INTERVIEW: How Nigerian Judiciary Can Be Reformed, Earn Public Trust-Olisa Agbakoba(SAN)

The most unlikely Chief Justice of Nigeria to carry out a reform was the late Justice Dahiru Musdapher of Jigawa State. Unfortunately, after only six months, he introduced all these rules; he invited 29 selected stakeholders – former presidents of the NBA and former Attorney-General. He asked, ‘What can be done?’ And we produced a very brilliant report, but upon his departure, the report died. If that report had been implemented, we would not be where we are today.

So, I think it’s full marks to the Attorney General of the Federation (Lateef Fagbemi) that he is doing what Dahiru Musdapher did. What I hope to see out of all these is, first of all, the trust deficit that is lacking in the judiciary will be restored.

PT: How can the trust deficit be restored?

Agbakoba: If you go to court and have cases speedily dispatched. The biggest problem with the judiciary is the slow pace. The Senate President (Godswill Akpabio) illustrated this with the example of the detained senator. If you go to court, you must go in and out fast. If you stay in court for ten years, there is no trust. So, many cases that should come to court go to the police and the army for settlement because nobody believes in the court. That was what Dahiru Musdapher recognised, that cases must be speedily dispatched. To do so, he was required to modernise the rules. He appointed me as a consultant, and I drew up modern civil procedure rules which he would have given to the various heads of courts to implement with adaptation, but that did not happen.

Therefore, all the language about Latin, a complicated language, was simplified. Anyone could present his case in court because the language was simple. Then, the other thing he introduced was a 27/7. The courts, as currently constituted, start at 9 a.m. and close at 3 p.m. But, if I wanted to buy a ticket on Air Peace to go to Lagos from Abuja, Air Peace is not shut; I go online. I can file a claim anytime. So, if you have a case, you file a claim at 3 a.m., and it’s recorded, your claim is in. Then the next thing will be to bring your documentation and front load it. My recommendation to Dahiru Musdapher was to outsource a major electronic communication system; the courts cannot handle it.

PT: Recently, lawyers flew into Abuja from Lagos for court proceedings only to learn that the court was not sitting. What can be done about the impromptu postponement of suits across Nigerian courts?

Agbakoba: First of all, a 24/7 court supported by digitalisation. At the National Judicial Council, I was the deputy chair of the Speed of Justice (committee). The former CJN Alfa Belgore was chair. And we reviewed a couple of processes around the world. We found out that 80 per cent of the cases in Nigerian courts should not be there. But these cases are there because filing a case in court is cheap; you don’t go to court unless you have a serious problem; here (in Nigeria), the court process is abused. So, we designed a filter mechanism to remove useless cases.

Then, litigants are to file documents only. For instance, if I want to file an application to amend an error in my claim, why should I dress up and go to court? These are things judges can deal with in chambers. So, if you look at the documents, only processes in court, it was about 70 per cent. So, what was left was the actual trial where the judge was taking the witness. We found that maybe 25 to 30 per cent of the judge’s time is occupied doing that. We also found that judges can’t deliver judgements and rulings. In the United Kingdom, 80 per cent of the rulings and orders are drafted by counsel. So, if I want an application for an injunction, I will attach a draft order, which the judge will look at and adjust. So, you reduce the workload.

The issue of participation of lawyers in the court system should be increased. If you go to the appeals section of the court, you will be sorry. If you are the one appealing, you bring all the documents you need, not the court. The court cannot cope. The idea was to transfer much of the stuff required to lawyers and their parties so the court’s burden is lightened. And then, the courts do documents only, and they conduct trials in necessary cases. Then, you will find the speed of justice, and when you have the speed of justice, confidence comes. Then the other things about recruitment, the appointment of the right judges with the right specialisation and temperament and being paid well, will follow.

When my dad was chief judge of the east-central state of Nigeria, he was not interested in the medical clinic or things that were not within the purview of justice. But today, the administration of justice is combined with justice administration. In other words, the administration of justice is when the judge is sitting, looking over your case. Still, justice administration is if a new building is being built or if air conditioners and cars are to be bought. All that has broken down. So, the Chief Judge is involved with far too many justice administration issues to the detriment of the administration of justice, which deals with cases.

I hope that this is a conference that will deliver tangible results. As NBA president in 2006, I held a big meeting and submitted a proposal to the Attorney General, but nothing happened. This is maybe the 10th conference on justice sector administration. But this summit looks like the most realistic process, and we can only hope. If most of what I have heard is implemented, there will be a lot of improvement, and that will impact the confidence people have in going to court.

PT: What do you make of the lethargy of the National Judicial Council towards the implementation of the ICT policy for the Nigerian judiciary?

Agbakoba: You look at Justice Kashim Zannah, the Chief Judge of Borno State; he is the man who carried the digitalisation of the courts far beyond the capacity of the NJC to understand. Had they allowed him… In my law practice, we work only three times a week; today (Thursday) is a remote working day, and I have been working as if I were in the office. That is what the judges need to understand. The judges must come out of that mentality that unless they are robbed, they are not working. A judge can sit in his house and deal with many interlocutory applications. If you go to a typical court, it’s small, unhygienic, overcrowded with lawyers. Many lawyers are in court for little things like taking a date for the suits, amendments and applications for substituted service that a judge can deal with in his bedroom because the court must go 24/7; the judges must see themselves as having to categorise their work between what they do at home and what they do in court. So, the court is over-congested with little things combined with the big ones.

Agbakoba: The first thing is that we must remove the executive from the administration of justice. They have no role to play. We must strengthen the judicial institutions in a way that a governor has nothing to do. He may make a nominal appointment, but it must be insulated from him in a way that he cannot interfere. But, right now, the governor’s role in the state judiciary process looms larger than life. So, the judges are cowering and do not want to go against the governors. So, one of the big recommendations in the constitution will be to diminish the role of the governor and strengthen that of the judicial institution, not that of the Chief Judge; the latter will replace that of the governor. Like Wale Fapohunda, a former attorney general of Ekiti State, said, ‘You may have a bad governor, a bad attorney general and an evil chief judge; that is the end of the state, but if you have a strong institution, the bad guys will not overwhelm it, which is why in spite of the noise Donald Trump makes, strong institutions have made him sit in the defendant’s chair with the humiliation of being a former US president. You can never have a former Nigerian president in the dock because the institutions are weak.

If the judiciary were to have strong institutions, the NJC would be strong, not headed by the CJN, to be independent.

PT: Can the current CJN, Olukayode Ariwoola, birth the much-anticipated reform in the judiciary, given that he will retire from the bench in August?

Agbakoba: It depends. In Lagos State, we had Yemi Osinbajo (a law professor), who drove the reform in the state judiciary. So, what I think will work is Lateef Fagbemi because the justice sector family includes the Attorney General of the Federation. I am happy he has called this conference. I hope that he is the person who can say, ‘I am putting my life on the line for this.’ We will see the change; that is my vision for the judiciary.