REFORMS IN THE NIGERIAN JUDICIARY (PART 1)
“There is nothing so finely perceived, so finely felt as injustice”- Charles Dickens
The matter of justice and its administration is very fundamental in a civilized society. It is even more so in an emergent democracy such as ours. Public trust in the subject-matter is placed on Judicial officers who are responsible for the exercise of judicial powers to do justice in justiciable disputes placed before them. Judges are guided by the law and are under a Constitutional oath to do justice without fear or favour. The whole body of principles, rules (statutory and customary) with which compliance is mandatory are often loosely termed judicial ethics. They facilitate the smooth dispensation of justice without which anarchy would reign.
The subject of judicial ethics can be classified into two broad categories i.e. ethics in the application/interpretation of law and ethics in conduct of personnel in and outside court. Both categories cut across and some acts amount to both law and conduct. The sources of the rules of right conduct in the judiciary are common law, the Code of Conduct for Public Officers under the 1999 Constitution and the Code of Conduct for Public Officers under the 1999 Constitution and the Code of Conduct for Judicial Officers 1999. The key elements of these rules are rooted in four common law doctrines i.e. doctrine of precedent judicial impartiality, abuse of judicial discretion and avoidance of conflict of interest.
The foremost duties of judges is to interpret and declare the law in the resolution of justiciable disputes submitted to them for hearing and determination whether it be between individuals or between state authorities and individuals. They also exercise the power of judicial review of legislative and executive functions and pronounce on their constitutional validity. There is a hierarchy of Superior Courts of record but the most important point to note is that there are trial courts and appellate courts and at the apex of the hierarchy we have the Supreme Court. Judgments of superior courts are final and command obedience unless adjudicated upon on appeal and all court decisions are subject to appeal except the Supreme Court whose pronouncement is final in the sense that is not subject to review by any other court save by itself. All courts uphold the Rule of Law which prescribes that every person should be subject to law that court orders must be obeyed and that all are equal before the law.
Prolonged Military Dictatorship stunted Nigeria's democratic growth and its socio-economic development. Dictators created and fostered a culture of impunity not only within its own ranks but in the entire executive and judicial arms of government. They abrogated the Legislative arm and ruled by decrees. Their decrees were supreme unchallengeable law of the land and Tribunals vested with final and un-appealable adjudicatory authority were created. There occurred a glaring diminution of the jurisdiction, discretion, work, role and integrity of the judiciary in Military Rule.
But the soldiers and their civilian side-kicks paid loud lip service to Human Rights and the Rule of law but ceaselessly violated citizen's fundamental rights keeping the famous preventive Detention Decree (Decree 2) throughout the entire period of Military Rule.
The role and function (including the mentality) of the judiciary and its personnel under Military dictatorships cannot be equated with its role under the present civilian democratic rule. The training, organization and even personnel may be the same but the institution has been strengthened to exist as a true check on excesses of executive and legislative arms.
There are fundamental issues such as jurisdiction with which every judicial officer must be conversant. There are also doctrines and principles of law and equity such as rule against double jeopardy, standing to sue (locus standi), standard of proof, finality and irreversibility of trial courts’ determination (res judicata) the understanding and application of which are indispensable to the adjudicatory function. But Courts major tool of operation is the doctrine of Judicial Precedent otherwise called "stare decisis". It prescribes that cases of similar facts be decided on the same principle and that courts of the lower should adhere to decisions of courts of the higher hierarchy in their work.
Benjamin Cardoso (United States Supreme court Justice) has described the working of this doctrine graphically and succinctly as follows in his famous treaties – “The Nature of the Judicial Process”:
‘If a group of cases involves the same point the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today as if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral of my rights. “
The duties of judicial adherence to precedent as well as obedience to statute are indeed cornerstones of the constitutionality and validity of the entire judicial process. Disobedience is a fundamental error that goes to jurisdiction depriving the entire process of any legal validity since the common law maxim is “Nullification is the usual and natural consequences of disobedience.” Hence flagrant violation of statue or precedent is the height of injudicious conduct and a gross violation of judicial ethics. Non-adherence to precedent impugns public confidence in the administration of justice. In the immortal words of Judge Benjamin Cardoso once again:
“Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.”
