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Access to justice: Socio-cultural, economic and geographical limitations thereto — a critique

 

The Constitution of the ‘federal’ republic of Nigeria, 1999 as amended has imposed a duty on the judiciary to discharge the onerous responsibility of defending democracy and rule of law, promoting economic prosperity and ensuring security of life and property of everyperson living in the country. However, like what obtains in every democratic country the administration of justice is shaped by the political economy of the nation. Hence, on the basis of the perennial crisis confronting the peripheral neocolonial capitalist economy in Nigeria the funding of the judiciary has been substantially reduced by the federal and state governments. Consequently, the heads of the courts have been pressured by the executive to commercialize the justice sector by hiking filing fees. In the process, majority of poor people have been further denied access to justice.

I am not unaware that discussions on access to justice are always centered on denial of justice to indigent citizens and the provision of legal aid. But in my practice of over three decades I have discovered that the rich and not so rich people are denied access to justice, sometimes much more than the poor. Despite the creation of fast track commercial division of the federal high court the hearing of commercial disputes is frustrated by lawyers engaged by debtors and others who have breached contracts. In fact, majority of disputes referred to arbitrators are fought up to the Supreme Court. I have also noted that due to congestion of cases in the appellate courts only appeals arising from election petitions and criminal trials are given priority these days.

Therefore, in my presentation I am going to review the existing laws on access to justice and challenge members of the legal profession to enforce them and stop paying lip service to the commitment of the Nigerian Bar Association to render pro bono services to the victims of human rights abuse in the country. Apart from examining the major problems confronting access to justice such as archaic rules of procedure, commercialization of justice, corruption in the courts including the registry, onerous bail conditions in criminal cases, application of obnoxious colonial laws and prison congestion we shall review the available mechanisms for securing the enforcement of the right of victims of human rights abuse to legal remedies in local, regional and international tribunals.

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Concept of Justice

Justice is generally defined as what is just in a manner that every person is giving their due.  Lord Denning once defined the concept as “the solution that the majority of right-minded people would consider fair.” The Master of the Rolls also had cause to tease at a legal dinner when he said, “Unlike my brother judge here, who is concerned with law I am concerned with justice.” On the proper role of a judge Lord Denning said: “My root belief is that the proper role of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to change it-so as to do justice in the instant case before him. He need not wait for the legislature to intervene; the judge is himself subject to the law and must abide by it.”1

In the entire common law countries, majority of judges consider the views of Lord Denning rather too radical as they prefer to do justice within the ambit of the law even if the law is unjust. In explaining why judges have conservative outlook in the United Kingdom, Professor Griffiths said that “Judges are the product of a class and have the characteristics of that class. Typically coming from middle-class professional families, independent schools, Oxford or Cambridge, they spend 20 to 25 years in successful legal practice at the bar, mostly in London, earning very considerable incomes by the time they reach their forties. This is not the stuff of which reformers are made, still less radicals.”2 Like their counterparts in the England, judges in the former colonies of Britain including Nigeria are proud to defend the status quo.

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Notwithstanding the legal and ideological obstacles which prevent judges from doing justice to the poor and the rich on equal terms the late Justice Chukwudifu Oputa  insisted  that “The court exists to do justice to all manner of men without fear or favour, affection or ill will towards anybody, and distinction or discrimination as to class or social status; poor; to do justice as well as to the small and seemingly inconsequential man.”3  Indeed, through ingenuous interpretation of the law under a military junta that had contempt for the rule of law the trinity of Kayode Eso, Otutu Obaseki and Chukwudifu Oputa JJ.S.C. ensured that the apex court made it abundantly clear that any  nation funded on injustice and lack of accountability could not survive.

In his life time, the late Dr. Akinola Aguda, a former Chief Judge of Ondo State consistently maintained that justice should not be an abstract phenomenon. With respect to the Nigerian environment he rightly observed that “The whole administration of justice is heavily weighted against the poor vast majority of the people, who are unable to afford the expense of any search after justice. If however, the poor is foolhardy enough to enter the temple of justice he and his family may regret it for the rest of their lives. For in the process-in the pursuit of what he considers to be just- he may become bankrupt and die a pauper. Because, no matter how little a claim may be if one if the parties is a wealthy person is the State, such a case may traverse eight courts in between 5 to 20 years.”4

