Afe Babalola

Quality of Judges: Appointment of San as judges
Closely related to the above is the quality of persons appointed as udges. In England and other advanced countries. Judges are appointed from the best the bar can offer. Judges are appointed from lawyers who have had extensive practice before the courts. That was the practice in Nigeria when lawyers were invited to the Bench from the Bar. But this is not the case now-adays. Persons who have had little or no serious practice of law have often been appointed judges. Appointments are not always made on merit but on extrinsic factors such as family and political ties or affiliation. As a result of this the Judiciary and ultimately the Judicial Service System have been the worse for it. Cases now get protracted not always because of the attitude of lawyers as many have been made to believe, but because of the poor quality of some Judges. It is quite common to get to court having travelled hundreds of kilometers only to be informed that the court would not sit. Recently, a judge in Lagos State directed his Registrar to inform lawyers that all cases pending in his court should be adjourned to next year as he has judgments to write. As a way out I suggest a system whereby Judges are appointed from Senior Advocates of Nigeria. This system operates in the United Kingdom wherein Judges are appointed from the body of Queens Counsels (QCs).

The adoption of this system will ensure that only the most experienced and knowledgeable practitioners of law are appointed to the Bench. Our Jurisprudence would surely be the better for it.

APPOINTMENT OF SENIOR ADVOCATES
The question that this proposal will necessarily attract is whether we have enough Senior Advocates of Nigeria to man our courts? This is quite understandable as the total number of Senior Advocates of Nigeria may not be sufficient to offer enough candidates to fill the vacancies which occasionally arise on the Bench of the High Courts of the States, the Federal High Court, High Court of the FCT and the National Industrial Court.
The answer to this question is to be found in an overhaul of the current system of appointment of Senior Advocates of Nigeria.

At the moment, the process of appointment of Senior Advocates of Nigeria is restrictive and selective. There is a need to make it more open and transparent. In order to ensure that applicants possess sufficient experience in legal practice, the Legal Practitioners Privileges Committee has put in place certain criteria including handling of a number of cases before the courts of the land including the Supreme Court as well as other conditions. All applicants who meet these requirements are then shortlisted and subjected to a selective process using parameters which are not clearly defined and indeed have attracted criticism and controversy. In other words, the approach currently adopted is to enquire why someone who ordinarily merits conferment with the rank having satisfied all conditions laid down should be denied that right due only to restriction on the number that must be appointed in a year. This approach ipso facto leaves room for abuse as the factors which dictate who to pick out of qualified applicants is subjective and therefore prone to abuse and or manipulation. I am of the firm belief that all persons who meet the requirements laid down should be conferred with the rank. If 100 Legal Practitioners merit it in a year, let them be so conferred. This way there will be no backlog of applicants. Even if only one qualifies, so be it.

This same view was canvassed by me in a paper presented to the Privileges Committee. In the paper, I quoted extensively the practice in England under which all qualified candidates in a year are conferred with the rank of Queens Counsel. There is no backlog. There are no complaints, no bickering.

MEMBERS OF PRIVILEGES COMMITTEE
Furthermore there is little rationality in appointing Senior Advocates of Nigeria who have just themselves been conferred with the rank into the Legal Practitioners Privileges Committee a year or two earlier. I believe that such newly appointed SANs may not be able to dispassionately discharge the duties of screening or determining which other persons will subsequently be conferred with the rank. Clearly the candidates will be applicants with whom they would have competed recently before being appointed. The possibility that this will affect their judgement cannot be ignored. A SAN who has just himself been conferred with the rank perhaps after 8 previous unsuccessful applications and then appointed into the LPPC may not be favourably disposed to a first time applicant being conferred with the rank even where it is clearly merited. This is just a fact of human nature. Thus it is better to appoint more experienced Senior Advocates of Nigeria into the Committee. I therefore recommend that Senior Advocates who would have served on the Privilege Committee must have had at least ten years experience as Senior Advocate.

