Prof Ernest Ojukwu’s Presentation At NBA Annual Bar Conference 1991 As A Young Lawyer

1991 Annual Conference of the
Nigerian Bar Association

Held at Concorde Hotel, Owerri
Imo State, 26th – 31st August, 1991

EXECUTIVE LAWLESSNESS AND THE
JUDICIAL HELPLESSNESS IN THE ADMINISTRATION OF JUSTICE: A NEED TO
PLUG UP THE HOLES.[1]

ERNEST OJUKWU, L.L.M(IFE), BARRISTER AT-LAW

A.
INTRODUCTION:

The theme of this conference could not
have been better chosen at this “eve” of the third Republic by this
premier association. This is because there is a tendency by the
populace particularly in the developing world to believe that
government is run by lawyers. We have heard it said even by the
people in government today in Nigeria that our second Republic
failed by the acts and omissions of the lawyers.

This belief may not be totally
far-fetched because the lawyers often play very important roles in
government and the administration of justice. The beginning of
modern Governance starts with the enactment of laws, prepared by a
lawyer – be it a decree, an edict, an Act of Parliament or even the
constitution of the land. The Lawyer, at least in Nigeria has
always been a chief advisor in Cabinet. There are lawyers advising
and drafting laws for the legislature. The lawyers constitute in
the main the judiciary. We have legal advisers to the political
parties and today it is being made mandatory that every local
government in the country must appoint a legal adviser.

It is therefore clear that if the
lawyer is not to blame again, we must as we have now chosen,
address the theme of our conference and suggest ways out for the
survival of the third Republic for it has been opined, “In
determining a nation’s rank in political civilization, no test is
more decisive than the degree in which justice, as defined by the
law, is actually realized between one private citizen and another,
and as between private citizens and members of the government”.[2]
Thus, “when we know how a nation – state dispenses justice, we know
with some exactness the moral character to which it can
pretend”.[3]

It is our aim therefore to discuss
critically the role of the executive and the limitations of the
judiciary in the administration of justice in Nigeria and attempt
to propound suggestions that can help raise our “rank in political
civilization” by the enthronement of a lasting democratic
experiment.

B.
ADMINISTRATING JUSTICE AND SEPARATION OF POWERS

There is a tendency in this paper to
avoid definition of such terms as “Justice” or “Administration of
Justice”.

Definitions, said Julius Stone, are
“essentially mnemonics for clarification. They may be
pre-ambulatory mnemonics foreshadowing elucidation to follow, or
summation mnemonics recalling what has already been expounded. In
either case a definition cannot fruitfully be more definite or more
definitive than the exposition which it calls to mind”.[4] We shall
in the circumstance attempt what we may call an exposition of our
subject matter rather than defining.

Even at that, the term “Justice” is a
nebulous concept with varied meanings in various countries and in
different eras. The popular idea of “Justice” is based, even
nebulously, on a sense of equality. The term is elusive as that
term “public policy”.[5] But one thing is certain; the term
“Justice” is an antithesis of arbitrariness.

To “administer Justice” is to dispense
Justice. The notion of Justice is fairness and balance of competing
interests. The administration of Justice aims at furthering
national unity, patriotism, public security, peace, order and good
government.[6] President Babangida recently said that “the
dispensation of justice… is the heart and soul of all good
governments”.6B

It is agreed that the administration of
Justice in its broad sense is involved in the exercise of every
governmental function, be that function legislative, executive or
judicial in nature. In this sense, every step taken by government
or its agencies is measured in terms of how far it protects the
welfare of the citizens and balances the competing interests.
Administration of Justice in this broad sense would therefore
include the fairness of the laws enacted by the legislature, the
interpretation placed upon such laws by the courts and the
opportunities given the courts, the even- handedness of the
executive in the implementation not only the letters of the Law but
in accommodating the decisions or would be decisions of the
courts.[7]

As stated earlier, all arms of
government are concerned with the administration of Justice. Under
the 1979 constitution (pre-military) and the 1989 constitution, the
three branches of government; the Legislature, the Executive and
the Judiciary are separate and distinct. This is a follow-up of the
Montesquieu doctrine of separation of powers in which a distinction
is drawn between the Legislature, Executive and Judicial
functions.

The concept of separation of power
arose from the ‘need to ensure the restraint of governmental power
by dividing that power, without carrying that division to an
extreme, incompatible with effective government’. A constitutional
democracy thus pre-supposes a balanced system of divided or shared
powers. It is only within such a system that individual citizens
can ever hope to enjoy any measure of independence and freedom from
arbitrariness and governmental lawlessness and thus regain the
civil rights and liberties conferred on them by our
Constitution.[8]

Though the functions of the three
organs are distinct, there cannot be a total separation of powers
and the powers given to each other are delicately balanced by
powers, given to the other two. Examples of such balance abound in
the 1989 Constitution. The aim of government in spite of the
separation of powers should be advancement of the common good. In
which case, the three co-ordinate powers of the state should, in
the words of Hon. Chukwudifu Oputa, “constitutes one brotherhood,
working side by side with mutual toleration and co-operation”.[9]
We must agree therefore that “The primary end of the state is
Justice – the building and the maintenance of a just society ‘where
no man is oppressed’, the maintenance of the Juristic order. To
this end the Legislature by the laws it passes enunciates the
general norms of Justice while the Executive oversees these laws as
they apply at large. But the state through the Judiciary pronounces
justice in the concrete.[10]

C.
THE CREATION AND MISUSE OF EXECUTIVE POWERS

(1) THE
CONSTITUTION:

Section 5 of the 1989 Constitution
(just like the 1979 Constitutions) vests the executive powers of
the Federation, the States, and Local Governments in the President,
Governors, and Chairmen of Local Government Councils respectively.
Each of these representatives of each tier of Government is
restricted to act only in the “area” of his authority as provided
by the constitution. The 1989 constitution provides for example,
that:

(a) “The executive powers of the
Federation shall be vested in the President and may, subject as
aforesaid and to the provisions of any law made by the National
Assembly, be exercised by him either directly or through the Vice
President or Ministers of the Government of the Federation or other
officers in the public service of the Federation; and

(b) Shall extend to the execution and
maintenance of this Constitution, all laws made by the National
Assembly and to all matters with respect to which the National
Assembly has for the time being power to make laws”.

Similar provisions are made for the
state Governors and Chairmen of Local Governments. The executive
representatives of each of the three tiers of government in Nigeria
are allowed and in practice do act through other officers of
government. Examples are the Police, Federal Road Safety Marshals,
the Army, the Customs and Excise men, the Ministers, Commissioners,
Directors- General, the Prison Officials, Local Government
Supervisors and Secretaries and of course the SSS and a host of
other officers. All these play great roles in the administration of
justice.

(2)
THE MISUSE:

But how has the executive faired in the
administration of Justice today in Nigeria? Would it not be
axiomatic to ask the executive to RESIT?[11] There is a current
trend where court orders and judgments are disrespected with
impunity by agents of the three tiers of governments, where the
courts are violated and intimidated, where fundamental human rights
is sold costlier than the pathfinder Car and the “rule of law” is a
paradigm of “rule of the might”.

We are witnesses to the police and
security men’s brutality to and the constant abuse of the rights of
suspects and detainees,[12] the creation of dud offenses and the
unlawful arrests and detention of innocent citizens. Our police
stations and cells are so overcrowded particularly at weekends that
you wonder whether all citizens have not become criminals. Or have
you not heard people boasting to others that “I shall not call the
police for you, I will just tell the soldiers at the camp
“.

