The Chief Judge of the Federal High Court of Nigeria, John Tsoho, in this exclusive interview with PREMIUM TIMES, speaks on a wide range of issues bordering on the appointment of new judges, the criminal justice system and efforts by the court to swiftly dispense justice.
Read excerpts from the interview:
PT: Moving forward, does the court intend to carry on with this innovative idea of virtual court proceedings in all the divisions of the Federal High Court?
Tsoho: Certainly, yes. It is what is desirable because even without COVID, you know that today’s world is driven by technology, and so there has been that craving to also follow, because there is this common saying that it’s either you adopt technology or you are left behind. So, there was a general craving to imbibe technology in order to improve on services. But COVID brought to the fore the necessity of gearing up efforts in doing that. Even before COVID set in, we had already started the process of introducing electronic equipment for the purpose of court business, and in that, the court is not just on its own – you have some interested and committed stakeholders, who have had to come in to assist, prominent among which are such agencies like the United Nations Office on Drug and Crime (UNODC) and even to some extent the British High Commission, which came to assist with either technical know-how or outrightly donating equipment.
For instance, the UNODC facilitated the fitting of electronic equipment in seven courts in Abuja and Lagos. With those facilities, you could conduct virtual proceedings here linking up with Kuje prisons (in Abuja). So, that singularly addresses the problem of having to move detainees, particularly those that require high security by road to the court. They could just stay there and you hold normal proceedings. Same for Lagos; the equipment has been there for upward of not less than five years.
Generally, the judiciary has an information technology policy. There is actually a committee which goes by the name of Judiciary Information Technology Policy Committee (JITPCOM). It is headed by Honourable Justice Kashim Zanah, the Chief Judge of Borno State, who has been very passionate about technology particularly as it relates to the judiciary. This committee has the mandate of taking the entire judiciary along technological path so that in not too much in the distant future, all courts should actually be computerised, so as to reduce the strain of having to take manual proceedings and all that. And with that change, there should be more expeditious disposal of cases.
Having said that, it is not really an easy matter; it has its own challenges because you know technology doesn’t come easy. It is very expensive. Even Justice Zannah has pointed that out. It is going to be a continuous and gradual process, particularly for a court like the Federal High Court where you have not less than 80 courts. Each judge mans his own court. So, if you have to introduce electronic equipment, you multiply by that number. So, it is not so easy but one is very hopeful that no matter how long it takes, eventually we will get there.
To illustrate the commitment of the National Judicial Council (NJC) itself, it has already started executing some projects in that regard, and of course, the Federal High Court is a beneficiary of same. The court number one which is assigned to me has been retrofitted. That means when the job is completed, you do total electronic recording there. That was conceived as a pilot project. There is one in Port Harcourt, Lagos and Kano states. That project is fully funded by the NJC. The project is capital-intensive.
In essence, we are mindful that electronic court proceedings are desirable; that is, phasing out manual recording to improve on court business. It is our commitment.
PT: How can the problem of effective time management of cases be dealt with by judges, given the fact that lawyers in criminal cases often argue endlessly?
Tsoho: Well, it is not an issue of contemplating, it has been tried, and maybe it has not been a widely publicised policy. It is not easy to meet, because of the high volume of litigation. For instance, you must have heard of what is called the Federal High Court Criminal Proceedings Practice Directions 2013, which was put in place by the Honourable Justice Ibrahim Auta (former Chief Judge). And that is meant to fast-track trial of certain cases, particularly of grievous nature, maybe things like terrorism cases. You could have treason, fraud or cybercrime. It was aimed at speeding up trial. We even have provisions for trial from day to day.
But the impediment to that is the congestion of the dockets. For instance, in Abuja, as of this moment, except for myself and Justice Chikere who will be retiring in a few months, there is no other judge that doesn’t have in his docket 400 cases on the average. The situation is worse in Lagos; there you have 500 cases per judge. So, when it comes to that, how do you then schedule any case on a day-to-day basis trial? It means other cases will suffer. How do you stretch out 500 cases in a quarter? There is no way you would schedule 20 cases per day, because every case before a judge is important.
I recall you alluded to the fact that Senior Advocates of Nigeria (SANs), argue endlessly. Well, I must say that much depends on the disposition of the judge presiding because every judge like they say is a master of his court. And so, whether a lawyer became a SAN before a judge was born, he (the judge) is the one presiding. The judge can hold the lawyer in check. Except for some reasons the judge thinks what the lawyer is saying is worth listening to for a long time, he has to call the lawyer to order, so that the counsel doesn’t play to the gallery.
You know, litigation is like psychological warfare; sometimes people employ all kinds of means to try to intimidate others. But that is not what is important, what is important is you play your part with a view to achieving justice. All a contender should want is to ensure that the scale is held in the balance; it doesn’t matter whether it is the other person that wins, but that the important thing is that the law and the facts are properly appreciated, and even if the decision is reached against you, you appreciate it for what it is.
