PRESENTED BY DAVID ANDY ESSIEN, ESQ.

“Appoint judges and officers…. They are to judge the people fairly and honestly. Don’t twist the law. Don’t play favourites. Don’t take a bribe – a bribe blinds even a wise person; it undermines the intentions of the best of people.”

  • Deuteronomy 16:18 – 19 (Message Bible)

As set out above in the Holy Writ, the role of a Judge in the administration of justice in a given society is great and demanding. This role is better described than defined. In a judicial exercise to describe this function, the Law Lord, Honourable Justice Kayode Eso, JSC, pontificated in the leading case of SODIPO V. LEMMINKAIMEN (1986) 1 NWLR (Pt. 15) 220 at p. 224 as follows:

“A Judge exists to determine disputes and to examine with due care and microscopic sense all matters before him in dispute in his pursuit of justice. He is there not to trap any party or to set in motion what the parties have not brought before him. He is not a Grand Inquisitor envisaged by Dostoevsky in his Brothers Karamazou. He is a judge governed by rules. The Judge, though he must have some room to manoeuvre, once it is in the interest of justice. He is certainly not to create an image of a go-getter, a free for all fighter.”

In a bid to effectively perform this function, a Judge is expected to be knowledgeable in law. This expectation cuts across the substantive and procedural aspects of the law. In fact, there is nothing worse than a Judge who does not know the law. An ignorant judge is and remains a canker worm to the society. This view finds expression in the legal maxim: “Ignorantia judicis est calamitas innocentis” which literally translates: “the ignorance of the judge is the misfortune of the innocent.” A Counsel has the duty to refer and draw the attention of a Judge to the law, which has relevance to the facts or issues in contention with the objective of attaining justice. On the other hand, on his part, a Judge has a duty to expound, interpret and pronounce on the law so referred to by Counsel and equally state the effect of such law on the case before him.

Very often, members of the bar and even members of the public regard Judges on the bench as angels or spirito-spatial beings that must be seen as infallible. That, of course, is not only sacrilegious but also untenable. The Judge on the bench is not imbued with infallibility. While it is a fact of common knowledge that Judges on the bench may be upright and their character impeccable; their competence in adjudication cannot be rationalized in terms of their uprightness and impeccability. Little wonder that Grounds of Appeal in our various courts exercising appellate jurisdiction are replete with the professional jargon that the learned trial Judge “erred in law”. This reasoning is predicated on the age long maxim of law: “De fide et officio judicis non recipitur quaestio; sed de scientia, sive error juris, sive facti” which literally translates: “the honesty and integrity of a judge cannot be questioned but his decision may be impugned of error, either of law or fact.”

The roles played by Judges in Nigeria are numerous. But for the time-bound nature of this occasion, I will restrain myself to a few prominent roles.

  1. DUTY TO HONOUR THE OATH OF OFFICE AND DEFEND THE CONSTITUTION:

This is, to my mind, the biggest role of a Judge. My basis for this conclusion is anchored on the fact that a Judge who respects and gives effect to his Oath of Office and equally defends the Constitution that provides for his office will always keep to terms with the moral, religious and legal obligations that comes with his office. In the case of OGBORU V. PRESIDENT, COURT OF APPEAL (No. 2) (2005) NWLR (Pt. 956) 80 at p. 94, paras. G – A, the following was said on this duty:

“This court is a creation of the Constitution. It will not give its aid under any guise, to be a violation of any of the provisions of the Constitution, which gave it life. Therefore Judges must at all times and under all circumstances strive to honour their oath of office and to defend and protect the Constitution.”

  1. DUTY TO BE IMPARTIAL AND TO MAINTAIN HIS POSITION AS AN IMPARTIAL ARBITER IN PROCEEDINGS BEFORE HIM:

A Judge must manifestly be seen to be an impartial umpire. Any act of his that can ground the conclusion that he is taking sides in the conflict vitiates the trial and renders him unfit for the role. Validating this position, the Apex Court in the case of NWAFOR ELIKE V. IHEMEREME NWANKWOALA & ORS (1984) 12 SC 301 at p. 311 restated that “a judge who takes over from counsel the conduct of a case of either party to the conflict is no more an impartial judge, but a combatant in the fray, unworthy of his appointed seat.”

