NOT THE PROFESSION I EXPECTED (Part 1)….The Nigerian Justice System Through The Eyes Of A Young Lawyer By Fernandez Marcus-Obiene

I am yet to reach the 5th anniversary of my call but I am (6) six year at the Bar, but that’s not what this text is about.

Article IX(b) of the Uniform Bye-laws (Part II) of the Constitution of the Nigerian Bar Association mandates the President of the NBA to nominate a three-man committee to run the affairs of any forum (including the Young Lawyers’ Forum) for a period not exceeding six weeks, part of the purpose of the committee which is to conduct an election of the officers of the Forum, but instead, the President of the NBA appointed individuals as officers of the forum, without any elections and the Bar applauded. But that’s also not what this text is about.

This text is also not about the never-ending battle between the older and younger members of the Bar. This text is about something much deeper and more threatening to the existence of the Legal Profession.

When I left the Nigerian Law School, I was certain that I would suffer quite a bit before I eventually made it. In this regard, I have not been too disappointed. I have however been disappointed in a lot of ways.

This text will address my disappointments.

Sometime in 2019, I had to drop off a document at the Lagos Division of the Lagos State High Court. I stepped into one of the courtrooms and met a near empty courtroom with a person fully robed, standing in the witness box. My first impression was that the Court had risen for the day and her Ladyship’s personal assistant was the one asking a question to a litigant or lawyer who had come to make inquiry.  I was wrong.

The lady in the witness box was the Judge. Imagine my shock. Who would expect a robed Judge to be sitting in the witness box? After observing proceedings for a few seconds, I was able to tell that an elderly lady was addressing her Ladyship. Apparently, her Lordship couldn’t hear all the way from the Bench and she understood that the Lady could not talk loudly, so she, instead, came to the elderly woman’s level. How noble and respectful, I thought. I was quite Impressed.

But this feeling did not last long. The elderly lady, apparently, said too many words and her Ladyship barked at her to keep quiet. The barking was accompanied with a wave of the hand and an officious look that would make anyone feel small. The elderly lady shut up.

The rest of the story is irrelevant for the purpose of this conversation. But the point to be drawn from this short (and, I hope, interesting) story is the near absence of the courtesy that the profession is known to have.

I may be wrong and I often am, but I have the impression that the Courtroom is supposed to be the epitome of culture and respect. What this tells me is that when a person goes to court, he is supposed to meet the highest class of courtesy.

Language used in the Court as well as the actions of Court officials should ordinarily be polite and respectful, especially when it comes from the presiding officer. I daresay the reverse is the case today.

There is too much disrespect for lawyers and litigants from the Court officials, including the Justices, Judges and Magistrates. It is not unusual to find a Magistrate raising her voice at Counsel making representations before her, sometimes even in cases where the Magistrate is wrong. It is also not unusual for Counsel to hurry to Court and spend half the day in Court, only to be told that the Court would not sit.

In Lagos, at least in my experience, this happens almost as much as when the Court sits to hear matters before it. It is also not unusual for the younger lawyers to attend the Federal High Court, Lagos and spend the whole day in Court only for the court to rise without hearing your matter because his Lordship had spent 5 (five) hours hearing an interlocutory application in which senior advocates were making oral submissions that could have been filed as written submissions. In some cases, even after the Court rises, Counsel cannot get a date because the Judge had instructed his registrars that he is the only one to assign dates to Counsel. Oh! Those wasted days.

Now I turn to the litigants, the ones who go to Court to solve their problems. Yes, those ones. They also suffer disrespect. Disrespect beyond the fact that their time is not respected and they have to spend years in court to solve a problem that the village chief would have solved in one sitting. I start with criminal proceedings.

Someone is charged to Court and because he is constitutionally presumed innocent, the Court grants him bail but before he is able to meet the bail conditions, he will have spent at least one night in prison because of the onerous bail conditions or, failing that, the corrupt system that requires him to settle (colloquial for bribe in Nigeria) someone before things get done. What is worse?