So, the presiding judge has a duty to hold lawyers in check by allotment of time, for instance. But oftentimes, that also has its constraint, because of this constitutional provision of fair hearing. That is what some parties always resort to by trying to allege that they are being denied fair hearing. One also has to be careful to the extent of intervention.
My take on it has always been that there may be a need to tinker with that fair hearing provision, because it is as if people tend to over-emphasise it. And as far as you have it, because the constitution is the supreme law, you cannot just ride roughshod over the provision. It requires holding the balance.
Despite the clear provisions of the Administration of Criminal Justice Act (ACJA) 2015, cases are still being stayed at the court. Why is it so?
Generally, you have that provision. In the past, proceedings could be stayed and that was premised on that fair hearing provision in the constitution. But along the line there were worries because some people were employing it not so genuinely; it was being done with an aim to truncate trial, and some cases would last for an inordinately long time, because they would go on appeal over what they call interlocutory appeal.
Several cases have been decided by the Supreme Court based on that provision (in the ACJA). The Supreme Court is the apex court. So, if it decides a matter, no matter how somebody feels, he can only go to God.
The Supreme Court has decided some cases like that of Bukola Saraki. The apex court ruled that the provision is not unconstitutional. So, for that reason, anybody still arguing about having proceedings stayed is just being mischievous.
PT: Are there efforts to recruit more judges given the high volume of cases in your court?
Tsoho: Yes. Actually, the process for recruiting new judges has been on but because of funding constraints, it has had to be split. By the Federal High Court (Amendment) Act of 2013, the strength of judges was raised to 100. So, as we speak it will be proper for the court to ensure that the number of judges is up to 100.
But as of this moment, the number has dropped to 72. It means we have vacancies for 28 judges if we must meet our full complement. The number went up to 87 at some point, but so many factors led to the number dropping, like retirement, elevation and even death. Within the last legal year, we lost two judges and we had several retirements. So, the number has dropped. There is a crying need to replace that number. Even if we cannot make up to a hundred, it should get very close to that number.
The appointment of judges is a very tough process; it is so tedious because it is intricately tied to funding. If you must appoint a judge, you provide courtroom, support staff (registrars, clerks), security personnel among others. You have to provide a befitting car and accommodation. But considering what the economy is now, those are not things you can easily put in place.
Mind you, all these things have to be catered for from the court’s budget; no other authority has responsibility for it. The NJC insists that every requirement for the appointment of judges must be on ground – the facilities and everything for their inspection before you go ahead with the recruitment.
Secondly, if you are given approval by the NJC, you publicise that you require a particular number of judges. In 2019 while we were preparing for the 2020 budget, what we proposed was actually the appointment of 21 judges. When we got to the NJC, they couldn’t approve more than six. So, it is the vacancies for six judges that have been publicised so far. So, we had to shift the difference to the following year, which is 2021. But coming to this year, the approved budget has even been worse than that of last year.
Having said that, the stage at which we are now is screening of those six applicants as judges of the court, which we think we have adequate facilities for. But the process has to be thorough; we are at an advanced stage of the process. As I speak, some security reports have come in and they have automatically disqualified some people (applicants). No matter how qualified you think you are, if your report is adverse or negative, you will be dropped.
So, when we are through with the security vetting, the names will be forwarded to the Federal Judicial Service Commission (FJSC), which will then make a shortlist to the NJC and that is where the final process comes in.
PT: Doesn’t indiscriminate redeployment of judges constitute a clog in the wheel of adjudication in your court?
Tsoho: Well, I don’t see how the system can work if there is no transfer of judges. The transfer serves some purposes – to close gaps and also rid the element of too much familiarisation. In social circles, they say, ‘familiarity breeds contempt.’
Like I have already said, you do have retirements, elevations to the Court of Appeal from here and unfortunately some people die. For example, two judges retired from our Lagos division and then another two were taken to the Court of Appeal, and you don’t replace them? How would one expect that division to function, particularly having regard for the high volume of cases I have pointed to? That means that the remaining few there will not be able to bear the burden, because it will come to maybe having to share the workload left behind.
For instance, in the state High Courts, a court may have an entire workload (I’m not trying to disparage any system) to be 12 cases. And how many cases does a Federal High Court judge handle in a day? At least 20 cases on the average; a day’s work of a Federal High Court judge has already outstripped what a State High Court judge has as his entire workload.
So, posting of judges is not for fun like some people think. It is imperative; the record is there for you to see. If you see any posting letter, it reflects the history of the judge. There is nothing evil about posting. Every judge coming in knows that since they say it’s federal appointment, you must move. It is not as if the Chief Judge just wakes up says you move; there is a basis.
