INCIDENTS OF TRANSFER AND RE-ASSIGNMENT By Ademola Adewale

A few months ago, both the Lagos State High Court and the Federal High Court with particular reference to the Lagos Division were involved in the massive transfer of judges and re-assignment of cases.

These actions as could be expected resulted in a variety of situations some positive others not so positive, a mixed bag of convenience, inconvenience are even hardships. The first inconvenience experienced by counsel and litigants alike is locating the exact court room of the judges before whom there are appearing. This is in spite of the copious details of the new arrangement of court sittings as set out in a circular under the hand of the Chief Judge dated 16th March 2010. It has taken a few months and several weeks for lawyers to get the exact location of the judges before whom they are appearing. Even now it is still common place for a lawyer to ask another; where is Justice X Court now? Where does Justice Y now sit? Or for a litigant to ask where is Justice Z's court?

Next is the issue of actual transfer of cases, the convenience or hardship it has caused, where for instance a matter in the Lagos State High Court at TBS was part-heard and could not be concluded before the transfer took effect the parties and counsel who have had to drive from the Mainland to Lagos at every trial day are certainly pleased now that the matter is now at Ikeja. On the other hand, the inconvenience of having to travel to Ikorodu from Lagos Mainland for a case that was initially at Ikeja or worse still as in a case I am involved to travel to Badagry.

In respect of the Federal High Court Lagos, a Part heard criminal matter that was at the point of conclusion before final address has now been kept in abeyance by adjournment sine die awaiting the necessary directive from the Chief Judge of the Federal High Court for the conclusion of the case in Lagos since the trial judge has now been transferred to Abuja. Yet, the subject matter of the action is in Lagos, and none of the parties has any intention to travel to Abuja to conclude the matter.

In the meantime at both the Lagos State High Court and the Lagos Division of the Federal High Court scores of files and cases are yet to be re-assigned to specific courts more than 3 months after the massive transfer and re-assignment took effect. This is in spite of the spirited efforts of the administration arms of the judiciaries in question. All this contributes in no small measure to the delay in the administration of justice.

A related development even if in the lighter mood is how the transfer and re-assignment has exposed both counsel and litigants alike to the different approaches of different judges. A few true life examples will illustrate this point. In some of the courts some of the judges allow the particular counsel involved in the particular cases to sit in the inner Bar apparently for the purposes of making them speak audibly into the microphone for purposes of recording the proceedings. So imagine counsel who were used to this approach before the first judge who has now been transferred taking their place in the inner Bar to conduct their cases before the new judge only to get a sharp reprimand from the judge freshly assigned to the case who wondered aloud at the presumption of counsel who are not silk who take it upon themselves to sit in the inner Bar. Unfortunately his Lordship did not enquire from the Bar the reason behind this strange behaviour before forming an opinion.

In yet another instance where counsel sought to take his witness through the long drawn examination in chief the preference of the former judge in a court the newly assigned judge cut him short by directing counsel's mind to the provisions of the new rules on the conduct of examination in chief under order 32 of the 2004 Rules which consists of merely adopting witnesses deposition. Counsel's attempt to explain to his Lordship that he was merely trying to play safe by adopting the procedure preferred by the former judge merely irritated his Lordship who expressed the opinion that counsel will do well to familiarize himself with the rules rather than give unconvincing reasons for his incompetence. On other hand there have been instances of counsel who did not impress the new judges in certain courts by their insistence on following the new rules in the manner of the judges who formerly manned the courts. Their Lordship felt their approach was lazy. Indicating their preference for the rigorous old fashioned examination in chief. Interesting studies in contrast!.

The different peculiarities of each judge also provides interesting studies of human character; the patient judge, the not so patient judge, the stickler for the rules and procedure, the 9 O'clock judge, the flexible Judge etc. Still talking about different approaches, while some judges allow any counsel even litigant to remain in their court rooms during pre-trial even if they are not directly involved in the pre-trial conference so long as they do not disturb the court session, yet others insist only parties and the counsel directly involved in the pre-trial Conference to remain in court. Then it is also obvious that some judges are still settling down in their new divisions that is their new administrative divisions; Revenue, General Civil, Family and Probate, Land, Criminal etc. But in accordance with their status as repository of law and procedure; they are adjusting very fast as we the counsel who are appearing before them. After all as an old relation was wont to say no one brought anything from Heaven we all learnt things here on earth.

On the whole in spite of the expected hiccups the process of massive transfer of judges and re-assignment of cases has been by and large effective with all the various stake holders involved, the court and judges, lawyers and litigants alike making the necessary adjustments and it is hoped that by the time we all resume from the annual vacation all the noticeable bottlenecks would have eased off and the system would start to work much more smoothly again.

However, it has been suggested in some quarters that to lessen the normal problems associated with such a serious exercise in future the exercise should be carried out towards the end of the legal year in early July to take effect on the resumption of a new legal year late August and early September perhaps the relevant authorities will look closely at this proposal for such exercise in the future.