I invite my Lord, Honourable Justice Abdullahi, JCA, to speak on this. Hear my Lord in the case of UNIPETROL (NIG.) PLC V. ABUBAKAR (1997) 6 NWLR (Pt. 509) 470 at pp. 479 – 480 (CA):

“A judge should be impartial in adjudicating cases before him. It is amazing how some judges sometimes throw caution over board and do things that tend to portray them as having abandoned their role as impartial arbiters holding the scale of justice evenly between the parties before them.”

  1. DUTY TO DEVELOP AND KEEP THE LAW ALIVE:

It is the role of Judges to strive to operate the law for the attainment of social engineering. As the human face manning the last hope of the common man, Judges in Nigeria owe the society a duty to keep the law in harmony with changing times. The Law Lord, Honourable Justice Kayode Eso, JSC, eloquently expressed this position in the following words in the case of TRANSBRIDGE CO. LTD. V. SURVEY INTERNATIONAL LTD. (1986) 4 NWLR (Pt. 37) 578:

“I believe that it is the function of Judges to keep the law alive, in motion and to make it progressive for the purpose of arriving at the end of justice, without being inhibited by technicalities, to find every conceivable but acceptable way of avoiding narrowness that will spell injustice. Short of a judge being a legislator, a judge to my mind, must possess an aggressive stance in interpreting the law.”

  1. DUTY TO SUO MOTU SUGGEST OUT OF COURT SETTLEMENT OF A MATTER:

While we are all aware of the fact that Judges are juristically positioned to welcome amicable resolution of disputes, it is equally the bounden duty of every Judge to suggest settlement of a case to parties for their overall mutual benefit. This position received judicial imprimatur in the case of EZEONU V. AGHEZE (1991) 4 NWLR (Pt. 187) 634 at p. 645, where the Court beautifully held as follows:

“It is not part of our judicial oath as court of law qua adjudication to instigate parties to litigation. If anything, it is part of our solemn and equitable jurisdiction to explore in appropriate cases some form of settlement to the mutual benefit of the parties. A court of law can even suo motu suggest settlement of a matter, and as long as it takes the line of action without bias, and in the interest of the parties, the law will never frown at it. And so when a party who brought an action to court has decided to withdraw it, the court should generally have no business to hold it to ransom.”

  1. DUTY TO DO JUSTICE WITHOUT FEAR AND FAVOUR:

Judicial courage or fearlessness and integrity are very important, if not the two most important attributes of a Judge. These attributes are embedded in the legal maxim: “Fiat justitia ruat caelum” which literally translates: “let justice be done though the heavens fall.” The Court, in the case of DOMA V. OGIRI (1998) 8 NWLR (Pt. 561) 193 at 207, endorsing the need for justice to be free from the shackles of fear and favour, unapologetically held:

“A court cannot and does not operate under the notion that mob reaction will hinder enforcement of its orders. The rule of law implies that the court must with courage and fearlessness give to all appearing before it their due. Fiat Justitia. When justice has been done, the heavens do not fall. They stay in place. A court must be free to do justice. No blackmail, no intimidation. The judges do their work; the law enforcement agencies do theirs. Further, as we approach a new era…. part of the needed preparation is to educate the people to accept the rule of law and all it entails.”

