18th Annual Business Luncheon Organised By SPA Ajibade & Co.

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KEYNOTE SPEECH BY HIS EXCELLENCY, PROF. YEMI OSINBAJO, SAN, GCON, IMMEDIATE PAST VICE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AT THE 18TH ANNUAL BUSINESS LUNCHEON ORGANISED BY SPA AJIBADE & CO. THEMED: REBUILDING PUBLIC TRUST IN NIGERIAN JUSTICE SYSTEM: RESPONSIBILITIES OF THE BAR, THE BENCH AND THE SOCIETY, IN LAGOS ON THE 11TH OF DECEMBER, 2025

Protocols

Let me begin by thanking the law firm of SPA Ajibade and Co. for providing this very important platform to continue the conversation on rebuilding public trust in the Nigerian Justice System. And I must say that Dr Ajibade, SAN, has been one of the most consistent advocates for judicial reform that I have yet seen. And I mean that quite seriously.

I was looking at emails that he sent to me in 2015, 2016, and 2017, on the matters of judicial reform. And in 2022, he signed the communique of the Justice Sector Summit, held by the NBA at the time in collaboration with the NJC. And of course, he was involved in our 2020 webinar. That was the one conducted by the Justice Research Institute. And then, of course, the 2024, the new proposals. I mean, something has to happen. If anyone is this dedicated, something really has to change.

The theme speaks directly, I think, to the urgent need for a comprehensive overhaul of our administration of justice system. Many of us are already familiar with the deep-seated failings of our justice system. And part of the survey, which I’m told we’ll be looking at, already tells us that the SPA Ajibade survey, already tells us that at least 73% of practising lawyers who are surveyed believe that public trust in our system of justice is poor.

I mean, if 73% of lawyers believe that public trust is low, that really, I think, describes the nature of the problem. I’m not going to dwell on many of these problems, except where necessary, to illuminate the reforms that are being proposed.

And my focus is really to outline some of the necessary reforms and examine the proposals, especially those contained in the revised national policy on justice, 2024 to 2028. That’s the one that the Federal Attorney General referred to a moment ago.

Before I do that, let’s just set out some foundational parameters. Reform itself, we know, is urgent, because public confidence in the fairness, in the relevance and credibility of our justice system is being eroded practically every day. But the nature and scope of any reform agenda must be shaped by the nature of the failings that we seek to correct. And these failings flow from philosophical, structural, and institutional deficiencies.

While we will examine the structural and institutional issues in some depth, the philosophical issues are also important, and they are foundational. A justice system must align with the common notions of fairness and justice. Judicial reasoning, in particular, must reflect both the letter and spirit of the law.

Otherwise, outcomes become technistic abstractions that are completely divorced from common sense. The public expects principles that promote substance over form. We lawyers talk about substance over form, but the public, that’s what the public expects. Not rigid adherence to some procedural technicalities at the expense of substantive justice.

The second philosophical principle is that the justice system is a public trust. It is a public resource funded by the people. It is paid for by the people. As entrusted with the protection of rights, the resolution of disputes, and the preservation of democracy and the rule of law, it does not belong to judges or lawyers alone.

And it’s a very important point to repeat that the justice system does not belong to judges or to lawyers alone. It actually belongs to the society, the society that it serves. This is why the governance structures of our justice system must be plural and representative. They must represent the bar, the bench, society, civil society, and every aspect of society. The criticism of the justice system must not be mistaken as being an affront on judicial dignity, but rather should be recognised as an expression of the accountability that is owed to the public. Tunde and I were talking about this just before we came here, when there’s a criticism of the judiciary, judges tend to feel that this is a criticism of themselves. But this resource, this thing called the justice, does not belong to judges. Oh no, no, it doesn’t. It belongs to all of us.

It is so important and so fundamental to our lives that we all must be concerned about it. And we all rely on this system; when it lacks credibility or effectiveness, we all bear the cost.

So, my reflection today will be guided largely, as I’ve said, by the publicly available revised National Policy on Justice 2024 to 2028. And this was validated at the National Summit, again, to which the Federal Attorney General referred in April 2024. And also by some of the practical lessons from our justice sector reforms in Lagos State between 1999 and 2007.

Now there are at least two reasons why I think the proposals, these proposals 2024, in the revised National Policy on Justice are important. At least two reasons. The first is that these proposals were initiated by the Federal Attorney General. Now that is very important, because in my view, this is how to do justice sector reform in Nigeria. The Executive must take the lead. And it may sound strange, but that is the way it works. The Executive must be prepared to take the lead.

The second is that the policy and proposals, all these policies, the 2024 policies and proposals, were a product of the engagement of the Executive, Judiciary, and the Legislature, and law enforcement, as well as civil society. That multi-stakeholder approach is also the right model for national reform. There has to be a multi-stakeholder approach.

But the conversation between the Executive and the Judiciary is crucial for any reform that would be successful.

In initiating our reforms in Lagos State, the 1999 to 2007 reforms, a clear blueprint was drawn up by the Justice Policy Committee, established by the then Governor-elect of the State, now President Bola Tinubu. The committee included Mrs. Priscila Kuye, who later became President of the Bar, Mr. Kola Awodeyin, Senior Advocate of Nigeria, and me. And we started the reform with a face-to-face meeting with seven of the most senior judges in Lagos State at the time.

The meeting was frank and revealing, and we’ll come back to this engagement with the judges towards the end of my presentation.

