Following Thursday’s judgement of the Supreme Court, which has finally laid to rest the legal tussle surrounding the February 25 presidential election in the country, a Senior Advocate of Nigeria and former Dean, Faculty of Law, Nile University of Nigeria, Abuja, Professor Abdullahi Shehu Zuru, speaks with IMOLEAYO OYEDEYI on the crisis plaguing the justice system in the country among other sundry legal issues.
Looking at the Supreme Court ruling that was delivered on Thursday, what is your own assessment of the verdict?
As a matter of fact and law, having been a very senior legal practitioner and scholar, I can say that the ruling is well-informed. Having said that, I am sure so many colleagues out there may not necessarily agree with what underscored that ruling of the apex court. Be that as it may, it is a matter of dissenting opinion. But once the apex court has had its say, the matter becomes settled finally, regardless of how anybody feels or thinks about it.
But days before the Supreme Court judgment, a London Court, while ruling on the P&ID case, had premised its verdict on the substance of the case instead of its technicalities. According to some observers, this particular decision of the UK court won the case in Nigeria’s favour. But this is in sharp contrast to what is obtainable in the Nigerian judicial system as judges in the country often hinge their ruling on the technicality of a case instead of its substance. Why is it so?
You see, when talking about law, we should try as much as possible to downplay what I will call the sentiment of justice. The truth of the matter is this: if you look at our legal system, we have what is called the adversarial legal system and the inquisitorial legal system. It is not the functionality of a judge or a court to get into the arena of court procedure. I am not holding a brief for any justice of the law in the country, but in this particular circumstance, there are certain facts that should stand out.
Frankly speaking, a judge in Nigeria no matter how strongly he feels about how legal representation is being bungled or how court procedure is being abused on mere technicality of the law, his hands are tied. This means there is nothing he can do about it as he is assumed to be an impartial umpire. But this is different from what happens in other climes, particularly in the UK jurisdiction you mentioned. In the country, a judge has immense latitude to get involved in the actual proceedings of a case where he could maybe intelligently redirect the submissions of the lawyers or even go ahead to correct the submissions of the law enforcement. But this is not allowed under our own judicial system in Nigeria.
I guess I see the issues this way perhaps because of my background in academics and appreciable knowledge of jurisprudence. But I think it only amounts to desperation for people to begin to juxtapose the modus operandi of our court alongside the modus operandi of courts under the UK judicial system. I know the temptation is high for people to think and say, look, we inherited this system from the country, but the fact is our own model of the UK judicial system has undergone so much transformation based on the peculiarity of our social and political order, which has brought our justice system to the level that it is at the moment. That is why the court in Nigeria decides a case and hinges on its technicality rather than the substance of the case. But I believe people should be kind enough to see the issue for what it is and we all should try as much as possible to disabuse our mind of sentimentalities of the law and justice.
If I get you clearly, are you saying that it is the kind of judicial system being operated in Nigeria that gives the Nigerian judges the ground to hinge their judgment on the technicality instead of the substance of every case brought before them?
I think we should understand something. And it is the fact that the attempt to import the court procedure and the justice system of the British jurisdiction into our own court system will be an exercise in futility. This is because if you look at our court procedure and the guide to pronouncements made by our courts on issues of national sensitivity like election petitions and the rest, you will see that the template is unique and based on the vagaries of our social and political order. Those who reformed our court system obviously did what they did, perhaps they thought it in the best interest of the dispensation of justice in the country.
In view of this, people should not malign our judicial institutions, simply because the judges have dwelt so much on the technicality of the law rather than the substance of the case before them. This is because even under the British Court procedure, we do have instances where their judges determine matters on the merit of the technicalities of the law. So I think it is the functionality of the circumstances of the case itself. However, looking at the comments so far by political pundits regarding Thursday’s ruling of the Supreme Court, I believe some of the comments were ill-informed and grossly sentimental. So, we need to be very careful in lampooning our judges and the judicial institutions, because within the confines of our circumstances, every judge will continue to affirm the constitutionality of our political order and the rule of law.
But considering the fact that a great deal of Nigerians have lost confidence in the judiciary with claims that some of the judges have exhibited certain corrupt tendencies over time, what do you think are the challenges confronting the effective dispensing of justice in Nigeria?
