by Associate Prof. Ibrahim Abdullahi, SAN
No Judiciary worldwide is perfect. The judiciary is a noble institution which plays a central role in any society. It is probably the most influential branch of government and critical component of the Nigerian society. Unlike the other two governmental organs, the judicial arm is unelected; as such, judges are expected to maintain neutrality, particularly in a society like Nigeria where politics is a game of divide and rule.
Courts exist to resolve disputes among people in a peaceful manner; and their decisions affect a great majority of people, not just the parties before it. No other institution has such influence on the society. Little wonder that the Realists go as far as insisting that what judges do about disputes is the law itself. Judicial decisions therefore affect man’s entire life. There are some judicial acts that are capable of affecting public confidence in the justice delivery system.
The meat of this short article is to appraise some judicial acts that affect public confidence in the Nigerian Judiciary and proffer some antidotes. Cross references will be made to other jurisdictions for the purposes of better understanding.
2.1 The Role of a Judge in Nigeria’s Adversarial System of Justice
The function of a judge adjudicating between two disputants is that of an arbiter. The judges cardinal duty is that he must keep an open mind throughout the trial and must give each of the disputant’s equal and fair opportunity to present his case or defence by allowing him to call any witness of his choice in proving his own case or in challenging the evidence adduced by his opponent. If he engages counsel, that counsel has complete control in presenting his case fairly and firmly without any undue interruption by the trial judge. His duty is to sit and determine the issues raised by parties, not to conduct an investigation or examination on behalf of any of the parties or of the society at large. But he is not a mere umpire. His object is to find out the truth, and do justice according to law, and in this pursuit, the advocate plays an honourable and necessary role. Most importantly, the law must be adhered to as it is due process of the law that enhance judicial integrity. Lord Denning in the case of METROPOLITAN PROPERTIES CO. (F.G.C.) LTD. V. LANNON (1969) 1 Q.B. 677 AT 599 gave the reason why a Judge must always act in such a way as to retain the confidence of the people in the judicial process when he said at page 599 thus; ‘The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: ‘The Judge is biased.’
3.1 Some Judicial Acts that Affect Public Confidence in the Nigerian Judiciary
3.1.1 Accommodating Overtures made to Judges by some Litigants to influence the outcome of a Case
Like Caesar’s wife, Judges must be above suspicion, circumspect, reserved and detached or aloof from the public in order to avoid the compromised position of litigants having access to them to discuss or solicit favours in respect of pending cases. Corrupt litigants will always try to trade on an unsuspecting judge by making overtures aimed at influencing the outcome of a case. Some judges fall prey to such overtures thus compromising the outcome of a case. Some incorruptible judges will however resist such delicious temptations by not allowing such dirty approach to affect their decision in any given case. They are prepared to leave the dark spot behind them determined to do justice in the case. Where however the reverse is the case, the adverse party becomes haunted by the nefarious and sinister step not knowing what really transpired. Thus, for a litigant to have access to a Judge in respect of a case affecting him and pending before the Judge is a very serious matter. Accommodating any ex-parte communication by a litigant with a Judge in such circumstances is scandalous and has the unsavoury effect of undermining public confidence in the administration of justice. In the case of R. v. Stratford-on-Avon JJ., Ex Parte Edmonds (1973) R.T.R. 356 the informant had conversed briefly with the Justices after they had retired to consider the case. Even though the nature of the brief conversation the informant had with the Justices in Ex parte Edmonds (supra) was not disclosed, the conviction in the case was quashed on appeal. The key factor for quashing the conviction centered on the parameter that the public confidence rooted in the administration of justice was eroded.
Suffices to state that any form of contact by a litigant or his proxy with a Judge sitting over his case in respect of the case even after the case has been disposed of by the judicial officer is undignifying and strikes at the taproot of the administration of justice. Rule 2A (5) (1) of the Code of Conduct for Judicial Officers provides thus;
A judicial officer should accord to every person who is legally interested in a proceeding, or his legal representative full right to be heard according to law, and except as authorized by law, neither initiate, encourage, nor consider exparte or other communications concerning a pending or impending proceeding.