Disturbed by the veneration of legal justice by the legal profession the revered jurist had cause to expose the myth of justice in our class society when he said, “Legal justice is justice according to law as it is. Most lawyers and judges are quite satisfied with this but I think that they are wrong. They are satisfied because of their common law education founded on positivism. The other members of the elitist professions: medicine, engineering, etc and even the armed forces (catapulted in this regard) cannot care less because of their bulging bank accounts. Even though some of them (including some who claim religious leadership and even pretend piety) sometimes raise eyebrows at the unequal justice which abound, but their concern has been limited. They only mumble their dissent. It cannot be otherwise since they have become part of the ruling economic class. But again they must all be warned –this country cannot continue for even under a system which enthrones unequal justice. We are faced with the Crisis of Justice. We can solve that crisis only by a careful restructuring of the whole society-and that must be as soon as possible. We delay at our peril.”5

That cautionary statement was made by the late jurist in June 1986. But because the ruling class ignored the warning our country has since institutionalized unequal justice to our collective detriment. The victims of legal, political and economic injustice have taken the laws into their hands by engaging in extralegal measures to snatch from the society what they believe is due to them. Having lost hope in the prevailing unjust legal order the victims have resorted to armed robbery, terrorism, kidnapping and other violent crimes. Not a few armed groups have embarked on separatist measures which may lead to the balkanization and disintegration of the entire country. In many parts of the country law and order have broken down while the State has lost control of the monopoly of violence to armed groups to the extent that kidnappers and terrorists are paid heavy ransom to release abducted citizens including children.

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Access to justice

It is indisputable that access to justice is a basic principle of the rule of law recognized in every democratic society. Hence it has been said that “In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable.”6 To address one of the major obstacles in accessing justice which is the cost of legal advice and representation the General Assembly unanimously adopted some in December 2012. As the first international instrument on the right to legal aid the UN Principles and Guidelines have established minimum standards for the right to legal aid in criminal justice systems and provide practical guidance on how to ensure access to effective criminal legal aid services.

The judicial powers of the State shall extend to all matters between persons, or between government or authority and to 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.7 In the determination of their rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality.

In furtherance of the social order of the State every citizen shall have equality of rights, obligations and opportunities before the law while the independence, impartiality and integrity of the courts of law, and easy accessibility thereto shall be secured and maintained. Pursuant to section 17 of the Constitution  the State shall direct its policy towards ensuring that provision is made for public assistance in deserving cases or other conditions of need.  By virtue of section 46 (4) of the Constitution the National Assembly has been tasked to make provision for the rendering of financial assistance to any indigent citizen of Nigeria where his right under this Chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim.

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No doubt, access to justice for every citizen is constitutionally guaranteed. But due to denial of access to justice by undue reliance on technicalities by the courts, delay occasioned by archaic rules of procedure and dilatory tactics employed by lawyers Professor Fidelis Oditah Q.C, SAN believes that we need to address the disturbing phenomenon of “exit from justice”. Another colleague who shares Oditah’s perspective is W.K Shitu who has opined that “there is no access to justice where citizens especially the marginalized groups not only conceive the system as frightening, or alien or in circumstances where citizens have no lawyers either because of inadequate resources to access them, or where individuals lack access to information or knowledge of their rights or where the system is fundamentally weak in delivering justice to the citizens.” 9

From the foregoing, it is submitted that access to justice can be examined from two perspectives. In a narrow sense, access to justice means access to the law courts while in a wider sense it means access to political, economic and social justice in a democratic society. I concur with Nlerum Okogbule that “generally speaking, access to justice implies access to social and distributive justice. It is however important to underscore the point that these perspectives are not necessarily disconnected since the extent to which one can have distributive justice in any system is largely determined by the level and effectiveness of social justice in the country.”10 Hence, a poor citizen seeking justice under the unjust socioeconomic system operated in the country is likely to be caught in the mess of a rather vicious circle of injustice.

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Statutory rights of indigent citizens to legal aid in criminal and civil cases

In line with the provisions of section 46 (4) (b) of the Constitution, the National Assembly has enacted the Legal Aid Council (Amendment) Act, 2010 to provide for the establishment of legal aid and access to justice fund into which financial assistance would be made available to the Council on behalf of indigent citizens to prosecute their claims in court.  In other words, the Legal Aid Act has been amended expanded to cover all criminal and civil matters involving indigent citizens

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Similarly, the National Human Rights Commission Act has been amended to empower the National Human Rights Commission to deal with complaints alleging violations of fundamental rights in any part of Nigeria and provide redress to the victims. Accordingly, the Commission shall receive and investigate complaints concerning violations of human rights and makes appropriate determination as may be deemed necessary in each circumstance.

