It is a privilege to be invited by my Lord, the Chief Judge of the Federal High Court, Honourable Justice Ibrahim Auta, OFR, to speak at this year’s conference of Judges. I would like to share with you my thoughts on a subject, whose importance should be brought to the front burner as it rightfully should. It is the subject of finding the right balance in judicial reforms, whilst re-affirming the duty embedded in the judicial oath – to dispense justice without fear or favour.
This discussion is segmented into ten parts, namely – an Introduction, The Trust We Collectively Hold, the Judicial Function, Code of Conduct for Judicial Officers, the Question of Independence of the Judiciary, Natural Justice and Absence of Fear or Favour, Judicial Oaths: Any Conflict?, and the Psychology of Fear. It ends with a Conclusion and Suggestions for Reviewing/ Improving the Judicial Complaints Procedure.
The judicial function is a solemn, sober, wise, balancing and increasingly risky function. In the process of discharging their judicial duties, Judges are required to exercise the highest level of sagacity. Their Lordships must not only perform their functions judicially and judiciously, but must be seen by right thinking members of the society so to do. That is the standard the society expects Judges to attain and maintain, and there is little or no understanding when the standard is not met or kept. Indeed, there is neither an allowable margin of error nor indulgence from observers and stakeholders of justice administration.
The reality however, is that little or no attention is paid to the challenges of the modern day adjudicatory function. The pressures by litigants seeking redress of various kinds, the complexities and demands of modern commerce and speed of information gathering and piling, the sanctions and threats of sanctions by the supervisory bodies, driven in part by the increasing culture of petitions against judges all serve to place our Judges under excessive strain – strain of body, mind and soul. The expectations are indeed numerous and high, yet the sympathisers are few, if at all existent.
The precipitating question therefore is – Is there a case for a mechanism for addressing judicial complaints? Yes, but with fairly systemic processes and procedures that ensure that the integrity of the judiciary and the judicial process is not impaired by reason of the uncertainties the indiscriminate use of those mechanisms may have on the judiciary and entire system of administration of justice.
THE TRUST WE COLLECTIVELY HOLD
It is perhaps pertinent to briefly discuss here a subject whose significance in recent times is sought to be brought to the front burner as it rightfully should. It is this subject of leadership as a pre-requisite for honouring the trust we hold as citizens, judges, professionals, office holders, business owners, managers, and leaders in our different disciplines. It is the subject of honoring the trust we collectively and I dare say, individually hold, for posterity – the future generation.
The preference here is to re-define a concept that we are all keen on, albeit with a preference for a definition of a jurisprudential nature with a negative perspective. It is the concept of ‘ownership’. It is the view that ownership is one of the highest forms of rights in relation to a particular thing, provided that it is understood. That right is best depicted as the ‘right to destroy’. That which you cannot lawfully destroy is not owned by you. For instance, the fact that you cannot lawfully destroy your International Passport illustrates the point that you are not the owner, but merely the ‘holder’. In like manner, a Judge is a judicial office holder, not a judicial office owner. In other words, the litmus test of ownership is essentially the right to lawfully destroy. Mr. A can take off his jacket and burn it, and no matter how wasteful we may think him to be, or how unappreciative we may be of his actions, there really is nothing anyone can do about it.
However, the moment Mr. A asks others to contribute to the dry cleaning or re-fitting or improvement of the jacket in any form, he loses the right to destroy it, at least without first consulting the persons who have so contributed to its preservation. This is what happens in a joint stock company or when one holds the common wealth in trust for others. More so, when Mr. A issues a private placement or a public offering asking people to contribute to the improvement of this asset that was initially his exclusively. In such a case, the duty to account to the ever growing list of stakeholders increases. This duty increases as we hold the asset in trust for others. This is the duty and responsibility of Leadership that cannot be unbundled into privileges without accompanying duties or burdens.
The privileges of office must be subjected to the burdens of leadership. The Oaths Act in its schedule requires Judges while taking oaths to declare inter alia that they will ‘always place service to the nation above all selfish interests, realising that a public office is a public trust’. This is a charge to persons in positions of authority in some instances, to transit from office holders to leaders. However, there cannot be good leadership in the face of fear and intimidation. The author was once before a Judge of the Federal High Court, who felt constrained to preface the court session with assertions that he would not be intimidated or cowed by a petition, which had just been written against his Lordship by a party in a case before the Court. It is likely that my Lord was genuinely never going to be intimidated, but it might also be that the statement was an effort to muster courage not to be intimidated or to remind himself that he ought not to be intimidated. Whatever it is, that incident simply illustrates the varying degrees of distractions that your Lordships have to deal with in discharging the judicial function.
In his book, ‘The Trouble with Nigeria’, published on the eve of former President, Shehu Shagari’s second term, distinguished Novelist, Professor Chinua Achebe (of blessed memory) remarked thus:
“The trouble with Nigeria is simply and squarely a failure of leadership. There is nothing basically wrong with the Nigeria character. There is nothing wrong with the Nigerian land or climate or water or anything else. The Nigerian problem is the unwillingness or inability of its leaders to rise to the responsibility, to the challenge of personal example which is the hallmark of true leadership….”
