Lawyers, Litigants, Not Judges Are To Blame For Conflicting Court Judgments – NBA | Independent Newspapers Limited
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Lawyers, Litigants, Not Judges Are To Blame For Conflicting Court Judgments – NBA

Posted: Jul 21, 2016 at 6:58 am   /   by   /   comments (0)

Newly elected chairman, Nigerian Bar Association (NBA), Abuja branch, Mr. Victor Abasiakan-Etim espouses the law and jurisprudence with ready facility. After winning the keenly contested election to chair the Abuja NBA, he admits that the task ahead is enormous. In this stimulating chat with ONCHE ODEH, NICHOLAS UWERUNONYE and JIDE OYEKUNLE, he speaks on developing legal issues in the polity like the constitutional impasse arising from the judgment of an Abuja Federal High Court on the Abia State governorship seat; the Code of Conduct Tribunal; and the fight against corruption of the President Muhammadu Buhari-led government, among others. Excerpts:

What is your assessment of the Nigerian Judiciary in terms of whether or not, as a key institution of government, it has evolved to meet to public expectation?

The Judiciary in Nigeria is the most transformed organ of government. Don’t forget we did passed through the colonial system under British colonial rule. During colonial rule, the British came with their own form of legal system based more on natural justice and fair hearing. So, you find out that our legal training is British in orientation. At the beginning we had our lawyers trained in England, but between 1961 and ‘62, the Nigerian Law School was established and Nigerian lawyers were trained here. Since then, the system has evolved and today it is fully home grown. We now have a Nigerian Appeal Court, whereas in the past appeals lie as of right to the Court in England. Subsequently we had a Supreme Court in Nigeria with Nigerian Justices manning the system. So it is a system that has endured, is evolving and well endowed.

Which areas in the Nigerian judiciary require improvement as the system evolves?

Like every other system, there is always room for Improvement. For example, once there was when we had simple courtroom litigation; we litigated on everything. But in time, the court room became clogged; court dockets became overloaded; judges became overwhelmed. Thus, lawyers and judges had to think about how to improve the system. They came up with different ideas such as mediation, arbitration, and conciliation, etc. These are what we now refer to as alternative depute resolution process. And now the legal system is getting global. For example, you can sit in Nigeria and purchase goods from the UK or the US online. Now when you have disputes arising from such online, borderless transactions which laws do you apply: the Nigerian law, British law or the American law? So, we have to evolve with time and resolve these conflicts of laws. It is a process and Nigeria cannot afford to lag behind in the global trend.

Lagos State has expunged the bigamy law from the statute books, noting that such law is alien to Nigerian Custom. It was argued that no trial or conviction based on that law has ever been witnessed in any Nigerian court. Of course, this sort of redundancy is not unique to the bigamy law. Does this call for a review of our laws to fish out and expunge the ones incongruent with our traditional mores?

I would not say that bigamy is particularly incongruent with our system. I would rather say our social context is different. For example, the Nigerian set-up tends to be polygamous. So for a man who indulges in adultery, if you want to prosecute him, the police will simply say, go and settle your problems at home; I have some armed robbers to chase. So, for us, we do not see bigamy as a big deal. But in English law, it is very serious. If you look at the law books, there is only one known case where a man was convicted of bigamy. It emanated from Nigeria but the accused was convicted in England. So, social context is relevant in the application of a law. For instance, the gay right thing is acceptable in England and America because their culture tends to permit such. There is no way you can make a law that a man should marry a man or a woman should marry a woman in Nigeria. Our social context does not permit such.

You’ve alluded to the fact that the judiciary has made remarkable transformation in responding to the challenges of time. But has it been able to improve the business of governance in Nigeria?

Of all the three arms of government, namely the legislature, executive and the judiciary, I will give it to our judiciary. First, they started under colonial rule where they had to protect the interest of Nigerians in the course of dispensing justice. They progressed into the era of the military where they had to work under threats and fear for their lives. They still dispensed justice regardless. You have such eminent names like Justices Kayode Esho, Chukwudifu Oputa (the Socrates of the Nigerian Judiciary), Andrew Obaseki, name them. In fact it was under military rule that Nigeria produced its finest. When you go to countries like Uganda, you have the likes of Justice Udo Udoma becoming the Chief Justice of Uganda. And till date in Gambia, you have Nigerians presiding in their courts. So Nigeria has churned out the best in Africa as far as law is concerned. Till today, the Supreme Court has remained a stabilizing factor in our politics. Let us however not forget that the Judiciary is not immune from the society. Once in a while you find pockets of bad eggs, here and there. But again in their wisdom, it instituted the Nigerian Judicial Council (NJC). Their function is to receive complaints, investigate and punish erring judges.

Currently we have a situation where different courts seem to be delivering different pronouncements on matters with the same particulars, like what is playing out in Abia State. Don’t you think that the Judiciary is becoming an albatross than an assist for smoothening governance in Nigeria?