Well, I would like to strongly disassociate myself from such a point of view. This is because there is something that most of us are missing. I can make a sense of the growing frustration of the general public about our justice system and the rule of law, but then again, there is what is called the justice of the law and there is another called the justice of public conscience. The truth of the matter is that while people are quick to condemn court rulings and undermine the technicalities of the law, what they fail to understand is that the law itself is always available to be harvested in the service of judicial advocacy and justice of the court system.
Often than not, lawyers can canvass their argument disregarding the substance of their own cases and emphasising the technicalities of the law. In a situation where a lawyer is advancing an argument on the strict sense of the technicality of the law, we should expect the court to make a determination based on the technicalities of the law canvassed. I understand the frustration of the Nigerian public, but law is not a function of common sense. That is, it is not a public conscience that determines the justice of the law. The implication is that once the court begins to be sensitive to political opinion, justice will be compromised. Let me give you a typical example in Nigeria: you see members of a political party in the country hijacking the social media platform, abusing judges, lawyers, and public opinion moulders that do not share their sentiments. And when the court now begins to pay attention to such in determining their cases and delivering justice, I can bet that we will end up in chaos. I could remember that the famous Usman Dan Fodio once said in his book that, people can live without religion, but they can never live without justice.
I simply feel in Nigeria, the judiciary has been misrepresented, profoundly misunderstood, and anguished based on what I will call the aggregate public frustration about the stagnating rule of law and the perceived deficit of capacity of the institutions of justice to deliver justice to the people. But most times in this country, it is not even about delivering justice, but whether the courts deliver judgement that resonates with the commonsense and sensibility of the common man or not. This has been the people’s benchmark for assessing the merits and demerits of the decision of any court in the country. Besides, if you look at the circumstances in which the judges work, you will see that this is partly to be blamed because they are overworked.
More so, the funding regime of the judiciary, despite being a viable institution, has been very despicable in the country. And this is why I usually fault people who compare the Nigerian judiciary system with what is obtainable in other climes. When you look at the funding of the UK judicial system and its operating circumstances, how could you then attempt to juxtapose that alongside our own judicial system? But above all, I believe every judicial system is a work in progress. We may not get it right at the moment, but I think it can be better in the near future. But do we have the patience, I don’t know.
Amid all this, what do you think the judiciary can do to change the perceived loss of confidence of the Nigerian masses in their ability to deliver justice?
Well, I believe the judiciary has not been proactive enough in terms of advocacy around their modus operandi in the country. And then, I think the judiciary has to be liberal a bit by admitting people, given the right circumstances that can inject additional integrity into the judicial system and also add quality to the justice of the court based on the supremacy of the law. What I am saying is that if the judiciary can be pragmatic in a way to allow the injection of university scholars within the system, I think it has of way of lending more credence to the integrity of the institution and the quality of the court jurisprudence. But as I have said, funding is at the core of the crisis of the justice system in Nigeria. Even President Bola Tinubu admitted this when he appeared at the Nigeria Bar Association (NBA) event in Abuja recently. The president said his government has acknowledged this and has brought the issue of funding of the crisis to the front burner of its policies. I see this as commendable and believe it will go a long way in advancing the quality of justice and court jurisprudence in the country.
Regarding the P&ID judgment victory, what do you think the current Attorney General and Minister of Justice can do to avoid other legal mess that may be waiting for the country in the wings?
Well, the AGF is a very capable hand. But the precursor to the P&ID case in the UK was a kind of syndicated activities of some people both within and outside the country’s judicial constituency to shortchange national interest and to ambush the country for personal gains. So, I think the AGF should assemble his own team compromising people who are his equals and can see through bad objectives and multi-level sabotaging plots and then beckon on him (The minister) for prompt action. As a fellow SAN, I simply wish him all the best.
But what do you think worked for Nigeria in the P&ID case and made the country escape the huge financial debt?
I think the case was a matter of waking up from your sleep. The fact is a case of such magnitude shouldn’t have been swept under the radar due to the enormous financial trouble it portends for the country. If you look at the history of that case, there were even instances of Nigerian lawyers not being in the court to represent the country, which amounted to contempt. As such, what initially swung the early ruling in the favour of the company was the negligence on the part of the Nigerian government informed by some subterranean interest. But when the Nigerian government later realised that the country was in a dire strait and re-engaged seriously with the case by rejigging the country’s legal representation in the UK, we all saw the outcome. Going forward, I believe the country has learnt its lesson from the case and will not want to put itself in another vulnerable situation again.
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