So what are the issues that we need to address in this reform process? The first is access to justice issues; delays in trials, over-complex procedures, dilatory tactics of counsel, et cetera.

The Justice Research Institute, an institute of which I’m a part, in a 2025 research, reported on the time it takes to resolve commercial cases in our courts. On average, a commercial case sits in the High Court for four years and two months. If appealed, it spends another three years and four months in the Court of Appeal.

If it goes to the Supreme Court, it takes another six years and six months to conclude. Now, altogether, a commercial dispute can take nearly 13 years from first filing to Supreme Court judgement. Now, these are averages.

Many cases take even longer. I’m sure that almost every one of us who are, you know, that’s seated here who practise in our courts would have a case that has gone on for much longer than 13 years, especially if the case goes to the Supreme Court. I’ve had an appeal, for instance, pending since 2014, which is still seeking a date at the Supreme Court.

Now, such delays are especially disastrous for business and investment. So, to deal with delays, a multi-pronged approach should be adopted. And this is also the approach adopted in the 2024 proposals.

First is technology and digitisation. And I think we need to be deliberate about technology reform. And today, there are several complementary strategies. There are so many different things that we can do with technology. It’s far easier than the days when we were speaking about technology in 2000, 2001.

We need expanded digital systems now, such as e-filing and already, some courts are even using e-filing. The digital filing of cases, online submission of pleadings, digitised record-keeping, and reducing reliance on physical paperwork and the delays that arise from it. We can now use electronic processes to achieve real-time service, tracking of summonses, notices, and case status. This will reduce procedural bottlenecks and also help us to avoid unnecessary adjournments.

Today, the electronic service of notices is easy to do, service of notices even by telephone, by WhatsApp, and all that.

In many jurisdictions today, many, including many African jurisdictions, aside from the initiating processes, personal service is no longer required. So, I mean, service by all sorts of other means is permitted. And I think we should move on very quickly to this sort of regime.

We must use virtual hearings more. Very fortunately, during COVID, we were able to start virtual hearings more effectively. The Supreme Court itself was very willing to go ahead with that.

And there’s a proposal which I strongly support, that we should validate virtual hearings constitutionally by defining public hearings to include virtual hearings. So that, you know, when you say a hearing is public, it also includes a virtual hearing. And also a federal policy paper to standardise virtual hearing practices in courts across the country, so that we’re all singing as it were from the same hymn book.

And this would make virtual hearings indisputably a part of our public justice system and remove some of the jurisdictional ambiguity which we experience at the moment. The creation of verbatim records is also much easier than ever before with the new AI tools that are now available. Every one of us is probably familiar with the AI tools that help us record a whole meeting.

You can record your meetings, edit the meeting, and get minutes. I’ve been shown, for instance, a model of an AI tool that can take proceeding from the beginning to the end, do the analysis that a judge would do, write the judgment, and give you options. So very, very soon, we’re going to have AI-written judgments. I don’t know what my Lords are going to do about that. But I’ve seen a model that actually works. I think that these things are going to radically change a lot of what we are seeing today. It’s possible now that litigants would have access to verbatim records of proceedings.

And there’s a proposal that litigants should be permitted to make their own audio recordings to generate transcripts subject to court certification.

Access to verbatim records is essential to guaranteeing the constitutional right to a fair hearing and to improving the accuracy of our records of appeal and all that. Also, pre-action notices contribute to a lot of the delays. And the proposal to eliminate mandatory pre-action notices, especially where urgent relief is sought, is a good one. And I think it will remove a common procedural barrier to timely interim relief.

Also, to eliminate jurisdictional gamesmanship, the proposal to put constitutional provisions permitting the transfer of cases between courts, superior courts of coordinate jurisdiction, I think, would be a very helpful one.

Because at the moment we’re just, I mean, this is something that really shouldn’t create any problems. But we don’t have provisions to enable it. I think it would be helpful, and would help to avoid needless rehearing and all of that.

Also, when judges are elevated, we need a constitutional dispensation that allows judges who have been elevated to return to conclude part-heard cases, especially where those cases are even very advanced. I think, again, this is an eminently sensible idea. Then there’s the use of digital data grids for case monitoring.

Now, these digital data grids are very simple, very, very simple tools also. India, for instance, has simplified its national judicial grid. It collects data on pending cases, it collects data on cases that have been disposed of across the courts. It allows the authorities to identify backlogs, to monitor performance, and to prioritise resources. And these are, again, very simple tools that can enable us to really speed up our judicial processes and show us where there are deficiencies and where things are slowing down.

ADR, Alternative Dispute Resolution, we must also more frequently use ADR, mediation, arbitration, and conciliation. Also, we can develop our own online dispute resolution platforms. This is an emerging trend in some African countries that don’t even have our own level of judicial development. They already are using online platforms for the resolution of small claims and all that.

Then the Citizens’ Mediation Centres, we may use the citizens’ mediation centres for small claims, although larger claims may also be mediated. The Lagos State experience is quite a good one.

I recall at the time that sometime in the year 2000, the then-governor, Governor Bola Tinubu, sent a memo to me from, I believe it was a real estate agent or so, who were talking of the stock of housing in Lagos, especially middle-cater housing dropping because most people were investing in stocks and shares and were no longer building middle-income type houses. Why? Because once tenants paid the two-year rent, they wouldn’t bother to pay again. And so, if you went to court, if a landlord took them to court, it would take years and years to resolve in the Magistrate courts at the time.