Under Rule 2 Sub rule 5 (11), “exparte communication” was referred to as any communication involving less than all the parties who have legal interest in the case, whether oral or written about a pending or impending case made to or initiated by the judicial officer presiding over the case. Thus a judicial officer is expected to keep reclusive or hermitic/respectable distance from the public to avoid the compromising position of a litigant or his proxy reaching the judicial officer to attempt influencing him in respect of a pending case before him. It does not also matter that a judicial officer is noted to be above board or is of avowed integrity. What matters is the public perception of the administration of justice an encounter by a litigant or his agent with a judicial officer with a view to influencing the proceedings before him would evoke. In the Israeli case of TSABAN V. MINISTER OF RELIGIOUS AFFAIRS 40 (4) P.D. 141 AT 148, the Supreme Court of Israel stated thus;
An essential condition for realizing the judicial role is public confidence in the judge. This means confidence in judicial independence, fairness and impartiality. It means public confidence in the ethical standards of the judge… Indeed, the judge has neither sword nor purse. All he has is the public’s confidence in him. This fact means that the public recognizes the legitimacy of judicial decisions, even if it disagrees with their content.
The unwholesome and unholy interaction of a litigant or his agent/proxy with a Judge hearing his case would not only create real likelihood of bias or prejudice on the adjudication of the case by the Judge but might engender suspicion in a reasonable person seized of the facts that there has been an improper interference with the course of justice.
3.1.2 Visitation(s) of a Judge to the Law firm(s) of Counsel to Litigants
The character of judges is public property. Judges are always admonished to desist from visiting the law firms of litigants for any purpose whatsoever. The appearance of a judge in counsel’s chambers would inspire negative thoughts and erode the confidence of the public that a case had been decided on its merits. Lord Hewart C.J. in R. V. SUSSEX JUSTICES EXPARTE MACARTHY (1924) 1 K.B. 256, 259 stated these words which have come down the ages thus; “ … a long line of cases show that it is not merely of some importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Judges are expected to know that they are on trial for any improper conduct during the trial of a case before them and immediately thereafter. In the case of BAKARE V. APENA (1986) 4 NWLR (PT. 33) 1, for instance, the learned trial Judge in the case was acclaimed to be of high integrity. Perceiving a defect in a judgment he had delivered, the learned trial Judge visited the law firm (chambers) of counsel for the party that lost the suit with a view to inviting counsel to address him on the detected error for the purpose of correcting it. But the Supreme Court comprising seven learned Justices (Full Court) roundly condemned and deprecated the behaviour of the learned trial Judge for having contact with the law firm of one of the parties after delivery of judgment in the case in respect of the disposed case. It allowed the appeal on that basis. The lead judgment of Nnamani, J.S.C., had this to say at pages 12, 13, 14, 15 and 16 of the law report;
The next matter I would wish to advert to is the conduct of the learned trial Judge in visiting the chambers of respondent’s counsel. Chief Sobo Sowemimo S.A.N. has submitted that that conduct was reproachable and irregular. I think those were fair description. I would myself say that it was unfortunate as it was ill advised. The learned trial Judge could not have fully adverted his mind to the implications for his dignity as a Judge of the events of 10th March, 1979… I am of the view, however, that if one looked closely at … the circumstances what one finds is … some slight erosion of confidence in the judicial process… I think I can best state my reason for agreeing that the judgment too cannot stand, as due to the erosion of confidence in the adjudicative process brought about by the conduct of the learned trial Judge. I cannot do better than set down the views of the learned Justices of the Court of Appeal which in my view gave sufficient re
asons for holding the judgment of 9th March, 1979 also vitiated. Said Uthman Mohammed, “… after his visit to the chambers of Chief Olunwa, the generality of the member of the public are bound to call for question on the impartiality of the learned trial Judge, and in the end even the first judgment would not escape the public screening.” In the view of Ademola, J.C.A. “… The issue here is that of confidence in the Judge who writes a judgment and not the soundness of his judgment. A Court of Appeal cannot be indifferent to the mood of the parties in the situation present here.”
Obaseki, J.S.C., held in his own judgment at page 19 of the law report inter-alia; “In addition to what my learned brother has said on this issue, I would add that a trial Judge ought to know that he is on trial for any improper conduct during the trial of a case before him and immediately thereafter…”
Aniagolu, J.S.C., held in his judgment at page 21 of the law report inter-alia;
Be that as it may, one must always bear in mind the reaction of the general public who may not have the specialized knowledge of the trial Judge as members of the Bar who work with him daily in the Courts, have. Lush, J., has stated in Sergeant v. Dale (1877) 2 Q.B.D. 558 at 567 that – “One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.
Such conduct was held not only to be despicable, undignifying but also unbecoming of the high office as an impartial arbiter between the two contesting parties. The saving grace of the judge was the fact that his integrity was unquestionable in the matter in that no improper or corrupt motive was ever imputed against him.
