Judicial Restraint: A Pseudonym For Judicial Doldrums In The Interpretation Of Law By Current Nigerian Judges

By Ogba Kendrick Pela Esq

A dogmatic Justice Mohammed Lawal Garba once observed: “A court has no judicial power and authority to import into and assign unusual and distorted meanings to words of a statute which are plain, clear, and unambiguous on the basis of sentiments in order to attain a supposed objective for the court or any other parties.” This obstinate view held by the Honorable Justice of the Nigerian Court of Appeal prohibits a judge from interpreting law from an idiosyncratic and subjective perspective, prioritizing the view of the literal interpretation of constitutional texts and statutory provisions. This judicial philosophy is termed “Judicial Restraint”. Therefore, judicial restraint, according to the 9^th edition of the Black’s law dictionary is a philosophy of judicial decision making whereby judges avoid indulging their personal beliefs about the public good and instead try merely to interpret the law as legislated and according to precedent. Furthermore, Judicial restraint is a theory of judicial interpretation that deeply reveres the age long doctrine of stare decisis. Evidently, judicial restraint jurist construes the law as it is and not as it ought to be. This philosophy is in consonance with the literal rule of statutory interpretation that places emphasis on the literal and grammatical construction of the words of a statute; as the Honourable Justice Mohammed Lawal Garba further tells us: “Where the words of a statute are clearly expressed, the court is duty bound to give the words their literal meaning.”

Antithetical to judicial restraint is judicial activism. Judicial activism is the judicial philosophy presupposing that the courts can and should go beyond the applicable law to consider comprehensive public implications of its decisions. The judicial activist uses his or her conscience and personal view rather than former precedence and past rulings in his or her decision making process. Ibrahim Imam Ph.D, a lecturer of University of IIlorin, explains judicial activism clearly when he opines: “Judicial activism is a conception of the court’s role as transcending the mere applications of laws…it can expound, develop and even change it within its functions.” To be specific, the judicial activist jurist delivers his opinion based on personal preference and idiosyncrasies, while ignoring laid down laws.

While there exist plurality of definitions of judicial activism, it is an orthodoxy that judicial activism in most cases disregards former precedents and flies in the face of the literal interpretation of constitutional texts and statutory provisions. Black’s law dictionary 9^th edition on page 922, posits this about judicial activism: “adherence to this philosophy tend to find constitutional violations and are willing to ignore precedent.” To wit, the philosophy of judicial activism represents a system of interpretation of law beyond the clear and plain context of the law. However Justice Mohammed Lawal Garba, being dogmatic and obstinate as usual, had this to say about judicial activism in Stanbic IBTC Holding plc V FRCN: “I am a proponent of judicial activism in interpretation and application of statutes, but my firm belief is that it must be within the confines and limits of the statutes or laws which the court can only expound but not expand or balloon out of their clear and plain context.” Truly, the Honorable Justice is a proponent of judicial activism!

Like Justice Mohammed Lawal Garba, most contemporary Nigerian Judges are subscribed to the adamant philosophy of judicial restraint. Admittedly, judicial restraint promotes coherence and consistency in interpretation of law, but that is just a side of the coin. On the other side of the coin of judicial restraint, lies the obsession to servitude, subservience and obsequiousness to the philosophy. It is this negative side that occasionally hinders the promotion of rule of law in these modern and dynamic epochs in Nigerian jurisprudence. The Nigerian Supreme Court’s decision on 8^th May 2020 in Ude Jones Udeogu V Federal Republic of Nigeria quintessentially exemplified the undesirable perils caused by subservience to the philosophy of judicial restraint. In the Udo Jones Udeogu case, the Supreme Court struck down section 396(7) Administration of Criminal Justice Act 2015 (ACJA 2015) for being unconstitutional. The Honorable Justice M.B Idris, the trial judge who presided over the proceedings during trial had been elevated to the court of appeal in the course of the trial of the defendants. Acting under the authority of section 396(7) ACJA 2015, which authorizes a trial court judge who had subsequently been elevated to the Court of Appeal to conclude any part heard criminal trial he was presiding over during his time as the trial court judge, Justice M.B Idris continued to preside over the trial. Section 396(7) ACJA 2015 thus provides: “396(7) Notwithstanding the provision of any other law to the contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to as a High Court Judge only for the purpose of concluding any part heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time.”