If the citizen truly carries out this
threat, the effect would be what you may have to guess. The police,
the SSS, the army are not alone. There are catalogues of instances
by other agents of the executive, and some of them are reproduced
hereunder:

The
Ganiyu Oladapo Case

On September 24, 1990, agents of the
Lagos State Government accompanied by armed security men, moved
bulldozers into a tourist centre situated along Ozumba Mbadiwe
Street Victoria Island. The caterpillar rumbled over the property
and in a matter of minutes, they had reduced the lagoon front
resort to a heap of rubbish. This demolition was the climax of a
dispute which began in 1986. The multimillion naira tourist centre
was the property of Ganiyu Oladapo, Chief executive of Osa
Investment and Property Company. But the parcel of land on which he
constructed his tourist paradise was in contention. The Lagos State
Government claimed the land and in 1986, it claimed that it gave
Osa Investment a quit notice. Oladapo went to court to contest the
government’s claim. On September 4, 1990, Oladapo filed an appeal
at the Court of Appeal. He followed up the appeal with a motion
praying the court to restrain the Lagos State Government from
dispossessing him of the land based on the lower court’s
ruling.

The appeal was pending when the
government roared into the resort, sacked Oladapo and his staff,
demolished every structure and set fire to the wooden rubbles. On
September 27, the Appeal Court granted the prayer of the plaintiff
and restrained the Lagos State Government from acting on the ruling
of the High Court. It was too late. But the appeal court had also
fixed October 17, 1990 for hearing the substantive appeal. Armed
with the order of court Oladapo moved back into the land. In a bid
to re-establish possession he put up a fence and temporary
structures. On October 15, two days before the substantive appeal,
an armed squad of the State government again descended on the place
and tore down the temporary structures.

The
Gongola State – NBA Case

In Gongola State, Isa Mohammed a
Governor established another example of executive lawlessness. In
1989 he refused to swear in two new Chairmen for Numan and Mayo
Belwa Local Government Councils after the Court of Appeal had
upheld the decision of a Yola High Court nullifying the elections
of two other persons. The Governor’s resolve not to comply with the
Court order to swear in the runner-up. In the chairmanship
elections in the two councils pitted the NBA against the state
Government, resulting in the boycott of the Courts by
lawyers.

The
Hon. Yahaya Jinadu Case

In 1984, Hon. Yahaya Jinadu, a Judge of
the Lagos High Court ruled that John Oregun, a Federal Permanent
Secretary should appear before him on a charge, of contempt of
court. Hon. Jinadu had earlier given judgement in favour of a
Federal Fire Officer, Saidu Garba who had sued the government for
wrongful termination of his appointment over NECOM house fire
disaster in 1983. Jinadu ordered Garba reinstated, but Oregun, then
Permanent Secretary Federal Ministry of Internal Affairs refused.
Jinadu then issued a bench warrant for the arrest of Oregun but
this was treated with utter contempt and it was never served. The
Military regime of Buhari/ Idiagbon saw Jinadu’s actions as a
direct challenge to its authorities and so did everything to
frustrate the judicial order of the judge. These and further events
in this case culminated in the pre-mature retirement of Hon.
Justice Jinadu.

The Festus
Iyayi- Uni Ben Case[13]

The University of Benin authorities in
1987 evicted Festus Iyayi, National President of ASUU, Prof. Sagay
and John Odita from their official quarters in disregard of an
order of a Benin High Court a week earlier.

There are other familiar cases where
the executive had acted in the most lawless manner. Examples
are:

1. The Shugaba’s Case[14]

2. Obeya Memorial Case[15]

3. Ojukwu’s Villaska Lodge
Case[16]

4. Stitch v A-G
Federation[17]

5. Afolabi v Governor Oyo
State[18]

6. Aliu Bello v A-G Oyo
State[19]

7. Olayinan v The University of
Lagos[20]

8. Okongwu’s Case – Wherein he was
convicted of contempt and while his appeal was pending, the then
Governor Jim Nwobodo pardoned him.

9. The practice of the executive in
foraging for courts that is likely to have their sympathy as in the
Prosecution of Arthur Nwankwo for sedition by the Anambra State
Government of Jim Nwobodo.

10. The Saidu Garba Case[21]

We shall return to some of these
cases[22] later but for now may we pause and ex- ray the role of
our learned brothers – the attorneys- General.

(3)
THE ATTORNEY – GENERAL

The Attorney-General who is appointed
by the Chief Executive and holds on to his portfolio at the whim of
his appointor is the Chief Law Officer be that for his state or for
the Federation.

The 1979 constitution provides that the
Attorney-General shall have power-

1.

(a) To institute and undertake criminal
proceedings against any person before any court of law in Nigeria
other than a court martial in respect of any offence created by or
under any act of the National Assembly;

(b) To take over and continue any such
criminal proceedings that may have been instituted by any other
authority or person; and

(c) To discontinue at any state before
judgement is delivered, any such criminal proceedings instituted or
undertaken by him or any authority or person.

2.
…

3.
In exercising his powers under this section the
Attorney-General shall have regard to the public interest, the
interest of justice and the need to prevent abuse of legal
process”.[23]

Apart from these provisions of the
Constitution, the Attorney-General is the Chief Legal Adviser of
Government. In all the cases and instances where governments or its
agencies violated the rule of law and disobeyed court orders (even
in cases of wide publicity) do the Attorney-General play His
primary role- that of advising against arbitrariness? Or does the
government act against proper advice?

There seem to be a consensus that some
of the Chief Legal Officers do not perform. Sometime in December
1989 the Chief Justice of the Federation granted the African
Concord an interview and when questioned “on disobedience of court
orders by the Executive Arm of Government”, had this to
say:

“Well it is a little problem. The
problem is with the Attorney General, not with us. In all the cases
where Government refused to comply with such orders, the AGS advice
the government that the order is illegal. You see. When a Judge
acts out of Jurisdiction, it is illegal. If a Judge releases
anybody detained under Decree 2, it is illegal. He has not such
power. So if a judge orders someone to be released the
Attorney-General will ask the government not to comply. But
unfortunately, we think what should have done is to run either to
the judge, tell him he has made a wrong order and he should set it
aside or go to the Court of Appeal. So normally I don’t blame the
government, the Attorney General who should properly
advise”.[24]

What of a situation where a bold
Attorney-General advises in the best interest of justice and such
advice is not heeded? Too many of us will immediately suggest that
the Attorney General should resign. It might not be that easy but
it is a viable option. It may be further suggested that we review
the procedure for the appointment and removal of an
Attorney-General.

But on their own as agents of the
executive, have the Chief Law Officers (in many Cases) not
brutalised and assaulted the rule of law while also recklessly
abandoning some of their duties as a major plank in the
administration of justice? Some States, we know are so backward in
law Reform. Most backward. Has any Attorney-General ever given
consent for the attachment of government property? Many governments
have rendered court judgements nugatory by not paying the damages
awarded against them because of the requirement of consent of the
Attorney-General before an attachment of government property.
Further examples of the abuse of the Attorney-General’s functions
can be found in its constitutional power to enter nolle
prosequi.