So many landlords were deciding, look, in the past, people used to think, if I have four flats, I should be able to take care of my retirement. All of a sudden, that became a pipe dream. So we then decided that we would start Citizens’ Mediation Centres to take some of the work that the magistrates’ courts were doing.

And these mediation centres, we established them first in the Ministry of Justice in Lagos. Eventually, we expanded the scope of these cases, of these centres. In the end, we were able, in one year, we were able to resolve 8,000 landlord and tenant cases, whereas the Magistrate courts were doing under 2,000.

And today, I believe, the Lagos state has about 18 or more mediation centres able to resolve something like 20,000 cases in a year. I mean, these sorts of, whether they are called mediation centres or whatever other small claims arrangements are possible, are the sorts of things I think we ought to introduce to take away some of the very simple, straightforward cases that can be resolved outside of our regular court system. What is also crucial is that it would prevent ADR, especially arbitration, from being hijacked by the regular courts.

Courts often intervene in arbitration matters on various grounds. For example, jurisdiction or arbitrability. That will then lead to setting aside or annulment of parts of awards that have been granted by arbitral bodies.

Now, this is a major source of interference. The clear provisions of the Arbitration and Mediation Act of 2023 are that a Nigerian court, for example, has no jurisdiction to set aside a foreign-seated arbitration, although you do find courts every once in a while doing that. But the crucial point is that we must, as a matter of legal policy, discourage even more intentionally the interference of courts with arbitration.

The moment the court gets into an arbitration, it means that this ADR method is already drawn into the judicial process, and it loses its advantage as a quick method of dispute resolution. We must also, in my view, refine our fast-track and specialised courts for high-volume or sensitive matters.

Already, we have specialised courts now. We have fast-track courts. Lagos has fast-track courts. But I think the major problem with a lot of the fast-track courts is that we must continually pay attention to making sure that they are actually fast-track.

Many models of fast-track courts, what tends to happen is that in the first year, two years, three years, they’re actually fast-track. Thereafter, they just become the normal, fast, slow, fast, slow, sometimes, and all that. And it’s because we are not paying enough attention.

We have to pay attention. If you say the court is a fast-track court, you must keep modelling and remodelling, keep refining and refining, until you get to a point where it is actually just functioning always and consistently as a fast-track court. Corruption cases, for example, should be fast-tracked.

In these courts, we must tighten procedural rules to limit adjournment. And this is the sort of thing that should go across our entire justice system. In India, for example, in many of their court systems, especially the federal court system, there’s a maximum of three adjournments.

Court infrastructure and staffing must also be enhanced to manage caseloads more efficiently. And today, with various AI tools, simultaneous recording of proceedings, and production of transcripts is much easier and much more accurate.

Blockchain technology also has great potential to transform transparency in the administration of justice. By creating tamper-proof records, it’s possible now with blockchain technology. And again, this is available. You can create records that are tamper-proof. Every filing, document, service or process becomes immutable. This strengthens trust in the general justice system, and it provides clear audit trails. It allows courts, litigants, and oversight bodies to see exactly who did what in the process. You can’t say a file was lost. You can’t say the file disappeared. The file remains where it is. And it’s immutable. You can’t change anything.

Also, a regime of severe sanctions for delays and abuse of process must be instituted. There must be consequences for malfeasance by counsel. For example, the award of adverse and wasted costs is so crucial. And we must put in place a regime that enables judges to be able to award adverse costs and wasted costs. Adverse costs are paid to the successful party in a civil case. And wasted costs are directed against legal practitioners for poor professional standards.

Sometimes we find the courts doing this. Severe costs should attend adjournments. There’s no greater waste of taxpayers’ funds than a scheduled case to be adjourned. And it’s only heavy costs that will discourage malfeasance in this way.

And one of the points I just wish to emphasise, I remember years ago, I was serving at the time as a Special Assistant to the Federal Attorney General. We had a case involving NEPA at the time. It was an international case. And we were in the High Courts of Justice in England; our entire team was supposed to have arrived on the particular morning to appear before the Royal Courts of Justice. It was our council, the Queen’s Council at the time, that was there in court.

We were there in court, but our witnesses from NEPA didn’t show up because they arrived that morning. Of course, everyone else had arrived the night before. So we were there sitting down. The judge was sitting down there waiting for our witness. Nine o’clock, 9.15. And the judge turned to our counsel and said, where is your witness? And he says, it appears that they arrived this morning from Nigeria, and they are making their way here. And the judge simply said to him, of course, you know that that is completely out of order. He nodded and said yes, he recognised that it was completely out of order. And that was the end of the matter. We were fined, I believe at the time, 176,000 pounds. That was for that adjournment, 176,000 pounds.

I mean, there was no question at all that we were in trouble if you were fined. And then, of course, to get another date. But the council comes to court today in serious commercial cases, and says that, you know, my tyre burst on the way. And it’s allowed to, you know, as it were, even take an adjournment, everyone freshen up and all that.

I think that unless we are serious about costs, you know, it’s unlikely that we’ll be able to prevent the delays, especially those caused by dilatory tactics that the council would frequently use.

How about the enforcement of judgments? Even after extensive litigation, you still have the problem of the enforcement of the judgment. And this is so, whether it’s a local or foreign judgment that you want to enforce. There are far too many bureaucratic inefficiencies, procedural complexities, a lack of cooperation from law enforcement agencies, and inadequate mechanisms for asset tracing. You know, there are just too many things.