Coker, J.S.C., had this to say in his judgment at page 22 of the law report thus;
His (learned trial Judge) subsequent visit to the chambers of Chief Olunwa further complicated the matter… His conduct was not only despicable, undignifying and unbecoming of his high judicial office as an impartial arbiter between the two contesting parties. It is comforting that his integrity was unquestionable in the matter in that no improper or corrupt motive was ever imputed against him. But enthusiasm on the part of a Judge is hardly consistent with impartiality.
Oputa, J.S.C., made the following remarks in his judgment at pages 25-26 of the law report thus;
This visit was in breach of all known rules of judicial conduct, etiquette and decorum… I think the most important lesson to learn from the facts and surrounding circumstances of this case is that it is a matter of public policy that, as far as possible, judicial proceedings shall not only be free from actual bias or prejudice of the judges but that they shall be free from any suspicion of bias or prejudice. The character of judges is public property.
A corrupt judge is the most dangerous obstacle to attaining justice according to law. This was brilliantly captured in the wordings of Hon. Justice M.M.A. Akanbi, (the Erstwhile PCA) in his paper titled “The Judiciary and the Challenges of Justice” (1996) Pp 42 & 43” where he posited thus;
For a dishonest or corrupt judge, or a judge with little or no learning, can be a most dangerous clog in the administration of justice. Secondly, is the dangerous and mischievous judge who knows the law but prefers not to follow the law. He acts on whims and caprices. He assumes jurisdiction where there is none, he declines jurisdiction where there is. To him, judicial precedence means nothing. His motive is dangerous. His wig and gown are mere symbols of his ego. Again to this class of judges, the judicial oath is a mere cosmetic. Such a judge is not only an obstacle to justice according to law, he is a danger to the entire judiciary as an institution. Thirdly, is the ignorant judge who is a problematic judge, and can be an obstacle to justice according to law … the consequences of his actions may spell havoc to the judiciary.
It can be discerned from the above that the nature of the office and functions of a Judicial office call for a very high sense of duty, responsibility, commitment, discipline, great intellect, integrity, probity and transparency. Therefore, any person so appointed to that exalted position of a judicial officer, without imbibing these supreme attributes and qualities is surely to be a an obstacle in the administration of justice. Implicit in the judicial oath subscribed to by all judicial officers, fundamentally requires a total commitment to the rule of law, to the dispensation of justice according to law, without fear and favour, affection of ill-will, honestly, faithfully, and according to the Constitution and the laws made pursuant thereto.
The judicial oath equally demands that a judicial officer should not allow himself to be influenced by any extraneous or subterranean consideration whatsoever. In the wordings of Hon. Justice M.M.A. Akanbi, (the Erstwhile PCA);
While a Judge with little or no adequate knowledge of law, may be considered a nuisance, and his lack of understanding and appreciation of the law may constitute an obstacle in the path of justice, yet he is still, more tolerable than a CORRUPT JUDGE. For a corrupt judge is not only a dangerous obstacle, he is an anathema and a DISGRACE to the profession or the institution which he does not deserve to belong.
3.1.4 Adherence to Technicalities (Technical Justice)
The Supreme Court of Nigeria in the case of NNEJI & ORS v. CHUKWU & ORS (1988) LPELR-2058(SC) Per CHUKWUDIFU AKUNNE OPUTA, JSC at Pp 38 – 38 Paras B – C defined technicality thus;
“What is a technicality? A technical error is one committed in the course of a trial, but without prejudice to a party. It is an error which is purely abstract and harmless for practical purposes. ”Technical” relates to details rather than principle.”
Members of general public who are not learned in the law are averse to technical justice and all it stands for. The Courts over the years have equally tried to move away from technical justice to substantial justice by concentrating in its task of deciding the rights between parties before it to ensure that there is no miscarriage of justice. Some decisions are still fraught with technicalities embedded in them and which affects public perception about what these decisions stands for. These technicalities can take the form of the inopportune option of striking out of cases in limine, on technical grounds to the detriment of the serious issues needing scrutiny and determination. In a situation where very grave allegations are made by an opposing party, to shut him up does much harm to the cause of justice. See OWORU V INEC (1999) 10 NWLR (PT. 622) 201 @ 212-213. The trend these days is to, as much as possible hear cases on their merit, where such cases can be saved and not tainted by jurisdictional defects. Our judicial system should not permit a litigant to be driven from the judgment seat without any Court having considered his right to be heard except in cases where the cause of action was obvious and almost incontestably bad. The public are watching and it is their observance that is being craved for in the decisions of the court. Technical justice does not act as a catalyst to social engineering. In the case of BUHARI V OBASANJO (2004) 1 EPR 160 At 214, Pats-Acholonu, JSC (of blessed memory) posited as follows;
The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality or out-moded or in-comprehensible procedures and immerses itself in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.
