IT was Chidi Odinkalu that recently wrote
an article titled, ‘Judiciary As A Lost Hope
of the Common Man’. The article which
trended for a reasonable period in the social
media, was misconstrued in some quarters
to be an indictment on the judiciary and, by
extension, the judicial officers. I honestly
do not see it from that perspective, and urge
that we do not appreciate the import from
that angle. For the simple reason that I am
inviting those who missed the opportunity to
read the piece to visit it, and for the stronger
reason that it is not my intention to x-ray his
thoughts in this conversation but merely in- terrogate the subject from another perspec- tive, I have chosen not to share the content.
By the Constitution of Nigeria, the grund- norm of all legal instrument in the country,
the judiciary ought to be the last hope of
the common man as well as, I dare say, the
uncommon man. The import of this is that
while the Constitution provides for the insti- tution to settle all conflicts amongst citizens,
organs of state and institutions, be it public
or private, the vulnerable in our society are
calibrated to be the greatest beneficiary of
the judicial institution. This is explainable
and justifiable on the ground that they lack
the capacity to employ any other means or
alternative to interrogate their threatened
or violated rights. In other words, while
organs of state can employ the extrajudicial
myth available to them to abate any threat or
remedy wrong done to them; same with the
institutions and some privileged citizens, the
vulnerable citizens amongst us do not have
such capacity. Hence, the universal belief is
that the judiciary, in their circumstances, is
the only institution that can come to their
aid in the protection of their rights. This is
the rationale behind the common saying
that ‘judiciary is the last hope of the com- mon man’.
In the context of the Nigerian situation,
can we really say that the above is a tru- ism? The answer to this is the kernel of
our conversation in this discourse. For us
to appreciate the discussion, I believe it is
crucial and apt that we understand that for
the judiciary to actually serve as the last
hope of the common man, the promotion
and sustenance of the rule of law is key and
central. Without going into any legalistic or
philosophical jargons or theories, permit me
to just cursorily describe the rule of law in
this context as the adherence to the laws by
all citizens, corporate or artificial and organs of state. Simply put, all acts and omissions
of all must be regulated in the laws of the
state at all times.
The absence of the rule of
law signifies the substitution of the rule of
man. The import of this is the subjection of
the conduct of state affairs and that of the
citizens to the dictates of man. What then
features in this circumstance is that might
is right, the strong devouring the weak, a
potent invitation to anarchy and the ultimate
conversion of the society into a jungle. Thus,
where the rule of law is displaced, the judi- ciary is substantially, if not totally, rendered
impotent and irrelevant.
This then justifies the assertion of Chidi
that the ‘judiciary is a lost hope of the com- mon man’. Of course, in Chidi’s piece,
Nigeria is taken as the reference point and
my excursion is equally premised on the
Nigerian situation as a theater of diagnosis.
Few weeks ago, I was in a conversation with
two of my friends in Abuja when suddenly
an issue cropped up. It happened that I had
just arrived with one of them from the in- spection of some properties that he wanted
to acquire for the purpose of his dwelling
in Abuja while on his periodic visit. Out of
inquisitiveness, I believe, my friend, with
whom I just returned from the inspection
exercise, asked the other who largely lives
in the Transcorp Hilton Hotel, Abuja, why
he had not thought it fit to acquire a home
in Abuja rather than being a permanent
resident in an hotel. With the enquiry, I
had expected my other friend to whom the
enquiry was directed to respond by either
telling me, as I believe, that it might not be
security wise to so do, or that he was still
on a search for an appropriate property, or
at the barest minimum, still exploring the
acquisition of a property. Alas, the startling
answer I got from our common friend was,
how would you expect me to acquire a
property in a country where there is absence
of law and order.
He then ventured to explain further by
telling us, ‘I buy a house today and sometime
in the nearest future, a person in authority
wakes up and for no reason, or justifiable
reason, or may be simply that he does not
like my face, demolishes it and nothing will
happen’. Let me further contextualize that
both the questioner and responder are not
only men of means in our society but highly
influential men in the governance of the
country. The questioner would not yield to
what he considered to be a ‘cheap response’ and was interrogating the enquiry further,
when I cut in in a very candid and honest
manner to concur with the response of our
common friend. What the answer connotes
illustrates our concern in this discourse. Can
the rule of work for such a victim where
such a breach occurs? Can the judiciary
truly and realistically come to the aid of the
oppressed person, particularly where he is
vulnerable? Can the judiciary rise up to the
challenge of the victim by responding effec- tively? These and many more are issues we
need to interrogate to reach our conclusion.
The affirmation or otherwise of the postula- tions will unveil to us whether the judiciary
is the ‘last’ or the ‘lost’ hope of the common
man. Let me recall that it was Fidelis Odita,
QC, SAN who, in his presentation in one of
the annual public lecture series of my non-
governmental organization, United Action
for Change, that opined that access to justice
is not a challenge in Nigeria but exit is the
bane of our judiciary. To the uninitiated,
what this implies is that you can easily ap- proach and gain access to the Nigerian court
for the purpose of obtaining justice, but it is
difficult if not impossible to exit that corri- dor of justice in the long run. This assertion
is certainly not far from the truth except to
my mind, even attempting to access justice
through the court room is a herculean task.
As at date, the vulnerable person that is
agitated by a wrong done to him is not ab
initio able to engage a lawyer in the first
instance, much less able to pay the astro- nomical court filing fees at the other levels
of state other than the federal. While most state rules made abundant provisions for the
paupers in such circumstances, breathing
life into the provisions remains a challenge
to most heads of courts. Applications made
to access the concession in those respects are
mostly declined for no, or frivolous reasons.
Legal aid in whatever form it assumes is also
vanishing from our society in reality. Admin- istrators of such schemes still make recourse,
at the barest minimum, to the victims for
logistics. By this, the dream of agitating
any right by a vulnerable person dies with
him. Should such oppressed fellow be able
to surmount this hurdle and file the case
in court, in most jurisdictions, successfully
ventilating his rights takes an average of five
years. Justice delayed is known to us all as
justice denied, particularly in Nigeria where
the average life span is fast diminishing and
the value of assets deteriorates. Challenges
of prompt assignment of cases, obtaining
dates for the assigned cases, multiple ad- journments are too common in our judicial
system.
Litigants hardly understand why they
must struggle to be in court and the proceed- ing is not going on. Skipping all other en- cumbrances or obstacles strewn in the way
of the realization of justice for the victim,
the trial of the case suffers severe and undue
delay due to the antics of defence lawyers in
some instances, and the unpreparedness of
the court in other instances. Technical rules
of administration are another impediment.
Of significance in this regard is what the
court system refers to as jurisdiction. This
is simply the competence of a court of law
to hear a matter submitted to it for adju- dication. The challenge to this is largely a
loophole that is now a veritable tool of delay
and frustration of cases in our courts. The
judiciary is yet to surmount this and rise up
to the challenge for no reason in my humble
view. Cases are frustrated through frivolous
appeals on this ground, particularly due to
lack of understanding of the extant rules
of appeal that have provided a window to
foreclose the game. Kudos to the attempted
solution by the President of the Court under
the current Court of Appeal Rules. How- ever, some judicial officers are still timid to
uphold the tenets of this innovative rule of
the appellate court that forbids the halting of
proceedings where such does not impact the
appeal filed.