Often, judgment creditors will abandon enforcement because of the high costs and the low success rate of the post-judgment process of identifying and seizing judgment assets. And that’s a problem. What’s the point of going through a whole legal process? An involved legal process.

And at the end of the day, you can’t enforce judgment. Government debts, of course, are even more notoriously difficult to enforce, especially with the mandatory requirement of the Attorney General’s consent before initiating garnishing proceedings to enforce monetary judgments against government agencies. Of course, that consent is unlikely to ever come.

I mean, what Attorney General is going to say, I consent to you to go and levy execution against the money of the state. So, it’s unlikely. And very frequently, you’ll find there’s a back and forth on this.

Why some government officials and the P&ID officials? So sometimes you wonder whether, you know, just simply allowing a situation where there is no intervention, especially with government resources, whether that’s the right way to go.

But I believe that we can do more anyway, generally speaking, to reform the failing system of enforcement of judgments. The first is to remove the obstacles to enforcement. Reduced judicial discretion or automatic or default enforcement mechanisms is perhaps one of the ways that we can do this. For instance, in the U.S., federal and in many states, once a judgment is entered, rates of execution and garnishments are available without further judicial approval in most cases. So, once you have the judgment entered, it’s almost self-executing from there on.

In Singapore, rates of seizure and sale or even garnish orders are likely ministerial once judgment has been given. Judgement is the final step. From then on, there’s no longer any judicial interference in the process.

The Singapore Supreme Court is said to be one of the most efficient in this respect. They have the Sheriff of the Supreme Court.

Enforcement is a function of Executive will. Where Executive will is lacking, effective enforcement will also be lacking. The Executive branch must see enforcement as a priority. The constitution clearly makes the enforcement of laws, including the judgment of the courts, the responsibility of the Executive. And I will suggest the establishment by law of a well-trained and armed judgment enforcement corps to replace bailiffs. The law should contain clear operational guidelines, autonomy to act without interference from the police, security agencies or the military or other armed services, so that this is an enforcement force by itself. See, if you cannot enforce judgments of the courts, you can’t really speak of justice.

Now, another reform issue is the question of the quality and integrity of judicial decision-making. And I think that this is a matter which the judiciary itself must address. This has been a growing cause for concern. There’s a lot of concern around this issue. The increasingly established preference for technicality over justice is something that I find, sometimes, just astonishing.

Because we know that it will always alienate the system of justice from the people that it is meant to serve. So, for example, the Supreme Court holding in Okafor and Nweke, that signing processes in the name of a law firm instead of counsel was enough to nullify proceedings at whatever stage the proceedings were. And then, of course, this has been reaffirmed; the Supreme Court has had an occasion to look at it again. It’s been reaffirmed. Since then, the court has nullified cases that took decades to get to the Supreme Court on account of this technicality.

And sometimes I’m just amazed. What’s the point of this? What exactly is the point? What if it’s not even signed? Can’t the error be corrected right there and then? Why should an error by counsel over signatures rob a party of all the merits of their case? And to me, how can this make sense to the man on the street? And it’s the man on the street for whom this justice is meant. How does it make sense? I think that this overly technistic approach, again, is repeated time and time again.

And we must look at this as a matter of policy and insist that it should not be that way. There’s a Supreme Court case also, Zachary and the Nigerian Army, where this sort of thing was repeated. For those who might have read the case and those who may not have, this was a case involving Captain Zachary, who was chairman of a task force assigned to investigate the illegal use of Nitel lines by Yahoo Boys for 419 activities.

A court-martial was instituted to try him over allegations that he received a bribe of N40,000 from the suspects and released some of them and employees of the company that had been arrested. He was convicted by this court-martial. He challenged his conviction on the basis that the court-martial panel had four members instead of three and that one of them was his junior.

Now, one of the sections of the Armed Forces Act requires a court-martial panel to have three members, all of whom should be senior to him or at least the same rank as the accused officer. In this case, three of the four officers were senior to him or the same rank as Zachary. The Supreme Court set aside the conviction, saying that once a member of the panel was disqualified, notwithstanding that the officers constituting the quorum were qualified, the entire proceedings would be annulled.

The question that the court ought to have asked, in my view, is whether it was the intention of the lawmaker to nullify proceedings of the tribunal when there was a quorum plus one or to ensure that a suspect is given a fair trial and that in no event should an offender escape. The real question is, did he get a fair trial? Not the technicality of whether, after a quorum was formed, there was an additional guy on the panel.

Compare this to the way the court in England handled a mandatory requirement that, if obeyed, should have led to the escape of a wrongdoer from justice. This case is called R vs Soneji. Kamla Soneji and David Bullen were found guilty in April 2000 of conspiracy to convert property and move proceeds abroad, knowing the same property to have been proceeds of criminal conduct. The law provided that, following conviction, once individuals are convicted for trying to launder criminal proceeds, confiscation orders must be made within six months of conviction. That’s what the law provided. But the particular confiscation orders in this case were made more than 18 months after. Despite this infringement, which was mandated by law, as we say, it was a shall provision, shall do. The convictions were upheld. Lord Stein said, and this was in the lead judgment, that it’s not useful to ask whether the rule prescribing a six-month time limit was mandatory or directory. So that’s not a useful question.

He said instead the true question to ask was whether the parliament intended that a failure to comply with the six-month timetable should deprive the court of jurisdiction and invalidate all proceedings and orders made thereafter. That is to focus on the consequences of non-compliance with the prescribed time limit. He held that the intention of parliament was not that non-compliance deprived the court of jurisdiction.