The issue for determination that came before the supreme court of Nigeria was whether Justice M.B Idris of the court of appeal, possessed the requisite jurisdiction to continue conducting the proceedings at the trial court, and whether the legislative body had acted within its constitutional power by enacting section 396(7) ACJA 2015. In other words, the defendants contended that the legislative body had acted ultra vires in encroaching into the appointment powers of the executive, as only the executive president is responsible for the appointment of federal high court Judges that preside over trials, provided by section 250(2) of the Nigerian constitution. Section 250(2) of the Nigerian constitution thus provides: “The appointment of a person to the office of a judge of the Federal High Court shall be made by the president…” The defendants had vehemently questioned the constitutionality of the legislative enactment of section 396 (7) ACJA 2015; they asked whether the legislature possessed the vires to grant this dispensation  of concluding part heard criminal trials to an elevated judge after he had ceased to be a judge of the trial court, upon his elevation to the court of appeal.

Utilizing the principles of judicial review, checks and balances and separation of power, Justice Ejembe Eko of the Nigerian Supreme Court, in his lordships judgment opined that it was unconstitutional for the legislative branch to enact section 396(7) ACJA 2015, that provided this dispensation to Justice M.B Idris. The Supreme Court further emphasized that the power to grant dispensation to act as a federal high court judge only lies in the hands of the executive president, and remains anathema to the legislative branch. Supreme Court Justice Ejembe Eko in his dicta harangued that: “Section 396(7) ACJA 2015 is an unnecessarily gratuitous legislative interference with, intrusion into or an outright usurpation of the appointing powers of the Executive arm consigned specifically to the president of the Federal Republic of Nigeria.” By virtue of this authoritative opinion, a fresh new trial was ordered to be conducted for the defendants. The debated section 396(7) ACJA 2015 was consequently struck down as being unconstitutional, null and void. Justice Ejembe Eko premised his lordships decision strictly on the doctrine of separation of power literally espoused in section 4, 5 and 6 of the Nigerian constitution.

Undoubtedly, the Nigerian constitution guarantees separation of power amongst the legislative, executive and judiciary branch of government. The three branches individually possess separate independent powers and responsibilities so that a branch does not encroach and usurp the powers of another branch. Paradoxically, it is also true that there cannot be a definitely clear separation of powers among the three branches of government, as sometimes a specific power of a branch may be interwoven with the power of another branch, to produce an effective system of governance. An example is section 305 of the Constitution of the federal republic of Nigeria which gives the president power to issue a proclamation of a state of emergency provided that such must be ratified by the Legislative body. The three different branches must work in synergy to achieve an effective system of governance in a democracy; as Uwadineke .C. kalu, a law lecturer of Nnamdi Azikiwe University figuratively says: “No one authority or arm of government can effectively act alone as that will surely rock the boat of stability and usurp due constitution order and process.”

Truthfully, striking down section 396(7) ACJA 2015 as unconstitutional by the Supreme Court was an unnecessary summon of judicial review.  If judicial activism, with the ideology of different arms of government working together in synergy animated the minds of the Justices of the Nigerian Supreme Court, in the Ude Jones Udeogu decision, a different decision would have been reached. The legislative body enacts subordinate legislations like the section 396(7) ACJA 2015 to cure mischiefs and fill up lacunas in the body of laws; section 4(2) of the Nigerian constitution provides: “The National Assembly shall have power to make laws for the peace, order and good government of the federation.” The constitution however did not provide a remedy for a scenario whereby a federal high court judge or trial court judge would be elevated to a higher court while cases are still pending before such a judge. The legislative body, being the National Assembly in their wisdom, acted with great foresight and prudence, by enacting section 396(7) ACJA 2015 to cure the mischief in anticipation of such a scenario, only to have such great effort extinguished like a candle in the wind. If the Supreme Court had only deferred to judicial activism, your lordships would have handled the mischievous scenario in a totally different manner. The Supreme Court would have interpreted section 396(7) ACJA 2015 with a more purposive approach, under which the section would be interpreted within the context of the purpose of the provision to cure the mischief of the situation. If Judicial activism resonated the mind of these justices, Nigerian courts would not have been made victims of floodgates for applications in regard to other matters that were already concluded by elevated trial court judges pursuant to section 396(7) ACJA 2015. Furthermore, by deferring to judicial activism,  your lordships would not have acted with a devil may care attitude, and would rather have saved judicial time and resources as the case had already spent 5 years in trial. What a waste of precious time! For this reason, a worried Kemi Pinheiro SAN bemoaned: “It is my hope that the supreme court of Nigeria will someday find an opportunity to reconsider its stance on rigid adherence to the letters of the constitution or any other statute where it will obviously occasion injustice.”

