Let state govts create their Appellate courts - Yusuf Ali (SAN)

04/04/2016

Source: http://thenigerialawyer.com/let-state-govts-create-their-appellate-courts-yusuf-ali-san/

Mallam Yusuf Olaolu Ali, (SAN) is a consummate lawyer and prolific legal analyst with post-call experience spanning about three decades. He was admitted into the inner Bar as a Senior Advocate of Nigeria in 1997.

In this interview with WALE IGBINTADE, he speaks on the need to reduce the work load of the Supreme Court and on the Federal Government’s war against corruption and among others. Excerpts:

How would you assess the judiciary most especially under this new administration?
Well, at the risk of being accused of bias, I think the judiciary more than ever had acquitted itself very well. If you see the share number of election petitions, election petition appeals, some election petition interlocutory appeals to the Supreme Court you will marvel. As we are talking now most of the governorship judgments have also gone to the Supreme Court and that of the election petition tribunals. The Court of Appeal has been able to cope and ensure that all the cases were disposed off within the time-frame as prescribed by the constitution; it is a lot of sacrifice. As a player in this matter, I am aware that there were occasions when we had a matter in Ibadan and a Justice who will take part in Ibadan matter was still sitting in Abuja. He had to find his way to Ibadan. The same thing happened at Makurdi, where Justices were far away in Enugu and Owerri, but they had to find their way to Makurdi to attend to the matter. I am aware of the situation where some of these tribunals and the Court of Appeal when they were hearing the cases from the National Assembly sat as late as 10:30p.m in Abuja. The judiciary has done very well. Also, the Supreme Court now sits in two panels to be able to dispose election based matters and normal cases. I mean cases that have to do with contracts, chieftaincy, land matters; they still sit to handle those ones.

Do you think the Supreme Court is being congested?
I pity the Supreme Court, sometimes ago when I was there, they listed almost 19 preelection matters for just one day and that happened throughout the week. The Supreme Court normally sits in chambers on Wednesday; they don’t sit in open court. In order to clear the backlog of election matters they started sitting on Wednesday. We have to appreciate the fact that they are humans after all and they sit every week even before now. The Supreme Court will sit on Monday, Tuesday and Thursday in open court. On Monday they would take civil matters, on Tuesday they take civil matters, on Thursday they take criminal matters, on Wednesday they sit in chambers to consider non-contentious applications and on Friday they deliver judgments and there is no average week that they won’t reserve minimum of five or six judgments that will be delivered in three months. Can’t you see the Supreme Court in the United States? Except on serious constitutional matters none gets to the Supreme Court and is there any injustice in that? And all the nine Justices of the Supreme Court in the United States sit as one panel so all these arguments that the Supreme Court should be sitting in different panels are not acceptable. Are they not the same set of people who will be sitting in panels even if they come to the states; are you following me? People say it as if when they start sitting in panels they will be able to do all the cases that is not true.

Are you suggesting that Supreme Court should handle only constitutional matters?
No, if you want to have the Supreme Court in the states, they have it in the United States but there is one apex court in the United States. The states have their own Supreme Courts in the United States but matters don’t end there if they are constitutional matters. It is not a bad idea to have states Court of Appeal for example, apart from the Court of Appeal that is at the federal; if the constitution is amended, that was the scheme in the 1963 Constitution. That was why the Western Region had its own Court of Appeal up to 1976 when the Federal Court of Appeal was established. No, it is not a bad idea. For example, we can now create Court of Appeal of the states and have Supreme Court for the states. Chieftaincy matters and land matters should end at the Supreme Court of the states. What is so special about chieftaincy matters that when they are fighting about a chieftaincy matter in Oyo or any other states you take it to the Supreme Court? I believe quite honestly that we should find a middle level; I think it is high- time we have Court of Appeal for the states, Supreme Court for the states and then we ensure that some of these cases end in those places. Let very serious or constitutional issues go to the Supreme Court, not the type of cases we now have that gets to the Supreme Court, divorce matter and a customer who owes bank money, we fight it up to the Supreme Court.

How would you react to the conflicting judgments emanating from the various Courts of Appeals?
The judiciary is organised in a way that if there is conflict in the decision of the same court, there is always an appellate resolution to streamline them. So, it doesn’t give me any worries. If there is any apparent or orchestrated conflict, the judiciary has its own internal mechanism to sort it out. We are likely to face these challenges going by the nature of our judicial system. But, some of these matters will get to the Supreme Court where they will be streamlined. The only thing that can give us worries is if there are conflicting judgements of the Supreme Court on the case in point, because that is the last court. Some panels of the Court of Appeal have more than 20 election petition cases to attend to and the time constraint is quite tremendous.’’

Some of your colleagues have advocated that research assistants should be attached to Judges. Do you agree with this?
That is the standard practice all over the world. But like I raised it with one of the Justices of the Supreme Court, his own fear is that we may start to have incidences of leakages of judgments. But, I think the solution to that is that anybody who is so appointed would be subscribed to an oath of secrecy.

