By Bassey Ubong
A young man in an extended family swaggered into a family meeting and announced he disposed of an ancestral land to persons who turned out to be land speculators. He claimed no one in the family had the capacity to do anything about it. The man he claims as his 94 years old father objected in the strongest terms and cited traditional issues. But the youth said the buyers have the capacity to contain whatever may arise – legal, traditional, and metaphysical. The extended family decided on one option – customary court, where experienced persons said land matters in rural areas should originate.
One month later, family members new to the system walked into a pleasant surprise – Customary Courts are beehives and locations for speedy action on several issues within their jurisdiction, including threat to life. The experience reminded me of a 2021 post on the state of litigation in Nigeria in which I submitted that the use of courts in Nigeria by citizens falls below expected level compared with other countries. Who knows what the future looks like given the severe blows on the integrity of the judicial system after the 2023 General Selections?
When compared with what a New York court did to Donald Trump last month, in which a former and aspiring President received conviction and has become a felon, the Nigerian judicial system should expect a higher level of disuse. Courts are popular when justice knows no surname or socio-economic status past, present, and future.
Rasmeyer and Rasmussen in 2010 published a well-researched paper on comparative litigation rates among countries in an attempt to justify the conventional wisdom which believes the United States of America (USA) holds the top position with respect to love for litigation.
The Harvard Discussion Paper reviewed the “notoriety of the American judicial system,” the eagerness of Americans to sue on anything, and the “power of judges to shape the social order.” But the outcome of the research suggested a country where people have minimal inclination to rush to courts for anything and everything. The paper however gives the impression of a tendency of judges in the country to mishandle cases before them. Despite the conclusions no one doubts the optimal use of courts in the United States by citizens and associations.
Developing countries can be said to be far behind in the use of courts. But in the present age, no one should discount the role of the judicial system in daily life.
Courts are expected to provide relieve to persons who feel aggrieved and oppressed. The need for litigation increases in societies where the rich and occupants of high offices oppress the less privileged with impunity.
Nigeria, nay most developing countries, have minimal access to what can be termed legal catharsis, which courts provide to aggrieved, confused, and ignorant persons. The reasons for the minimal use of courts in Nigeria and I believe other developing countries are easy to establish.
First, and to me, the most important has to do with the painful and time consuming process of dispensation of justice in courts. Judges are permitted to determine when to sit and how long a case should last other than specific time-bound cases such as election matters. The system justifies delays on the basis of the need for fairness to all concerned in every case.
But comparison of judicial cases and wine should be regarded as inappropriate. The longer wine stays in the cask, the better the taste and quality. If longevity were the principal basis for sound judgement why would every system provide for appeal? Why should acceptable judgements be delivered in time-bound cases such as those which involve election outcomes?
Should citizens claim half-baked judgments emerge from election petition courts in Nigeria? In any case, why do Customary Courts conclude cases in months, while higher courts in some cases use decades to conclude equivalent cases?
As a tertiary teacher, whether I marked answer scripts and submitted results within one week of conclusion of examination or stored the scripts for two months, the assessment process used to last for a maximum of one week. The population of the class mattered little although the more the students the greater the stress in assessment. If courts rely on the wise saying, “rushed cooking leads to half-cooked food” it means the power of microwaves have been ignored. Justice delayed will continue to be justice denied any day.
The second reason Nigerians avoid litigation can be traced to the cost. The best lawyer friend of a litigant must attend court session and the lawyer will, with a courteous smile, request (or demand) money for transport made worse in the Tinubu era. Imagine a low-level employee or petty trader being told to provide transport money for a case expected to last for five years! Sometimes ordinary people feel the judges cooperate with the defence to tire out plaintiffs. And where the actual cost must be paid, the average citizen who has several urgent financial problems to solve would prefer to non-priorotize legal action.
And well, we hear Senior Advocates of Nigeria (SANs) charge a tidy N100 million in some cases. If true, we can see the reason they appear for the rich only and are most in demand in high profile cases such as election petitions. If their charge were an indication of probability of success in a case, the poor should shrug and let go a case where the defence council happens to be a SAN. In fact, based on personal experience, lower level lawyers find it difficult to hide the level of intimidation they feel when a senior stands against them. Why would a pupil lawyer, fresh from National Youth Service, stand eyeball to eyeball with a SAN? Well, can ordinary people look at the possibility of judges being intimidated by Senior Advocates of Nigeria?