As many citizens lack the economic wherewithal to prosecute or defend cases in court adequate provisions have been made in the High Court (Civil Procedure) Rules of each state to take care of the interests of such persons. Accordingly a judge is empowered to admit an indigent person to sue or defend a suit in the State or Federal High Court through a procedure called in forma pauperis without the payment of filing or professional fees. Such a person is required to write an application to the Chief Judge accompanied by an affidavit stating that he/she is unable to afford the services of a legal practitioner.  By writing a letter to the Chief Judge an indigent petitioner seeks to invoke the “epistolary jurisdiction” of the High Court. If the application is meritorious the Chief Judge shall appoint a legal practitioner for the Applicant. 11

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Similar provisions are contained in the Acts and the Rules of procedure of the Court of Appeal and the Supreme Court of Nigeria. Under such enactments both appellate courts are enjoined to appoint legal practitioners to prosecute or defend an appeal on behalf of indigent persons. Legal practitioners who handle pro bono cases for indigent litigants are entitled to ask for waiver with respect to the payment of filing fees.

Enforcement of human rights

Pursuant to section 46(3) of the Constitution, the Chief Justice of Nigeria repealed the Fundamental Rights (Enforcement Procedure) Rules 1980 and enacted the Fundamental Rights (Enforcement Procedure) Rules 2009 to secure the enforcement of fundamental rights enshrined in Chapter IV of the Constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act . The objective of the 2009 Rules is to simplify and accelerate the hearing of fundamental right cases in the courts. In order to encourage and promote public interest litigation in the area of human rights the doctrine of locus standi has been abolished.

The choice of counsel of indigent criminal suspects

The right of every accused person to fair hearing incorporates the right to be defended by counsel of their choice. But as indigent persons cannot afford the services of lawyers of their choice whenever they are charged with criminal offences including capital offences the Legal Aid Council is under a duty to assign legal practitioners to defend them. In practice, the quality of such representation has been called to question, from time to time.

It is submitted that since every person is entitled to a lawyer of their choice it is illegal and unconstitutional on the part of  a trial court or the Legal Aid Council to choose a lawyer to defend an accused person.

To meet the constitutional requirement of the counsel of choice, indigent persons have the liberty to request for the legal services of any legal practitioner including a Senior Advocate while it is the duty of the State to pay the bill. Therefore, whenever it is ordered by  a criminal court that a defence counsel be assigned to a defendant the Legal Aid Council should allow the person involved to choose a lawyer of his his/her choice.

Legal obstacles frustrating access to justice

There are legal obstacles that are inhibiting access to justice. Such obstacles include commercialisation of justice, onerous bail conditions, prison mismanagement, delay occasioned by congestion of cases, lack of case management, obnoxious laws and doctrines judicial corruption. As we shall demonstrate anon, these obstacles are not insurmountable.  But to overcome them we need a judiciary that is led by a progressive leadership and a bar association that is determined to facilitate access to justice for all and sundry. At the same time, victims of injustice should be prepared to take advantage of administrative and judicial machineries to seek legal remedies. At this juncture it is pertinent to examine the problems and challenges inhibiting access to justice.

  1. Denial of access to justice by unjust laws

Through the application of unjust laws like the Public Officer Protection Act which provide public officers and institutions cannot be sued in court after 3 months regardless of the degree of illegality, Pre-action Notice Laws which require aggrieved citizens to give a month notice to public institutions before challenging the violations of their rights, the Sheriff Civil Process Act which requires judgment creditors to obtain the fiat of the attorney-general before filing garnishee proceedings to ensue payment of judgment debts the judiciary has continued to deny  access to justice by applying judicial precedents left behind by former colonial judges. In denying access to justice through the application of discriminatory laws our judges have failed to be guided by the Constitution which provides for equality of litigants before the law.

