we should be proactive in reviewing their salaries so that they don’t have any reason to complain.

It is not a good sign for judges to be lamenting and advocating better salaries and welfare all this while without anything being done to address the situation. We should set in motion machinery to solve this problem and ensure it does not become a recurring issue.

A worse situation applies to judges at the lower courts, especially the magistrates’, who are poorly funded by the state governments. What do you think should be done to address the threat?

All judicial officers from the Magistrate’s Court to the Supreme Court, as far as I am concerned, have been neglected. It varies from state to state. There was a picture from my home state in Anambra of a magistrate going to work on a motorcycle. I was moved by that picture. It did not portray a good image of the judiciary. I am using this opportunity to call on the Anambra State Government to provide the magistrates and other judges with vehicles. Judicial officers across the country should not be subjected to that kind of treatment. Imagine a situation where that commercial motorcyclist is standing trial in her court, what do you think will happen to her?

It sounds funny, but that is the unfortunate situation our judicial officers, especially the magistrates, find themselves. I was also told that in some states, they board tricycles and commercial buses to court. This is unfortunate. Growing up, I knew magistrates had vehicles and orderlies. Tell me, how will a magistrate, who goes to court using a bike, have an orderly? Of what use will that orderly be to the magistrate in that situation? If we want them to do away with every form of inducement or enticement, their welfare must be improved.

But the government is always complaining about paucity of funds. Do you think increasing salaries will not cause another financial crisis for the country?

I know the economic situation is not the best, but if we must protect the welfare and security of the citizens, we must prioritise law and order. The judiciary is the first point of call to help achieve this. We must improve the welfare of judicial officials so that they can help the government in discharging its duties as enshrined in section 14(2) of the constitution, which says that the security and welfare of the citizens shall be the primary objective of the government. There is an urgent need for us to improve their welfare, especially for magistrates. However, some justices have complained that their official vehicles have not been changed for years. This should be a wake-up call for the needful to be done, especially as we don’t have an organised public transportation system so that they can go about their jobs with dignity.

There are many people awaiting trial and currently in correctional centres across the country. This is amidst worries about the centres being congested. Don’t you think there is a need for the government to urgently address this challenge?

When you divert your mind to the fact that many of them could be innocent; when you consider that these awaiting-trial inmates may have spent more years than the years they would have spent if they had been convicted by the court; when you also consider that the medical facilities available in these prisons are poor and many of them come out with terminal or life-threatening illnesses contracted from the prison, then you will see the correctness of ensuring that people don’t spend a long time awaiting trial.

The causes of this are also many. More often than not, law enforcement and prosecutorial agencies are more interested in getting people remanded without a follow-up action to ensure their trials proceed as quickly as possible. Many magistrates grant these remand orders without being certified as required by the Administration of Criminal Justice Act. There is a prima facie ground for ordering a remand and putting measures in place to ensure that these people don’t obtain this remand and walk away.

There is a need to look at our criminal administrative system and reform it so that suspects or inmates don’t return to society with a lot of bitterness and anger. Again, persons who go to these prisons become hardened criminals and become a bigger danger to our society. We need to do a lot to decongest these prisons and ensure that people don’t end up suffering for what they didn’t do or even die while awaiting trial and never have the opportunity to clear their name or have their day in court.

Some proposed a special court that will try non-criminal offences to ensure quick dispensation of justice. Do you think this is achievable?

We keep creating courts in the country. We created a magistrate. In the North; they have an area court. When there was an outcry that there was a need for a court to hear Federal Government-related cases, the Federal High Court was created. The National Industrial Court was created when we felt there was a need to have a court to settle industrial disputes. We keep creating courts, and at the end of the day, all we end up doing is creating jobs for the ‘boys’.

Some say we should create courts for anti-corruption cases, while others say we should create a special court that will hear political cases. Who does that? It is not about creating more courts; it is about ensuring that the courts we have work and that those manning them are well remunerated and taken care of so that they will do their cases. Whatever court we create, we end up having the same problems. Let us not deceive ourselves. We don’t need more courts; we need to make the ones we have to work. It is not about the number of courts or designation but what they do and to what extent the public perceives that our courts are living up to their responsibilities. This should worry us and not the clamour to keep creating courts.

The Nigerian Bar Association has been in operation for several years. How will you rate its relevance to Nigeria’s democracy?

The NBA is just like a pressure group providing an umbrella for its members to articulate their points and advance their aims and objectives. The NBA’s relevance cannot be under emphasised; it has done a great job by being a watchdog of society and living through its motto of promoting the rule of law. We are an advocacy group and not a government. We are also not an opposition political group. There has to be a balance between what the NBA gets involved in and how it engages with the government without taking sides. The NBA is a non-profit organisation and it is non-partisan.

What the NBA does should be placed within this context to the extent that the organisation has produced great leaders whose impact has been felt in society. Society keeps looking at the NBA, and the association’s interventions at critical times are reckoned with by persons in government. To this extent, I can tell you that the NBA has been living up to its billings in society.

Many have accused your colleagues (lawyers) of contributing to the delay of cases in court through frivolous applications. How will you react to this?

I had earlier said that some of our colleagues file cases that have no business in court. In an appropriate situation, the cost should be awarded against the lawyers personally. I agree that some of our actions have contributed to some of the delays we have in our courts. I will be playing the ostrich if I pretend that lawyers have no role to play in it.

What will be your advice to the Minister of Justice?

He should help to drive any needed reforms that will sanitise the judiciary, especially if there are justice sector reforms that need to be carried out or a need for a bill to be presented to the National Assembly. I believe the Attorney-General of the Federation will work with the apex court to ensure that some of these justice sector reforms are carried out. Again, the review of the allowances and salaries of judges is a matter that should be taken to the National Assembly and passed. Other things that can be done to improve the administration of justice should be looked into.