ABSTRACT

The topic “ the Nigerian Judicial system; problem and way out (a case study of Lagos State Ministry of Justice)” seems to attract to itself the attention and inquisitiveness on the part of the common man or every believer in the Rule of law of what the writer is talking about or what he is going to upon since the mere mention of justice in our society today raises a conjecture and thereafter suffers from universally acceptable definition. An attempt is made in this essay to scrutinize what hampers the judicial powers vested in the courts under section 6(6) (b) of 1999 constitution which it is said 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. Also considered in the essay are the ‘defects’ in and/ or ‘injustices’ written into the substantive law. For instance the ouster of court’s jurisdiction, the down payment or deposit of a substantial amount of money paid into a court before a challenge to chieftaincy dispute is entertained, discrimination on the grounds of protection to the public officers of the state and the adoption of foreign culture and archaic statutes that were largely meant to nurture a colonial society among others are written into or found in the basic law of the state , then it is not possible to talk of justice under such a system. Sometimes a system fails because of procedural defects and inadequacies. When there exists structural injustice in the location of courts (for instance a poor litigant resides share, Lagos state and the Supreme courts is located in Abuja) and there is imbalance in the distribution of wealth in the society, there, the law is easily seen as instrument of oppression and a protection of the status quo. The above issues and some other interesting topics like the role or the part played by some agencies like the police, the Bar and the prison in the prosecution of cases will be considered in this essay and provide an avenue for the assessment of their performance in the administration of justice. The independence of the judiciary is not left untouched as it is a necessary adjunct to the proper administration of justice. The essay finally attempts to offer some useful suggestions and recommendations to arrest the ills plaguing our society today, as some stemmed from both internal and global structural ‘injustices’. However the essay is not claiming to be exhaustive.

CHAPTER ONE

INTRODUCTION

1.1 BACKGROUND TO THE STUDY

The judiciary is an arm of government that vested with the power to interpret laws made by the Legislature. Judiciary is a system of courts that interprets and implements laws in a state. They are in charge of providing a system that settles arguments. While in some countries under separation of powers, the judiciary does not have the power to make or enforce law as it is the duty of the legislature.

In some countries, the judiciary has the right to make law which is known as “Common Law”. The judiciary is frequently expected to ensure there is equal justice.

In most cases, it is not everything said by a judge in the course of his judgment that is important. Only a formal declaration on law in conjunction to the material fact before the judge is important. Therefore, ajudicial precedent is the principle of law on which a judicial decision centers on. Once a court is called upon to apply the decision in a recent case, the court is required to follow the pattern of the previous decision.

There are numerous challenges facing the judiciary. They are challenges of advocacy. An advocate is the most misunderstood professional. In some jurisdictions uniqueness is seen between a barrister and solicitor in the sense that it is only the barrister that can physically present itself before a court to debate on a case, while the solicitor on the other hand will take the brief from the client. In Nigeria, immediately one of them iscapable or seen to be competent to practice law, he is automatically a barrister and solicitor of the supreme courts of Nigeria and therefore qualifies to debate on any case in any of the courts of the country. Being that some people perceive an advocate in the positive light of assisting a client in claiming his or her rights by his powers of insistence and eloquence and thus view legal practice as a superb profession to save executive lawlessness, others perceive these qualities of an advocate to be a way to cut throats.

Another challenge facing the judiciary is the challenge of corruption. Corruption and perceptions of corruption in the judiciary underestimates the courts’ power of inspiring belief as fighters of corruption. More especially, it gradually destroys trust in the courts’ impartiality, harming all the major judicial functions, which includes as dispute resolution, law enforcement, protection of lands and property rights and contract enforcement. In addition, it harms the wider accountability duty that the judiciary is committed with in democratic systems – giving complete support to citizens’ rights, securing the integrity of the political rules of the game, and sanctioning representatives of other branches when they act in contradiction of the law.

Another challenge of the judiciary is that of legal practice. The most significant rule to be noted and the rule to be respected to be changed is that our courts of law should operate or function "in public". We must not fail to realize that we may well rule ourselves out of the capacity to adapt to technological developments if we understand the necessity or demand for our courts to function "in public" as meaning only that they must operate in a place and at times open to "the public." This is because we want to avoid "secluded justice". If improvement in the electronic media make it possible to conduct any proceedings in a cause ormatter through the inter-Net more productively, our rules of practice and procedure ought not to stand in the way of conducting those proceedings in that way.