Well if you think the Judiciary is an albatross, then let the judges go on leave for only 90 days. I doubt if we would have a country left by the time they return. You will see anarchy. I think they have been more of stabilizing factor. For me, the litigants are the problem; perhaps, their lawyers as well. A judge does not just decide a case in a vacuum. He decides based on the facts presented to him. So it depends on how the lawyers and their clients churn out the facts of their cases. No two cases are exactly the same; no facts of two cases turn out to be the same. So it depends on how they fashioned out their case before the judge. So most times it is not the judges that are at fault but the parties involved. For me, if a party takes one case to one court, he ought not to take the same case to another. But you find that the plaintiff in this case is a defendant before another judge on the same case. Depending on how the facts are portrayed before the court, the judge is bound to make his pronouncement one way or the other. Most times it is the litigants who bring these courts into conflict. I think there should be sanction once one is found to be abusing the judicial process, so we save ourselves from these embarrassments.

What is your take about the Abia State situation?

Well for me the crisis situation in Abia State is unnecessary. It also boils down to the workload of our judges. The Abia matter was a pre-election matter which ought to have been decided before election. But with the volume of work, the judges couldn’t cope. So you find pre-election matters spilling over to post-election time. Sometimes, like in this case, the election tribunal has even decided the matters while the pre-election matters are still pending. When this decision comes, there is nothing the judges can do. It is not their fault; so they have to decide one way or another. But this particular one has thrown us into confusion. I thought INEC, having been served with a Notice of Appeal and Motion for Stay of Execution, should have observed restraints in issuing the certificate of return. I do not want to hold brief for anybody, though, because I don’t know what set of facts they relied on in taking those decisions. But I think the common man in Abia is worse off because of this matter, since there is no peace in Abia as we speak.

Former President Goodluck Jonathan is quoted as saying that most cases being described or tried as corruption cases are actually cases of common theft; affirming, that explains why it has been difficult to secure convictions in cases being mis-tried as corruption cases. Do you share this view, especially as it relates to the current campaign against corruption?

You see, the prosecutor and the prosecution have the final say. They know the facts of the case; the evidence available and what category of offense that will fall into. We cannot sit here and fault them. If you take the case of a simple misdemeanor and you turn it into a corruption case, you are opening a window for the accused to walk home free. This is because if the facts and evidence cannot prove your allegation against him, he either walks home free or is punished for a lesser offense depending on what you have been able to establish before the court. Recently I heard a very senior advocate of Nigeria saying that they had to attend workshop and training to hone their skills in prosecution. If for political reasons you take a simple offense and compound it you allow the defendant walk home free. But I am worried at this tendency of putting the blame on the judiciary.

The Code of Conduct Tribunal as currently constituted, especially in the light of Senate President Bukola Saraki’s trial, has continue to generate controversy. Would you suggest reform of the law establishing the Tribunal to aid its operation?

I think the Supreme Court has settled all that in its decision on Saraki and the Federal Government. The court decided that the tribunal is competent to preside over the matters that have been brought before it. All that has been addressed, we don’t need to talk about it again. The problem I have with our country is that what works in other places tend not to work when you subject it to our clime. This is because our people work against it. We need to learn to get things to work here. If you have a case in the Tribunal and you are brought to answer, please answer to it. But to begin to attack the institution and the people who man it, that will not do us any good. There could be valid reasons for attacking integrities. It shouldn’t be because you want to escape justice through the back door.

Specifically, do you think that Saraki has grounds to impugn the integrity of the CCT chairman?

Those are cases pending before the court. I will not go there.

Lawyers appear to be polarized on their assessment of the current anti-corruption campaign by the Muhammadu Buhari-led government. While some say the campaign is not going according to the rule of law, the government maintains that the impression is only a consequence of corruption fighting back. What is your take?

The cardinal principle of justice suggests nobody is above the law. Everyone must be made to account for his action. Laws must be made to apply evenly on everybody. That is it in a nutshell. Now in a case where you catch a man and you feel you cannot let him go because he has taken so much, you are breaching the rule of law. If a man has stolen so much, he must have his day in court. Whatever the court says, based on facts and evidence before it, there will be a decision one way or the other, whether to release the man on bail or not. That is at the discretion of the Judge. But if there are outside influences abridging the decision of the court, then there is a breach of the rule of law.

What would you say about a situation where a court grants suspect bail, but he is rearrested just outside the same court premises on grounds that there are other fresh charges against the person?

As far as law is concerned every fresh case is a new head. It is like an English case I read about. A man was serially tried for the same offense. At some point, the court had to restrain the prosecution saying ‘aren’t you people tired of prosecuting this man.’ A scenario like that may come up. But if they have fresh facts, say, you were investigating a man you found had stolen N40, 000. After he was taken to court and granted bail you find another fresh case of N20, 000 theft against him; you can still re-arrest and take the man to court again. But why can’t you do a wholesale investigation of this man, gather all your evidence against him and put all that before the court? Why today you put this one, tomorrow, you put another?

As the new NBA chairman, Abuja Branch, what really are your agenda, especially given the situation of uncertainty in the nation’s capital right now?

I will be dwelling more on training and retraining. Apart from training of lawyers, we also have continuing legal education scheme. We will also partner with organization for training and orientation too. I just came from one recently with the CCT where we reviewed the Practice Direction of the Tribunal. Three weeks back, I attended one on legal administration. We need to keep doing that; have a rapprochement with the judges. The more we keep training our self, the more we keep perfecting the system.



‘So, most times it is not the judges that are at fault but the parties involved. For me, if a party takes one case to one court, he ought not to take the same case to another. But you find that the plaintiff in this case is a defendant before another judge on the same case’