The Nigerian judiciary in the court of public opinion

Nigeria’s legal system may have heavily borrowed from the UK’s but there are fundamental differences in the way criminal cases are tried in both countries. In the UK trial system, there is frontloading of evidence which compels both the prosecuting and defending parties to tender all the evidence to be used during the trial at […]

Nigeria’s legal system may have heavily borrowed from the UK’s but there are fundamental differences in the way criminal cases are tried in both countries. In the UK trial system, there is frontloading of evidence which compels both the prosecuting and defending parties to tender all the evidence to be used during the trial at the beginning of the trial. Also in our legal system, it is required that a prima facie case is not only established before the trial and that such a case be proven beyond reasonable doubt, while judges in the UK are at liberty to use their discretion to infer from the facts tendered as evidence, the accused person’s guilt. These two fundamental differences greatly affect the way cases are tried in Nigeria.

In the Nigerian legal system, there are several gaping holes in the procedures for trying cases that lawyers take undue advantage of and which hinder the pace at which cases are tried and in the process, substantially increase the cost and time of litigation. For instance, due to the flaws in our legal system, lawyers are able to spring time-wasting “surprises” during trial by tendering evidence that the opposing party was not aware of before trial and which usually requires that an adjournment be requested for. These flaws and the manner in which some lawyers exploit the system are arguably the biggest challenge to the dispensation of justice in the Nigerian legal system.

Frontloading proof of evidence only occurs in the Nigerian legal system during election petition tribunal hearings. Also a set time during which cases brought before these special adjudicatory tribunals is established and must be stuck to by parties concerned. This eliminates the time-wasting and foot-dragging tactics that criminal trials in Nigeria are fraught with.  It has been suggested severally that this sort of progressive changes be made to the Nigerian legal system.

Sadly, the processes by which changes can be made to the procedural administration of justice in the Nigerian legal system take too long too effect. A vivid example of this is the Evidence Act (under which the likes of James Ibori, Erastus Akingbola and others were tried in Nigeria) which was only amended in 2011. This was despite calls for its amendment, ranging as far back as 1969 due to the fact that it was largely impossible to tender electronic and other computer generated documents as evidence under the erstwhile Evidence Act of 1945! In fact, one of the major problems that the EFCC has faced in prosecuting cyber criminals and money launderers was due to the flaws in the previous incarnation of the Evidence Act; these flaws rendered a large chunk of the cases the EFCC brought before Nigerian courts dead on arrival. However, to place the blame for this anomaly solely on the shoulders of the Nigerian judiciary when we have an existing legislature whose duty it is to amend and create laws for Nigeria is unjust and irresponsible.

This is especially true in view of the facts that as far back as 1969, the Supreme Court in its decision in Esso West Africa Inc. v T. Oyegbola (1969) 1 NMLR 194 noted that “The law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer”. That the Nigerian legislature was unable to repeal the 1945 Evidence Act until 2011 when it was replaced by the 2011 Evidence Act –which finally borrowed from Section 5 of the English Civil Evidence Act 1968 – as recommended by the Supreme Court in 1976 is a pointer to the failures of the other arms of government that affect the adjudication of cases and administration of justice in Nigeria.

Even the process of investigating crimes and especially those of a financial nature fail to embrace modern technologies that could produce evidence necessary to prosecute and convict offenders under the Nigerian criminal procedure that requires a conviction to be based on evidence beyond reasonable doubt. That files important to the outcome of a case and the dispensation of justice suddenly develop wings and come up missing during a case is not the fault of the judiciary. The disparity with, and disadvantages of Nigeria’s policing and investigative abilities in contrast with that of the UK with its modern investigation and law enforcement system was what enabled the British system nail James Ibori for the same crime of money laundering which the Nigerian system was unable to. It is in light of this that it becomes laughable and saddening to see people who should know better lambast the Nigerian judiciary for its failure to convict James Ibori.

The processes of adjudication as well as crime investigation in Nigeria –as well as almost every process in Nigeria- are heavily politicized and open to undue external influences and pressures which pervert the course of justice and consequently lead to some of the blatant abuses we have witnessed in recent times. Keen observers of the Nigerian legal system must have noticed the unfortunate imbroglio involving Justice Ayo Salami’s suspension from his position as President of the Court of Appeal and the outright disrespect for the law that certain arms and organs of government displayed in the matter.

Cases taken to trial in Nigerian courts seem to have a pre-determined outcome as dictated by certain political considerations and bias is often on full display in the processes. How else can one explain the transfers of police officers involved in the investigation of a case to other regions outside the court’s jurisdiction during a case? In addition to the fact that this sort of unfair manipulation and blatant coercion of the system places the (financial and other) burden(s) of producing the transferred police officers or other vital witnesses in a criminal trial on the defense, this ensures that the possibility of a fair trial being conducted is all but nil.

Peter Eigbedion contributed this piece from Lagos