It logically follows that it is unethical for a trial judge to observe that although he accepts that he is bound by it, a decision of the appellate court is wrong. It is even more culpable for a trial court to refuse to implement a directive order, observation or decision of the appellate court on the excuse that they have no coercive or disciplinary powers or are employees of a different government e.g. Federal Courts. Criticism of Court Judgments by lawyers, the Media, academics even litigants cannot however be prohibited because citizen's Constitutional right to free speech remain inviolate in a civilian democratic dispensation. The only exception to the rule of mandatory obedience to precedent is where the precedent is distinguishable from the case in hand. This calls for careful study, meticulous analysis and fact-finding which skill usually comes by experience.
While it is true that appeal machinery exists to remedy this evil i.e. miscarriage of justice, it is only a defective answer in view of its obvious limitations (see infra). The matter is more fundamental and anybody exercising any doubts should be reminded of the following instances of abuse of judicial discretion resulting in miscarriage of justice:
a. The June 12, 1993 Presidential Election under the Transition to Democratic Rule Program in the Federation was retrained by an interim injunction by a high court.
b. A Chief Judge of a state was restrained from office by an interim injunction.
c. A university convocation ceremony was restrained by an interim injunction.
d. A land owner in occupation adjudged owner was restrained by interim injunction from possession by the same high court that gave him judgment notwithstanding on-going appeal proceedings.
e. National Convention of a political Party was restrained by Court Order at the instance of a few aggrieved Members
f. A sitting Governor was removed from office by Court Order
g. Presidential Election of June 12, 1993 was both prohibited and annulled by irregular court Orders. The Federal Attorney General (Chief Bayo Ojo) had to obtain a mandatory Injunction that 2007 elections proceed because of threats by some mischief-makers to stop Elections by Interim Injunction
g. Numerous Injunctions prohibiting Public Officers (e.g. Electoral and Law Enforcement Officials) from performance of their lawful Constitutional duties
In no area is the debilitating impact of these abuses better and more vividly demonstrated than in the area of contempt of court and Tribunal/Election Tribunal matters. Outcome of many Tribunal Proceedings have been less than judicial and some Judges and Members justifiable (and publicly) accused of giving Judgment to the highest bidder. Election Tribunal Proceedings over the 2007 Elections have resulted in severe damage to the image and integrity of the entire judicial hierarchy. Things will have to be handled differently for the 2011 Elections in order to salvage the battered image of the Institution.
Questions arise: Do the presumption of good faith and jurisdiction subsist even in the face of arbitrary capricious injudicious and flagrantly unconstitutional acts and decisions of a judicial officer? Are we right to continue wholesale importation and application of British ethical rules and discretionary power when we are operating a written constitution modeled along the American presidential system? Is brazen injustice not an invitation to self-help anarchy and violent conflict apart from diminution of judicial integrity and prestige? Can’t we think and provide for other remedy for abuse of judicial discretion other than appeal or removal of the judge? Should it be a herculean task for the Nigerian State to obtain Justice in its own courts or should we continue to rely on foreign jurisdictions and systems for the pursuit of "loot" and apprehension of drug offenders?
Challenging as it may be, society has a duty to monitor and evaluate judicial activities resulting in miscarriage of justice or blatant injustice. Judicial impunity is hard to discern, check or remedied. Nevertheless, it is still an aspect of abuse of power. There is the famous case of a Lagos High Court Judge (Moshood Olugbani) who in 1987 had issued an order blocking the Business Bank Account of a citizen (Dr Olu Onagoruwa) a vocal critic of Babangida's corrupt Military junta WITHOUT FAIR HEARING. The Court of Appeal vacated the unjust order made by the Judge on the ground that it was a flagrant abuse of judicial power for which the judge incurred liability. The citizen whose fundamental rights were violated happened to be a Legal Practitioner and Human Rights Activist.
In another case before the same judge 12 juveniles condemned to death for armed robbery were set free by the State Governor since the juvenile Defendants were denied appeal under the armed robbery proceedings. The recent numerous reversals of Election Results by Courts also high-lights the need for effective monitoring and judicial review. The maxim is: Ubi jus, ubi remedium i.e. where a citizen has been visited with a violation or injury there should be provision for remedy. The Lagos Juveniles were saved from the hangman's noose by Governor's intervention but what if he had chosen to look the other way or otherwise abstained? Society (including Tax-Payers) must co-operate with the executive to jointly monitor courts to avert irremediable injustice to individuals and institutions as well as check the injudicious activities of the bad eggs.
