The Role of the Bar in Achieving Judicial Excellence


Being a lecture delivered by Dr. Babatunde Ajibade, SAN, FCIArb at 2021 Annual Bar Lecture of the Ijebu-Ode Branch of the Nigerian Bar Association on 15th July 2021


1.1 I am delighted to have been invited to deliver a lecture on this topic to the distinguished members of the Ijebu-Ode Branch of the Nigerian Bar Association. The timing of this lecture is particularly apt given the recent events that have affected the Bar and the Bench. By this, I make reference to the industrial action embarked upon by the Judiciary Staff Union of Nigeria (JUSUN), which was only called off on June 14, 2021 after nine weeks, having commenced on April 6, 2021.

1.2 The fact that the JUSUN strike lasted as long as it did and the fact that JUSUN was the body that took up the battle to agitate for the financial autonomy of the Judiciary is a very useful backdrop for addressing the theme of today’s lecture, which is, what the role of the Bar ought to be in achieving judicial excellence.

1.3 I am of the view that, in taking the steps it did, JUSUN was not fully seised of the constitutional and legal ramifications of its clamour for financial autonomy for the Judiciary nor did it have an understanding of the necessity to draw a distinction between financial independence for the Judiciary, which is a necessity, and financial autonomy for the Judiciary, which is a potential liability for the Judiciary.

1.4 Whilst the ongoing clamour for financial autonomy for the Judiciary and the need to draw a distinction between financial autonomy and financial independence are critical and relevant, they are not the focus of this paper. The focus of this paper is the role that the Bar ought to have played and ought to be playing in the attainment of judicial excellence.

1.5 In addressing this, I will examine what I consider to be some of the specific situations in which the Bar ought to be playing a significant role in attaining judicial excellence.

2. The Judicial Appointments Process

2.1 There is no gainsaying the fact that the starting point for attaining judicial excellence is at the stage of appointing judicial officers. The appointments process must be designed and operated with a view to attaining judicial excellence. The question that arises is whether our appointments process is so designed and operated and what role the Bar ought to be playing in ensuring that it is so designed and operated.

2.2 In terms of design, the judicial appointments process can clearly be improved upon, but the greater problem is not with its design, but with its operation. In order to exemplify this point as well as highlight the role the Bar ought to play, it is necessary to set out the appointments process in some detail.

2.3 The Constitution of the Federal Republic of Nigeria (1999) and the Revised National Judicial Council Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria (2014), are the two major legislative instruments regulating the qualification and the process for appointment of judicial officers of the superior courts in Nigeria. This lecture focuses on the superior courts but much of what is described below, aside from the ten-year post-call threshold qualification for appointments, applies in equal measure to the lower courts in the hierarchy.

Qualification for Appointment of Judicial Officers

2.4 The basic qualification required for appointment as a judicial officer is a requirement that a candidate shall have been qualified to practice as a legal practitioner in Nigeria for a period of not less than ten years.1 In the case of a Judge of the National Industrial Court, his/her practice experience must relate to industrial and employment conditions in Nigeria. In the case of a Judge of the Customary Court of Appeal the candidate shall have considerable knowledge and experience in the practice of Customary law2, whilst in the case of a Kadi of the Sharia Court of Appeal the candidate shall have obtained a recognised qualification in Islamic law from an institution acceptable to the National Judicial Council (NJC) or be a distinguished scholar of Islamic law.3

Requirements for the Selection of Suitable Candidates as Judicial Officers

2.5 Before a candidate is selected and recommended to the NJC for screening, he/she must meet the following requirements:4

2.5.1 Must be of good character and reputation at all times and in all cases;

2.5.2 Must be diligent, hardworking and honest; 2.5.3 Must possess sound knowledge of the law and always comply with adherence to professional ethics;

2.5. 4 In the case of a legal practitioner, he/she must be in active successful practice at the Bar, either in private practice or as a legal officer in any public service;

2.5. 5 Must show satisfactory and consistent display of sound and mature judgment in the office as a Chief Registrar or Chief Magistrate; 2.5.6 In the case of a scholar, he/she must show credible record of teaching law, conducted legal research in a reputable University and published reputable legal works, in addition to any or all of the above; and

2.5.7 In the case of appointment of a candidate to the office of Kadi of a Sharia Court of Appeal, he/she must possess knowledge of Arabic language and grammar. Disqualification from Appointment as a Judicial Officer 2.6 A person shall be disqualified from being appointed as a judicial officer if:5

