By Kingsley Okechukwu Isichelix, Esq
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The judiciary, the judges and justice are, for me, part of the fundamental components that provide formal assurance of egalitarianism. They are foundational concepts that foster social equality, eliminates societal imbalance and oppression. The sanctity and inviolability of contemporary relations is not only the function of moral values but ultimately an established legal system where the law of the land is embedded in. These laws find express expression through the functionality of a judicial system, which the judges are composite of and through which enduring justice is administered.
I am particularly conscious and deliberate in the caption above, separating and individualising these concepts to set out their makeups and articulate my flow comprehensibly.
THE JUDICIARY
The judiciary, in a nutshell, is one of the three main organs of government whose responsibility is to interpret and apply the law. However, it has been established that judges make laws in the process of interpreting the principles of existing laws. This occur when they tend to apply the law to an extant fact or in the process of expanding an existing principle of law in a given social, political or contractual dispute. See the famous English case of Donoghue v Stevenson where the orbit of tort of negligence was expanded to accommodate duty of care manufacturers owe consumers. This has become the law till date. In the Nigerian case of Awolowo v Shagari, the doctrine of substantial compliance was introduced and the same changed the landscape of our election petition principle. For emphasis, judges making laws is common in Common Law jurisdictions through judicial precedents as in the case of Nigeria, England, USA, etc. The practise is different in Civil Law jurisdictions like France, Germany, etc.
As has been earlier emphasised, justice and sanctity of a society is the foremost focus of any judicial system, hence, there was an institutionalised customary judicial system in Nigeria prior to British colonisation. These were based on unwritten indigenous (customary) laws unique and operational in the south, while Islamic law was in the North. The unwritten laws had their foundations in the traditions of the ethnic group and offered the traditional rulers, village or family heads the authority to administer justice in any conflict. These were practical experiences growing up. An individual who cannot contain his indignation and resentment approaches the traditional rulers for justice.
In my locality, the process is characterised by an established convention and procedural dictate where the “victim” in a dispute will KPE (report) the alleged “perpetrator” in Igwe’s palace with certain amount of money to be decided SUO MOTO (on your own accord). The Igwe in council will summon the “perpetrator” who will appear with the same amount, and whoever that is found wanting forfeits his money. And so, parties will be heard, with evidence or witness(s). In the event that the dispute is not resolved forthwith by reason of its complexity, few wise men will be appointment to the inner chamber for IGBA IZU (reflection and evaluation of the case and evidence thereof) and the verdict will be communicated in the open.
Perhaps, the saying that NA PERSON WEN GET SENSE PASS YOU, DEY GIVE VERDICT IN YOUR DISPUTE.
These were indigenous courts, if you like, and evidence indicated that this system was working as conflicts were resolved and coexistence was maintained. These were made manifest by the qualities and ingenuity of the judges who were the traditional rulers, village and family heads as well as the wise men. What is in you determines what comes out of you. In the legal community, it is trite that you cannot give what you don’t have (nemo dat qoud non habet). See the case of Afrotec Technical Services (Nig) Ltd v M.I.A & Son Ltd.
However, the framework of Nigerian legal system was significantly impacted by the advent of the colonial masters, culminating in the establishment of the initial court in the south under the Foreign Jurisdiction Act and expanded as time progressed.
It remains sacred that in that era the nexus between an established tradition and justice were the traditional rulers, village and family heads. Perhaps, in the current regime the judge is that nexus between the law and justice. In other words, the judge is an essential element of justice, in the current regime, by the instrumentality of the law. However, someone has said that “Judges are the weakest link in the justice system …” and on the flip side, I submit that the weakness of a judge is in his quality and competence.
THE JUDGE
The principal responsibility of a judge is to administer justice. He presides over a fair trial, sometimes arising from a complex situation, and will travel along mountain roads to administer justice. In examining the compounded role of a judge, a judge once humorously concluded that “in the court of justice, both parties know the truth, it’s the judge who is on trial”. Such trial, in my view, can be a holistic assessment of the qualities of the judge.
Qualities of a judge
“…it’s the judge who is on trial” and the outstanding question appears to be the precise trial the judges are on. My corresponding response is that the trial is to examine, not just their legal knowledge but ultimately the inherent qualities and character of the judges. This is significantly critical to manoeuvre the mountain road to justice.