There are even times when the court adjourns for weeks to give a ruling on an application for bail. What happens? You stay in jail while waiting for the judge to decide whether to grant you bail. You are technically punished in the meantime, even though you are presumed innocent.

Then the Court encourages the law enforcement agencies to detain people unconstitutionally and/or collect bribe from innocent people. How so? If Oliver knows that he will spend time in prison when he is charged to Court, even for a frivolous matter and before his matter is heard, wouldn’t we expect him to rather settle the police so that he does not go to Court? I would.

And then because the law says you shouldn’t be arrested for more than 48 hours, you cannot go to court to complain when you are arrested and released on frivolous grounds. This is so because when you do, the Court will say you weren’t detained for longer than 48 hours.

The courts forget that law enforcement agencies are only to arrest upon reasonable suspicion of commission of crime and not merely because a complaint has been made, and, ideally, the police should not arrest until investigation is complete and the case is ready to be taken to Court, except in very special circumstances (See Oteri v. Okorodudu LPELR 2824 (SC)).

In Nigeria, the reverse is the case, once a petition or other form of complaint is made, law enforcement agencies just move on to arrest the respondent. Where they do not arrest immediately, they write an invitation to the respondent for an interview. Once the respondent attends, they arrest and detain the respondent until he/she produces a surety and pay them, especially the police, even when reasonable suspicion has not been established. I once had a matter of this nature with the SCIID, Lagos. In the case of the EFCC, they detain you until you have made a written statement and will not release you before that.

You cannot go to Court to complain because the situation is not much different there. For now, in Nigeria, law enforcement is the real power.

It is no wonder that people will prefer to go to the police for simple disputes than to go to courts. Why would they? Both the police and court will charge a complainant money (both legally and illegally), but the police will usually settle the case (for the complainant) faster than the Courts. I think I have digressed a little. Sorry.

Let me return to base.

The Courts fail to see that the people who come (or are brought) before them are their customers and the duty of the Courts is to serve justice on these customers while causing the least amount of inconvenience to them. Hence, the litigants should be treated as any service provider would treat his customers, with respect and courtesy. Imagine that you call your service provider (eg. Your HMO) and the recipient of the call tells you to shut up and only talk when you are asked to (this has happened to me before, for the records). How furious you would be, right? Well, this is what litigants face before the Courts regularly and somehow, nobody is saying  anything about it.

As for counsel, I think the realisation has not been made by the Courts that the judge and lawyer are both colleagues and service delivery agents and colleagues who should treat each other with respect. As of now, the respect is only one way…unless when the Counsel is a Senior Advocate then he becomes worthy of respect (although on a few occasions, even the SANs get a healthy dose of bashing too).

Now I move on to the issue of the Courts not sitting on days matters have been adjourned to. To better express my grievance, I would like to refer to something almost all Nigerian male are familiar with – the national football leagues in Europe.

At the start of the season, there is a timetable. In making this timetable, the football associations consider the Champions League, League Cups, International Friendlies, World Cup, Euros, World Club Cup, etc and, as much as possible, prepare league fixtures in such a way that they do not clash. The result, it is rare to find a match cancelled or postponed.

Of course, there are instances where there are clashes but, in those cases, advance notice is given and plans are made to ensure the least inconvenience. And theirs is a matter of entertainment and not life and death. This is a classic case where all stakeholders are respected, and their comfort given priority.

In Nigerian Courts, even though we are all aware of settlement weeks, Judges Conferences, etc, those are not included in the judicial diary (or Calendar, if there is truly one) in such a way that Courts know not to give those dates. Also, the heads of Court will wait until a few days to a holiday to reveal the dates that the Court will be on vacation, meanwhile matters have been adjourned to those dates. Unlike the Premier League, at start of the year (whether conventional or judicial), the heads of Courts do not consider all the different activities and plan them to ensure these clashes are avoided. No. What we see is that you come to Court to find out that the Court will not sit.

