A Paper Presented at the Thanksgiving Mass, Public Lecture and Investiture of National Association of Catholic Lawyers (NACL), Catholic Archdioces of Ibadan on 8th October, 2023.
By Chimezie Victor C. Ihekweazu, SAN
INTRODUCTION/DEFINITION
Justice in its ordinary meaning depicts “Proper administration of Laws”[1] “In jurisprudence. The constant and perpetual disposition of Legal matters or dispute to render every man his due”[2]. The Concise Oxford English Dictionary defines justice as “just behavior or treatment. The quality of being just. The administration of the Law or authority in maintaining this…”[3]
The question is, how can one achieve Justice under our legal order and to what purpose? What should be the standard to be accepted in justice delivery? How can an effective justice system be realized in our given society and for what benefits? What impact would an effective justice system serve in our given society? These question in truth remain fundamental in our socio-political discuss and in truth only little appear to have changed. What structures and instruments exist in our society to achieve an acceptable system to drive economic development.
An effective justice system is the dream of every developing Nation. In one of my works, I stated[4] that “the base of sustenance of human freedom, free Enterprises, Fundamental Rights, Democracy, Due Process and Justice lie in having an effective and efficient judiciary with potent structures and capacity that deliver excellent services. It is a strong arm of government existing in cohesion with other arms to achieve and secure good governance. A weak judicial system ushers in a failed state where impunity and lawlessness thrive…”
RESOLUTION OF DISPUTE
Under our Constitution,[5] it is undisputed that the judicial resolution of dispute between persons in accordance with the law and judicial principles, remain the primary objective of establishing the Courts. This duty is done in the administration of applicable law to matters between persons within the society. In this regard, direction is provided through different levels of Court system to achieve it subject to the particular dictates of the Law where applicable. The law provides different levels of Courts seized with powers[6] and specific jurisdiction. In precise terms, the scope and exercise of these powers are provided under the written laws of the land and applied accordingly.
THE LEGAL AND INSTITUTIONAL FRAMEWORK
In Nigeria, justice delivery is guided by the Legal and institutional Frameworks as applicable in Civil and Criminal exercise of jurisdiction. Under the Legal Framework, National, State and Local Government Laws are provided in line with appropriate and due procedures with sufficient and needed adjectival laws and Rules of Court to guide the mind of the Court. In addition, Heads of Courts may approve Practice Direction and Professional Rules of Practice in exercise of their Constitutional powers to supplement the existing laws for additional support. In all, the application of these laws and Rules help to attain the ends of justice in dispute resolution. The adequacy of these Laws, remain subject for reformation, consideration and not limited in scope but guided by needs as may be apt. Law they say must be dynamic and suitable to societal needs.[7] Thus what works in a particular society may be difficult to apply in another society, a reason why acceptable cultural factors suitable in relation to the basic principles of justice are normally respected.
The effectiveness of Legal applications to a great extent relate to the operational institutions, innovative measures and structures guiding each process. The institutional framework consists of the judicial and non-judicial structures, Securities structures, policing and correctional facilities in the legal order. The Judicial structure is made up of the Courts in order of its Constitutional hierarchy as well as the quasi-Judicial/Tribunals like Arbitral structures operating with the Legal structures[8] and contractual structures,[9] permissible within the legal order. Clearly the target howsoever directed is to achieve a just determination of disputes, to enable a free and peaceful society. Other support structures like the Police, Economic and financial Crimes Commission and Nigerian Correctional Services to a great extent contribute in criminal jurisdictional matters to aid crime prevention, investigation and prosecution.
In action, it is preferable for these structures in both judicial and non-judicial standing to be manned by competent personnel qualified in absolute terms to discharge the responsibilities of the offices to fruitful satisfaction. In addition, they must be fair and independent in evaluation, conceptualizing and decision-making. In the Court system, we find seat of the Court/Court rooms, as well as the sections which include the Bailiff/Sheriff Section, Cash Office and Accounts, the Process/Record Section, The Archives, Appeal Section, Internal Audit, in addition to the Open Court Registry. These Court Sections are created and operated for the smooth administration of the Court. Competence, in Personnel Management as well as service delivery enhances fruitful administration of justice in a given society. Instances where leakages exist in any section ultimately affects the others and lead to incomplete delivery of result one way or the other.[10] This in effect, affects justice delivery in the system and lead to negative results and bring failures to the system, among other negative impact on the people.