He also pointed out that it was in the public interest not to allow a convicted offender to escape confiscation simply because of errors in the judicial process. And I think this is the way to look at some of these issues. We have to come to, just as a matter of policy, move away from technicality, to move away from section six, it mandates, to look more at the justice of the issue, because that really is what the justice system should reflect.

How about violations of the fundamental principles of stare decisis or judicial precedent, resulting in conflicts in court of appeal decisions, especially, and I think some of the best examples are the 2023 election cycle. I noticed that in the survey, the 2023 election, this past election cycle, was regarded as one of the worst in terms of judicial outcomes. The court of appeal in this 2023 cycle delivered conflicting decisions on whether issues of party primaries and nomination are pre-election matters or whether they are not pre-election matters, or whether such issues can be raised in election petitions.

A binding court of appeal precedent already existed, APM and INEC and others already existed. There’s a binding precedent which held that nomination, sponsorship issues are pre-election matters and cannot ground an election petition unless they relate to constitutional qualifications.

Yet, in Plateau State, election tribunals were split despite this binding precedent. There were two panels saying two different things. Some correctly declined jurisdiction over challenges to the PDP primaries in particular. Others, in violation of precedent, assumed jurisdiction and invalidated all the PDP primaries. On appeal, however, all court of appeal panels, in violation of existing Supreme Court precedent and the clear provision of the law, held that the PDP could not validly sponsor candidates, resulting in the mass removal of PDP legislators in clear violation of Supreme Court precedent. Unfortunately, for the petitioners in these cases, the cases ended at the Court of Appeal.

Of course, as you know, for legislative elections, the final court is the Court of Appeal. In Imo State, the Court of Appeal issued divergent judgments again. Two different panels issued despite a clear precedent of the Supreme Court.

So there was a case, Manasseh and Goshue, I’m sure some of us might have read the case, a case on the Plateau governorship election, where the Supreme Court had an opportunity to reaffirm that tribunals have no jurisdiction over pre-election matters such as primaries and notification. And the Supreme Court delivered one of the most scathing criticisms of the Court of Appeal that I have yet read, describing the actions of some of the panels of the Court of Appeal as amounting to misconduct. Justice Agim, who read the lead judgement, said, “the deliberate refusal of courts to follow the established precedents of this court are principles that have become trite and elementary.”

I want to just read that portion because I think it’s very important.

He said, “The deliberate refusal of courts to follow the established precedents of this court on principles that have become trite and elementary, having been subject to restatements in an unending line of cases, is of grave concern.”

He said, “It has very serious implications for the sustenance of the rule of law, peace, order and security of the society. The principle of stare decisis remains the foundation upon which our rule of law rests. This is why our constitution provides in section 2871 that the decisions of the Supreme Court shall be enforced in any part of the federation and by courts with subordinate jurisdiction to that of the Supreme Court.” This is his description of the Court of Appeal, he says, “the erratic and wild judicialism that has occurred in this matter from the high court order of 26-11-2020 all through the Court of Appeal leaves much to be desired and renders access to justice a difficult, if not impossible enterprise. If we cannot be sure what the law is at any time, then there is no law. An essential requirement of law is certainty of content and application. Once this certainty is removed, it ceases to be law and becomes a tool to be used manipulatively at the whims and caprices of those of us in whom the society has invested its trust to guard and enforce the law truthfully, objectively, fairly, without fear or favour, to yield substantial justice at all times for the public benefit. It amounts to judicial misconduct of a very extreme proportion for a judicial officer to disregard clear provisions of the Constitution and other legislation and the precedents of this court. The whole engagement from the High Court to the Court of Appeal amounts to illegitimate adjudication or false judicialism, flagrant and oppressive abuse of judicial process in an unprecedented manner. I will not say more on this. These few words are enough for us all.”

This is the Supreme Court in that case.

Now, it is very clear that the court did not need to say any more. But to the man on the street, the elephant in the room is too large to miss. And this is the whole point of perception, the whole point of perception of corruption.

How does anyone who sees what the court did in clear violation of the Supreme Court precedent, and hearing what Justice Agim had to say? Of course, there’s no way in the world that we’re not going to wonder whether there was no compromise, whether there was no corruption, whether the outcome of these cases was not induced by bribery or such undue influence. And shouldn’t such brazen misconduct, anyway, give rise to consequences? If conflicts are not induced, they can be avoided. I mean, if you look at conflicts in the cases, for instance, I mean, conflicts in judicial cases and all that, if they’re not induced, they can easily be avoided.

Many of our electronic reporting platforms today, I mean, we have so many, law pavilion, et cetera, have the capacity for analytics by simply asking the question about previous authorities on any point. If you ask any of these, you just type in the enquiry. What are the previous authorities? It’s very straightforward today.

So these are important issues that we have to take into account. And we cannot afford a situation where people get away with this kind of brazenness. It shouldn’t. If the Supreme Court said it’s misconduct, then it ought to be taken up as misconduct.

Then there are structural institutional issues, I think, which need to be dealt with. Inadequate courtroom, shortage of judges, management of courts, allocation of cases, docket control, et cetera. I don’t think we need to dwell on an inadequate courtroom, a shortage of judges, et cetera. These are fairly straightforward issues.