APPOINTMENT OF JUDGES: MATTERS ARISING By Ademola Adewale

The recently publicized list of nominations for appointment as judges to the Lagos High Court is already attracting public debate and criticism. That is to be expected. The judiciary as the last hope of the common man must necessarily attract the attention of all sections of the society who are per force stakeholders in the administration of justice thus have both a stake and a say in the men and women appointed to preside over the affairs and disputes of others. Accordingly, the concerned authorities, the Governor, Chief Judge, State-Judicial commission, House of Assembly and indeed the potential judges must take all the comments and criticisms in their stride and in good faith. The situation cannot be otherwise particularly in a mega city/state like Lagos, the nation's commercial capital.

Some of the most pungent criticisms are:
• The list of Nominees standing presently at 28 names is too long and unwieldy.

• By far too many interests are represented on the list, the Magistracy, the official Bar, the party (Action Congress), the Eleko (Oba of Lagos), Ikorodu Oga, Awori; Badagry (Egun) and several other interests.

• Too many women Nominees.

• The list is tilted against private legal practitioners and court going public officers in favour of bureaucratic lawyers and technocrats.

• The presence on the list of a few nominees with disciplinary records.

• If the numbering of the list is anything to go by, then the positioning of nominees is very questionable.

• The absence of consultation with the local branches of the Nigeria Bar Association (NBA) before the list of Nominees was announced.

How much of these criticisms is justified?

The best approach to start the discussion of this very important topic in which all of us, whether as lawyers, judges, administrators and even ordinary citizens are all stakeholders is to look at the mode of appointment of judges.

IN THE PAST
From my modest studies of Autobiographies. Biographies, memoires and even valedictory speeches of retired judges the common thread that ran through the testimonies of these retired judges is that they were nominated for judicial appointment by Chief Justices/Judges and other senior judges who had watched and observed their conduct in and out' of the court room over time and consulted with other judges and sometimes the leadership of the local bar about the suitability of a particular lawyer for appointment as a judge. Even those from the official Bar were more or less subjected to the same scrutiny. It was not merely a matter of seniority in status of rank that determined suitability for appointment so a Director who did not pull his weight or was altogether unsuitable as a judge could be by passed for a promising Deputy. The lawyers of those days had very little to do with their nomination and appointment as judges. In fact from many of the accounts I read there was always this great feeling of surprise and even trepidation when a lawyer who has never attended a judge in chambers except to move ex-parte applications is informed by a court registrar that the Chief Judge or Administrative Judge will like to see him: what have I done wrong? Did I say anything harsh in Justice Integrity's court? Or is the content of my pleadings or affidavit contemptuous of court etc. Only to be told by the judge that his name has been nominated for appointment to the Bench.

The above informal approach seemed to have worked wonders all the same going by the remarkable achievements of our judges of the days of old v/ho were highly regarded in all parts of the common Law jurisdiction. The above approach accords with the practice in the UK According to .Dame Elizabeth Lane Q.C- First Female English High Court Judge in her Autobiography - Hear the other side- Audi Alterem Partem. "The message was that I was to go to the House of Lords at 2 0' clock that afternoon as the Lord Chancellor (then Lord Gardiner) wished, to see me. My heart stopped beating what could I have done in the county court which could possibly merit a rebuke from the Lord Chancellor himself? Well, perhaps I had been a bit too sharp with that solicitor and an order I had made was perhaps some what unorthodox, but I was sure that I had done nothing which would deserve dismissal. Justice Lane picks up the narrative later "After a few minutes, in which I had not been given the slightest hint of what was to come. I was shown in to the Lord Chancellor. He was very agreeable and then said he wished to appoint me a High Court Judge assigned to the Probate, Divorce and Admiralty Division. I was stunned, so much so that, to my shame, I had to ask him to repeat what he had said".

As in everything else the American experience is completely different from ours and from that of other common law jurisdictions. The appointment of the (State) County Court Judge and (Federal) District Court Judge varies from state to state. In some states, the appointing authorities can nominate any lawyer directly to Bench either from the academia, legal practice even Corporate in-House Counsel while in some others lawyers actually contest elections to be appointed as Judges. Imagine lawyers printing manifestoes and soliciting for votes to sit on the Bench!!! The appointment to the United States Supreme Court,, which the
Americans call, the U.S. High Court is however more grueling as the Presidential Nominees must face rigorous congressional drilling as in the case of Justice Clarence Thomas and his antagonist Prof (Ms) Anita Ward. Justice Clarence barely got true, while many have been known to fail this grueling Senatorial hearings and their nominations turned down.

However, even this has its downward side as a Judge called Associate Justice apart from the U.S. Chief Justice gets appointed to the United States by virtue of his political leaning. Therefore a listing of the United States Supreme Court Justices from 1789 till date will tell you at a glance the political leaning of a judge. Imagine seeing Ademola Adewale JSC (PDP) and Adesina Ogunlana JSC (A.C)!! (I am not a card carrying member of any registered political party neither do I know Ogunlana to belong to any). Apart from academic interest, it is obvious that the American example is not at all relevant to us in Nigeria.