There are some divisions that are key to the operations of the court. For instance, Abuja, Lagos and Port Harcourt, these are the centres of high volume of litigation; you can’t afford to leave them undermanned. If you leave four or five judges in Lagos, there will be public outcry because they will be overburdened, and then people would start to say, ‘Oh, cases are not moving.’
Admittedly, yes when judges are transferred, some hardship will be occasioned both to the litigants and the court. My office, for instance, following the last posting exercise, has been inundated with applications for completion of part-heard cases. Some are genuine actually; but if you grant all that, it is going to impact on time management of the judges – they will have to leave their new stations and conclude cases. That in itself is tasking. It is not everybody that wants moving up and down, particularly if you consider the current security situation in the country, and then it also impacts on the finances of the court, because we definitely have to pay a stipend to the judge.
So, if it could be avoided yes, but it cannot in view of what I have already said. There are divisions of the court where you need more experienced judges to go.
PT: Some lawyers wrote the Chief Justice of Nigeria (CJN), urging him to cancel the annual vacation for judges in view of the impact of COVID-19 and the Judiciary Staff Union of Nigeria (JUSUN) strike which paralysed court proceedings across the country for about two months. Yet, the courts will commence the vacation soon. What are your thoughts on this?
Tsoho: It’s an interesting question, but it is not well-informed. At the beginning you called the industrial dispute ‘JUSUN strike’, and actually by law, judges can’t strike. JUSUN provided a clever way of lumping judges into their strikes.
Initially, what they used to do was to withdraw their personnel, but the judges would be free and go to their chamber and work. So, JUSUN felt that they were leaving a leeway. Therefore, whenever they (JUSUN) declared strike, they would come with a hefty padlock and lock the main gate of the court and disappear into thin air.
So, that brings in the issue of uncertainty about resumption of work. When the situation is uncertain; you cannot think in terms of certain things you ordinarily want to do like the feeling that the strike could be suspended or called off the following day. For that reason, judges couldn’t even rest because we were on standby. I, for one, was here; I didn’t even go outside of Abuja territory throughout that period of the strike, and I was doing my administrative work, and other judges actually delivered judgements by virtual means. So, it was not as if during the strike judges were sleeping or idling away.
But more fundamentally, the issue of vacation is statutory because each court has a provision in its rules as to vacation. And that is why it’s even improper for people to have advocated that the CJN should ask judges to forgo the vacation. The rule of court is a law on its own; the Supreme Court, the Court of Appeal, the Federal High Court and the National Industrial Court as well as state High Courts, all have their individual rules. So, what they (lawyers) don’t seem to appreciate is that by saying judges should not go on vacation, is urging that the law (rules of court) should be breached. How fair is that for the advocates of cancellation of vacation?
You see, vacation affords the opportunity for judges to attend to their personal commitments including healthcare. So, that vacation is important. Those are the imperatives for having to declare vacation despite the JUSUN strike.
PT: What is the status of Honourable Justice Mohammed Yunusa who was accused of wrongdoing and subsequently suspended from the bench, but later cleared by the NJC? Has he been reinstated to the court?
Tsoho: Yes. Honourable Justice Yunusa was suspended for alleged misconduct. Along the line, his matter was looked into and a case made to the presidency. Even in the process of appointment, when judges are nominated, the NJC makes recommendation and then the presidency will approve. So, it is the approving authority.
So, his case was reviewed and most of the complaints that were levelled against him bordered on matters he had tried. But it turned out that in all those matters, his decisions were upheld on appeal at the Court of Appeal. So, if you are alleging whether its bias or whether he didn’t reach proper decision, then a higher court vindicates him, what do you do?
So, the NJC felt that since the allegation against him seemed unfounded, he should return. So, the matter was referred to the presidency three years ago, and till now there has been no response. So, the NJC felt that in a situation like that it can’t wait indefinitely. So, they recalled him, and he has actually been assigned a court. So, for sure he is back on the authority of the NJC, and there was a press release to that effect.
PT: What is your advice to court users and the general public?
Tsoho: Most of the things people are bothered about regarding the court are being addressed. If along the line it is perceived that either there isn’t much impact felt, it’s because of some genuine handicaps. So, I would rather appeal that stakeholders and the general public should be patient with us, and we have the best of intentions to deliver quality and speedy justice to the public.
But importantly, people should endeavour to verify; we are amenable to releasing information if they have genuine and well-intentioned enquiries. So, the idea of people conceiving certain pre-determined views and airing them is not fair to the court as an organisation. We crave that people who crave clarification for one thing or another relating to the court can always reach us. We have an information desk headed by a chief officer, instead of resorting to smear campaigns and all that.
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