Therefore a wide berth should be given to parties and, as much as possible, it should be encouraged that matters be canvassed on their merits, except for where there are obvious and manifest irregularities or glaring incompetence.
3.1.5. Judicial Somersaults and Lack of Adherence to Doctrine of Precedents or Stare-Decisis
Some judges relegate the doctrine of stare decisis to the background. The Supreme Court of Nigeria had, had course to admonish such judges in the most strongest of terms by imploring them to come to terms with the principle or doctrine of Stare Decisis precedents and hierarchy of the courts, which are clear and unambiguous. In the case of OKONJO VS DR. MUDIAGA ODJE & ORS (1985) 10 S. C 267 AT PAGES 268 – 269, ESO JSC stated inter alia as follows;
In the hierarchy of the court in this country, as in all other free Common Law countries, one thing is clear, however learned a lower court considers itself to be and however contemptuous of the lower court, that lower court is still bound by the decision of the higher court … I hope it will never happen again whereby the court of Appeal in this country or any lower court for that matter, would deliberately go against the decision of this court and in this case, even to the extent of not considering the decision when those of this court were brought to the notice of that court. This is the discipline of the law. This is what makes the law certain and prevents it from being ass… Those who think that they are very knowledge than the court, if they have listening ears, let them hear and take care. I have gone far because the learned justice of the Court of Appeal and in the University of Ilorin Vs Adeniran, who claims or assert to be torn between the two judgment of this court should please take notice and come to terms with the principle or doctrine of Stare Decisis precedents and hierarchy of the courts, which are clear and unambiguous.
With such a visibly unpardonable refusal to be bound by the decision of the Supreme Court on a similar issue that called for the application of same or similar legislation, the negative perception the public has of the judicial process cannot be said to be without basis. The public is entitled, in the face of this brazen disobedience to the authority of the apex Court, to conclude that the judiciary is compromised. Parties who subsequently agitate same or similar issues before the Courts must fetch same or similar verdicts as did parties who earlier agitated the very same or similar issues.
Certainty in decisions of Courts remains what the laudable doctrine of precedent or stare-decisis is all about. Ignoring the application of the doctrine is inimical to the judiciary’s role as an arbiter.
4.1 Conclusion and Recommendations
Public perception about the judicial process is very important in the administration of justice. It is the view of the Supreme Court of Nigeria in the case of A.U. DEDUWA & ORS. V. OKORODUDU & ORS. (1976) 9-10 SC. 329 that; “A trial Judge must not, in the conduct of the proceedings before him, either by words or actions, scandalize the Public…”
As De Balzac noted, ‘lack of public confidence in the judiciary is the beginning of the end of society’. Overtures made to a judge by a party to a case are clearly a case of barefaced contempt of Court intended to undermine the administration of Justice which should not be treated with levity. Giving room for it and acting upon same is even more disastrous.
Some of the judicial acts that affect public confidence in the administration of justice in Nigeria pollute or contaminate the fountain of justice to the extent that no matter how well a case was handled by a Judge, the indelible stain on the administration of justice brought about by the said judicial acts robs the adjudication of public confidence, the bastion of justice. Reasonable people would have the impression that the judges are biased and would lose confidence in the administration of justice. Indeed, justice is rooted in confidence and the Courts should abstain from doing anything that may erode the root of justice. The Courts should enhance confidence in the administration of justice through insistence on the Judiciary’s independence, appointment of competent judicial officers, pursuing and instilling professionalism in the judicial sector and ensuring that their overall welfare are improved upon.
If the stream of justice has been sullied, all the muddy waters must be removed in order to make way for the new and fresh waters from the source of the stream, to take over. The Courts have an onerous duty, constitutionally and inherently, to ensure that all contraptions in a vexed decision tainted with abnormality of the law and affecting public confidence in the judiciary did not see the light of the day.
Associate Professor Ibrahim Abdullahi, SAN is of the Faculty of Law, Usmanu Danfodiyo University, Sokoto. He can be reached at email@example.com
SOURCE: LOYAL NIGERIAN LAWYER