What is the legal justification for asking a public officer dismissed from employment without notice to give a pre-action notice of one month to the employer before challenging the legal validity of the dismissal? If a public institution can sue a citizen for a breach of contract within a period of 6 years why should our courts say that the same public institution cannot be sued after 3 months? Are our courts not aware that the Constitution and the African Charter on Human and Peoples Rights Act have abolished discrimination in all ramifications? Having defeated the government in the court why should a judgment creditor apply for the permission of the attorney-general of the same government before filing garnishing proceedings? Is it not clearly and expressly stated in section 287 of the Constitution that the decisions of all courts shall be enforced in any part of the Federation by all authorities and persons?

To enhance access to justice it is high time we jettisoned obnoxious laws and doctrines that were imported here from England by the British colonial regime to deny our people access to justice. In this context the observations of the Supreme Court of India in Rutanlal12 are relevant:

“The imperatives of independence and the jural postulates based on the new value system of a developing country must break off from the borrowed law of England received sweetly as ‘justice, equity and good conscience’. We have to part company with the precedents of the British-Indian period trying our non-statutory area of law to vintage English law christening it ‘justice, equity and good conscience’… Free India has to find its conscience in our rugged realities and no more in alien thought. In a larger sense, the insignia of creativity in law, is freedom from subtle alien bondage, not a silent nor hot-house flower.”

  1. Commercialization of justice

The recent increase in filing fees through a practice direction issued by the Chief Judge has further taken justice out of the reach of the common man. Charging prohibitive filing fees based on the amount of damages claimed in a writ of summons cannot be justified under a Constitution that has liberalized access to court. Since the rich can afford to pay prohibitive filing fees indigent citizens who may wish to file or defend cases in the courts are advised to apply to the Chief Judge to waive the payment of filing fees under the doctrine of in forma pauperis.

Instead of increasing filing fees the probate registry of the court should be reorganized with a view to eliminating the inordinate delay in the processing of letters of administration. There is no justification for processing a letter of administration for upwards of two or three years. If the probate registry is properly organized and modernized it is an area where the high court can make good money.

  1. Delay caused by congestion of cases

The registry of the courts is in chaos. Record keeping by registry of the court is in shambles. It takes ages to obtain certified true copies of judgments. In the majority of cases, service of originating processes is not carried out by court bailiffs leading to applications for substituted service. They are instances where service is fraudulently carried out by court bailiffs.  Invariably, such processes are set aside leading to unwarranted delay. In many states, judgments of courts cannot be enforced of judgments without the approval of the state commissioners of police. Delay in the hearing of cases is partly caused by court clerks and registrars who are paid to hide cases files. Judges and lawyers are well aware that our system is not working.

As if that is not enough, lawyers and members of the public are made to pay for services not rendered by arrogant and corrupt court officials. Since the court time is a public resource which is limited. We can no longer afford to grumble without taking any concrete measures to stop the waste of public resources. The authorities should ensure that the time of the court is fairly and efficiently allocated and managed by ensuring that case files are produced before the fixture of hearing dates and that processes are served timeously.

  1. Onerous bail conditions

On account of the decision of the Court of Appeal in Ibori v. Federal Republic of Nigeria the granting of bail has become automatic in Nigeria. Instead of wasting the precious time of the court by arguing bail applications in criminal cases the prosecution and defence counsel should agree on bail conditions. If they are unable to agree the trial court should impose bail conditions deemed fit in every criminal case.

The deposit of millions or thousands of Naira as a bail condition should be reviewed as many citizens cannot pay such security. In recent time, the policy has aggravated prison congestion as criminal suspects who have been admitted to bail but who cannot produce financial securities are locked up in prison custody indefinitely. Our judges and magistrates should desist from imposing onerous bail conditions on indigent criminal suspects.

  1. Distance from the courts

The concurrent jurisdiction of the Federal and State High Courts to hear and determine applications for the enforcement of fundamental rights matters is protected by section 46(1) of the Constitution. However, section 251 of the Constitution has conferred exclusive jurisdiction on the Federal High Court to hear and determine civil matters involving the Federal Government and its agencies and officials. Furthermore, the National Industrial Court has by virtue of  Section 254C (1) (d) of the 1999 Constitution (Amended by Section 6 of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010) conferred exclusive jurisdiction of the National Industrial Court in all civil causes and matters relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine.