2.6.1 He/she canvasses or lobbies for the appointment directly or indirectly in any form and/or through any person or persons, such as but not limited to, politicians, traditional rulers, public officers or other judicial officers;

2.6.2 He/she is of bad behaviour, whether in or out of Court;

2.6.3 He/she engages in any activity suggesting impecuniosity and/or display of lifestyle that indicates that the candidate has been living above his/her means;

2.6.4 He/she engages in influence peddling; 2.6.5 He/she engages in any act of dishonesty or corruption or corrupt practice either, on behalf of himself or of any other judicial officer or professional colleague;

2.6.6 He/she renders dishonest or questionable legal opinion or advice or suppression of truth and suggestion of falsehood in any legal matter in dealing with colleagues, clients, or the Courts of Law;

2.6.7 He/she engages in deliberate improper or wrong completion of NJC Form ‘A’ with intent to deceive or mislead;

2.6.8 He/she submits false credentials and or deceitful or fraudulent curriculum vitae;

2.6.9 He/she is shown to have very limited exposure to practice at the Bar and conduct of cases in the Superior Courts of Record.

2.7 A consideration of the requirements for the selection of suitable candidates and the factors for disqualification of unsuitable candidates as enumerated above, immediately calls the role of the Bar into question. It is beyond disputation that the persons best placed to assess the qualities of a legal practitioner are his/her professional colleagues. Consequently, it is safe to say that where unsuitable persons are appointed to the Bench, it must be one of two things. Either the Bar was not given an opportunity to make an input into the appointments process or the Bar shirked its responsibility to make an informed input into the appointments process.

2.8 A consideration of salient aspects of the procedure for appointment of judicial officers will give an inkling into whether either or both of these factors are at play in the judicial appointments process in Nigeria. The Role of the Bar in the Procedure for Appointment of Judicial Officers in Nigeria

2.9 The responsibility for recommending suitable candidates to the NJC for screening, for appointment as Judges of the Federal Courts (Federal High Court and National Industrial Court) is that of the Heads of the Federal Courts in Nigeria. The responsibility for recommending candidates for appointment as judicial officers of the States or of the Federal Capital Territory is that of the State Judicial Service Commissions and the Judicial Service Committee of the Federal Capital Territory, respectively.

2.10 Prior to making such recommendations however, the Heads of Courts, the State Judicial Service Commissions and the Judicial Service Committee of the Federal Capital Territory are mandated to involve the Nigerian Bar Association in the process as shown below:

2.10.1 Call for expression of interest by suitable candidates by way of public notice placed on the website of the Judicial Service Commission/Committee concerned, notice Boards of the Courts and notice Boards of Nigeria Bar Association Branches;

2.10.2 Write, in the case of appointment to a Federal Court, to the President, Nigerian Bar Association; or, in the case of appointment to a State Court, to the Chairman of every Branch of the Nigerian Bar Association in the State concerned, asking for nomination of suitable candidates for the proposed judicial appointment and requesting that he/she brings to the notice of suitable candidates the call for expression of interest by each of them;

2.10.3 In the case of appointment of judicial officers to the Court of Appeal and the Supreme Court of Nigeria, the President of the Court of Appeal/Chief Justice of Nigeria shall as the case may be, write to Heads of Courts, serving Justices of Court of Appeal/Supreme Court of Nigeria and the President of the Nigerian Bar Association asking for nomination of suitable judicial officers/legal practitioners for appointment as Justices of the Court of Appeal/Supreme Court of Nigeria;

2.10.4 Any person nominating a candidate must do so in writing and indicate clearly and in detail, that he/she has sufficient personal and professional knowledge of the candidate’s requisite attributes for a reasonable period of time as would make him competent to make the nomination. He/she shall expressly certify that from his/her personal knowledge of the candidate, the candidate possesses the qualities listed under Essential Requirements For The Selection Of Suitable Candidates As Judicial Officers as stated above.6

2.11 After the closing date for the receipt of applications and or nominations, the Chairman of the Judicial Service Commission/Committee concerned shall make a provisional shortlist on the merits and circulate the provisional shortlist together with a request for comments on the suitability or otherwise of any of the short listed candidates, inter alia as follows:7

7 2.11.1 Among the Nigerian Bar Association branches in the State concerned where the appointment is to a State Court; provided that where the appointment is to a Federal Court the shortlist shall only be sent to the President of the Nigerian Bar Association.