But how about the administration of the court system? I don’t think there should be any argument that the administration of the court system should be professionalised. How can a judge who managed a single courtroom for years suddenly acquire the capacity to head a whole judiciary and its administrative departments? I think that it’s really very difficult to imagine how that’s possible. I mean, I run a simple court in the corner of Lagos here. And then one day I become chief judge, and I’m responsible for everything, administration, everything in the judiciary of Lagos state. No professional training, no management training, nothing. I think that in some of the discussions we had before we came here, some suggestions have been made that at least there should be some training. Even if you are, I mean, some management training. I think the suggestion was that before you become chief judge, you should go to Lagos Business School, do some management training, because this is huge.

I mean, what a chief judge manages is huge, let alone the Chief Justice of Nigeria; it’s huge. So I think that these sorts of things are quite important to do.

In 2001, Justice Uwais, then Chief Justice, actually proposed a professionalised court administration. He sent around a proposal on this professionalised court administration. In other words, creating a completely different cadre that will manage the court professionally.

The chief justice will focus, and judges will focus purely on adjudication and leave management completely to a professionalised service. Although this was not followed through at the time. And I think that it still remains how to go about this.

Judges should be left to adjudicate, while administration of courts, including procurement, should be the business of professional court administrators. The UK, for example, offers, I think, what’s a good model. His Majesty’s Courts and Tribunals Service is responsible for judicial administration, including building new courts, renovation and maintenance, and all of that.

The service is also responsible for private sector procurement. Whatever it is you’re doing, ICT system, security, furniture, whatever. It can enter into public-private partnerships for court projects, and judges are only consulted for judicial needs, not administration.

So I think this is important because really the judge’s business is adjudication. It should not be worrying about how courts are built, how much it costs to put in an IT system and those sorts of things. How about docket control and allocation of cases? There are, of course, allegations all the time of bench fixing, corrupt allocation of cases to friendly judges, you know, and these have become trenchant, especially in recent times.

Even sometimes in the courts, there are rumblings about illegal payments made to registry staff to get early dates for hearing and all that. I think that the discretion given to heads of courts or registrars in the assignment of cases is largely responsible for this abuse. To restore public confidence, there is a need to use structured, rule-based and auditable allocation systems.

And we’ve got to the point where, again, technology is available. There are a few options, or a combination of some of these options that have worked elsewhere, which we may adopt. There’s a randomised case management approach, for instance, and this is just a computer system where cases are assigned using a secure computer algorithm that randomly selects the judge or judicial panel.

The algorithm would have the capacity to consider workload allocations, workload balancing, and sometimes judicial specialisation, but it does not allow manual override, except under the strictest rules. The India Supreme Court, for example, and several High Courts have adopted this model.

Again, the technology is very simple and very straightforward. Argentina and Chile, in fact, have recently they’ve had some very serious issues of the sort that we’re describing. They use a variation of the electronic random assignment method as part of their judicial transparency reforms.

They were almost collapsing under the sorts of decay, the destruction of public trust that we’re talking about. Also, many European Courts use this option, and I think that is an option that we should use just to bring in a bit more transparency, accountability to the entire system. Another well-used option is the automatic rotation or wheel system.

Now, this has been used many, many times in the past. Judges are placed in a rotation or in a wheel, and new cases go to the next judge in sequence. So if a judge is unavailable on account of a conflict of interest or illness or whatever, the wheel moves to the next judge.

This is one that a lot of Federal Courts use in the U.S., the random wheel system. I think, again, this is very straightforward. The important point is the will to want to do this transparently so that allocation of cases is not the chief judge’s discretion or registrar’s discretion.

It’s simple and random, and just improves the general trust that we have in these systems. There’s also a hybrid option, which enables, first of all, the sorting out of the cases into designated categories, commercial, criminal, or family, or whatever the case may be. And then, within each category, judges are selected randomly. There are very, very many different models, and I think that any one of these models can be adopted.

What sort of reforms are necessary in the appointment and remuneration of judges? I think it’s stunning that the process for evaluation and interview of judges, men and women statutorily empowered to literally determine the lives and livelihoods of others, is one of the least rigorous processes imaginable. There are no clear evaluation processes for the selection of judges.

In the United Kingdom, for instance, where we derive most of our structures, applicants to judicial office, especially to the superior courts, go through several screening processes, including written examinations, interviews, and role-play exercises. They are subjected to background investigations covering professional credentials, their abilities, public records, their judicial pronouncements, if they have served before, and their personal financial affairs. The evaluation of the Bar Association of their integrity is also taken seriously. Professional competence, judicial temperament, that’s, I mean, it’s a whole big thing.

Nigeria’s judicial appointment system, if you look at the 2024 proposals, identifies that there are so many defects that undermine the credibility and independence of the judiciary. The National Judicial Council, and this is from the proposals, has not succeeded in creating a process that is both meritocratic and transparent, nor one that inspires public confidence.

Its guidelines and procedural rules are inadequate, and they’re often disregarded in actual practice. The Chief Justice of Nigeria wields excessive influence over appointments, chairing both the Federal Judicial Service Commission and the NJC, thereby controlling initial assessments and final recommendations. The CJN appoints 19 of the 24 NJC members, that’s practically all the members, who serve, of course, at the CJN’s pleasure. Again, this compromises the independence of the body, and all these facts are properly outlined in the 2024 proposal, signed up to, as we’ve heard, by the CJN, the President of the Bar, and the Attorney General of the Federation. So, these are not issues that are alien or strange.