  1. DUTY TO HAVE REGARD TO THE RULES OF GRAMMAR IN TAKING MINUTES OF PROCEEDINGS:

While we concede that the English Language is not an instrument of mathematical precision or exactitude, Judges manning our courts owe the bastion of justice a solemn duty to always ensure that what they put down in writing is readable, coherent and intelligible. Since an appeal is a continuation of a case begun at the Trial Court, the proceedings thereto must subject itself to an easy and digestible reading. In the case of UKU V. NGO (1999) 13 NWLR (Pt. 636) 588 at pp. 598 – 599, Honourable Justice Ikongbeh, JCA, driving home this point, magisterially held as follows:

“The way and manner in which the minutes of the proceedings have been recorded leaves much to be desired in a tribunal with which judges of the High Court are associated. Maybe one cannot complain about handwriting. One would, however, have much to complain about when the judge taking the minutes pays scant regard to simple rules of grammar, thereby obscuring the meaning sought to be conveyed. On a number of occasions we had to meet to debate what the Tribunal wrote or meant to write. …. Trying to make out the words written sometimes poses a great deal of difficulty. Then once having decided what was written comes the next difficulty, which is trying to make sense of the sentence constructed. Sometimes answers are recorded without any clue whatsoever as to what the question was. The result is often disjointed and staccato sentence that convey little or no meaning, except to the person who made the minutes, and who had the advantage of hearing the question.”

  1. DUTY TO REFRAIN FROM ENGAGING IN EXTRA JUDICIAL DIALOGUE/ARGUMENT WITH COUNSEL:

It is part of the hallowed duty of a Judge to protect and preserve the dignity of his office by not extending the frontiers of judicial dialogue with a counsel after he has adjourned and signed off a matter. A ready illustration of the bastardization of this role is seen in the famous case of CANDIDE JONHSON V. EDIGIN (1990) 1 NWLR (Pt. 129) 659 at pp. 671 – 672, where Honourable Justice Achike, JCA, unhappily had this to say:

“Apparently, when tempers rose rather meteorically, the respondent, exacerbated by the situation, unleashed this incisive question:

‘When did you leave the law school?’

The response going by the record, was equally unrelenting:

‘I will refuse to answer that question in the rudest manner.’

It was the refusal to answer this question, according to the record, that broke the Camel’s back, and led to the detention of the appellant for contempt of court. It was unfortunate to say the least, for the respondent, according to the records, to have taken leave of her exalted bench, invited counsel to extra-judicial dialogue and thereafter descend into the arena of vituperative conflict with him.”

On when a conduct amounts to extra-judicial proceedings of a judge, the appellate court held:  

“It is extra-judicial because the respondent (the learned Ag. Chief Magistrate) having adjourned and signed off the matter for which the appellant appeared as counsel, the judicial proceedings in relation to that case became terminated.”

  1. DUTY TO RECUSE HIMSELF IN A MATTER HE HAS FORE-KNOWLEDGE OF FACTS OF THE CASE BEFORE HIM:

A Judge who is armed with fore-knowledge of facts of the case before him creates an atmosphere that raises question marks over the neutrality of the judicial process. In an attempt to delineate the amplitude and plenitude of fore-knowledge, the Learned Jurist, Honourable Justice Oputa, JSC, in the case of AKOH V. ABUH (1988) 3 NWLR (Pt. 85) 700 at 720, commented as follows:

“It has been held that a fore knowledge, a previous knowledge, of the facts of the pending case is something reasonably likely to bias or influence the mind of a Judicial Officer – a Judge or a magistrate in a particular case.”

And speaking on bias, the Court in the case of ABODURIN V. ARABA (1995) 5 NWLR (Pt. 393) 77 (CA), graphically expressed that:

“It means the trial of a case by a judge who has been influenced, inter alia by corruption, favouritism or by being a participant in the battle between the parties instead of an impartial arbitrator. It may also be occasioned by a judge’s mistake, but a judge should not be hypocrite. In his relationship with his relatives and friends, he may be appraised of matters which are subject of pending litigation or which subsequently became one. If such matters come before him, he should advise himself if a chief judge, or if a judge, decline to take the case in a note to the chief judge on grounds of previous knowledge of it, or simply personal grounds.” (Emphasis mine)