2.12 In carrying out the provisional short-listing exercise, the Chairman of the Judicial Service Commission/Committee shall take into consideration as much as possible:8

2.12.1 Professional expertise and competence, including in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court, the quality of judgments and performance and demonstration of judicial skills of the Judge; and in the case of appointment from the Bar, evidence of 6 contested cases in the last 5 years;

2.12.2.12.4 Federal character or geographical spread and where necessary and possible, without compromising the independence of the Judiciary or allowing politics to permeate or influence the appointment.

2.13 The Chairman of the Judicial Service Commission/Committee shall not include in the provisional shortlist any person whose reputation in the locality is low or had been tarnished; and, where applicable, shall not include any judicial officer whose performance has been consistently rated low or not satisfactory in judicial performance evaluation reports.9

2.14 From the foregoing, it is evident that the Bar is expected to play a significant role in the judicial appointments process. The input of the Nigerian Bar Association is sought at various stages in the process and there are repeated opportunities for the Nigerian Bar Association to raise objections to unsuitable persons being considered for appointment. Thus, it is safe to say that existing complaints about the failure to attain judicial excellence in Nigeria, is an indictment of the Bar and evidence of its failure to play the role expected of it. Current experience shows that the judicial appointments process has been unduly politicized and is presently incapable of guaranteeing the attainment of judicial excellence, which is so sorely needed.

Quo Vadis?

2.15 The starting point for an assessment of this problem and what must be done about it is an understanding of what is required. It is easy to underestimate the intellectual rigour, capacity for hard work, temperament, moral uprightness, independence of mind and the diligence that is required of a judicial officer who will deliver judicial excellence. When this is understood, then it becomes obvious that an appointments process that is politicized and unduly influenced by extraneous considerations rather than one based on an objective assessment of whether the person possesses the requisite attributes cannot deliver judicial excellence.

2.16 Whilst the current system for the appointment of judicial officers recognizes the role of the Nigerian Bar Association in identifying and nominating the appropriate persons amongst its members for appointment as judicial officers, experience shows that the Bar has been ineffective in delivering on this mandate.

2.17 The reasons for this failing lie with the Bar at all levels, from the Branch level all the way to the national. It is not evident that the NBA Branches or the national body are playing the roles expected of them in the appointment of judicial officers or that they are playing it to good effect. Anecdotal evidence suggests that Branch Chairmen and NBA Presidents have been more interested in using their position and influence over the appointments process either to secure appointments for themselves or for their cronies and supporters, or to trade such appointments for favours from political interests.

2.18 There is no such thing as a perfect appointments system, however as a basic minimum for increasing the chances of appointments that will contribute to the attainment of judicial excellence, the process must be an open and transparent one in which the candidates will be subjected to objective assessments of their capabilities, their identities will be made known and their peers and colleagues will be given an unfettered opportunity to comment on their suitability.

2.19 There is no process by which a dull, indolent, bad tempered, morally bankrupt and easily influenced lawyer will upon appointment as a judicial officer transmute into one that will deliver the judicial excellence we seek. This type of magic just does not happen. Thus, every time we come across a judicial officer exhibiting attributes that are the antithesis of judicial excellence, there is a legitimate cause to query how such officer got to be appointed if the NBA was playing its proper role as a gatekeeper.

3. The Bar Bench Relationship

3.1 This leads me into the next specific situation in which the Bar ought to be playing a significant role in the attainment of judicial excellence; this is the Bar Bench relationship. It is evident that the relationship between the Bar and the Bench has become more adversarial than collaborative in so many respects. Whilst it is important to recognize and give due respect and deference to judicial officers once they have been appointed to the Bench, as a former President of the Nigerian Bar Association once said to my hearing, Judges were not called to the Bench, they were called to the Bar! The fact that lawyers take up appointment as judicial officers should not create such a wide gulf between these two sides of the same profession such that it becomes difficult to collaborate to achieve judicial excellence. A few practical examples will suffice to make the point.