In one case in 1980 before the High
Court of Ondo State in Akure, the accused persons were charged with
murder. Because the accused persons belonged to the party in power
in the state, the Attorney-General entered a nolle and the accused
persons were discharged in a situation in which they would have
been tried and either discharged or convicted according to
law.[25]

In Imo State was a case of embezzlement
of a substantial amount of public funds. The Attorney-General had
earlier appeared for the accused while still a private legal
practitioner. As soon as he was appointed the Attorney-General, he
entered a nolle prosequi on behalf of the said
accused.[26]

Another case happened in Kwara State.
The civilian Governor had disagreed with the Attorney-General and
removed him from office for reasons best known to him. He did not
appoint anyone else in replacement. There was then a case pending
before the Chief Magistrate’s Court at Ilorin against on Isiaka
Sanni and two others, who were political supporters of the Governor
and his faction of the political party to which he belonged. The
Governor who was a lawyer of more than ten years standing struck a
brilliant idea. He appointed himself Attorney-General and
Commissioner for Justice in which capacity he signed a purported
nolle prosequi, sent it to the DPP with which the case was
discharged.[27]

We may conclude this part of our paper
by saying that it is a very serious matter for us to enter the
third Republic with this trend of recklessness by the executive,
high or low. The more serious is the disrespecting of court orders
and judgements. The court is truly the last hope for justice. As
was said by the Champion Editorial of 18th April 1989, for a nation
which is strenuously grooming a polity that respects the rule of
law, disrespect of court orders by governors is a clear indication
that an aggrieved party should not fall back on the law. The paper
asks “what option, other than mayhem and brutish resolution of
conflict would there then be left?”

The trend at flouting court orders by
the executive arm of government “is a menacing threat to enduring
political stability and the evolution of democratic
norms”.[28]

D.
The Myth and Realities of Judicial Powers:

The judicial powers of the Nation is
vested in the Courts whether created by the constitution or by
statue and such power “extended to all matters between persons, or
between government or authority and any person in Nigeria, and to
all actions and proceedings relating thereto, for the determination
of any question as to the civil rights and obligations of that
person”.[29]

It has been generally acknowledged that
the judiciary is the Guardian of our Constitution, the protector of
our cherished governance under the Rule of Law, the guardian of our
fundamental rights, the enforcer of all the laws without which the
stability of society can be threatened, the maintainer of public
order and public security, the guarantee against arbitrariness, and
generally the only insurance for a just and happy
society.[30]

There have been serious attempts to
erode the powers of and supervision by the courts in recent times
as we have been able to show hereinabove. In some cases the courts
particularly the appellate courts have been able to stand firmly
against the contemptuous violations of the rights of the citizen
and the judiciary by the executive and have spoken out in the
strongest terms against the abuse of a healthy justice
administration system.

It would be recalled that in the case
of Sofekun V.
Akinyemi,[31] the Supreme Court had
recognised that “…it is essential in a constitutional democracy,
such as we have in our country that for protection of the rights of
citizens, for the guarantee of the Rule of Law which includes fair
trial to the citizen… and, for checking arbitrary use of power by
the Executive or its Agencies, the power and jurisdiction of the
courts under the constitution must not only be kept intact and
unfettered but also must not be nibbled at. To permit any
interference with, or a usurpation of, the authority of the courts,
as aforestated, is to strike at that bulwark which the constitution
gives and guarantees to the citizens, of fairness to him against
all arbitrariness and oppression…”

In Saidu Garba V Fred. Civil Service
Commission.[32] Garba a former Chief Fire
Officer and 19 others detained and arranged before a Chief
Magistrate Court on a charge of murder. Garba sought refuge in the
High Court of Lagos where his indictment was quashed and he was set
free. Following this, he was interdicted by the Permanent
Secretary, Ministry of Internal Affairs and suspended on 21st Feb.
1983, on the ground that he was under a criminal trial. He then
challenged his interdiction in the High Court but while this was
pending, the military came to power and he was dismissed from the
public service. Subsequently the High Court declared Garba’s
dismissal illegal, null and void and ordered his immediate
reinstatement which order was never obeyed.

When the matter finally reached the
Supreme Court, the court refused to be cowed by the Military might
and affirmed the trial Judge’s decision. The Supreme Court did not
hide its feelings on the action of government. Eso, J.S.C said in
that case:

“What remains now is an examination of
the act of the Respondents in dismissing the Appellant from office
during the pendency of the action. Such action, I think is
contemptuous of the Judiciary, which has been seized with the
determination of civil rights under the constitution and which has
been left unscathed by all military coups. For the Judiciary… to
operate under the Rule of Law, full confidence,… must exist in that
situation… in civil days both the executive and the legislature
must show to the entire nation their demonstrable confidence in the
Judiciary. The responsibility is greater during military rule… the
Rule of Law knows no fear, it is never down; it can only be
silenced…”

In the same vain and in the
same case, Nnaemeka-Agu, J.S.C. said:

“It is contrary to the letters and
spirit of the constitution that any of the three arms should
interfere with the other in the performance of its function. If
that is allowed to happen, it will lead to chaos, lawlessness and
destruction of the constitution. For the permanent Secretary to
have proceeded to dismiss the appellant while his case challenging
his interdiction in the extreme and a calculated interference with
the court’s duty…that ought not to be allowed to stand…”

Similarly in the case of
Gov. of Lagos State V
Ojukwu,[33] the Supreme Court was unequivocal
on its stand on its principle of the Rule of Law. In that case not
only did the court dismiss an application brought by the Lagos
State Military Government since the court regarded the government’s
actions in the case as being in contempt of the lower court, but
also criticised it in very harsh words. It would be recalled that
while a dispute over the ownership of a house in Lagos between the
two parties was pending in court, the Lagos State Military
Government, without an order of court, forcibly ejected Chief
Ojukwu from the said property. In the words of Eso,
J.S.C:

“To use force to affect an act and
while under the Marshall of that force, seek the court’s equity, is
an attempt to infuse timidity into court and operate a sabotage of
the cherished Rule of Law. It must never be!”

While Uwais J.S.C
stressed:

“…that it is a matter of grave concern
that the military Government of Lagos State should be seen to
disregard a lawful order issued by a court of Law. If Governments
treat court order with levity and contempt the confidence of the
citizen in the courts will be seriously eroded and the effect of
that will be the beginning of anarchy in replacement of the Rule of
Law”.

At other times the judiciary had been
cowed, totally mashed. Sometime in March 1990, a Shagamu High Court
gave judgement in the Akarigbo of Remo Chieftaincy dispute that did
not favour the state government. The government reacted by
promulgating an edict which set aside the High Court order which
restrained Governor Mohammed Lawal from installing Mike Sonariwo as
the Akarigbo of Shagamu.

In other cases judges were sacked for
not toeing the government line and for some their hope of moving to
the higher bench or taking their proper precedent sealed. The case
for an acting Chief Judge of Lagos State is still fresh in our
memory.

Irrespective of some of the appellate
court’s assertions against executive recklessness, the court’s
current attitude has been described as “timid”, “unbridled
cowardice, judicial ineptitude and sheer intellectual laziness”[34]
and that “the only way to curb executive lawlessness and
legislative arrogance is through fearless judicial activism”. But
judicial activism may not be the answer – it may even create more
holes.