The third reason can be traced to plain ignorance of the kinds of relief and relieve courts can give to aggrieved persons. Many people shrug and live with the pain of injustice, while the wealthy and the knowledgeable ride rough shod over them. About a year ago, an ordinary citizen of Nigeria (we can give him the National Award of OCN) sued Akwa Ibom State government when Vehicle Inspection Officers (VIOs) traumatized him and forced him to pay a fine of N5,000. The man believed in his innocence and sued Akwa Ibom State Government with the Vehicle Inspection Unit as its agent. A High Court in the state directed the state government to return the N5,000 and awarded N2 million as cost. After the case, the government withdrew VIOs from roads to the relieve of traumatized motorists. One day, another OCN will take another group, which harasses motorists, to court and with hope, secure judgment in his or her favor. I mean the Federal Road Safety Corps, which few people know, are expected to operate on Federal roads only. Has any citizen been shown how to determine the expiry date of tyres? FRSC personnel rush to issue debit notes to motorists accused of use of expired tyres, but like Billy-goats, they refuse to show any motorist how to determine expiry dates of tyres imported with the consent of the Federal Government of Nigeria.
What role does the Nigerian Bar Association play in education of the public on legal issues? I am unaware of any, more so it would reduce consultation fees due to lawyers.
Dread of courts carried down over decades can be regarded as the fourth reason. The legal system has a mystique about it, from the black dresses of the lawyers and more worrisome, the gray cover on the heads of the judges. The legalese in court rooms ensure ordinary people on both sides stay with faces as blank as unused chalk boards. To make matters worse, judges have the power to jail and to hang. And the spectre of an accuser who transforms into the accused haunts potential plaintiffs. Watch the way court personnel scream and warn both litigants irrespective of status and you may want to stay away from court on grounds of self-respect.
Courts are as unpredictable as the weather to the outsiders and one doubts if the court system can be demystified. When the insiders sustain and in fact heighten the mystique, the system suffers.
Nor can anyone say when lawyers acquired the reputation of being experts in doublespeak, a fifth reason several persons prefer to live with privation rather than go to court.
Law practice and insurance share the same image I want to believe the world over. The language used in both sub-sectors are coded in a way ordinary people feel they are at the short end of the stick. Who reads the pages of terms and conditions in bank forms put together by lawyers? Customers sign where the bank staff show them and hope their deposits and their freedoms are covered. And whoever can prove white to be black should be regarded with caution although lawyers may do no more than apply rules and decided cases in a dispassionate way to get their clients (the not-so-innocent ones) out of uncomfortable situations.
Games played during election cycles by lawyers further mystify courts and make ordinary citizens look at them with suspicion and caution.
A sixth issue, on a sad note, relates to the role of the Executive branch of government. When court orders are obeyed at the will and pleasure of the Executive Branch it leaves a sour taste on the tongue. If a judge issues an order, which a primary school child has cause to believe to be wrong, the solution should not be to ignore it.
A better approach should be to move to a higher court within the stipulated period. When government ignores court judgement no matter how unjust (bad judgements exist the world over) it dampens enthusiasm in and about the judicial process and system.
Cases decided by lower and higher courts based on patronage as of necessity impacts on the integrity and by extension powers of courts. If for instance a court in a state passes judgement and a court in the Federal system counters it based on Federal power in self-evident cases, no one should expect people to have faith in the system as a final arbiter. And should any court at any level pass judgement against the Executive which provides the resources for the operation of the court?
There have been few bold cases such as the case of a citizen versus VIOs in Akwa Ibom State and the case of currency change in 2023 although it appeared the Executive required a face-saving way out of a self-inflicted injury. All the same cases ticked the needle of credibility upwards for the Nigerian judicial system.
Going to court and winning (or losing) in my opinion should be seen as a win-win situation. When a plaintiff wins, the reward goes beyond Naira and Kobo to a warm psychological feeling. When a plaintiff loses, he or she can go home satisfied with a gallant effort made. To nurse a grudge works against the individual’s psyche and blood pressure. This piece should be considered as advocacy for increased use of courts by citizens despite bottlenecks.
Courts are human-operated organs of government and human error as well as human weaknesses cannot be wished away. However human failure should be a case of the less the merrier in terms of regularity. The courts should bend over backwards to make themselves the last hope of the common man rather than the first hope of the uncommon man which has been evident in several cases in recent time.
Dr Ubong, a public againstubong Commentator, lives in Uyo.
