What Judges Must Do to Change the Negative Perception of the Judiciary – Justice Ogunwumiju

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Justice-Helen-Morenikeji-Ogunwumiju
Justice-Helen-Morenikeji-Ogunwumiju

The Administration of Criminal Justice Act (ACJA) 2015 was the focus of the capacity building workshop organized for judges, magistrates, area court judges and registrars in Abuja  with the theme: Application of Practice Directions on the Implementation of the ACJA 2015.

The four-day workshop organized by the Presidential Advisory Committee Against Corruption (PACAC) in collaboration with the High Court of the Federal Capital Territory had 14 sessions featuring group presentations, training on case management and control of court and proceedings, role of judges and registrars, among others.

The general consensus at the end of the workshop is that progress would be made if judges showed more courage, firmness and did not indulge “tricky” defence counsel.

Keynote speaker Justice Helen Ogunwumiju of the Court of Appeal listed what judges must do to change the negative perception of the judiciary.

Judges Must be Firm

Justice Helen Ogunwumiju urged judges to take firm control of their courts so the judiciary does not become the weakest link in law enforcement.

She said trials sometimes get so “complicated” and “hydra headed” because judges allowed lawyers “to run the show”.

She suggested that a judge should not for instance grant an adjournment on the basis that an absent Senior Advocate of Nigeria (SAN) would prefer to handle a case himself noting that the SAN has juniors who are qualified lawyers, who  should handle the case on their principal’s absence.

She urged  judges not to allow anyone to abuse your leniency. “Don’t be fearful. Part of being a SAN is to have a junior.”

She noted further that  due to lack of firmness by judges, the trial process is sometimes hijacked and judges become helpless “in the face of various manoeuvres of the defendants and sometimes their high-powered expensive lawyers.”

Most High Court judges, Justice Ogunwumiju said, have had to adjudicate on cases involving high-profile defendants who come up with “all manner of tricks” to avoid taking a plea at the arraignment stage.

“All manner of objections are raised at this stage. There are such trials that are yet to leave the plea stage, some even into well over four years after they have been filed, which is contrary to the spirit of the constitutional mandate of Section 36 (1) for speedy trial and fair hearing,” she said.

What should judges do in such circumstance? Justice Ogunwumiju recommended: “Some (defendants) say that they are physically unfit to stand trial. Remand them at the state hospital until a doctor gives them a clean bill of health.

“If they claim to be mentally ill, remand them at a state mental institution. They will become well in a hurry. The panacea is to be firm.”

In a situation where a defendant refuses to enter the dock on the excuse of challenging the charge, Justice Ogunwumiju said the court should refuse to entertain any application by the defendant.

“It is not unusual to find that a defendant may, on the advice of his counsel, refuse to enter the dock, thereby refusing to submit to the jurisdiction of the court.

“Order 3 Rule 3 of the Practice Directions provides that irrespective of any issues including but not limited to jurisdiction, bail, etc, the defendant shall be called upon to enter the dock and enter a plea.

“Where the defendant refuses to enter the dock to plead to the charges, the court shall refuse to entertain any application and where the defendant refuses to enter a plea, the court shall enter a plea of not guilty for him,” she said.

The Justice said an objection to the charge may be couched in terms of being invalid or disclosing no offence.

Section 396 (2) of the ACJA, she said, gives judges the discretion to adjourn ruling on such application until judgment.

‘Do not be Taken for a Ride’

Justice Ogunwumiju emphasized that the fact that someone was granted bail is not a licence to allow a defendant and counsel to delay trial.

She said: “A defendant who fails to appear in court for myriad of reasons or excuses should be decisively dealt with. It is not a valid excuse that a defendant had to go for medical treatment.

“The medical appointment should not have been scheduled to clash with the court hearing.

“Religious obligations and the whipping up of religious sentiments not to appear to continue trial should not be tolerated.”

Justice Ogunwumiju recalled that when she was a magistrate in Oyo, she would not hesitate to revoke bail when she felt that the defendant and his counsel “were trying to take the court for a ride”.

According to her, where the prosecution was ready with their witnesses, courts should not let the issue of bail delay the commencement of trial.

“Defence lawyers engage in all manner of tricks to delay trial. You are covered by Section 396 (2) of the ACJA. The court must stand its ground. Hear them but defer ruling till the end of trial,” she said.