The judiciary is still in such a weak
position in government. It does not on its own execute its orders
and judgement, it does not make laws, it does not appoint itself
and secure its own tenure, it does not control its own fund, it
does not control the appointment of its supporting staff nor does
it pay their salary, it does not provide the security at the
courts; the salary of judges is too shameful; court records are
still kept in long hand; judges still sit two to one court room;
and the judiciary’s intervention is based on accident of
litigation.

Not totally rejecting the idea of
judicial activism, we think that to slow down executive
lawlessness, the judiciary must keep asserting itself and live up
to its fundamental role, that of protecting the citizens from the
wrong and arbitrary exercise power.[35] Let the courts not be
afraid that its’ judgements and orders would not be obeyed. Let
them be courageous enough to make the orders. Sir Adetokunbo has
added one dimension to the solution when he suggests that “the
Chief Judges of the states are wholly responsible for this. If they
kicked even at the peril of losing their jobs, one will understand
it… it is unfortunate that people cannot take that stand
today”.[36]

But can the judiciary really help when
it is bogged down by its own indiscipline – what late Hon. Justice
Nnamani described as the “challenge of credibility”.[37]
Accusations against the Bench, low or high abound. Though some of
the accusations are mere rumours and false, others are real and
proven. Can a person who perverts justice, show partiality, accept
bribe and subvert the course of righteousness assert himself? Can a
sycophantic, intellectually backward judge assert himself? Can a
dishonest, immature person and perennially sick “but I shall not
retire” judge assert himself? What of the lazy? We do agree with
Sir Adetokunbo Ademola that” a lot is wrong with the appointment of
our judges”, and so much depends on the character of the man who is
appointed judge.

Incompetent people abound on the
bench.

E.
Projections, Suggestions and Conclusion

Our only hope lies in reforming,
reappraising and reorganising the judicial system not only from the
point of appointment of personnel but also to the structural
imbalance that affects its independence. For once, the Bar should
be involved somehow in the selection of judges. Some of the
structural changes we suggest are: a multiplier increase in the
salary of Judges and Magistrates, an independent funding and
budgetary for the judiciary, the appointment and control of
supporting staff by the Judicial Service Commission, a special Code
of Conduct for judicial officers, an Inspectorate committee for the
judiciary, a review of the system of recording in long
hand.

We must not only focus on the bench but
also look inwards and address ourselves as members of the bar. What
part have we played and would now play collectively and
individually in creating a healthy administration of justices
system in our Nation.

“The aftermath of the 1983 general
elections provided a fertile ground for empirical research into the
question of legalism and justice in this country. There can be no
doubt that the image of the lawyer and the law he practices became
badly dented during the judicial processes which followed those
elections”.[38]

Even if we have not performed such
empirical research, we still do have a chance as lawyers to create
tools which would be adequate to deal with “the menacing
octopus”[39] (that is to say, the maladministration of justice)
which faces us now and can destroy the third Republic and our
country.

The Nation owes our Courts a duty of
care. As said by Hon. Obaseki, we “should not by negligence wreck
it and turn round to blame the occupants. Wreck the courts and you
wreck the nation. Strengthen and elevate the courts and you
strengthen and elevate the nation”.[40]

Some critiques[41] while commenting on
some attempts by the courts to assert it in judgements have
lamented that the judiciary only blows “Sad” “muted trumpets”. Let
them “blow the trumpet” even if “muted”. One day it would grow loud
(and articulate) enough to stiffen the nerves of a reckless
executive.

ENDNOTES

[1] Test of paper presented at the
conference of the Nigerian Bar Association held at Owerri, August
26th -31st on the theme “The Administration of Justice: A panacea
for the 3rd Republic”.

[2] By Henry Sidgwick, Elements of
Politics p.481, quoted by Awa U. Kalu, “Socio Economic
considerations in the Administration of Justice”, Conference Paper
of the Nigeria Association of Law Teachers. 1985.

[3] Harold Laski, A Grammar of
Politics, p.542

[4] Legal System and Lawyers’
Reasoning. P.184 cited by Dias, R.W.M, Jurisprudence 4th edition.,
London Butterworth, 1967, p.10

[5] Adene V. Dantumbu (1988) 4
N.W.L.R.Pt.88, 309, per Achike, J.C.A at 319.

[6] Haruna, I.B.M. “administration of
Justice in Military Era”, in Osinbajo, Y, ed., Towards a Better
Administration of Justice in Nigeria. Fed. Min of Justice, 1990,
p.69

6B Quoted late Nnamani, J.S.C, see foot
note infra

[7] See Awa U. Kalu, Supra.

[8] Hon. Chukwudifu Oputa, “The
Independence of the Judiciary in a Democratic Society- Its need,
its positive and Negative Aspects,” (1990) Justice Vol. 1 No.3
p.18.

[9] Supra

[10] Hon Chukwudifu Oputa, supra.
P.18.

[11] A common palace at the
Universities for a second attempt at an examination

[12] Femi Falana, “The Abuse of the
Rights of suspects and Detainees in Nigeria, “Law and Practice
(1988) Sept-Oct, p.7 – 14; Iyayi, Festus (Dr), “Experience in
Detention”, Law and Practice (1988(Sept-Oct, p. 15 – 19.

[13] For this case and the earlier
cited three, see “Assault on Rule of Law”, News watch, November 12,
1990.pp. 12-18.

[14] (1981) 2 NCLR, 459

[15] (1987) 3 NWLR (Pt.60)
325.

[16] (1986) 1 NWLR (Pt.18)
621.

[17] (1986) 5 NWLR (Pt. 46)
107.

[18] (1985) 2 NWLR (Pt.9)
734.

[19] Supra

[20] Supra

[21] (1988) 1 NWLR (Pt.71)
449

[22] Note that there are too many cases
that never went to the courts

[23] See S. 160 and now S. 179, 1989
constitution.

[24] Reproduced in Sagay, I.E, “The
Decline of the Judiciary as an effective and Independent third arm
of Government”, The Lawyer (1991), pp.92-93.

[25] See Augustine Nnamani, J.S.C
(late), “Abuse of Judicial Process”, Conference of all Nigeria
Judges conference, Abuja, 1988.

[26] See the statement, Tuesday 11,
August 1987.

[27] Narrated by Hon. Ekundayo and
reproduced in Ajomo, M.A., “Nolle Prosequi, An Unquestionable Tool
in the Hand of Attorney-General”, Osinbajo Y, ed., Towards a Better
Administration of Justice in Nigeria, pp. 23-24.

[28] The Guardian editorial of 27,
August 1990.

[29] See S. 6 of the 1979 and 1989
constitutions.

[30] The words of the late Hon. Justice
Nnamani, “The Judiciary in the 1990s: Expectation and Challenges”,
(1990) Justice, Vol. No. 3 p.27.

[31] (1980) 5 – 7 S.C 1, per Aniagoln,
J.S.C p.25 – 26.

[32] (1988) 1 NWLR Pt. 71,
449.

[33] (1986) 1 NWLR Pt. 18,
621

[34] Ozekhome, Mike, “Decrees, Ouster
Clauses and Judicial Ineptitude”, Law and Practice, August 1989, p.
6.

[35] Newglobe, commentary, Jan. 13
1986, p.12.

[36] Interview by Newglobe, January 13
1986.

[37] “The Judiciary in the 1990s:
Expectation and Challenges; Supra.

[38] Aguda, T.A The Crisis of Justice,
Akure, Eresu Hills Publishers , 1986, p.7

[39] Aguda T.A. Supra

[40] His valedictory

[41] Ozekhome, Mike, supra, for
example.