Even though the judicial divisions of the high court of a state which are located in the state capital and the headquarters of each local government the federal high court and the national industrial court can only be found in the state capitals. In some cases aggrieved citizens have had to travel several kilometres from the rural areas to the state capital in order to challenge infringement of fundamental rights by officials of the federal government. Others have been discouraged from enforcing their rights because of the enormous financial implications involved. Since the federal government may not have the resources for the creation of judicial divisions of both the federal high court and the national industrial court in every local government in the country it is suggested that the Constitution be amended to empower magistrates courts and area courts to exercise jurisdiction with respect to the enforcement of human rights by aggrieved citizens.

                        The Way Forward

  1. Alternative Dispute Resolution

Before the advent of colonialism the judicial system was reasonably developed in many communities in Africa. Civil disputes among parties were largely resolved through mediation and other forms of amicable settlement. The criminal justice system was administered with a view to maintaining law and order. Apart from subjecting customary law to repugnancy test the colonial intruders did not abolish the traditional judicial system. Indeed, the resort to arbitration and mediation in the resolution of disputes attracted the attention of the colonial regime whose legal system was adjudicatory in nature.  The British judicial experts took away the native judicial administration, studied and modified it, and brought it back to Africa as “Alternative Dispute Resolution” (ADR).

Our law reports have confirmed the gross abuse to which arbitral proceedings have been subjected by counsel. As cases decided by arbitrators are pursued up to the Supreme Court there has arisen the need to review the Arbitration Law of Ondo State with a view to terminating arbitral proceedings at the Court of Appeal. I cannot see any justification why a single high court judge should be asked to set aside an award made by a panel of retired justices of the Supreme Court or Court of Appeal and senior lawyers. The registration of an award made in Nigeria should not be subjected to any judicial proceedings. Whoever is dissatisfied with any award should challenge it at the Court of Appeal whose decision should be final.

Regrettably, arbitration as alternative dispute resolution has been commercialized beyond the reach of many corporate bodies and individuals. In order to stop arbitrators from charging outrageous fees or from turning the process into “inevitable plutocratic pleasures” (apology to  Justice Khrishner Iyer) retired judges who serve as arbitrators should not charge beyond their last salaries on the bench. The arbitration law should be amended to empower the Chief Judge of each state to fix and monitor the charges of arbitrators.

  1. Traditional justice system

In order to reposition the judiciary to administer qualitative and accessible justice to all and sundry in the society major reforms have been carried out in our civil and criminal procedure in recent time. But such reforms have totally excluded the magistrate courts, multi door centres, customary courts, area courts and sharia courts which handle the bulk of cases in the courts. It is on record that the mediation centres established by the ministries of justice in each state of the federation have assisted in the settlement of small claims and tenancy matters. Surprisingly, judicial reforms have also disregarded the palaces of traditional rulers and police stations which are daily patronized by the masses of the people for dispute resolution.

This is understandable given the class character of our neo-colonial legal system. Yet, from available statistics the cases handled and resolved in the lower courts and such mediation centres are greater in number than the cases handled in all the so called courts of record in the country. It is interesting to note that cases resolved through such mechanisms are never challenged on appeal. It is my form view that since the masses have implicit confidence in such institutions the judiciary should pay attention to them with a view to integrating them into the justice sector.

  1. Public interest litigation

To check the growing culture of executive lawlessness and official impunity in the country public interest litigation ought to be encouraged and promoted. To this effect the anachronistic doctrine of locus standi should be abolished. The doctrine of locus standi should be relaxed in public interest cases as laid down by the Supreme Court in Fawehinmi v Akilu 13. In that case Justice Kayose Eso took time to explain that the doctrine of locus standi had been consigned to the dustbin of history when he said:

. “… I think with respect that the judgment of my learned brother Obaseki JSC is advancement on the position hitherto held by this Court on locus standi. I think again with respect that it is a departure from the former narrower attitude of this Court in the Abrahami Adesanya case.

My humble view, and this court should accept it as such, is that the present decision of my learned brother, Obaseki JSC, in this appeal has gone beyond the Abraham Adesanya’s case. I am in complete agreement with the new trend, and with respect, my agreement with the judgment is my belief that it has gone beyond the Abraham Adesanya case.”