1.2 STATEMENT OF PROBLEM

Though the Nigerian judiciary has recorded amazing improvement in recent times; the poor performance and the corruption of the judicial system in Nigeria has had a devastating effect as it is no longer seen as the hope of the common man. These poor or averages performance may have been caused by some challenges and problems which has regrettably affected the development of our nascent democracy.

Administration of justice has from time immemorial been the exclusive preserve of courts of law. The establishment of tribunals with judicial powers parallel to those of courts of law is sometimes, due to efficacy of tribunals in carrying out an expedient trial devoid of technicalities that may prevent the access of justice. The administration of justice in our Nigerian Courts, at times is prevented by some technicalities; for instance, every conceivable defence in Court is leveled on jurisdiction. The implication of this is that, the defence of jurisdiction will be trashed first before the merits are considered; except in the cases of proceedings brought by originating summons whereby the Court takes the jurisdictional objection with the merit. In all other forms of proceedings, the jurisdiction is taken first, the ruling is delivered and that becomes a whole new litigation. Whoever loses goes to the Appeal Court and from there to the Supreme Court.

It is a fact well known that the issue afflicting the judiciary is the problem of undue delay in determining cases. In Nigeria, like some other developing countries, the legal processes are usually very slow and complex. In the course of the trial process when it eventually starts, it is not unusual in Nigeria to find a matter (civil or criminal) lingering for up to fifteen years, leaving concerned parties frustrated. In Ariori v. Elemo^[1] for instance it took about 23 years before final determination of the case at the Supreme Court. Union Bank

Nigeria Plc v. Ayodare and Sons (Nig.) Limited^[2] was instituted at the State High Court in 1989 but was not finally disposed off by the Supreme Court until 2007 – a period of 18 years. The trial court gave judgment in Adisa v. Oyinwola^[3]in 1985 while the appeal was not determined by the Supreme Court until year 2000 – the appeal lasted for 15 years from the Court of Appeal to the Supreme Court. In addition, in Abayomi Babatunde v. Pan Atlantic Shipping And Transport Agencies Ltd & ors, ^[4]a matter that began at the High Court in Lagos on 18^th April, 1988, was finally settled at the Supreme Court on the 20th day of April 2007.

The very negative effect of this type of situation is appreciated more when one realizes that it is now a fact that foreign investors are attracted to legal systems that are effective in dispensing justice speedily. Therefore, the effectiveness and speed of a judicial system also determine the economic performance of the country. Without an effective justice administrative system, development in all its ramifications, including meaningful legal protection of human rights will remain a wish. An effective justice delivery system is a non-negotiable necessity. It is a condition precedent not just for affluent and economically advanced societies and economies, but also of any developing society and economy like Nigeria.

1.3 OBJECTIVES OF THE STUDY

The major aim of the study is to examine the challenges, prospects and achievements of the Nigerian judiciary. Other specific objectives of the study include;

1. To identify that a very great proportion of what goes on in the Nigerian law courts is the administration of justice between one citizen and another and between a citizen and the state and to these ends, to continue to maintain a delicate balance between the competing interests so that the end of justice can be properly served.

2. To identify the power of the judge to punish for contempt is not only for the protection of the court of justice but also for preservation of justice and administration.

3. To observe that the judge should not use his contempt powers to suppress methods of advocacy and should therefore exercise great restraints in punishing lawyers for contempt of court. After all, judges and lawyers are partners in the administration of justice.

4. To observe at every available opportunity that justice delayed is justice denied.

5. To determine always that a really independent judiciary depends on the intellectual calibre and the qualities of character of the bar from which the judges are drawn or appointed.

6. To identify that all the citizens of Nigeria –whether they are young or old , rich or poor, literate or illiterate, high or low, muslim or Christian, pagan or agnostic, are all equal before the law.

1.4 FOCUS OF THE STUDY

This project is set to examine the problems in the administration of justice in Nigeria at large. It focuses on the problems and prospects of our judicial system. An overview is also given on how jurist and judges and foreign jurist have helped to influence or resolve the issue or problems in Nigeria.

1.5 SCOPE OF THE STUDY

The study is on the achievement, challenges and prospects of the Nigerian judicial system a case study of the Lagos state ministry of justice. This project covers a range of subject peculiar to the administration of justice in Nigeria. It covers the historical evolution of judicial system before the colonial intervention. It also covers the procedural problems in the administration of justice, Institutional problems in the administration of justice, Independence of the judiciary in all the courts in Nigeria generally. These are the aspects to be covered in this project.