Achebe took the view that the leadership question remained pre-eminent among Nigeria’s numerous problems, and identified other perennial issues such as “tribalism, corruption, indiscipline, social injustice, preference for mediocrity over excellence, etcetera”; and concluded that “without good leadership, none of the other problems stand a chance of being tackled, let alone solved.” Thus without good leadership, there can really be no question of governance, let alone effective governance.
Attachment and allegiance to family, ethnic and cultural groups are universal phenomenon of civil societies. In Nigeria, these appear to have so undermined national consciousness and solidarity that it had in the past been difficult to replace the negative aspects of these feelings with a positive feeling of common identity, a shared community sentiment and a common sense of patriotism and nationalism. What Nigerians need, is rising above these parochial basis of allegiance to integrate on the basis of common interests for the good of the society, and which unites them against executive excesses that threaten the common good. Among the common good threatened is judicial independence and courageous discharge of the judicial function.
THE JUDICIAL FUNCTION
Judges are as much lawyers as members of the Bar and they are bound and required to comply with the Rules of Professional Conduct in the Legal Profession. In Atake v. A.-G., Federation , the Supreme Court demonstrated that a retired judge is a lawyer. Judges are High Priests in the temple of justice and bound by additional codes of conduct , higher than what members of the bar are bound to comply with. Judges take judicial oaths. They swear to:
– Be faithful and bear true allegiance to the Federal Republic of Nigeria;
– To discharge their duties, and perform their functions honestly, to the best of their ability and in accordance with the law;
– To abide by the Code of Conduct contained in the Fifth Schedule to the Constitution;
– Not to allow their personal interests to influence their official conduct or decision; and
– To preserve, protect and defend the Constitution of Nigeria.
Judges must fulfil the duties contained in the words of their oath of office. If they fulfil their duties in the exemplary manner required by the constitution they would display the attributes of a good judge and be deemed to have lived up to the condition of impartiality to have done justice without favour. Judges’ duties include:
a) It is a fundamental duty of the judge, and his professional calling and ethics require him to do his best and ensure that justice is done. In Josiah v. State , the Supreme Court per Oputa J.S.C., held:
Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic- justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased whose blood is crying to heaven for vengeance and finally justice for the society at large- the society whose social norms and values had been desecrated and broken by the criminal act complained of. It is certainly in the interest of justice that the truth of this case be known and that if the appellant is properly tried and found guilty, that should be punished… It is the duty of the court and lawyers to ensure that justice is done…
Similarly, in his book, The Mystery Gunman , Justice Kayode Eso advised
…as judge or as counsel, he must know his part, but, more importantly, he must know how to play without forgetting that it is a life-drama that he is engaged in; non artificial, but real, one which could change the course of history, the fortunes of man and one which is recorded for posterity. The whole purpose of the play in the courtroom and the dramatis personae must constantly remind themselves, is the attainment of JUSTICE. Justice is the ultimate and joint goal of the Bar and the Bench that should permeate the minds of the players
b) To be diligent and exhibit competence in their work
Judges must manifest industry, hard work and knowledge in the discharge of their functions. Judges or members of the Bench are not only to improve the quality of their judgments, but also to ensure that minimum standards of diligence, competence and ethical conduct are upheld.
c) To display an understanding of the law
Closely related to the above duty of the judge is the duty to exhibit a sound knowledge of the law. The judge must apply the relevant law to the dispute before the court. They must not disregard an applicable law as to do so would give the impression that the court lacks knowledge of the law.
d) To be ethical in the discharge of their functions
Honourable Justice Oyeyipo also admonished that it is common place that in conflict, the decision maker has to be competent, independent and impartial. We must however remind ourselves that the voice of a solitary judge is more impressive and compelling than the many voices of the Legislature since it is in that tiny voice that conscience itself is to be found .
e) To show courtesy to lawyers and litigants
It is important for the court to show respect to counsel appearing before the judge. Disrespect of lawyers by judges is usually noted by members of the public and contributes to worsening the image of the legal profession. Olanipekun justified the duty of the court to extend courtesy to Counsel in the following words:
Who stands to give the Judex the magisterial courtesy that he or she deserves? Who presents the case of the litigant to him or her? On whom does he or she rely upon for the legal research that would dovetail to what he or she would later call “This is my judgment or this is my ruling”? Who refers him or her to recent decision(s) of concurrent and appellate courts, as well as new legislations?
f) To avoid abuse of power
Section 6(6) of the Constitution of the Federal Republic of Nigeria vests enormous powers in the Courts. They are also conferred with jurisdiction to determine every conceivable matter between parties to a dispute coming before the Courts. Olanipekun describes the judicial powers in the following words:
The powers are awesome and virtually unrestricted, subject, of course, to the jurisdiction of each court. Constitutionally, we have all invested our Judges with the power, in appropriate cases, to levy fines on us, dissolve our marriages and commercial contracts, adjudge on the rightness or wrongness of our adverse claims to land, chieftaincy titles, political offices, intellectual property, codicils etc.