At the state level, the composition of the State Judicial Service Commission grants governors, again, disproportionate control. They appoint five of the eight or nine members of the JSC, including the Attorney General, who sits as an ex-official member. Furthermore, Rule 3, Subsection 4 of the NJC Guidelines gives the Chief Judges and Heads of Courts sole responsibility for shortlisting candidates.

So, it allows them to favour preferred individuals and compromise the process. As a result, judicial appointments at both the federal and state levels are already captured by vested interests, whether those are political or judicial. Governors, Attorneys General, and Chief Judges exercise, of course, overwhelming influence.

Not surprisingly, there are several cases of nepotistic appointments, relations of serving judges being appointed, and all of that. You know, we hear this, we see it all the time. Now, the reform proposals on this issue, I think, are ones that we should take very seriously. As a general principle, lawyers and laypersons must have a role in deliberations on judicial appointments, judicial discipline. In other words, it must have a role in the NJC, the FJSC, and the GSEs, ensuring that the bar and the people have appropriate voices in upholding the highest standards that we expect of our judiciary. And this would, of course, require constitutional restructuring of the NJC, the FJSC, and the GSEs.

The NJC and the Judicial Service Commission should be headed (and this is a view which has been preferred by many) by lay persons. In other words, not headed by the Chief Justice or legal practitioners, and their tenure should be certain. Now, this is to ensure independence and impartiality and engender public confidence.

And this is the same rationale for the Constitutional Reform Act 2005. This is the UK’s Constitutional Reform Act. They also provide for a lay chair for their judicial appointments commission, not the Lord Chief Justice, but a lay person.

Second, the NJC and the GSEs should have a broad representation of membership from the bar, civil society, organised private sector, and, you know, generally the public. Appointment of members should also be merit-based, and we can bring in human resource consultants to draw up formal criteria and design processes to ensure that we get the best results. In other words, members of the NJC themselves should be subjected to a rigorous process of appointment. These are the people who are going to appoint our judges. We shouldn’t just appoint anybody. People shouldn’t just become members just because somebody nominated them. They should still go through a rigorous process.

Vacancies for judicial positions should be publicly advertised. Applicants’ identities must be disclosed, and the process must be transparent. Meritocracy should be prioritised through mandatory examinations, interviews, standardised vetting, and clear criteria for assessing candidates. Holistic legislation should be enacted; a whole legislation to codify appointment procedures.

And this is what has been done in other jurisdictions. Kenya, for example, in 2011, had a set procedure for the appointment of judges.

So, on the issue of remuneration of judges, for example, while we ask for the best from our judges, we must equally ensure that the conditions under which they operate are not only befitting, but are good enough to attract the best minds in our profession.

Judicial remuneration and welfare are critical. Why should a judge earn so much less than a federal legislator, for example? Benchmarking judicial allowances of judges against the legislature. This is a proposal that we have put forward. I’m not going to go into all the details of that.

We put forward in 2021 that judicial officers, their allowances, not salaries, should be benchmarked against those of Legislators. So, Supreme Court Justices should earn the same allowances as senators. Court of Appeal Justices should earn the same allowances as House of Reps members. And then we should just define a certain sum for High Court judges and all that. Something else took place anyway in the process, and I don’t want to go into the details of that.

But I think it’s a very important thing because I recall a particular conversation that I had with the Learned Justice Abiru many, many years ago. I think it was in 2000, when he was very happily practising in a very successful practice at Bentley Edu at the time, making tonnes of foreign exchange. And I said to him, you have to be a judge. He laughed, and he almost fell off his chair. That judge? How much do judges earn? Judges in Lagos at the time were earning N67,000. And of course, he was earning multiples and multiples of that.

Anyway, eventually we improved things and all of that. But I think it’s important to bear in mind that you cannot attract the best people if you’re not ready to pay. I mean, as they say, if you pay peanuts, then you attract monkeys. So we must pay our judges well.

The other point, in 2021, with the approval of the president at the time, we initiated insurance for all Federal Courts, Supreme Court judges, serving, retired, all Court of Appeal judges and all of that. National Industrial Court, Sharia Court of Appeal, and all the federal court judges. And I think that was very important because medical insurance for all of our judges is absolutely crucial. Insurance that enables evacuation if they have to.

A major issue that was flagged by judges in Lagos state in our own pre-reform meetings in 1999 was that no judge could, at the time, build decent accommodation in a location, you know, in keeping with their status on the salaries that we were paying. So an important component of welfare is a home, and we ensured that, and this has been the case since 1999.

The question of judicial corruption, I think, remains one of the most troublesome issues that we have. The judiciary framework for both the bar and the bench, I believe, also requires strengthening.

This includes updating disciplinary procedures, enforcement mechanisms, etc. But for lawyers, I think the LPDC, again, following the 2024 proposal, should be decentralised. Retired judicial officers should be engaged to sit on panels across the country to accelerate and improve disciplinary hearings.

At the moment, disciplinary hearings are so slow, you know, sometimes on account of the fact that we can’t find the sort of calibre of individuals who can sit on those panels. And I think the suggestion that we could use some retired justices is a good one. A modern performance management system for our courts is important, one that evaluates quality and efficiency and, you know, effective justice delivery, rather than just counting a number of concluded cases.

Professional standards must be rigorously enforced, underpinned by training, ethical development, etc. I think that all these things are possible. But again, just on this matter of corruption, I doubt whether there is any factor that’s more responsible for destroying public trust in the judiciary than the perception that justice can be bought.