1991 Annual Conference of the Nigerian
Bar Association

Held at Concorde Hotel, Owerri Imo
State, 26th – 31st August, 1991

EXECUTIVE
LAWLESSNESS AND THE JUDICIAL HELPLESSNESS IN THE ADMINISTRATION OF
JUSTICE: A NEED TO PLUG UP THE HOLES.[1]

ERNEST
OJUKWU, L.L.M(IFE),
BARRISTER AT-LAW

A.
INTRODUCTION:

The theme of this conference could not have been better
chosen at this “eve” of the third Republic by this premier
association. This is because there is a tendency by the populace
particularly in the developing world to believe that government is
run by lawyers. We have heard it said even by the people in
government today in Nigeria that our second Republic failed by the
acts and omissions of the lawyers.

This belief may not be totally far-fetched because the
lawyers often play very important roles in government and the
administration of justice. The beginning of modern Governance
starts with the enactment of laws, prepared by a lawyer – be it a
decree, an edict, an Act of Parliament or even the constitution of
the land. The Lawyer, at least in Nigeria has always been a chief
advisor in Cabinet. There are lawyers advising and drafting laws
for the legislature. The lawyers constitute in the main the
judiciary. We have legal advisers to the political parties and
today it is being made mandatory that every local government in the
country must appoint a legal adviser.

It is therefore clear that if the lawyer is not to blame
again, we must as we have now chosen, address the theme of our
conference and suggest ways out for the survival of the third
Republic for it has been opined, “In determining a nation’s rank in
political civilization, no test is more decisive than the degree in
which justice, as defined by the law, is actually realized between
one private citizen and another, and as between private citizens
and members of the government”.[2] Thus, “when we know how a nation
– state dispenses justice, we know with some exactness the moral
character to which it can pretend”.[3]

It is our aim therefore to discuss critically the role of
the executive and the limitations of the judiciary in the
administration of justice in Nigeria and attempt to propound
suggestions that can help raise our “rank in political
civilization” by the enthronement of a lasting democratic
experiment.

B.
ADMINISTRATING JUSTICE AND SEPARATION OF POWERS

There is a tendency in this paper to avoid definition of
such terms as “Justice” or “Administration of Justice”.

Definitions, said Julius Stone, are “essentially mnemonics
for clarification. They may be pre-ambulatory mnemonics
foreshadowing elucidation to follow, or summation mnemonics
recalling what has already been expounded. In either case a
definition cannot fruitfully be more definite or more definitive
than the exposition which it calls to mind”.[4] We shall in the
circumstance attempt what we may call an exposition of our subject
matter rather than defining.

Even at that, the term “Justice” is a nebulous concept
with varied meanings in various countries and in different eras.
The popular idea of “Justice” is based, even nebulously, on a sense
of equality. The term is elusive as that term “public policy”.[5]
But one thing is certain; the term “Justice” is an antithesis of
arbitrariness.

To “administer Justice” is to dispense Justice. The notion
of Justice is fairness and balance of competing interests. The
administration of Justice aims at furthering national unity,
patriotism, public security, peace, order and good government.[6]
President Babangida recently said that “the dispensation of
justice… is the heart and soul of all good
governments”.6B

It is agreed that the administration of Justice in its
broad sense is involved in the exercise of every governmental
function, be that function legislative, executive or judicial in
nature. In this sense, every step taken by government or its
agencies is measured in terms of how far it protects the welfare of
the citizens and balances the competing interests. Administration
of Justice in this broad sense would therefore include the fairness
of the laws enacted by the legislature, the interpretation placed
upon such laws by the courts and the opportunities given the
courts, the even- handedness of the executive in the implementation
not only the letters of the Law but in accommodating the decisions
or would be decisions of the courts.[7]

As stated earlier, all arms of government are concerned
with the administration of Justice. Under the 1979 constitution
(pre-military) and the 1989 constitution, the three branches of
government; the Legislature, the Executive and the Judiciary are
separate and distinct. This is a follow-up of the Montesquieu
doctrine of separation of powers in which a distinction is drawn
between the Legislature, Executive and Judicial
functions.

The concept of separation of power arose from the ‘need to
ensure the restraint of governmental power by dividing that power,
without carrying that division to an extreme, incompatible with
effective government’. A constitutional democracy thus pre-supposes
a balanced system of divided or shared powers. It is only within
such a system that individual citizens can ever hope to enjoy any
measure of independence and freedom from arbitrariness and
governmental lawlessness and thus regain the civil rights and
liberties conferred on them by our Constitution.[8]

Though the functions of the three organs are distinct,
there cannot be a total separation of powers and the powers given
to each other are delicately balanced by powers, given to the other
two. Examples of such balance abound in the 1989 Constitution. The
aim of government in spite of the separation of powers should be
advancement of the common good. In which case, the three
co-ordinate powers of the state should, in the words of Hon.
Chukwudifu Oputa, “constitutes one brotherhood, working side by
side with mutual toleration and co-operation”.[9] We must agree
therefore that “The primary end of the state is Justice – the
building and the maintenance of a just society ‘where no man is
oppressed’, the maintenance of the Juristic order. To this end the
Legislature by the laws it passes enunciates the general norms of
Justice while the Executive oversees these laws as they apply at
large. But the state through the Judiciary pronounces justice in
the concrete.[10]

C. THE
CREATION AND MISUSE OF EXECUTIVE POWERS

(1) THE
CONSTITUTION:

Section 5 of the 1989 Constitution (just like the 1979
Constitutions) vests the executive powers of the Federation, the
States, and Local Governments in the President, Governors, and
Chairmen of Local Government Councils respectively. Each of these
representatives of each tier of Government is restricted to act
only in the “area” of his authority as provided by the
constitution. The 1989 constitution provides for example,
that:

(a) “The executive powers of the Federation shall be
vested in the President and may, subject as aforesaid and to the
provisions of any law made by the National Assembly, be exercised
by him either directly or through the Vice President or Ministers
of the Government of the Federation or other officers in the public
service of the Federation; and

(b) Shall extend to the execution and maintenance of this
Constitution, all laws made by the National Assembly and to all
matters with respect to which the National Assembly has for the
time being power to make laws”.

Similar provisions are made for the state Governors and
Chairmen of Local Governments. The executive representatives of
each of the three tiers of government in Nigeria are allowed and in
practice do act through other officers of government. Examples are
the Police, Federal Road Safety Marshals, the Army, the Customs and
Excise men, the Ministers, Commissioners, Directors- General, the
Prison Officials, Local Government Supervisors and Secretaries and
of course the SSS and a host of other officers. All these play
great roles in the administration of justice.

(2) THE
MISUSE:

But how has the executive faired in the administration of
Justice today in Nigeria? Would it not be axiomatic to ask the
executive to RESIT?[11] There is a current trend where court orders
and judgments are disrespected with impunity by agents of the three
tiers of governments, where the courts are violated and
intimidated, where fundamental human rights is sold costlier than
the pathfinder Car and the “rule of law” is a paradigm of “rule of
the might”.

We are witnesses to the police and security men’s
brutality to and the constant abuse of the rights of suspects and
detainees,[12] the creation of dud offenses and the unlawful
arrests and detention of innocent citizens. Our police stations and
cells are so overcrowded particularly at weekends that you wonder
whether all citizens have not become criminals. Or have you not
heard people boasting to others that “I shall not call the police
for you, I will just tell the soldiers at the camp “.