In upholding the legal standing of the plaintiff in Femi Falana v Attorney-General of the Federation14 to challenge the scrapping of the Peoples’ Bank by the Federal Government the learned trial judge, M.B Idris J. held that “a tax payer such as the applicant herein has the locus standi to approach the court to enforce the law and ensure that his tax money is utilized by, the Government frugally or  prudently.  See Fawehinmi v. President FRN (2007) 14 NWLR (PT 1054) 275. This action in my view falls under those actions in which the Applicant is vested with locus standi to institute this action to compel the Government to discharge its duty conferred by the laws of the Federation of Nigeria. From the affidavit filed in support of the application which for purposes of determining this issue is deemed admitted, it is clear that the Applicant has shown sufficient interest to warrant the institution of this action. See Owodunni v. Reg. Trustees Celestial Church of Christ (2000) 6 SC (PT II) 60.”

  1. Creation of special judicial divisions for corruption cases

In order to accelerate the determination of corruption cases in our courts the Buhari administration decided to sponsor an Executive Bill for the establishment of a special court for the trial of corruption cases. Although the bill was submitted to the national assembly over a year ago the federal legislators have not deemed it fit to pass the crucial bill into law for reasons best known to them. Hence corruption cases have been subjected to inordinate delays in our courts which are congested with many other cases.

The Chief Justice of Nigeria, the Honourable Justice Walter Onnoghen has intervened in a decisive manner by issuing a Directive to all heads of courts in Nigeria to create special juficial divisions for the exclusive trial of corruption cases. A monitoring committee headed by Justice Ayo Salami, retired President of the Court of Appeal has been constituted to monitor the performance of the judges assigned to handle corruption cases.

No doubt, the timely intervention of the Chief Justice will go a long way to speed up the trial of corruption cases in all out courts. To make a success of the directive it is suggested that the Chief Judges of the States and the Chairman of the Code of Conduct Tribunal be directed to issue Practice Directions similar to the Federal High Court Practice Directions for the trial of corruption cases. However, to ensure the success of the progressive Directive the Chief Justice should ensure that the Supreme Court (Criminal Appeals) Practice Directions; Court of Appeal (Criminal Appeals) Practice Directions and Federal High Court Practice Directions issued in 2013 by the Heads of the respective courts are fully complied with.

The said Practices Directions which are designed to give priority to the trial and appeals arising from cases of corruption, money laundering, rape and kidnapping have not been put to use in any of the courts. Now is the time to apply them including the provision on the service of processes on parties by electronic mail addresses, facsimile number and GSM Telephone number or any other available mode of communication. In the light of recent development in the global fight against corruption the Chief Justice may wish to direct the heads of courts to amend the relevant practice directions.

Even though the Supreme Court has upheld section 306 of the Administration of Criminal Justice Act which has abolished stay of proceedings in criminal trials in federal courts the proposed special courts should prevent defence counsel from engaging in the dilatory tactics of cross examining each witness for 20 days or more. The trial courts should not hesitate to impose punitive costs on prosecution and defence counsel who may set out to deliberately waste the time of the court and dissipate public resources. Each of our courts should reduce the number of lawyers who can appear for the prosecution or defence in any criminal case to not more than three.

Having regard to the fact that some of the corruption cases were filed about 17 years ago the creation of the special judicial divisions of our courts to deal with corruption cases will enable the federal government to have access to justice. It was not only the federal government that was denied access to justice. All the victims of the grand corruption perpetrated by the indicted public officers were denied access to justice. But with religious application of the provisions of the Administration of Criminal Justice Act and the relevant practice directions never again will a group of corrupt politically exposed persons and their lawyers block access to justice and hold the country to ransom.

  1. Case Management

However detailed and sound the rules of procedure may be, they can only work if judges are prepared for case management. Judges should be in effective control of the proceedings of the court. Some of our judges waste precious time on recording the names of counsel and oral arguments in applications that are not contested. Trial courts should ensure that all cards are put on the table by lawyers and the parties. If a court is not going to sit for any reason whatsoever lawyers should be informed on time since their telephone numbers and email addresses are contained in the processes filed by them.

  1. The role of Ministry of Justice

The Ondo State Ministry of Justice should take the lead in decongesting our courts. To achieve that objective the ministry has to demilitarize the psyche of its lawyers. In Femi Falana v. General Babangida the Lagos High Court (Per Ligali Ayorinde CJ) described the Defendant as “the Kabiyesi of the Federal Republic of Nigeria.” The ministry of justice should be made to realize that the era of absolutism is gone for good.