In 1999, before commencing our justice sector reform effort in Lagos, we conducted a survey of 200 lawyers who practised in the high courts of Lagos. And the new survey that’s been done by SPA Ajibade is of 447 lawyers. Well, this was 200 lawyers asking about their perception of judicial integrity in Lagos State at the time.

89% said that they felt that judges were notoriously corrupt. 89%. Much more, and much more recently, there’s even another survey conducted by Chatham House on social norms and accountable governance in 2022. A nationwide survey, a Nigerian nationwide survey, where 61.3% of respondents believed that a typical judge in Nigeria was likely or extremely likely to accept a bribe to influence a judgment. Now, these are all perceptions. But the truth of the matter is that when it comes to matters of justice, perception is reality.

That’s how it works. Nobody is going to say, I found a judge taking a bribe. That is why I believe it’s all about perception. That is why Justice Esho said many, many years ago, Justice Esho, then of the Supreme Court, said many years ago that even a whiff of corruption around a judge is bad enough. Just a whiff. A rumour is bad. Let alone, you know, look at the perception. So, what then happened in 1999 when we had this issue? As I said, a sit-down between the Executive and the Judiciary is always important.

I had a meeting at the time with seven of the most senior judges in Lagos State at the time. And we sat down and asked ourselves the question, how are we going to do this? Everybody believes that judges are corrupt. How can we deal with this? We started a discussion that afternoon, and we said, okay, how much do judges earn? N67,000 at the time. We wrote it down. And then we asked ourselves, OK, Justice X, you have a son in America. How much are you paying? He says $12,000. OK, we’ll write it down. You have one in university. How much? We wrote it down.

One of them tapped me on the shoulder and said, let me tell you, you two know this thing is rubbish. You know it’s rubbish. How can you pay N67,000 and expect people to have children here and there? How is that possible? So it was evident to all of us seated around that table that day that we were fooling ourselves.

One of the judges told a story on that occasion, said, “my wife called me one afternoon, and said our daughter was in St. Nicholas Hospital. She had just been taken there. She was very ill. She was taken there from school. And that we need to make a payment in order to admit my daughter.” So he rushed to the St. Nicholas Hospital at the time. And they said to him, “we have stabilised this girl, but we can’t admit her unless you pay a certain amount of money.” He then said that he was telling them that, “look, I’d have to go back to the courts, hopefully raise some money for my colleagues and all of that and come back.”

But they said, “well, as far as we are concerned, we cannot admit unless you make a payment.” He said, and suddenly a man from behind him says, “sir, don’t worry, I can pay this money because this is urgent.” The man paid, and as he was going towards his car, his clerk said to him, “do you know this man? He said, “no, I don’t know him. Even if he’s an angel, I can’t tell who he is.”

The clerk said, “but the man was in our court last week.” The Judge now said, “well, the question was, what am I going to do? Am I going to run after the man to give back the money or what?” So the dilemma, the problem was very stark as we sat down there. We all agreed that this was a big problem and that we were expecting far too much from our judges.

I visited a judge here in Lagos who was living in someone’s boys’ quarters, a retired judge, who was living in someone’s boys’ quarters. Didn’t have a home of his own. Had a home in Ondo State, but did not have a home here in Lagos after retirement.

So it’s evident that unless you remunerate properly, and you’ve got to be realistic about this, if you don’t pay judges well, they don’t have medical insurance, they are not well paid, this is a big problem. So what did we decide to do in Lagos State? We decided, amongst other things, first of all, we’re going to improve judicial remuneration. And we did.

I mean, we more than quadrupled payments, especially coming from allowances at the time. We agreed that we would give judges cars that they would own, then, very importantly, that they would own their own homes, that they would have homes, and they would be their own homes. These are not official homes; these would be their own homes. Very, very important, because today, I don’t think that justices of the Supreme Court are entitled to homes of their own. Only the Chief Justice of Nigeria, when he retires, would have a home of his own.

All the other justices will not have. Court of Appeal justices will not have. But we managed to do that in Lagos, and it’s entirely possible. These things don’t cost that much. It’s very straightforward; you can do it easily. Judges can be provided with their own homes easily. And it wouldn’t cost anything, which should give us any kind of problems as a government.

So I think that these are very important issues that we need to deal with. So in dealing with judicial corruption, of course, what we then did was that we decided that, look, any case that comes to us, we’re not even going to go through the GSC, we simply send it straight to the NJC, and the NJC will set up a panel. Whatever recommendations we would accept those recommendations.

In Lagos State at the time, at some point, we sacked about 22 magistrates. Three judges also, at various stages, lost their jobs. It was evident to all that we were serious about remuneration, and at the same time, serious about the discipline of judges, and that’s the way it should be.

Finally, at the time, in 2007, the World Bank, working with us, did another survey. We did another in 2007. Again, 200 lawyers and all of that. At that time, 0% of lawyers said that judges in Lagos were corrupt, zero, from 89%. It’s a game of perception. And it wasn’t as though the judges became necessarily born again, no. It was because, first, they were better, decently paid.

Again, they saw that we would be consistent in matters of discipline, because whatever the NJC recommended is what we would do. And all of these things are entirely possible. But in my view, the Executive has a principal role to play. If the Executive says we are determined to do this, sitting and working with the Judiciary, we can make a world of difference.

Thank you very much.

 

 

 

 

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