ROLE OF LAWYERS AT THE BAR
Lawyers who choose to remain at the Bar invariably have the Bar as the platform to contribute whatever they can to the development of the country. However the Bar of late would appear to have derailed from this fundamental objective. In several instances, the affairs of the Bar were conducted much like a Political Party, Pressure Group or Trade Union. The Bar involved itself in matters which are clearly outside of its purviews.
This opened the Bar to interested Politicians who were bent on making it an appendage of their political parties. Such was the extent of the damage done to the ideals of the Bar that some Lawyers doned their Professional Regalia to stage a protest march to the office of the Governor of Lagos State over a matter that was not connected to the practice of their profession!!!

Furthermore, service on the Executive of the Bar at any level or indeed in any capacity is now regarded as a means to acquire quick popularity and the riches and affluence which many believe comes with it. People who hold such belief are always quick to refer to some of their colleagues who experienced tremendous change in fortune after election into office.  The bar is not and should not be regarded as a Political Party or a means to acquire quick wealth. Such views clearly detract from the ability of the body to effectively discharge its duties. 

OFFICE OF THE ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE
I am of the view that the office of the Attorney General of the Federation should be separated from that of the Minister of Justice.  In most jurisdictions, the Attorney General who is the Chief Law Officer of the country is responsible only for matters related to law.  On the other hand, the Minister of Justice is a technocrat responsible for the administration of the Judicial Institutions of the states.  I believe the fusion of the two offices in Nigeria has prevented successful occupants of the highly exalted office from efficiently discharging their duties in a manner envisaged by the Constitution and required in nation building process. 

STRUCTURE OF COURT – NEED FOR STATE TO HAVE APPELLATE JUDICIARY
At the moment, all matters before all Courts in Nigeria have the chance to be lifted up to the Supreme Court.  Therefore, a suit over a parcel of land in rural area in Oyo State can find its way up to the Supreme Court of Nigeria.  To compound matters, the recent amendment to constitution has conferred jurisdiction on the Supreme Court in gubernatorial election petitions which hitherto terminated at the Court of Appeal.
The current system has put a lot a strain on the Supreme Court and even the Court of Appeal with the result that the appeal process from the High Court to the Supreme Court on the average take about 10 years.  This is tasking on stakeholders including judges, lawyers and the litigants themselves.  Convicted persons are most affected as they have to wait endlessly whilst languishing in jail to have their appeal heard and determined.

I suggest therefore, that an amendment be made to the Constitution whereby states would have their own separate and distinct appellate court system.  Under this system, all matters before a  State High Court which do not have any connection or determination of which will not have any effect on federal laws on the constitution must as a matter of necessity terminate within the appellate court structure of each state.  Therefore, the Federal Court of Appeal and the Supreme Court will be left to handle matters which revolve round federal laws and the constitution.   That was the position under the First Republican Constitution where Western Nigeria has a strong Court of Appeal. This is also the system that currently operates in the United States wherein the Supreme Court of the United State of America have the power to decide the matter it will or it will not entertain.

ELECTION PETITION MATTERS
I have always suggested that election petitions tribunals should be constituted mainly by retired judges or referred to the Institute of Arbitrators of Nigeria. I still hold this view.  Retired judges will be less prone to temptations of considerations such as career advancement which may affect the judgment and reasoning of serving judges.  Furthermore, appointing retired judges will ensure that the dispensation of justice in regular courts is not disrupted while serving judges are on national assignment sitting on nation election tribunal. In the case of arbitration, there will be virtually no need for an appeal.

SOVEREIGN NATIONAL CONFERENCE
I am aware some of the suggestions I have proferred above will involve a critical overhaul or restructuring of the political and judicial structures and institutions of the country.  The problems afflicting the Judiciary and the Bar cannot be divorced from the virus that has endangered the existence of Nigeria as a corporate body. Lawyers are Nigerians. They live among Nigerians and are affected in large measure by Nigerian factor. Therefore, it is quite necessary that a sovereign national conference be convened to address many of the issues raised in this paper.  I have at several occasions advocated this view and I am still of the conviction that it is a view shared by many Nigerian irrespective of political or religious inclination.