If the citizen truly carries out this threat, the effect
would be what you may have to guess. The police, the SSS, the army
are not alone. There are catalogues of instances by other agents of
the executive, and some of them are reproduced
hereunder:

The Ganiyu
Oladapo Case

On September 24, 1990, agents of the Lagos State
Government accompanied by armed security men, moved bulldozers into
a tourist centre situated along Ozumba Mbadiwe Street Victoria
Island. The caterpillar rumbled over the property and in a matter
of minutes, they had reduced the lagoon front resort to a heap of
rubbish. This demolition was the climax of a dispute which began in
1986. The multimillion naira tourist centre was the property of
Ganiyu Oladapo, Chief executive of Osa Investment and Property
Company. But the parcel of land on which he constructed his tourist
paradise was in contention. The Lagos State Government claimed the
land and in 1986, it claimed that it gave Osa Investment a quit
notice. Oladapo went to court to contest the government’s claim. On
September 4, 1990, Oladapo filed an appeal at the Court of Appeal.
He followed up the appeal with a motion praying the court to
restrain the Lagos State Government from dispossessing him of the
land based on the lower court’s ruling.

The appeal was pending when the government roared into the
resort, sacked Oladapo and his staff, demolished every structure
and set fire to the wooden rubbles. On September 27, the Appeal
Court granted the prayer of the plaintiff and restrained the Lagos
State Government from acting on the ruling of the High Court. It
was too late. But the appeal court had also fixed October 17, 1990
for hearing the substantive appeal. Armed with the order of court
Oladapo moved back into the land. In a bid to re-establish
possession he put up a fence and temporary structures. On October
15, two days before the substantive appeal, an armed squad of the
State government again descended on the place and tore down the
temporary structures.

The Gongola
State – NBA Case

In Gongola State, Isa Mohammed a Governor established
another example of executive lawlessness. In 1989 he refused to
swear in two new Chairmen for Numan and Mayo Belwa Local Government
Councils after the Court of Appeal had upheld the decision of a
Yola High Court nullifying the elections of two other persons. The
Governor’s resolve not to comply with the Court order to swear in
the runner-up. In the chairmanship elections in the two councils
pitted the NBA against the state Government, resulting in the
boycott of the Courts by lawyers.

The Hon.
Yahaya Jinadu Case

In 1984, Hon. Yahaya Jinadu, a Judge of the Lagos High
Court ruled that John Oregun, a Federal Permanent Secretary should
appear before him on a charge, of contempt of court. Hon. Jinadu
had earlier given judgement in favour of a Federal Fire Officer,
Saidu Garba who had sued the government for wrongful termination of
his appointment over NECOM house fire disaster in 1983. Jinadu
ordered Garba reinstated, but Oregun, then Permanent Secretary
Federal Ministry of Internal Affairs refused. Jinadu then issued a
bench warrant for the arrest of Oregun but this was treated with
utter contempt and it was never served. The Military regime of
Buhari/ Idiagbon saw Jinadu’s actions as a direct challenge to its
authorities and so did everything to frustrate the judicial order
of the judge. These and further events in this case culminated in
the pre-mature retirement of Hon. Justice Jinadu.

The Festus Iyayi- Uni Ben
Case[13]

The University of Benin authorities in 1987 evicted Festus
Iyayi, National President of ASUU, Prof. Sagay and John Odita from
their official quarters in disregard of an order of a Benin High
Court a week earlier.

There are other familiar cases where the executive had
acted in the most lawless manner. Examples are:

1. The Shugaba’s Case[14]

2. Obeya Memorial Case[15]

3. Ojukwu’s Villaska Lodge Case[16]

4. Stitch v A-G Federation[17]

5. Afolabi v Governor Oyo State[18]

6. Aliu Bello v A-G Oyo State[19]

7. Olayinan v The University of Lagos[20]

8. Okongwu’s Case – Wherein he was convicted of contempt
and while his appeal was pending, the then Governor Jim Nwobodo
pardoned him.

9. The practice of the executive in foraging for courts
that is likely to have their sympathy as in the Prosecution of
Arthur Nwankwo for sedition by the Anambra State Government of Jim
Nwobodo.

10. The Saidu Garba Case[21]

We shall return to some of these cases[22] later but for
now may we pause and ex- ray the role of our learned brothers – the
attorneys- General.

(3) THE
ATTORNEY – GENERAL

The Attorney-General who is appointed by the Chief
Executive and holds on to his portfolio at the whim of his
appointor is the Chief Law Officer be that for his state or for the
Federation.

The 1979 constitution provides that the Attorney-General
shall have power-

1.

(a) To institute and undertake criminal proceedings
against any person before any court of law in Nigeria other than a
court martial in respect of any offence created by or under any act
of the National Assembly;

(b) To take over and continue any such criminal
proceedings that may have been instituted by any other authority or
person; and

(c) To discontinue at any state before judgement is
delivered, any such criminal proceedings instituted or undertaken
by him or any authority or person.

2. …

3. In exercising his powers under this
section the Attorney-General shall have regard to the public
interest, the interest of justice and the need to prevent abuse of
legal process”.[23]

Apart from these provisions of the Constitution, the
Attorney-General is the Chief Legal Adviser of Government. In all
the cases and instances where governments or its agencies violated
the rule of law and disobeyed court orders (even in cases of wide
publicity) do the Attorney-General play His primary role- that of
advising against arbitrariness? Or does the government act against
proper advice?

There seem to be a consensus that some of the Chief Legal
Officers do not perform. Sometime in December 1989 the Chief
Justice of the Federation granted the African Concord an interview
and when questioned “on disobedience of court orders by the
Executive Arm of Government”, had this to say:

“Well it is a little problem. The problem is with the
Attorney General, not with us. In all the cases where Government
refused to comply with such orders, the AGS advice the government
that the order is illegal. You see. When a Judge acts out of
Jurisdiction, it is illegal. If a Judge releases anybody detained
under Decree 2, it is illegal. He has not such power. So if a judge
orders someone to be released the Attorney-General will ask the
government not to comply. But unfortunately, we think what should
have done is to run either to the judge, tell him he has made a
wrong order and he should set it aside or go to the Court of
Appeal. So normally I don’t blame the government, the Attorney
General who should properly advise”.[24]

What of a situation where a bold Attorney-General advises
in the best interest of justice and such advice is not heeded? Too
many of us will immediately suggest that the Attorney General
should resign. It might not be that easy but it is a viable option.
It may be further suggested that we review the procedure for the
appointment and removal of an Attorney-General.

But on their own as agents of the executive, have the
Chief Law Officers (in many Cases) not brutalised and assaulted the
rule of law while also recklessly abandoning some of their duties
as a major plank in the administration of justice? Some States, we
know are so backward in law Reform. Most backward. Has any
Attorney-General ever given consent for the attachment of
government property? Many governments have rendered court
judgements nugatory by not paying the damages awarded against them
because of the requirement of consent of the Attorney-General
before an attachment of government property. Further examples of
the abuse of the Attorney-General’s functions can be found in its
constitutional power to enter nolle prosequi.