DISPUTE RESOLUTION AND ECONOMIC DEVELOPMENTS
In truth, disputes arise in the socio-economic life of persons in any given society as well as other ills that affect life and security among people. The primary purpose of leadership in every society centers on the security and welfare of its citizens as well as the duty to maintain law and order. The fundamental objectives and directive principles of state policy[11] provide, inter-alia, that the security and welfare of the people shall be the primary purpose of government and enjoins the state to direct its policy towards ensuring the promotion of a planned and balanced economic development.[12]
Investments and economic activities strive where good structure exists for resolution of disputes that arise in economic activities, among other factors. Thus where potent structure exists for formal and informal resolution of disputes, the tendency is that such environment will allow for more economic activity and development. This situation creates magnetic attraction to sustained economic life among entities and persons within the socio-economic order. In a recent event,[13] a distinguished senior colleague,[14] recounted with nostalgia how the judiciaries faired’ over twenty-five years ago. In his remarks, cases and duration were predictable with adherence to precedent that assured every Practitioner almost a 100% percent certainty of the outcome. This position enjoyed the admiration of colleagues who never doubted its truthfulness. Time was more of the essence on decision whether civil or criminal were concluded within relatively shorter periods unlike what the present day brings. In fact, there were lesser Appeals since every practitioner could advise effectively in line with established principles of law that operated at any given time. In my understanding and assessment of the time, most businesses strived, with stable monetary policies and huge international trade relations and engagements that allowed the admiration of our dear nation. The records are there for comparison.[15] In Comparative terms A Judge from the UK Commercial Court once pointed out at an event15b that in determination of insolvency matters there is hardly an Appeal as every Officer in the temple of Justice from the Judge to the Administrative staff and Advocates are well informed to do the needful and accept the outcome.
In our Court, cases stay years before decisions are reached. In most cases, at the appellate stages, the Court of Appeal last over three years while at the Supreme Court, cases over 6 or more years save for time bound cases as provided in Law.[16] Unless, where special Laws[17] allow for speedy determination or circumstances allowing for exercise of judicial discretion,[18] which may be allowed in some cases. These states of
affairs cannot allow fruitful and meaningful economic activities that will benefit the society. To a great extent state income for development is affected negatively thus allowing for extensive borrowing which in turn impoverish the people and the state. Painfully, this has been the reality and we continue to suffer for it. My humble advice is not to allow this state of affairs to continue. Efforts should be made to ensure a change for the better.
Effective dispute resolutions allows for stability in the socio-political order and attracts investment as well as enhance rich economic activity. Disputes arise in our everyday activity and some wrongful acts may equally result in human relations as well as with the state. Fruitful and timely resolution of disputes, redress and or penalty/punishment as applicable reassures the people. This has contributed to the development in other countries like United States, South Africa and European States.
The question one may ask is how have we been affected in this Country? Recently, I attended some events where references were made about the protracted nature of some Arbitration and Insolvency matters that resulted to extensive and endless litigation of an average of seven (7) to twelve years. In my years of experience in Legal Practice, I have also had a fair share of this situation. Recently, I have been engaged in an Insolvency matter that has resulted in litigations of over six (6) years in a simple commercial matter. Surprisingly, the issues leading to most of the disputes were basically contractual and involving certain agreed terms and positions. This remains unfortunate. In business, time is of the essence, the micro and macro-economic realities point to the truth that values in economical benefit can no longer be the same. Events in the Financial and monetary sector are ready examples which cannot be ignored. The fear remains how long will the unfortunate situation continue and when will we see the light in the tunnel. The answers remain in our ability to build a viable judicial system.
In Civil and Criminal matters the applicable laws[19] and effective structures in addressing matters, lie in judicial resolution structures[20] as well as contractual resolution structures aimed to achieve justice. The question is to what extent can one say our Nation has been fruitful in justice delivery? What is the average life span of a case in the High Court, Court of Appeal and Supreme Court. Even in other alternative dispute resolution mechanisms like Arbitration, what reality exist in Nigeria today regarding recognition and enforcement of awards. Clearly matters that can be concluded within two or three years may stand as exceptions to what stands as reality. This situation cannot encourage economic activity. It will also not allow meaningful co-existence of citizens.
The second issue relates to the structures that aid dispensation of justice. Competence, Facilities, Personnel and other condition of service, contribute tremendously to efficiency in the system. The manner and standard of each Personnel starting from the Court, the Registrars, Filing Room Staff, Cash Office etc go to a great extent to show what the result will be. In addition, the conditions of the workspace as well as the reward system encourage effective service, which in turn yield to development.
CHALLENGES AND PROPOSAL FOR REFORM
Our judicial system today continues to face huge challenges on different fronts. The standard of appointment of judges must be reviewed to bring it to almost the same standard with that of the award of Senior Advocates of Nigeria. This will to a great extent guarantee satisfactory experience and background in dealing with legal matters as well as case management. In some jurisdictions like the United Kingdom, Advocates aspire to the Bench from the inner Bar. Though this may appear unusual but certainly it will guarantee passion, interest and good/service in the legal regime. There is nothing wrong with having a good percentage of our judges who have experienced active practice. In Nigeria, most of the courts are operating with limited facilities to aid and support their service delivery. Some of the conditions and facilities remain deplorable in most cases, while the rules of courts and practice directions advance in technology, the facilities required to make their rules effective are either unavailable or inadequate. This remains a major set-back and affects the justice delivery.
The next issue remains the limited capacity in human capital development to operate the system. Our Honorable Justices deserve extensive and rich trainings regularly to meet up with the times and the needs of justice in our societies. The challenge also besets other support staff who need these improvements in the call to service in the justice sector. Efforts should be made to achieve more gains in this regard.