What are your expectations from the judiciary in 2016?
My expectation is that the judiciary will improve upon what it’s doing now and serve the Nigerian people as it’s always being doing. Besides, more guidelines should be put in place to fast track commercial -based disputes. I expect that the judiciary will not relent. Supreme Court will have to grapple with the appeals from all the governorship appeals and as I am talking to you now I am aware that not less than 10 have been filed. So, it is a lot of work for the judiciary.

With on-going fight against corruption, how will you assess this administration’s obedience to the rule of law?
As far as I know, so far so good but, there is always room for improvement. You cannot have a perfect system anywhere. We must make conscious efforts to improve on the way we are now. For me, there is room for improvement but, it is not hopeless.

So, how do we ensure that fundamental rights of people are not infringed upon?
Even in a war, there are rules of engagement and Chapter four of our constitution is very clear and explicit. You must never do anything consciously in the name of fight either against corruption or insurgency to deliberately trample upon the rights of citizens because what goes round turns round. Those who wield powers today must remember that yesterday they were out of power and tomorrow, talking euphorically, they will also be out of power either because they finished their tenure or they are voted out of power. We should all know that when we set bad standard, others may come to exploit it against our own interest. In spite of the challenges we have, we should not compromise on the observers of the rule of law and observers of fundamental rights of the citizens. It is very important otherwise there will be no society.

Security agencies have often used holding charge to detain suspects. Is holding charge known to our laws?
It is unknown to us and it is unconstitutional as you have rightly said. For me, I believe that our laws, the way I understand it, is that you cannot arrest or detain somebody except you have virtually concluded investigation and you are ready to take him to court and that is why the constitution prescribes 24 hours. It is assumed that you would have concluded every other thing. It is just to secure him or her to appear in court. I will never support a situation where people are held and start to scavenge for evidence with which to take them to court. I don’t think it is right because liberty is the greatest freedom you could ever have and it should not be taken away and like I always tell people, whatever position you are today is temporary, you may be at the receiving end tomorrow. We all witnessed what happened to a former Inspector-General of Police in the hands of his subordinates. So, when you set a negative standard, you may become a victim tomorrow.

As one of the counsel in the election petition in Rivers State. How do you see the judgment of the Court of Appeal?
Incidentally, I am a counsel in the matter so, I defended the three appeals, Chief Olujimi defended for Peterside who was the governorship candidate of APC. Of course, we are happy that we won and we know that they are likely to go to Supreme Court, we are waiting. I was very active in the matter.

What is your view on contradictory decisions in the appeals emanating from election tribunals in Lagos, Akwa-Ibom and Rivers States?
There are no contradictions in those judgments. You see, people tend to take judgments out of context. You want to ask, what were the grounds for challenging elections in Rivers? It was simple, unlike other cases. In Rivers, what we said is that, the card readers accreditation data showed that both the failed and successful accreditation were only 295,000 plus whereas about 1.4 million votes were declared. How do you account for the balance? In other cases, people raised the issue of card readers but it is not the same way we raised it in Rivers and it was not the same way we went about it in Rivers in proving that it was done in other places. Without mentioning names, I was even involved in another one in which card reader was raised as part of the issue at the trial but by the time we got to the Court of Appeal they dropped it, they did not pursue it. In the Lagos case what the court said essentially was that look, the card reader cannot be used without the consideration of voters’ register. That is the law which was also said in Rivers so, there are no contradictions, there are no conflicts as far as I know. When a judgment is given, you have to look at the facts and marry it to the law and then look at what was proved. It is a different thing to make allegation, it is another thing to be able to prove it. So far, the courts have said we are able to prove that there was serious incongruous between the card reader and the card reader accreditation result and the declared result. I don’t see any conflict in the judgment of Rivers, Akwa-Ibom and Lagos States.

How do you see rampant cases of crime committed by youths? Do we have sufficient institutions to reform and rehabilitate juvenile offenders?
Unfortunately for us, just the way our prisons have not been effective, it is the same with reform homes for under-aged offenders. The increase in criminality of underaged people is an indictment on our family values and system and this is due to a lot of reasons, economic and social. Many parents don’t have time to look after their children anymore and many are not setting good examples at home for their children. The rat race and the quest for material acquisition have made parents to abandon their children in the care of people who do not have any stake in the case of these children. The father will go out in the morning and will not come back until evening and the mother will also do the same and the children are left at the mercy of neighbours. Also, there is too much exposure to internet and crime -induced films as well as occultism in the television. When you expose these children to all these minds that are still tender, they may want to experiment. Poverty and social dislocation are part of the reason; it’s a whole lot of problems just like our various institutions.

Are you in support of the call for the abrogation of the Land Use Act?
I do not believe in the whole rejection of things. If you don’t want us to use Land Use Act then what do we use thereafter and then how do you save everything that has happened because the issue of Land tenure is very fundamental. We should know that before the promulgation of Land Use Act in 1978, land tenure system in the South is different from the land tenure system in the North. How do we make progress when we have that kind of something in place? I think what we should do is to reform the Land Use Act to bring it in conformity with modern days happenings.