 ‘Don’t Grant Stay of Proceedings’

Justice Ogunwumiju said in no circumstance should judges grant stay of proceedings pending appeal in criminal trial.

According to her, the pace of appeal is slow, arduous and discouraging.

An interlocutory appeal, she said, could take two years at a minimum to be decided. It would take a further three years at least at the Supreme Court.

Where a stay is granted, the defendant is assured of at least five years of breathing space, which she said has unfortunate consequences.

Witnesses, she said, could have died, have relocated, retired or coerced into silence, even as their memory could fade.

Investigating officers could also have relocated; exhibits could be lost. The judge may have retired, and trial may have to start all over before a new judge. The defendant would have had enough time to dissipate the proceeds of crime or cover his tracks.

Also, during the period that trial is suspended, the defendant may have, according to Justice Ogunwumiju, blackmailed the system by claiming witch-hunt, negotiated with or frustrated the prosecution, peddled political influence, or secured an appointment or won an election.

The solution? No granting of stay of proceedings, she said.

“What the trial judge needs to bear in mind is that the fundamental rights are not necessarily infringed by his refusal to stay proceedings as the defendant still has the option of applying for stay at the Court of Appeal and even the Supreme Court.

“The signs of the times dictate that absolutely NO STAY of proceedings should be granted pending the determination of the substantive matter.

“Most important to note is that whether you are presiding in the area court or magistrate court, do not grant an application for stay of proceedings,” Justice Ogunwumiju said.

The jurist said several trial-within-trials need not be conducted for several statements purportedly made by the defendants.

To her, as long as each statement is subjected to its own peculiar trial, it is possible to conduct one trial for all the statements.

“Your lordships should not stay proceedings if you overrule the objection of the defence to the voluntariness of the statement of the defendant even where the appellant goes on appeal,” she said.

In no-case submissions, the Justice said there would likely be an appeal where a ruling goes against the defendant, adding that an appeal on a no-case submission is one of mixed facts and law which require the leave of the High Court or the Court of Appeal.

“The High Court may refuse leave to appeal and proceed with the trial until or unless the Court of Appeal grants leave to appeal and stay proceedings. I recommend that the trial courts should give very short ruling on no case submission,” she said.

 Avoid Frivolous Injunctions

 According to Justice Ogunwumiju, judges must be careful not to be swayed by “brilliant” arguments of counsel to grant perpetual injunctions against prosecution.

“Sometimes the arguments are ingenious and appear infallible and you are perhaps wont to be swayed by them. You must have at the back of your mind the need to do justice to the defendant, the victim and the state.

“In cases of corruption, you and I are the victims and we are part of the state,” she said.

She said granting an injunction stopping someone’s arrest or prosecution is like tying the hands of 180 million Nigerians from prosecuting one man.

Justice Ogunwumiju recalled that in the case of FRN vs Igbinedion, she had to disagree with the trial judge by refusing a motion asking for perpetual injunction restraining anti-graft agencies, the police and the Attorney-General of the Federation.

“I had at the back of my mind the seriousness of the offences and the implications of granting the outrageous prayers being sought by the defendants. I could not succumb to the very persuasive legal arguments of defence counsel.

“I urge my Lords: Be careful in grating injunctions that appear to bind the hands of the executive. That would be threading dangerously on the executive arm of government whereas the judiciary is supposed to enforce the doctrine of separation of powers,” she said.

The Court of Appeal Justice urged members of the Bench to always remember that justice is not just the application of bare law but an instrument of social justice and positive social change.

 Award punitive cost

Section 396 (7) of the ACJA provides that “in all circumstances”, the court may award reasonable costs in order to discourage frivolous adjournments.

“My humble interpretation is that where the court notices that the prosecution or the defence seeks frivolous adjournments, it may award costs against the state or prosecutorial authority.

“Where the defendant is asking for adjournment for frivolous reasons, the court should revoke the bail and give good and lengthy reasons for doing so.

“Let the defendant go on appeal before or after the trial because the court revoked bail for good reasons,” Justice Ogunwumiju said.

She recommended that immediately a charge is brought before a judge, the court should build up a historical data, which would facilitate a periodic review of the court’s performance.

Another means of ensuring speedy trials, she said, is for the judge to consolidate rulings as opposed to delivering several rulings in a case before the substantive matter has even been dealt with.

To be continued…

Culled: The Nation

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