  1. DUTY TO BE RESTRAINED AND CIVILIZED IN DEALING WITH COUNSEL, PARTIES AND MEMBERS OF THE PUBLIC WHO APPEAR IN COURT:

Respect begets respect! There is no better way to express this position than in the foregoing witty sentence. Commenting on this point, the Court, in the case of OKODUWA & ORS. V. THE STATE (1988) 2 NWLR (Pt. 76) 333 at p. 354, held in extenso:

“Impatient and impolite behaviour on the bench demeans the authority of the court. Every citizen is entitled to be treated with dignity and respect in the courtroom. The judge should be seen to set the tone for everyone in the court room by setting an example of courtesy and respect that he too expect from counsel, court officials, litigants; witness and visitors in the courtroom. Respect begets respect as the saying goes.

The conduct of the judge reflects upon the public perception of the judiciary and to a large extent public confidence depends upon what people see a judge doing when they are in court. A judge should avoid comments that are overtly aggressive or threatening. He must avoid languages, which ridicules counsel, litigants, witnesses or visitors in court. While a judge is not precluded from questioning witnesses, this should be done in a neutral manner rather than in an adversarial way.”

A Judge has a duty to use a language that is not calculated to give pain to a counsel at the Bar. This view was expressed by the Privy Council in the case of AFFUFFO V. YERENCHI (1907) Ren 397 in the following words: “…the Chief Justice in pronouncing his opinion should not have used language calculated to give pain to a colleague of great experience, who was called upon to try a difficult case under embarrassing circumstances, and who certainly displayed extreme patience and an avident desire to do justice.”

Let me invite my Lord, Honourable Justice Ogundare, JSC, to speak on this matter. Hear him in the case of MENAKAYA V. MENAKAYA (2001) 8 MJSC 50 at pp. 89 – 90:

“Rather than give effect to the clear provisions of the law, as rightly found by him, the learned Justice embarked on a treatise on the law of estoppels, a most inappropriate exercise in the circumstance of this case. He singled out counsel for the Respondent, Mr. Anyamene SAN for one of the worst vitriolics I have ever read in judgment, all because learned Senior Advocate, on the instruction of his client, lodged an appeal against the judgment of the trial court! …. With respect to the learned justice of the Court of Appeal, I think he was most unfair and very intemperate in his attack on Mr. Anyamene for the way he conducted himself in this matter. …. I think we judges owe it a duty to be restrained and civilized in dealing with those counsel/parties and members of the public who appear in our courts.”

  1. DUTY NOT TO ABUSE JUDICIAL IMMUNITY:

While Judges enjoy immunity in the exercise of their judicial functions and equally have to themselves the shield of contempt of court to safeguard the dignity of the judicial process, a Judge is expected to exercise these advantages rationally and judiciously. The shield of contempt of court should be applied sparingly and with abundant caution and should be readily vacated where the act or omission is one emanating from the head and not the heart. In the notorious case of SALIM V. IFENKWE (1996) 5 NWLR (Pt. 450) 564 at pp. 586 – 588, Honourable Justice Uwaifo, JCA, had this to say:

“It is indecent and discourteous of any Judge to take undue advantage of his immunity to embarrass a counsel with insults and scurrilous remarks. That is a clear case of abuse of privilege. The court must be run as a solemn, dignified and civilized forum where the sacred duty of the administration of justice is carried out with a consistent sobriety of the mind. It is not a podium from where insults are shouted. That will surely have the consequences of discrediting the judiciary and bringing it into disrepute. Any judge who does so is an agent of such odium. In that way, I am afraid; he painfully constitutes himself a liability to the judiciary.”

Corroborating this position, Honourable Justice Musdapher, JCA, in the same case, remarked:

“The judicial powers granted to a Court are not personal powers to be used arbitrarily or personally. The powers belong to the court. It is the height of irresponsibility for any judge to take undue advantage of the judicial immunity to harass, abuse and intimidate counsel. In my view, judicial immunity is limited to action done within the recognized rules of practice and procedure. The conduct of the trial judge in this matter is clearly malicious and outside the confines of the judicial toga. No language is strong enough to condemn the conduct of the judge in these proceedings.”

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