Lack of efficient Research Assistants is a major challenge in our justice delivery system at different court levels. Our judicial Officers are human with the respective obligation ranging from potential, family, parental, among others and most work to lead and not work to die. The same thing applies to other personnel that work within the medical system to obtain the best from the system, the support structure must allow for efficient Research Assistance in human personnel as well as adequate Libraries among other provisions that will compliment their effort to produce timely and fruitful results.
A fertile environment for economic growth must be rich in terms of its legal and institutional framework for justice delivery. This will foster effective dispute resolution mechanisms and framework that will be beneficial for the society. This must be enhanced from the lowest Courts to the highest court in the sense of its jurisdictional limits of causes in respect of each original and appellate Jurisdictions.
The process of streamlining matters in its required attention must be defined through law reforms as well as. speedy. Clearly, certain matters require urgent attention for their extraordinary economic values. These will include matters toughing or relating to arbitration, Insolvency and Business Rescue, Tenancy matters, Company operation and survival as well as Employment, Labour and Education among others. These matters touch on human survival, state revenue and
economic stability. In fact it may even affect state survival in the sense that economic adversity can lead to the collapse of the State. Settlement of dispute in these areas must be achieved within limited period as time must be recognized as being of the essence. This is the reality and must be taken seriously.
Training and re-training of judicial officers and other administrative personnel of the courts must be consistent, sustained, structured and result oriented. These trainings must address key areas of concern. Constant structures must be put in place to evaluate these trainings to record and identify results and other benefits for graduated sustenance.
Mandatory health checks must equally be encouraged for our judicial officer as well as their administrative staff. This must not be ignored. It will help identify weak capacities as well as manageable standards in capacities so that realistic assistance, support needed and comfort can be provided. These issues relating to health must be carefully managed so that they can be assured that their welfare is guaranteed for them to attend to their other obligations and callings without any negative result for the state.
Finally on this point, I must mention that Judicial advocacy appears not to be given the required attention. Suitable information flow may not be penetrating wide enough in the medium that will reach the different parts of our society as well as authorities. Genuine and informed efforts should be made to achieve this as well as sustain the efforts and improvements.
CONCLUSION
Nigeria is a developing state and must be conscious of its socio-economic and political order. Statistics in its justice delivery system across all the levels of the court cannot be said to be improving for the better. A lot of businesses are failing and new ones appear not to be encouraged. The business space has continued to shrink with little attention being directed to the reasons for the fallings and means of rescue or survival.
There is need to keep watch at all times and address urgent needs in terms of the concerns or inadequacies in the legal framework at the state and national levels as well as the institutional structures within the justice delivery system. We must in comparative term work at what has worked elsewhere and pick the fruits as necessary in apt balances with our environment as to what will work. This practice must be continuous and consistent. To this end we will improve the judicial structures and by direct extension bring economic development to our nation and its people.
I must underscore the point that our social economic wellbeing to a great extent depends on the potency of the judiciary and its effectiveness. It concerns all of us no matter how we live and therefore requires constant review, examination as well as necessary reform to yield benefits to the entire citizenry of our nation.
Thank you.
CHIMEZIE VICTOR C. IHEKWEAZU LLM, FBR, FCArb. SAN
CHIKWEM CHAMBERS (C.V.C. IHEKWEAZU & CO)
27C KOLAWOLE CRESCENT, OFF BUNMI OLOWUDE STREET, LEKKI PHASE I, LAGOS, LAGOS STATE
TEL: 08033018974, 08057209005
Email: [email protected], [email protected], [email protected]
[1] Black’s Law Dictionary 5th Ed. by Henry Campbell Black, M.A. West Publishing Co. 1979 Page 776
[2] Black’s Law Dictionary 5th Ed. by Henry Campbell Black, M.A. West Publishing Co. 1979 Page 776
[3] Page 772 – Concise Oxford English Dictionary Eleventh Edition by Catherine Soanes and Angus Stevenson – Oxford University Press – 2004 P. 772
[4] “Reinforcing the Nigerian Judiciary and its Structures” Unpublished Article (2022)
[5] Section 6(6)b of the 1999 Constitution of the Federal Republic of Nigeria
[6] Section 6(6) a Ibid
[7] See … Practice Directions, Regulation and Rules that apply in our Courts
[8] Other Tribunals and Resolution panels within establishments recognized under the Legal Order
[9] Arbitral Tribunals permitted by Law
[10] See the Paper – “Ethical Considerations in Operation of Modern Court Registry” by Chimezie Victor C. Ihekweazu 2013
[11] See Chapter II, Section 14(2)b of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
[12] Section 16(2)(a) ibid
[13] AGM of National Association of Catholic Lawyers Lagos Archdiocese
[14] Chief (Dr.) Anthony I Idigbe (SAN)
[15] It is important to note the level of economic activities in Nigeria across region in the 80s and 90s as compared with later years. The exchange rate in the Naira to the dollar and other National currency also show indication of these scenarios
[16] Election matters
[17] Assets Management Corporation Matters and EFCC matters, etc
[18] The Courts retain powers to grant accelerated hearing of cases