3.2 Too often, when the challenges and inefficiencies with justice delivery in Nigeria are being discussed, the Bar and the Bench take opposing sides, with each side seeking to place the blame at the other’s doorstep. However, when properly assessed, these problems arise from both sides with significant consequences for both sides. The public perception of the legal profession, which was never high in the first place, is now at an all time low. Moreover, the real losers in this situation are the litigating public, the members of society and the economy that suffer from the seeming dysfunction in the justice sector

3.3 Take for example the phenomenon of courts not sitting as and when due for no discernible reason or counsel being unprepared and seeking frivolous adjournments of matters. The fault for the delays caused by these phenomena lies with both the Bar and the Bench, but it is society and the economy that suffer the consequences. Take for example also, the issue discussed in the introductory section of this paper concerning the clamour for financial autonomy cum independence for the Judiciary, this is an issue that the Bar ought to have been the one to champion on behalf of the Judiciary (not JUSUN), and this would have been the case if there was better collaboration (of the positive kind) between the Bar and the Bench.

3.4 One is not oblivious of the school of thought that believes that the only way to secure the independence of the Judiciary from undue influence from members of the Bar who appear before them is for Judges to remain aloof and unapproachable. Whilst understanding the basis for this thinking, it underrates the maturity and intelligence that members of the legal profession are expected to possess and the ability they should have to collaborate on matters of common interest without crossing boundaries.

3.5 Indeed, one can relate this to the issue of judicial appointments discussed above. It is an acknowledged fact that the remuneration and conditions of service of judicial officers in Nigeria is poor, when compared to the remuneration of their counterparts in developed climes. In a recent paper delivered at the Nigerian Institute of Advance Legal Studies, Prof. Taiwo Osipitan, SAN provided statistics showing that the remuneration of Nigerian judicial officers is far less than 10% of what their counterparts earn in the United Kingdom, the United States and Australia. He noted further that the basic pay of Nigerian judicial officers has remained stagnant since 2008, despite the impact of inflation on the real value of their remuneration over this period.10

3.6 The desire to ensure that the judicial appointments process will invariably result in the appointment of legal practitioners who are the best that the Nigerian legal profession can produce can only be realized where the conditions of service of judicial officers is such that it will attract such talent. This is presently not the case and it is the Bar that needs to be in the vanguard of addressing this anomaly.

3.7 To be clear, it is not being suggested that judicial officers must earn the same remuneration as their highest earning colleagues in the profession who remain in private practice. Indeed, I have had the benefit of private discussions with at least two serving judicial officers of the Ogun State Judiciary who expressed the view that the remuneration received by judicial officers is adequate for their needs if they maintain a modest lifestyle. Aside from this, there are a variety of non-material benefits that accrue to judicial officers, not least of which is the dignity, the prestige and the deference that society accords (or ought to accord) to a judicial officer and the satisfaction that should come from giving back to society.

3.8 Nonetheless, a judicial officer sends children to the same schools and shops in the same markets as every other member of society, and the remuneration he/she earns must be well above the minimum required to enable the maintenance of a dignified lifestyle. Moreover, the remuneration of Nigerian judicial officers should compare favourably with that of their counterparts in other climes and with the remuneration that is earned by those manning the other arms of government in Nigeria. The Judiciary is an arm of government, and a very important one at that. We cannot continue to tolerate a situation in which it is treated as the poor cousin when compared to the other arms.

3.9 This is a question of financial independence and not financial autonomy and is an existential problem for the justice sector in Nigeria. It is a matter the Bar must take urgent remedial steps to address and not leave to JUSUN to agitate! 3.10 At the same time and until the recommended agitation takes place and yields the desired result, the Bar must respectfully and politely, but consistently and persistently remind judicial officers that they applied for the job and were not drafted to the Bench. The poor conditions of service cannot be an excuse for some of the more egregious failures of efficiency and lack of diligence that are exhibited by some judicial officers. An enhanced and healthy Bar Bench relationship in which both sides are focused on the greater good and the joint obligation to provide an efficient justice sector to the litigating public, will contribute in no small measure to the attainment of judicial excellence.

4. The Standard of Advocacy

4.1 Another area in which the Bar must do more to assist with the attainment of judicial excellence is in the quality of advocacy. Oftentimes we criticize the output from our courts without paying attention to the quality of the arguments that were presented from the Bar or the level of industry that was put into the presentation of cases before the courts.

4.2 The role of a good advocate is not only to seek to win his/her case but to assist the court to do justice in the case. This necessitates that counsel carry out adequate research and provide the court with relevant authorities and clear argument that will enable the court arrive at better decisions. The presentation of arguments that are designed to obfuscate and confuse the issues or a failure to cite or draw attention to relevant authorities are oftentimes the cause of unsatisfactory judgments and the Bar has a significant role to play in addressing these deficiencies.