In one case in 1980 before the High Court of Ondo State in
Akure, the accused persons were charged with murder. Because the
accused persons belonged to the party in power in the state, the
Attorney-General entered a nolle and the accused persons were
discharged in a situation in which they would have been tried and
either discharged or convicted according to law.[25]

In Imo State was a case of embezzlement of a substantial
amount of public funds. The Attorney-General had earlier appeared
for the accused while still a private legal practitioner. As soon
as he was appointed the Attorney-General, he entered a nolle
prosequi on behalf of the said accused.[26]

Another case happened in Kwara State. The civilian
Governor had disagreed with the Attorney-General and removed him
from office for reasons best known to him. He did not appoint
anyone else in replacement. There was then a case pending before
the Chief Magistrate’s Court at Ilorin against on Isiaka Sanni and
two others, who were political supporters of the Governor and his
faction of the political party to which he belonged. The Governor
who was a lawyer of more than ten years standing struck a brilliant
idea. He appointed himself Attorney-General and Commissioner for
Justice in which capacity he signed a purported nolle prosequi,
sent it to the DPP with which the case was
discharged.[27]

We may conclude this part of our paper by saying that it
is a very serious matter for us to enter the third Republic with
this trend of recklessness by the executive, high or low. The more
serious is the disrespecting of court orders and judgements. The
court is truly the last hope for justice. As was said by the
Champion Editorial of 18th April 1989, for a nation which is
strenuously grooming a polity that respects the rule of law,
disrespect of court orders by governors is a clear indication that
an aggrieved party should not fall back on the law. The paper asks
“what option, other than mayhem and brutish resolution of conflict
would there then be left?”

The trend at flouting court orders by the executive arm of
government “is a menacing threat to enduring political stability
and the evolution of democratic norms”.[28]

D. The Myth
and Realities of Judicial Powers:

The judicial powers of the Nation is vested in the Courts
whether created by the constitution or by statue and such power
“extended to all matters between persons, or between government or
authority and any person in Nigeria, and to all actions and
proceedings relating thereto, for the determination of any question
as to the civil rights and obligations of that
person”.[29]

It has been generally acknowledged that the judiciary is
the Guardian of our Constitution, the protector of our cherished
governance under the Rule of Law, the guardian of our fundamental
rights, the enforcer of all the laws without which the stability of
society can be threatened, the maintainer of public order and
public security, the guarantee against arbitrariness, and generally
the only insurance for a just and happy society.[30]

There have been serious attempts to erode the powers of
and supervision by the courts in recent times as we have been able
to show hereinabove. In some cases the courts particularly the
appellate courts have been able to stand firmly against the
contemptuous violations of the rights of the citizen and the
judiciary by the executive and have spoken out in the strongest
terms against the abuse of a healthy justice administration
system.

It would be recalled that in the case of Sofekun V.
Akinyemi,[31] the
Supreme Court had recognised that “…it is essential in a
constitutional democracy, such as we have in our country that for
protection of the rights of citizens, for the guarantee of the Rule
of Law which includes fair trial to the citizen… and, for checking
arbitrary use of power by the Executive or its Agencies, the power
and jurisdiction of the courts under the constitution must not only
be kept intact and unfettered but also must not be nibbled at. To
permit any interference with, or a usurpation of, the authority of
the courts, as aforestated, is to strike at that bulwark which the
constitution gives and guarantees to the citizens, of fairness to
him against all arbitrariness and oppression…”

In Saidu Garba V Fred. Civil Service
Commission.[32] Garba a
former Chief Fire Officer and 19 others detained and arranged
before a Chief Magistrate Court on a charge of murder. Garba sought
refuge in the High Court of Lagos where his indictment was quashed
and he was set free. Following this, he was interdicted by the
Permanent Secretary, Ministry of Internal Affairs and suspended on
21st Feb. 1983, on the ground that he was under a criminal trial.
He then challenged his interdiction in the High Court but while
this was pending, the military came to power and he was dismissed
from the public service. Subsequently the High Court declared
Garba’s dismissal illegal, null and void and ordered his immediate
reinstatement which order was never obeyed.

When the matter finally reached the Supreme Court, the
court refused to be cowed by the Military might and affirmed the
trial Judge’s decision. The Supreme Court did not hide its feelings
on the action of government. Eso, J.S.C said in that
case:

“What remains now is an examination of the act of the
Respondents in dismissing the Appellant from office during the
pendency of the action. Such action, I think is contemptuous of the
Judiciary, which has been seized with the determination of civil
rights under the constitution and which has been left unscathed by
all military coups. For the Judiciary… to operate under the Rule of
Law, full confidence,… must exist in that situation… in civil days
both the executive and the legislature must show to the entire
nation their demonstrable confidence in the Judiciary. The
responsibility is greater during military rule… the Rule of Law
knows no fear, it is never down; it can only be
silenced…”

In the same vain and in the same case,
Nnaemeka-Agu, J.S.C. said:

“It is contrary to the letters and spirit of the
constitution that any of the three arms should interfere with the
other in the performance of its function. If that is allowed to
happen, it will lead to chaos, lawlessness and destruction of the
constitution. For the permanent Secretary to have proceeded to
dismiss the appellant while his case challenging his interdiction
in the extreme and a calculated interference with the court’s
duty…that ought not to be allowed to stand…”

Similarly in the case of Gov. of Lagos State V
Ojukwu,[33] the Supreme
Court was unequivocal on its stand on its principle of the Rule of
Law. In that case not only did the court dismiss an application
brought by the Lagos State Military Government since the court
regarded the government’s actions in the case as being in contempt
of the lower court, but also criticised it in very harsh words. It
would be recalled that while a dispute over the ownership of a
house in Lagos between the two parties was pending in court, the
Lagos State Military Government, without an order of court,
forcibly ejected Chief Ojukwu from the said property. In the words
of Eso, J.S.C:

“To use force to affect an act and while under the
Marshall of that force, seek the court’s equity, is an attempt to
infuse timidity into court and operate a sabotage of the cherished
Rule of Law. It must never be!”

While Uwais J.S.C
stressed:

“…that it is a matter of grave concern that the military
Government of Lagos State should be seen to disregard a lawful
order issued by a court of Law. If Governments treat court order
with levity and contempt the confidence of the citizen in the
courts will be seriously eroded and the effect of that will be the
beginning of anarchy in replacement of the Rule of Law”.

At other times the judiciary had been cowed, totally
mashed. Sometime in March 1990, a Shagamu High Court gave judgement
in the Akarigbo of Remo Chieftaincy dispute that did not favour the
state government. The government reacted by promulgating an edict
which set aside the High Court order which restrained Governor
Mohammed Lawal from installing Mike Sonariwo as the Akarigbo of
Shagamu.

In other cases judges were sacked for not toeing the
government line and for some their hope of moving to the higher
bench or taking their proper precedent sealed. The case for an
acting Chief Judge of Lagos State is still fresh in our
memory.

Irrespective of some of the appellate court’s assertions
against executive recklessness, the court’s current attitude has
been described as “timid”, “unbridled cowardice, judicial
ineptitude and sheer intellectual laziness”[34] and that “the only
way to curb executive lawlessness and legislative arrogance is
through fearless judicial activism”. But judicial activism may not
be the answer – it may even create more holes.

The judiciary is still in such a weak position in
government. It does not on its own execute its orders and
judgement, it does not make laws, it does not appoint itself and
secure its own tenure, it does not control its own fund, it does
not control the appointment of its supporting staff nor does it pay
their salary, it does not provide the security at the courts; the
salary of judges is too shameful; court records are still kept in
long hand; judges still sit two to one court room; and the
judiciary’s intervention is based on accident of
litigation.

