Let’s adopt the French Civil Code system!

He need no introduction. He was the Chairman of the Independent Corrupt Practices Commission (ICPC) between 2005 and 2010. Former Justice of the Supreme Court of Nigeria, former Chief Justice of the Republic of Gambia, former President of the Court of Appeals of Seychelles and former Vice – President of World Judges Association. Armed with a law degree from the University of London, Justice Ayoola is also an Oxonian, having taken a degree in Jurisprudence from that pre-eminent institution. Thus intellectually prepared, he took the legal profession by storm, so soon as he was called to the English Bar-Lincoln’s Inn in 1957 and to the Nigerian Bar in 1959. Guided by the divine hand, he took to the Bench in 1976 and the rest is history. Justice EMMANUEL OLAYINKA AYOOLA has gone far and wide even beyond the Common Law jurisdictions where he had the initial training. Now, with the benefit of a wide, diverse and rich experience, in this tete a tete with the Jurisconsult, he answered some questions concerning the administration of justice in Nigeria.

Considering the cases of contradictory rulings on the PDP Convention and Abia State Governorship, one is tempted to think that Judges are not afraid of the National Judicial Council, that some of them just go ahead and do whatever they like anyway. Sir, how effective would you say the NJC has been in making sure Judges do the right thing?

The problem in Nigeria is that many people jump to conclusions without having the full facts. I have not read the judgments and I cannot rely on the papers to make comments. But I understand the issues are not the same. Two separate parties are involved, seeking reliefs and if the parties are different, then one cannot really talk about conflict. The Abia issue has been resolved by the Court of Appeal, so one cannot say the Judiciary is still in conflict.

But Sir, with great respect to the Judicial Office, should we even require so much oversight from a body like the NJC over the Judiciary?

Any system requires a level of oversight. NJC type of oversight is not out of place since it involves issues like how public funds are spent, how the Judges use the time for which they are being paid and so on.

My Lord, your background has always been in the legal profession and the Judiciary, what was the Judiciary like when you became a Judge in the 70’s?There is no basis for comparison. The number of Judges were lesser and cases were lesser. But Judges were highly respected and they applied themselves more thoroughly to those cases which they dealt with. But as the society develops, there are more conflicts and we now have many more Judges.

Should the Judges therefore not comport themselves and be thorough because of increased number?

The Judiciary cannot be treated in isolation from the society and Judges are appointed from this same society. There is the possibility that some of them would take the values of the society along with them. What can be done is to work for the restoration of societal values. I think a value driven society has more positives to reflect on the institutions.

Was any disciplinary body or Committee necessary at your earlier time in the Judiciary?

There has always been disciplinary mechanism but not as pronounced. Those responsible for discipline were the Chief Judges of the Regions and the Chief Justice of the Federation was the final authority. But disciplinary proceedings against Judges were very rare.

You were in the Gambia both as Judge and then the Chief Justice, what was the Judiciary like when you were there?

I was the first African Chief Justice. I took over the system being run by the British. It was a disciplined, self respecting system and if the system is so, the society will also respect the system.

I know you are part of the Judiciary in Seychelles. What’s the Judiciary and the legal profession like in Seychelles?

Not much difference in all the places where Britain administered. The only difference is that they have a hybrid system. They operate both the Common law and the Civil system.

How was your Lordship able to cope since your training was based on the Common Law system?

I was able to cope because I have always been interested in comparative law. Code Napoleon is an interesting one. It is not based on precedents. A Judge may follow a previous decision of a higher Court if after going through the decision, he agrees with the reasoning, otherwise he is allowed to follow his own reasoning and arrive at a different conclusion. I think it is time we adopted that system.

Since that system is not based on precedents and precedents make for some certainty, is the Civil law system not liable to lead to a chaotic situation when different Judges decide similar issues differently?

The lack of precedents has not created chaos in those jurisdictions. The Civil Law system is also Jurisprudence based and that too makes for continuity of thought.

Will that system not be dull and uninteresting since it is a Code meaning it may not allow for innovation?

The Code is not dull and uninteresting.  It is a system that works even though the Common Law system also works. We should adopt the system since Nigeria has not developed the Common Law. We are not among the jurisdictions discussing the Common Law. We only apply the old principles. Even in England, much of the Common Law principles have been enacted into Statute. The Law Commission in England continues to review and recommend Statutes. Even if we don’t go the way of Code, we can do a re-statement like the American Restatement.

With the problem of delay in obtaining justice in Nigeria, would you say that the Common Law Court system has failed us? I asked this question because I know traditional dispute resolution does not take time like what we are experiencing now?

We are the ones who has failed the Common Law system. They don’t have this much delay in other Countries where they operate the Common Law System. Substantive law is not the problem but procedural law where much time is wasted on issues of technicalities like pleadings such that when you read the Law Reports nowadays, the decisions are mostly based on procedural issues.

In your opinion Sir, what is the ideal frame of time within which legal disputes ought to be resolved?

One year. Front loading has not helped either because people have not yet understood the purpose of that system. Much education is still needed on how to operate the system to achieve its aim. I have never agreed with the system of Brief Writing whereby people cite a multitude of cases and they expect the Judges to read through all of them? In the past before Brief Writing was introduced, time was not wasted.

Given the benefit of your experience, is the anti – corruption fight not a political issue in Nigeria, that is a situation where the success or otherwise depends on whether or not the politicians want it to succeed?

Anti-corruption war is not a political issue but a societal issue. With reference to the Independent Corrupt Practices Commission, the situation was that people were not making reports which the Commission could then act on. Many people are fighting witches, ghosts and spirits but if you ask them whether they have seen any, the answer is no! Many people believe that there is corruption but they are not ready to report a corrupt person. But the anti-corruption fight will be effective when we have a citizenry that is well cared for.  Welfare is key.

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