Now, of course, there are peculiar circumstances where, a judge might be sick or be sent on an assignment. I refer to peculiar circumstances because these should be rare occurrences, although they now, in Lagos and, I’m told, in Abuja, are almost as regular as when Courts sit. In those circumstances, notices should be given to Counsel, preferably a week in advance or as soon as the Judge becomes aware. Not the evening before the sitting or when the parties are already in Court. A lot of cases involve people who travel from other places and the Court should, as much as possible not make them expend money for no cause. That is what happens when the Court respects the parties.

Of course, I realise that these actions do not happen in a vacuum and the action of courts mirrors what we see in most public service outfits, but I think the Courts should be a beacon of hope for Nigeria. People will not respect the Courts or rule of law if the Courts do not earn the respect. We haven’t earned it.

I and other lawyers are also part of the problem. I will address this in a subsequent text.

There is also the issue of independence of the Court. I have heard the Bench cry over its independence. It called on lawyers for support and pleaded for financial autonomy. The issue is that the Courts cannot be run effectively if it has no money or cannot use its fund the way it deems fit. Hence, the dilapidating structures and other infrastructure of the Courts as well as inability to recruit more hands to meet the demands of justice and relieve the current judges of some of the burdens.

In 2014, the learned silk, Olisa Agbakoba obtained judgment against the Federal Government of Nigeria, in which it was settled that Judicial funds should not be controlled by the executive. That judgment has not been complied with and nothing has been done by the Bar and the Bench.

The Judiciary, is of course not a place for radicals. Judges cannot go on strike, etc. So they cannot go that route. But what happened to contempt or the rule that a party in disobedience of court orders cannot be heard by the Court? Since the Federal Government in Nigeria has failed to obey the order of Court, they do not have the standing to initiate or continue any action until they have purged themselves of the disobedience. Can this not be interpreted to mean that all actions by the Federal Government be paused pending when the Federal Government obeys the order of Court?

Perhaps there is something the older lawyers know that my young brain cannot fathom.

What is more? Last year, the judiciary had an opportunity to defend itself against an oppressive executive, when the Chief Justice of the Federation was removed by an ex-parte order of an executive body. Despite several actions by Counsel, the Courts, especially the appellate Courts, failed to take any action. Waiting only for the Chief Justice to resign (after being illegally removed) before ruling on the matter. Meanwhile, political matters are heard in days. I daresay, there was collusion between the executive and the judiciary in that case, otherwise, timely action could have been taken. There is no other reasonable explanation.

Anyway, a lot of my colleagues, senior and otherwise, have told me they will not encourage their children to study law.

A lot of lawyers between 0 (zero) and 7 (seven) do not want to go into litigation. They would rather go in-house because they cannot handle the hassle of courtroom practice. A lot have decided to do something else altogether. If we do not take action soon, we will not have the profession in the future. I am sure by now, you understand why I am disappointed.

This text seems like a critique of the court system and it really is, but I feel I must attempt to suggest solutions. I have already done so in the text but, in my opinion, there is need to conclude by stating a solution.

My simple solution to this is inculcating an attitude of respect in the Courts. Respect for the litigants, respect for civil rights, respect for lawyers, respect for the judicial system. Once respect is learned, everything follows. Courts will learn to manage time better so as to accommodate litigants as much as possible.

Law enforcement agents will learn to be respectful and use their powers properly. Suits will take shorter time to be heard.

I, also, am informed that some courts have WhatsApp groups where lawyers with matters before those Courts are informed of sitting days, etc.

Once these are done, we can now begin to talk about the executive and the rule of law. As for now, there is no law to respect.

I will pause here. Not because I have finished with my thoughts but because this piece is now too long. Other issues including those involving the lawyers, myself included will be addressed in a subsequent text.

Fernandez Marcus-Obiene   @theFernist

#GLOAT #LifeUnderConstruction

Fernandez is a co-founder of Young Legal Professionals (YLP), a network of Young Lawyers from Nigeria with the aim of making a difference.