It appears that the system is preoccupied with the legal knowledge, honesty, confidence and impartiality, when the subject of the quality of a judge is on the front burner. In the case of Obadara & Ors v Commissioner of Police, the supreme court reiterated the impartiality of a judge.
The pronouncement is acknowledged and cannot be overemphasised. However, I am troubled and obsessed with the quality of objectivity and logical disposition of a judge. This is significantly critical on the road to natural justice. Justice can only be made manifest by the objective and logical application of law to the fact in issues. For me, “in a given circumstances” should be added to the consideration. In other words, objectivity, logic and circumstances should be the emphasis. It is logical to say that the qualities of “objectivity” and “logic” in the context of this discussion is the innate ability of a judge to think beyond the norm, while “circumstances” is the ability to draw inference from a comprehensive dissection of the event leading to the dispute. For example, in a Canadian case of South West Terminal Ltd v Achter Land & Castle Ltd, the court admitted thumbs-up emoji as a valid acceptance and affirmation of a contractual terms. It takes a logical mind to extract the intendment of the parties to the contract. The court inferred that the emoji obviously suggests an expression of approval or agreement to the contractual terms. A narrow-minded and illogical judge might not consider emoji relevant in the circumstance, therefore, will invalidate the contract.
In another development, one may question the logic to apply in a live situation where a chronic animal lover caused a heavy traffic during morning rush hours. She saw a cat “relaxing” on the road and her temerity was to stop her car on the middle of the road and switched off the ignition not to collide with the cat. It will require logic to set out the issues arising in this case.
It suffices to say that when logical competence is minimised in the appointment process of judges, the knock-on effect on the quality of judgments will have far-reaching damaging outcomes. Thus, the reverberating dilemma might be an unconscious celebration of miscarriage of natural justice, poorly reasoned judgment, uncertainty and erosion of public confidence in the system. These are the realms we are presently wallowing in. Judges being “on trial” numerous times and failed almost in all, particularly in election petitions. Hence, a very senior and respected lawyer put it, succinctly, that “there was a time you could say, that on the basis of the facts and law, this is the likely outcome, today, you cannot because of all kinds of silly decisions”.
The indubitable fallibility of the judges is certainly not in contention, however, the outcome of the general assessment of their performance depicts overwhelming lack of justice. This has been repeatedly seen in election petition where “judges were on trial” but failed to administer natural justice.
JUSTICE
Justice in this context, is better explained than defined for maximum comprehension. Justice and justice system are considerably the mirror image and value of a society. Certain principles such as rule of law, fairness, equity, equality and values guide the judge to navigate the mountain road. The principles are the satellite navigator to a destination of justice. They are not made-up minds that suggest, ab initio, the direction the judge will swing the pendulum to, to justify his destination. In some instances, you found that there is a knife-edge or thin line between justice and injustice. This is the realm the judge should demonstrate his ingenuity and general qualities earlier adumbrated.
Justice is fairness, equality, peace, development etc. Thus, I have said that the interconnectedness of justice to fairness, equality, tranquillity and development is synonymous with the interconnectedness of injustice to inequality, anarchy and underdevelopment. In other words, a society that is amenable to injustice beckons inequality and should be prepared for anarchy and underdevelopment. Anarchy when people feel unequal in the society and rights trampled upon. Underdevelopment following restiveness and investors (local and international) withholding their investment for fear of injustice and justice system.
CONCLUSION
It is my submission, that judges hold sway over equality, tranquillity and substantial development of our dear nation. The judges should develop capacity for responsibility on their shoulders. The logic and courage required for the application of legal knowledge is in demand and cannot be undermined if enduring justice is our desire. Similarly, the process of recruiting judges is critical. It should be transparent and thorough bearing in mind the requisite qualities and competencies. The same should be considered in the progression of the judges.
This is my primary constituency. I am passionate and concerned about this, particularly when public confidence in the judicial system is all-time low. Judges ought to be mindful that justice should not be said to have been done, it should rather be manifestly SEEN to have been done. See the case of R v Sussex Justice, Ex Parte McCarthy where a conviction was overturn for no actual presence of bias but for the possibility of perceived bias.
The above discussion is highly necessary for national liberation and development, I so submit.
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