Another Supreme Court decision where subservience to judicial restraint seemed to have occasioned miscarriage of justice in this epoch was in the review application of Ihedioha V Uzodinma, where the applicants prayed the Supreme Court to reverse it’s per incuriam judgment. The applicants contested that the per incuriam supreme court judgement was obtained by fraud and deceit as the respondents misled the supreme court into holding that a total of 213,495 votes were unlawfully excluded from the respondent’s votes. The respondent’s deceit became obvious when the addition of the false numbers by the court, led to an increase in the numbers of voters accredited to vote. Majority of the justices of the Supreme Court dismissed the application on the grounds that the constitution did not permit the apex court to reverse its judgment. Supreme Court Justice Ariwoola, while delivering his judgment posited: “There is no constitutional provision for the review of the judgment of the supreme court by itself.” He further added that the finality of the Supreme Court is entrenched in the constitution and the Supreme Court cannot sit as an appeal court on its own decision. However, Supreme Court Justice Nweze in this case, reflected the inherent features of a blue diamond, when he seemed to have looked beyond the literal constitutional provisions, making him the lone dissenter in the review application. In his scathing dissent, Justice Nweze opined that there were a number of reasons for the Supreme Court to reverse it’s per incuriam decision. His lordship added that the respondent misled the court to accept the “ubiquitous and fake results”. Justice Nweze further emphasized that the finality of the Supreme Court’s decision should not be utilized as a tool for extinguishing the rights of any one. He finally lamented “This decision will continue to haunt our jurisprudence for a long time to come.”

As admitted earlier, judicial restraint serves to promote a system of consistency whereby all cases are treated equally and similarly. To wit, the literal and plain meanings of constitutional texts and statutory provisions are used as precedents in judicial decision making, to promote coherence in upholding the rule of law. However, situations may arise where the literal interpretation of constitutional texts would not tilt in the favor of justice and equity, like the Ude Jones Udeogu case. In this type of scenario, the judicial activist would bypass legal precedents and literal constitutional interpretation in order to protect justice and uphold equity. To uphold equity, the equitable chancery courts of England were created in the 13^th century as a mechanism to placate the rigidity of the common law system, which Nigerian jurisprudence is deeply rooted in. These English courts of chancery led by the Lord Chancellor made decision based on conscience and personal views of the judges. This was done to avoid harshness and the slow pace of the common law.

Of course, a judicial decision should not shore up the whims and caprices of a judge; it should be based on a logical system of application of law. In this regard, the judicial activist uses his or her idiosyncrasies, conscience and personal view to cure hardships and rigidity in interpretation of law, serving the very reason equity was initiated. This means that the philosophy of judicial activism is unquestionably equitable. When a judge exercises the philosophy of judicial activism in interpretation of constitutional texts and statutory provisions, the judge is simply implying that the law is a dynamic and evolving process, and should be made to adapt to novel situations. This kind of ideology is not eureka in Nigerian Jurisprudence. Justice Chukwudifu Oputa while delivering his “Justice and Stability in Nigeria” lecture in 1993 expressed to the audience: “The law will have little relevance if it refuses to address the social issues of the day. Legislators make law in the abstract, the court deals with the day to day problems of litigants and attempts to solve these problems in such way as to produce justice.” This explains the old parlance that suggests laws and legal institutions are like clocks that must occasionally be cleaned, wound up and set to the correct time. It is then submitted that adherence to judicial restraint, past precedents and literal interpretation of texts and statutes should only be permitted when it tends to produce unquestionable justice in a particular circumstance, but when it is anticipated that past precedents and literal interpretation would evoke prejudice and injustice, the demon of judicial restraint should be exorcised immediately. But, the jurist who seems to be too clever by half adamantly clings to judicial restraint regardless of its harmful consequences.

Therefore, what is the effect of subservience to judicial restraint? It hinders the progression of justice and rule of law, leaving it in a state of doldrums and stagnation. It tends to make a pedantic judge slavish to laws. It strips away every iota of judicial courage from the jurist. It symbolizes the fastidious judge as a baby that grew to the level of a teenage boy, and being carried away by youthful and trivial exuberance, refused to grow and adapt to social change which halts him from becoming a full grown man. This negative side of judicial restraint has also been experienced outside Nigeria. In the United States, the worst decision ever by the United States’ Supreme Court was designed with the rhetoric of judicial restraint as its sculptor. This deleterious decision envisaged that the US constitution was not meant to include American citizenship for black people. This decision is today called the “Dred Scott’s decision”.