Our colleagues in the ministry should jettison the indolent practice of filing preliminary objections in every given case. It is a practice that belongs to an inglorious past when the jurisdiction of the court was ousted by obnoxious decrees promulgated by military dictators. Whenever the government has no defence to any suit the ministry of justice should not hesitate to opt for settlement out of court. Our judges should promote settlement of disputes in exercise of their powers under the High Court Law.

  1. The Nigerian Bar Association

Lawyers know all corrupt judges and court officials. The information is freely circulated among lawyers. Members of the public also know judges who collect money from them either directly or through lawyers or court clerks. If the NBA is committed to the eradication of judicial corruption, it has the capacity to do so. With 120 branches spread across the country, the NBA can police judges, lawyers and court officials with a view to stamping out corrupt practices. When the Ghana Bar Association was paying lip service to corruption, a journalist decided to video record judges who were negotiating and collecting bribes. At the end of the recording he exposed, named and shamed the indicted judges. They were promptly investigated by the Ghana Judicial Council and dismissed from the bench.

Because the NBA was condemning corruption without adopting any concrete measures to stop it, the security and anti-graft agencies recently seized the initiative and arrested judges in the dead of the night to the eternal embarrassment of the legal profession. To prevent any further embarrassment of our judges, the NBA and NJC  ought to adopt an inbuilt mechanism for exterminating the menace of corruption from the bar and bench.

Conclusion

Although the right of every person to access justice in Nigeria is constitutionally the quality of justice obtainable is determined by their economic wherewithal under the prevailing peripheral capitalist system. Notwithstanding the denial of access to justice by socioeconomic factors the human rights community has ensured the relaxation of locus standi in public interest litigation and its complete abolition in the enforcement of human rights. The Legal Aid Act and the National Human Rights Commission Act have also been amended to compel the government to make provision for rendering free legal services to indigent citizens involved in civil and criminal litigation.

The Administration of Criminal Justice Act has humanized the criminal justice system by obviating delay in criminal trials. It is however regrettable to note that our judges and lawyers have refused to take advantage of the relevant adjectival and procedural laws to prevent the denial of access to justice to disadvantaged and vulnerable people in the society. In promoting access to justice in Ondo state I wish to suggest  that  a committee be drawn from the judiciary, the bar and the ministry of justice to ensure the implementation of the recommendations adopted in this workshop.

Finally, we need judges who are prepared to insist that their hands cannot be tied by unjust laws to do injustice even if the heavens would fall. It is not sufficient for our judges to quote Lord Denning with relish. Our judges must emulate him by ensuring that the gates of our courts are flung open to citizens with genuine grievances. Like Justice Krishner Iyer of India our judges must actualize the socioeconomic rights enshrined in Chapter 2 of the Constitution and not leave them inchoate and barren. Like Justice Akinola Aguda  our judges must always realise that the law can be used to promote social justice in a manner that  the commonwealth is not concentrated in the hands of a few  while majority of the people wallow in abject poverty. And like Chief Gani Fawehinmi SAN who successfully defeated the anachronistic doctrine of locus standi our lawyers should challenge other obnoxious laws and legal principles which have denied the Nigerian people access to justice.

  1. Lord Denning: The Family Story, Butterworths London, 1981, p. 174).
  2. Griffiths, J.A.G. Review of The Discipline of Law by Lord Denning, Modern Law Review, Vol 42, No 3, May 19, 1976, 348-350
  3. (Oputa, C.A. The Law and the twin Pillars of Justice, (Owerri), 1981, p. 67.
  4. Dr. T.A. Aguda, The Crisis of Justice, Erelu Hills Publishers, Akure, 1986 p. ix
  5. Dr. T.A. Aguda (1987), The Jurisprudence of Unequal Justice, A Foundational Lecture, Lagos State University, p.5
  6. United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (67/187)
  7. section 6 (6) (b) of the Constitution
  8. Section 36 (1) of the Constitution
  9. Nlerum S. Okogbule, Access to justice and human rights                    protection in Nigeria: problems and prospects, scielo.br.scielo  
  10. https://guardian.time
  11. Femi Falana SAN, Nigerian Law of socioeconomic rights,       Legaltext Publishing Company Limited, 2017 p 212.
  12. Civil Appeal No 1297 of 1975 decided on December 9, 1975.
  13. (1987) 4 NWLR (Pt 122) 102.
  14. FHC/L/CS/1120/12 decided on May 20, 2014.

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