I once read an interesting story about a judge considered to be very unusually controversial while sitting on the bench discharging his judicial duties.

The judge was no doubt a brilliant judge particularly when you talked of criminal law. Before arbitration came to stay in our judicial system he displayed high skill in that area of law as he used to encourage parties to cases before him to settle their disputes amicably which according to him they did not need to waste their money on lawyers and as well as wasting the time of court. He was well known to those that actively practised law in the High Court of Lagos State between the late 80s when he was elevated to the bench and towards the close of 90s when he retired for the bench. His court was a place of interest for both lawyers and non lawyers to watch court proceedings. His high sense of humour which came to play during court proceeding attracted many people to his court.According to Mr. Richard Akinola in a piece titled “THE UNUSUAL JUDGE”, he wrote on the late Hon. Justice Abiodu Kessington as follow:

“A proper Isale Eko man he was addicted to his cigarettes. Baba Kess would take a break from sitting for 30 minutes and announce that he wanted to go and smoke .He once in an open court said that he was the only one who knew what would kill him and that it was cigarette.Yoruba was more or less his official language in court, where he usually used the phrase ‘ore wa (our friend}’.Baba Kess did a lot of arbitration in respect of cases before him, in his unusual sytle, he would call out a defendant.”Ore wa, are you owing or not?If yes ,how much and when are you paying?Why are you wasting your money on lawyers and the time of the court?’He would turn to the plaintiff ‘He has admitted he is owing and would pay on so so date. ‘Iwo naa lo mu suuru (you too be patient)’,Case adjourned for settlement.There was no dull moment in Baba Kess’ court .In fact , a number of lawyers ,after being through with their matters at other courts ,would come and sit at Baba Kess’s court to relief tension and laugh.”

Although Baba Kess (as Hon. Justice Kessington fondly called) was a very interesting judge while presiding on the bench with full control of his court , this notwithstanding many people till day still continue to wonder what really pitched Baba Kess and the late Chief Rotimi Williams (SAN) against each other when they were alive as Chief Williams would never appear to do any case before Baba Kess.Whenever any counsel from the Chambers of Chief Williams came to appear before him,he would send messages to Chief Williams that any day he stepped his foot in his court ,he would send Chief Williams to Ikoyi prison to go and sleep there.Baba Kess and Chief Gani Fawehinmi were classmates when they were in London.He confessed that Gani finished before him because he failed but that he knew Criminal Law than Gani. When many lawyers in the Ministry of Justice were declining to prosecute Gani when he had brush with the government, Baba Kess accepted to prosecute Gani before he was eventually elevated to the bench as a judge. On an occasion when Gani appeared before Baba Kess, he told Gani to his face that he was a very stingy person that despite the fact that he was the one that ordered the release of the Gani’s passport seized by the government for him to travel oversea for medical treatment that, Gani could not buy ordinary shirt or tie for him on his return and Gani bursted into laughter. When Gani was later asked by Mr. Akintola why he did not buy a shirt or tie for Baba Kess, Gani said that would amount to inducing the judge.

Baba Kess seemed to make more enemies than friends while serving on the bench. Chief Afe Babalola (SAN) also related his experience while advocating before him in his authobiography titled “IMPOSSIBLE MADE POSSIBLE”.Chief Babalola had a cause to file an application on behalf of his client before Baba Kess challenging his jurisdiction for making an order ex parte against the Directors of the Leventis Ltd ordering them to reinstate some of their workers they sacked. When Chief Babalola came before Baba Kess to argue the application, he insisted that he would not hear the application until those directors were brought before him as according to the learned judge: “These directors are the people spoiling Nigeria and you lawyers are the ones spoiling the judiciary. I made an order and you are saying it should be varied. You must obey the order first.”

When the Chief discovered that Baba Kess was not willing to hear the application which was on a Tuesday, he asked for an adjournment from the court on the ground that there was the need for him to comply with the order to bring the directors to court and the case was adjourned to Thursday. Chief Babalola went to file a Notice of Appeal and the stay of proceeding at the Court of Appeal which order was granted and same served on the Court Registrar to Baba Kess on the morning of Thursday to which the case was adjourned to. According to Chief Afe Babalola:

“This really made Justice Kessington more angry. He descended on me. He said I was a liar, that when I asked for time to comply with his order to bring the Directors of the Company to court, my intention was to go and restrain him. He said he did not know I could run faster than Ben Johnson. He said that I ran 100 yards to the Court of Appeal. (Ben Johnson at that time was reigning Olympics Champion in 100 metres.)… Then he continued his vituperation on me. He said “Look at this Ilu Oke man, I will tell Isale Eko boys not to let you come to Lagos again and if you come they will beat you up. It was because I respected you that I adjourned the case; little did I know that you would run like Ben Johnson to the Court of Appeal to get an order against me from dealing with the directors. I will take your clients to Benin Republic. At this point I asked him where Benin Republic was. He replied: “Look at this Ilu Oke man; he does not even know Benin Republic. It is Alagbon and we will give them (those at Alagbon) money for “fuu” (perhaps to smoke). They will barb their (directors of Leventis’) heads and they will know that there is a court order.”