Not totally rejecting the idea of judicial activism, we
think that to slow down executive lawlessness, the judiciary must
keep asserting itself and live up to its fundamental role, that of
protecting the citizens from the wrong and arbitrary exercise
power.[35] Let the courts not be afraid that its’ judgements and
orders would not be obeyed. Let them be courageous enough to make
the orders. Sir Adetokunbo has added one dimension to the solution
when he suggests that “the Chief Judges of the states are wholly
responsible for this. If they kicked even at the peril of losing
their jobs, one will understand it… it is unfortunate that people
cannot take that stand today”.[36]

But can the judiciary really help when it is bogged down
by its own indiscipline – what late Hon. Justice Nnamani described
as the “challenge of credibility”.[37] Accusations against the
Bench, low or high abound. Though some of the accusations are mere
rumours and false, others are real and proven. Can a person who
perverts justice, show partiality, accept bribe and subvert the
course of righteousness assert himself? Can a sycophantic,
intellectually backward judge assert himself? Can a dishonest,
immature person and perennially sick “but I shall not retire” judge
assert himself? What of the lazy? We do agree with Sir Adetokunbo
Ademola that” a lot is wrong with the appointment of our judges”,
and so much depends on the character of the man who is appointed
judge.

Incompetent people abound on the bench.

E. Projections, Suggestions and
Conclusion

Our only hope lies in reforming, reappraising and
reorganising the judicial system not only from the point of
appointment of personnel but also to the structural imbalance that
affects its independence. For once, the Bar should be involved
somehow in the selection of judges. Some of the structural changes
we suggest are: a multiplier increase in the salary of Judges and
Magistrates, an independent funding and budgetary for the
judiciary, the appointment and control of supporting staff by the
Judicial Service Commission, a special Code of Conduct for judicial
officers, an Inspectorate committee for the judiciary, a review of
the system of recording in long hand.

We must not only focus on the bench but also look inwards
and address ourselves as members of the bar. What part have we
played and would now play collectively and individually in creating
a healthy administration of justices system in our
Nation.

“The aftermath of the 1983 general elections provided a
fertile ground for empirical research into the question of legalism
and justice in this country. There can be no doubt that the image
of the lawyer and the law he practices became badly dented during
the judicial processes which followed those
elections”.[38]

Even if we have not performed such empirical research, we
still do have a chance as lawyers to create tools which would be
adequate to deal with “the menacing octopus”[39] (that is to say,
the maladministration of justice) which faces us now and can
destroy the third Republic and our country.

The Nation owes our Courts a duty of care. As said by Hon.
Obaseki, we “should not by negligence wreck it and turn round to
blame the occupants. Wreck the courts and you wreck the nation.
Strengthen and elevate the courts and you strengthen and elevate
the nation”.[40]

Some critiques[41] while commenting on some attempts by
the courts to assert it in judgements have lamented that the
judiciary only blows “Sad” “muted trumpets”. Let them “blow the
trumpet” even if “muted”. One day it would grow loud (and
articulate) enough to stiffen the nerves of a reckless
executive.

ENDNOTES

[1] Test of paper presented at the conference of the
Nigerian Bar Association held at Owerri, August 26th -31st on the
theme “The Administration of Justice: A panacea for the 3rd
Republic”.

[2] By Henry Sidgwick, Elements of Politics p.481, quoted
by Awa U. Kalu, “Socio Economic considerations in the
Administration of Justice”, Conference Paper of the Nigeria
Association of Law Teachers. 1985.

[3] Harold Laski, A Grammar of Politics, p.542

[4] Legal System and Lawyers’ Reasoning. P.184 cited by
Dias, R.W.M, Jurisprudence 4th edition., London Butterworth, 1967,
p.10

[5] Adene V. Dantumbu (1988) 4 N.W.L.R.Pt.88, 309, per
Achike, J.C.A at 319.

[6] Haruna, I.B.M. “administration of Justice in Military
Era”, in Osinbajo, Y, ed., Towards a Better Administration of
Justice in Nigeria. Fed. Min of Justice, 1990, p.69

6B Quoted late Nnamani, J.S.C, see foot note
infra

[7] See Awa U. Kalu, Supra.

[8] Hon. Chukwudifu Oputa, “The Independence of the
Judiciary in a Democratic Society- Its need, its positive and
Negative Aspects,” (1990) Justice Vol. 1 No.3 p.18.

[9] Supra

[10] Hon Chukwudifu Oputa, supra. P.18.

[11] A common palace at the Universities for a second
attempt at an examination

[12] Femi Falana, “The Abuse of the Rights of suspects and
Detainees in Nigeria, “Law and Practice (1988) Sept-Oct, p.7 – 14;
Iyayi, Festus (Dr), “Experience in Detention”, Law and Practice
(1988(Sept-Oct, p. 15 – 19.

[13] For this case and the earlier cited three, see
“Assault on Rule of Law”, News watch, November 12, 1990.pp.
12-18.

[14] (1981) 2 NCLR, 459

[15] (1987) 3 NWLR (Pt.60) 325.

[16] (1986) 1 NWLR (Pt.18) 621.

[17] (1986) 5 NWLR (Pt. 46) 107.

[18] (1985) 2 NWLR (Pt.9) 734.

[19] Supra

[20] Supra

[21] (1988) 1 NWLR (Pt.71) 449

[22] Note that there are too many cases that never went to
the courts

[23] See S. 160 and now S. 179, 1989
constitution.

[24] Reproduced in Sagay, I.E, “The Decline of the
Judiciary as an effective and Independent third arm of Government”,
The Lawyer (1991), pp.92-93.

[25] See Augustine Nnamani, J.S.C (late), “Abuse of
Judicial Process”, Conference of all Nigeria Judges conference,
Abuja, 1988.

[26] See the statement, Tuesday 11, August
1987.

[27] Narrated by Hon. Ekundayo and reproduced in Ajomo,
M.A., “Nolle Prosequi, An Unquestionable Tool in the Hand of
Attorney-General”, Osinbajo Y, ed., Towards a Better Administration
of Justice in Nigeria, pp. 23-24.

[28] The Guardian editorial of 27, August 1990.

[29] See S. 6 of the 1979 and 1989
constitutions.

[30] The words of the late Hon. Justice Nnamani, “The
Judiciary in the 1990s: Expectation and Challenges”, (1990)
Justice, Vol. No. 3 p.27.

[31] (1980) 5 – 7 S.C 1, per Aniagoln, J.S.C p.25 –
26.

[32] (1988) 1 NWLR Pt. 71, 449.

[33] (1986) 1 NWLR Pt. 18, 621

[34] Ozekhome, Mike, “Decrees, Ouster Clauses and Judicial
Ineptitude”, Law and Practice, August 1989, p. 6.

[35] Newglobe, commentary, Jan. 13 1986, p.12.

[36] Interview by Newglobe, January 13 1986.

[37] “The Judiciary in the 1990s: Expectation and
Challenges; Supra.

[38] Aguda, T.A The Crisis of Justice, Akure, Eresu Hills
Publishers , 1986, p.7

[39] Aguda T.A. Supra

[40] His valedictory

[41] Ozekhome, Mike, supra, for example.

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