5. The Conduct of the Bar

5.1 Another related point that constitutes a challenge to the attainment of judicial excellence is the poor conduct of some members of the Bar. The conduct of some of our colleagues is nothing less than shocking and it creates a major challenge to the attainment of judicial excellence.

5.2 I have made allusion to a few examples of this already, ranging from lack of preparation and seeking frivolous adjournments to proffering arguments designed to obfuscate rather than to illuminate the issues. However, there are several other activities that members of the Bar engage in that militate against the attainment of judicial excellence.

5.3 Some of our colleagues specialize in bringing frivolous litigation or preliminary objections and interlocutory appeals aimed at delaying the course of justice and at tying the hands of the courts. Others specialize in filing frivolous petitions against judicial officers once they receive an adverse decision rather than, or in addition to, pursuing appeals, such that these judicial officers spend precious judicial time defending petitions before the NJC and become so paranoid that they cannot dispense justice without fear of repercussions.

5.4 This is a problem that devolves around the inefficiencies in the disciplinary process at the Bar. If the disciplinary process at the Bar were more efficient and if judicial officers were better positioned to utilize it, this would curb some of the excesses at the Bar that militate against the attainment of judicial excellence. Again, this is a matter that the NBA ought to work on assiduously. The current Legal Practitioners Disciplinary Committee Rules require a judicial officer who seeks to bring a complaint against a legal practitioner for misconduct to file an Originating Application and observe a variety of formalities, which most judicial officers are unlikely to have the time or the inclination to pursue. A simplified disciplinary process by which judicial officers can make complaints about conduct at the Bar to the NBA and a willingness on the part of the NBA to take up these complaints and act on them will result in much better conduct at the Bar.

6. Corruption

6.1 I will not end this lecture without addressing the big elephant in the room, which is the perception and the reality that there are some corrupt elements in our profession, both at the Bar and on the Bench. The role of the Bar in this is the most insidious though, and I will explain why.

6.2 It is most improbable that a judicial officer will receive a bribe if none is offered by any of the counsel appearing in or involved in a matter. If members of the Bar are resolute and determined not to engage in corrupt practices, the incidences of corrupt practices in the Judiciary will be significantly reduced. This is what I had in mind when I spoke earlier about Bar Bench collaboration of the positive kind. Clearly, there is Bar Bench collaboration of the negative kind, which is what fuels corrupt practices in the Judiciary.

6.3 Just as we know who the diligent and hard working lawyers amongst us are, we also know those who have a reputation for engaging in corrupt practices, even if proof of corruption is often difficult. As a starting point, the Bar must do everything possible to prevent such lawyers from getting onto the Bench. A corrupt lawyer cannot become an honest Judge! Whilst corruption may be difficult to prove, one way of increasing the chances of preventing corrupt lawyers slipping through to the Bench is to make the appointments process as public as possible. This will increase the probability that someone who has either been the victim of or a particeps criminis in a legal practitioner’s corrupt activities will come forward to object to such person being appointed to such high office.

7. Conclusion

7.1 As I mentioned at the outset, the recent events involving the Judiciary have brought to the fore the need for the Bar to take a more pro-active and involved role in the affairs of the Bench. The justice sector is too important to society to be left to Judges or Lawyers alone, working in silos. In order to achieve the optimum results the Bar and the Bench must work in close collaboration to ensure the attainment of judicial excellence.

Footnotes

  1. See section 250 (3), 254B (3), 271 (3) Ibid.
  2. See section 281 (3) Ibid.
  3. See section 276 (3) Ibid
  4. See Rule 4 (4) (i) (a) – (e) of the Revised National Judicial Council Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria (2014).
  5. 5 See Rule 4 (4) (ii) (a) – (i) Ibid.
  6. See Rule 3 (2) Ibid.
  7. See Rule 3 (4) (i) – (iv) Ibid.
  8. See Rule (6) Ibid
  9. See Rule 3 (7) Ibid.
  10. “The Search for a Fiscally Autonomous Judiciary in Nigeria” Prof. T. Osipitan, SAN, paper delivered at the 2nd NIALS Founder’s Day Public Lecture, 6th July, 2021.

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