To return to our theme about the appointment of judges; it is a fact that the old method of appointing judges has since been discarded no thanks to a variety of reasons.

First is the issue of interest groups. Unlike in the past when merit alone was the key factor in the appointment of judges, nowadays merit has to be balanced with other socio-political considerations. These factors which are part of the intractable national question entail that various interest groups in society are represented at all levels of government and administration including the judiciary so as to give everyone a sense of belonging. Thus, where any group appears left out the cry, of marginalization- that is cry of exclusion rents the air. Even the nation's constitution recognizes this by the provision of the highly contentions federal character in Section 14(3) of the 1999 Constitution - the policy which also goes by other names such as Quota System, Zoning and Rotation has been the source of much controversy in the land. In direct relation to the appointment of judges Lagos State presents a peculiar case, because of its status as the former capital of the nation and its cosmopolitan nature it is home to all Nigerians particulars indigenes of neighbouring states most especially Ogun State. Many of these classes of Lagosians, unlike indigenous Lagosians have the unique privilege of wearing two caps, where necessary: The cap of Lagos State, and at other times the Cap of their indigenous states. This dual citizenship is not available to the indigenous Lagosian who has Lagos and Lagos alone his state of origin.

To complete matters, the several sub-ethnic groups in Lagos, the Isale-Eko, Brazilian/Sieria-Leone descendants, Aworis, Ikorodu, the Epes and Eguns (Badagry) naturally expect to be accommodated in the key areas of public life including the judiciary.

Now that appointment to the higher Bench is as comfortable as it is competitive, the level of competition for the High Court Bench is better imagined. The challenge is to balance these various interests with the need to ensure only the best sit on the High Court Bench to dispense justice.

To further compound the problem these are the days of partisan politics, when the interest of party faithfuls cannot be swept aside with a wave of the hand.

PRIVATE V OFFICIAL BAR RIVALRY
For as long as any one can remember there is always a keen but healthy rivalry of members of the official Bar from the Ministry of Justice, Government Departments and Agencies and Magistracy on one hand and private legal practitioners on the other. But in recent times perhaps due to the advent of partisan politics when the party in power automatically controls the personnel of the official Bar, the balance if heavily tilted in favour of the official Bar and the present list of 19 members of official Bar to 9 legal practitioners constitutes almost proof beyond reasonable doubt of this unhealthy tendency.

THE BATTLE OF THE SEXES:
Ordinarily in Lagos as in all parts of South-Western Nigeria, the women have always competed shoulder to shoulder with the men in all areas of life. And from historical even pre-colonial times till present day Lagos women have boasted of as much distinctions as the men. Remember the Madam Efunseke Tinubu, Lady Oyinkan Abayomi, Dr. Abimbola Awoliyi and more relevant to our discourse, Stella Marke, First Lady Magistrate, Justice Omo Eboh First Lady Judge, Prof Jadesola Akande, Mrs. Hairat Balogun, Justice Roseline Omotosho, several Judges serving and retired including the present Chief Judge Justice I. E. Akande, Mrs. Funke Adekoya SAN, Mrs. Ayo Obe and numerous legal practitioners. The ability of our women for even the highest judicial posts in the land has never been in doubt. But at all times the competition with the men has been on equal footing, a list of 19 female nominees to 9 male nominees is anything but equal.

Also suspect is the numbering of nominees: Unless of course the numbering is random. In which case those down on the list are at a disadvantage since the relevant agencies may conveniently focus on those listed above at the expense of those below for the few available sits on the Bench.

On the other hand, if the numbering reflects the official rating or ranking of the nominees, it is with due respect a most questionable and disturbing list. A classic illustration is Mr. Christopher Ayodeji Balogun as No 19 on the list.

A seasoned legal practitioner with excellent pedigree, I dare to say even unguardedly and without solicitation that Mr. Balogun has all it takes to be elevated to the highly coveted rank of SAN. There is no basis whatsoever, for Mr. Balogun to rank lower than No. 3 in any well drawn up list of nominees for judicial appointment not only in Lagos State but any part of Nigeria.

Equally disturbing is the presence on the list of lawyers with disciplinary records some. of whose matters are yet to be disposed off.

The final query in respect of the list of nominees is the noticeable attitude on the part of the relevant authorities not to consult deeply with the local branches of the NBA before purporting to draw up a list of judicial nominees. This is even more disturbing in the face of the resolution at the last Annual Bar Conference Lagos in August, 2009, that the NBA. has to be closely involved in the appointment of judges even with the right to nominate people though the relevant authorities have the final say on who becomes a judge.

CONCLUSION:
It is obvious that the appointment of judges in Lagos State is a very serious affair but with the required sense of responsibility, a credible and transparent approach can still be fashioned out for the appointment of judges in Lagos State that will maintain the delicate balance between ensuring merit and accommodating the various interests .in the state. But the recently published list of 28 nominees is very far from the ideal. It should be completely discarded and a new one drawn up after due consultations.

QUARE:
In the lighter mood, now that the process of nominating .judges is faulty, do we abolish the institution of judges, as some have advocated in respect of the rank of SAN?