When Chief Babalola could not stomach at these, he later decided to sue to sue Baba Kess as he recorded everything said against him and his client.He hired the service of Chief Richard Akinjide (SAN) who then just returned from England after a self exile following the fall of the Second Republic. But due to much pressures and appeals that were later mounted on Chief Afe Babalola by many prominent personalities to withdraw the case against Baba Kess because of his pending retirement from the bench, Chief eventually bowed to the pressures and withdrew the case. When Baba Kess was retiring from the bench and was asked about his relationship with Chief Afe Babalola, he told the reporters they had put the dispute behind and that they have become good friends.

The above narrative is not meant to rude the late jurist of blessed memory or anyone else but just to let us particularly those judicial officers who have the tendencies of developing such similar attitudes to learn one on two lessons from this.If Chief Babalola had resisted all the pressures mounted on him on the case he instituted against Baba Kess, what would have been the outcome the case particularly when all the vituperation had been tape recorded? It was not only the members of the Bar that Baba Kess he had issues with, he equally had brush with those on the bench particularly the Appellate court Justices.He once said about an Apex Court Judge:

“That was how that useless Ijesha Judge who retired from the Supreme Court was talking rubbish, he came here, walking like a car whose chasis is bent ,asking for a favour and I gave him all courtesy .Only for himself to go and tell someone that Kessington is eccentric .Any day he steps his yeye legs into this court,I would wipe his face with a dirty slap.”

Most of the complaints against him by counsel who he had brush with at the appellate court were not without distasteful reactions from the superior court as in the case of Salim Vs. Ifenkwe (1996 ) 5 NWLR (Pt. 450) 564, the Court of Appeal per Pats-Acholonu, JCA (as he then was) at Pages 587-588 Paras. H-A had this to say :

“A careful consideration of the matter in all its entirety makes me far more inclined to believe the story of the appellant than the plaintiff/respondent. Therefore, for the court to describe the appellant by using a base language in calling him a faceless intervener a term denoting one without honours and having mendacious behaviour is, to my mind, to use the highly esteemed position of the bench to harass one who seeks justice in the Temple of Justice. The court seems intent on being unnecessarily garrulous by lampooning counsel and client rather than addressing the matter in issue before him. No reason whatsoever was given by the court for failure to join the appellant as the court seemed hell-bent to assuage only the interest of the plaintiff/respondent whose case was highly suspect. Instead, he granted interlocutory injunction of such a manner that more or less compromises as it were the case of the appellant and leaving him carrying the dead baby.”

Also in the same judgment, Uwaifo, JCA (as he then was) at Page 586 Paras. C-F added that:

“It is therefore a surprise that the learned trial Judge in the present case did all he could to scare away counsel who have a right of audience and who might have been of assistance to the cause before him, and to have thus opened himself up to avoidable criticism. Counsels are entitled to be accorded that right of audience and to be treated with due consideration by the courts before which they appear. 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 is and 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 pandemonium 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. I hold that the learned trial Judge acted outside his duty and was in serious error to have demanded, let alone insisted, to see a power of attorney from the appellant’s counsel who announced his appearance for him.”

The above are the likely consequence for a judicial officer’s refusal to do the right things while presiding on a case to do justice to the parties before him. It is very unfortunate that there are lawyers who develop basket mouths the moment they got elevated to the bench. I believe there are lessons to be learnt by such people from the above narrative. A judicial officer must maintain a good comportment while siting on the bench as judges are often judged by their comportment and attitudes on the bench as according to Lord Denning : “Justice has no place in darkness and secrecy. When a judge sits on a case, he himself is on trial”.

REMARKABLE PRONOUNCEMENT ON COMMENTING ON THE CONDUCT OF COUNSEL

A close perusal of the brief of argument of the Appellant before the lower court revealed that it is the learned justice of the court below that misquoted the authorities cited by the learned counsel to the Appellants. Naturally a counsel worth his salt would want to remove the tag of dishonesty placed on him by the learned justice of the Court of Appeal. It is on this basis that I disagree with the Respondent’s counsel that the tag of dishonesty “was mere comment”. I cannot regard this as a mere comment as it touches on his integrity. This comment is utterly unjustifiable; it should not have been made .When a court comments on the conduct of a counsel in his handling of a case before it, a comment which impugns the character of counsel should not be made unless and until if the counsel’s conduct is so disparaging and falls below the standard expected of him as a counsel. I say no more on this point.

Per MUNTAKA-COOMASSIE , JSC in Balonwu Vs. Gov., Anambra State (2009) 18 NWLR (Pt. 1172) Pg.64 Paras E-G

THE SETTLED PRINCIPLE OF LAW

On effect of failure of counsel to proffer argument on issue

The law is settled that where counsel proffered no argument on any issue before the court, such an issue must be deemed to have been abandoned.

See Eholor Vs. Osayande (1992) 6 NWLR (Pt. 249) 524 at 534; Ajibade Vs. Pedro (1992) 5 NWLR (Pt. 241) 257; Ikpuku Vs. Ikpuku (1991) 5 NWLR (Pt. 193) 571; Lemboye Vs. Ogunsiji (1990) 6 NWLR (Pt. 155) 210 at 232; BUHARI Vs. OBASANJO (2003) FWLR (Pt. 186) Pg. 743 Para B

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