At the core of all judicial work are the crucial and constitutional principles of judicial impartiality and avoidance of conflict of interest. Every first year Law student in Nigeria is made to study and get tested on these principles exemplified in the Latin phrases: "audi alteram partem" (hear the other side) and "nemo judex in causa sua" (No one should be a judge in his own cause). These principles are enshrined in the 1999 Constitution (Section 36) guarantees to Nigerians adjudication by a court or tribunal independent and impartial while the Code of Conduct for Public Officers (Section 1) Schedule 5 part 1 1999 Constitution prohibits conflict of interest. It is therefore a constitutional and jurisdictional matter where the decision or act of Superior court judge fails the test of impartiality or is challenged for conflict. It is the extreme case of injudicious conduct being also a violation of oath of office to do justice without fear or favour and not to allow personal interest to influence official conduct or decision.
Incidents of judicial descent into the arena have become so pervasive nowadays that counsel usually has to prepare for and contend with not only opposing counsel but “opposing judge.” The culpable ones are always quick to demand from their accusers proof “beyond reasonable doubt” of conflict of interest, partiality or corruption. The numerous Petitions to the National Judicial Council from Litigants, Lawyers, Human Rights Activists and even Government Agencies against high judicial officers however speak volumes of the level of decadence in the institution.
The truth is that the typical Nigerian through uneducated has some idea of justice and arbitrariness even if derived second-hand like reach-me-downs from the beer parlor, pepper-soup joint, the clan-meeting or even the local market. In any case he usually can recognize injustice whenever he sees it even though unable to define it. He is (not unexpectedly) usually quick to conclude that plenty of water has passed under the bridge whenever he is fed with injustice instead of justice from the courts notwithstanding courts’ use of high-sounding “legalese”.
A common instance of abuse is manifested in the numerous determinations without sufficient statement of reasons. In answer to the latter, we borrow the following passage from the Report of the Committee on Administrative Tribunals and Inquiries (cmnd 218) - 19057) partagraph 351:
"It is a fundamental requirement of fair-play that the parties concerned in one of these procedures (statutory Inquiry leading to a Ministerial Decision) should know at the end of the day why the particular decision has been taken. Where no reasons are given the individual may be forgiven for concluding that has been the victim of arbitrary decision."
Failure to give a reason might deprive the party affected of a possible right to challenge the decision. How does an aggrieved party obtain certiorari if the Judge refuses to disclose reason for decision in writing? (Statement contained in the Report of England's Committee on Minister's Powers. Comnd 4960 (1932) Section III Paragraph 3 (3))
The Commission observed further:
“It may well be argued that there is a third principle of natural justice, namely that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial ... it cannot be disputed that when further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive him of his opportunity. And we think it beyond all doubt that there is from the angle of broad political expediency a real advantage in communicating the grounds of the decision to the parties concerned and if of general interest, to the public.”
The observations of Lord Atkin in the case of Ambard Vs A-G Trinidad & Tobago 1936 AC 322 at 335 still holds sway that:
"justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men"
The practicing Bar (as distinguished from the academia) is best placed and ought to analyze and comment on important decisions of courts. But the Media, Tax-Payers and the common man cannot be excluded from a dialogue on justice – a matter eminently situate in the public domain and of great public interest. Free speech is a guaranteed right under the Constitution and Judicial Officers are Public Officers under the same.
Is justice really a medieval tournament wherein the referee is at liberty (though not permitted) to preside or play against one side at will? Are judges at liberty to decide against societal expectations including taxpayers' sense of fair play? Can injustice be legitimately averted, avoided or mitigated as canvassed by Lord Denning? Should judges insist on doing substantial justice or rigidly apply legal rules whose outcome is patent outrageous injustice totally against societal ethos? Can it be said that justice was done to Nigerians when the Supreme court of Nigeria decided that a Vice President can decamp from the Political Party upon whose platform he won election and join a new party and still remain in office opposing the President's policies and propagating the programs of his new Party? Should Nigerians resign themselves to fate by wallowing in "legal injustice" by condoning cases (e.g. Election Petitions) decided "contrary to what the law itself lays down" (See Dennis Lloyd "The Idea of Law" p.129) See generally my Articles "The Notion and Essence of Judicial Independence in a Fledgling Democracy" The Guardian Tuesday December 12,2000 p63; Scope of Judicial Discretion to Vacate Judgments and Orders - Justinian High Court of Lagos State Vol 2 no 4 Oct-Dec 1999; Improving Administration of Civil justice - The Guardian April 22 19987 p30; Pathway to a successful application for Transfer in Civil Cases - Lagos Bar Newsletter Vol 1 No 6 April 2000
Adebayo Adejare was a former General Secretary, Nigerian Bar Association Lagos.
Courts and civil liberties in a Military Revolution - The Guardian Sept 1, 1988 p7
(To be continued in Part 2)