It is often said that power corrupts. Judges must not allow themselves to be corrupted by the powers bestowed upon them. If anything, it should humble their Lordships. It is a widely held view that an earthly judge is holding justice in trust for the Almighty God, who is the judge of all, and the only righteous judge who never makes any mistake. Section 6(6) of the Constitution of the Federal Republic Nigeria 1999 vests judicial powers of the Federation in the superior courts created by the same constitution.
g) To avoid corrupt practices
Judges are not immune to discipline for corrupt practices under the relevant legislation. Importantly, they become candidates for compulsory retirement as soon as it is proven that they are guilty of corrupt practices. It has become an unfortunate incident of Nigeria’s democracy that some politicians attempt (and in some cases, successfully) to entrap judges with offers of money. They drag the judges into the centre of their battlegrounds and make them join in the battle with dire consequences. Judges must watch carefully, the antics of such politicians and do everything to ensure that they are not, or seen to be biased in favour of any litigant. Otherwise it could be interpreted as evidence suggestive of having been bribed or of having allowed an unwarranted closeness to develop. The list of judges who have fallen as a result of scandals in election petition cases include Thomas Naron J. of the Plateau State High Court, Jos, Justices Okwuchukwu Opene and David Adeniji. The last two were Justices of the Court of Appeal.
CODE OF CONDUCT FOR JUDICIAL OFFICERS
An independent, strong, and respected judiciary is indispensable for an impartial administration of justice in a democratic State. A Judicial Officer should actively participate in establishing, maintaining, enforcing, and himself observing a high standard of conduct so that the integrity and respect for the independence of the Judiciary may be preserved. Bearing in mind the need for impartial, independent and respectable judiciary, the Code of Conduct for Judicial Officers was adopted to provide a minimum guide as to the conduct of Judicial Officers so as to ensure sound ethical and professional standards in the discharge of their duties.
A Judicial Officer under the code of conduct means “a holder of the office of Chief Justice of Nigeria, a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the Chief Judge or Judge of the Federal High Court, of a State and of the Federal Capital Territory, Abuja, the Grand Khadi or Khadi of a Sharia Court of Appeal of a State and of the Federal Capital Territory, Abuja, the President or Judge of a Customary Court of Appeal of a State and of the Federal Capital Territory, Abuja and includes the holder of a similar office in any inferior court whatsoever.” The provisions of the code of conduct are mandatory and violation is viewed as misconduct that may attract disciplinary action.
The Code of Conduct requires Judicial Officers to avoid impropriety and the appearance of impropriety in all their activities; respect and comply with the laws of the land and conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary; and avoid social relationship that are improper or give rise to an appearance of impropriety, that cast doubt on the judicial officers’ ability to decide cases impartially, or that bring disrepute to the Judiciary.
Under Rule 2 of the Code of Conduct, a Judicial Officer should maintain order and decorum; must avoid the abuse of the power of issuing interim injunctions, ex parte.; should be patient, dignified and courteous to accused persons and litigants, assessors, witnesses, legal practitioners and all others with whom the Judge has to deal in his official capacity and should demand similar conduct of legal practitioners, his staff and others under his direction and control; should accord to every person who is legally interested in a proceeding, or his legal representative full right to be heard according to law, and except as authorised by law, neither initiate, encourage, nor consider ex-parte or other communications concerning a pending or impending proceeding.
A Judicial Officer is required to devote adequate time to his duties, to be punctual in attending Court and expeditious in bringing to a conclusion and determining matters under consideration. Unless ill or unable, for good reason, to come to court, a Judicial Officer must appear regularly for work, avoid tardiness, and maintain official hours of the court.
A Judicial Officer is prohibited from commenting about a pending or impending proceeding in any court in Nigeria, and should require similar abstention on the part of court personnel under his direction and control; is bound by professional secrecy with regard to his deliberations and to confidential information acquired in the course of his duties other than in public proceedings. Part of the duty of a Judicial Officer is to prohibit broadcasting, televising, recording of or photographing in the court room and areas immediately adjacent thereto during sessions of court or recesses between sessions in order to prevent the distortion or dramatisation of the proceedings by such recording or reproduction.
In addition to the adjudicative duties of a Judicial Officer identified under the Code of Conduct for Judicial Officers, there are other administrative duties a Judicial Officer must perform for sound ethical and professional standards. They include the following duties: to require his staff and other court officials under his direction and control to observe the standards of fidelity and diligence that apply to him; to take adequate steps to report unethical or unprofessional conduct by another judicial officer or a legal practitioner to the appropriate body seised with disciplinary powers on the matter complained of; avoid nepotism and favouritism; refrain from engaging in sexual harassment; and shall not be a member of a tenders’ board or engage in the award of contracts.
A Judicial Officer is expected to disqualify himself in a proceeding in which his impartiality might reasonably be questioned. A Judicial Officer should inform himself about his personal and fiduciary financial interests. A Judicial Officer should regulate his Extra-Judicial Activities to minimise the risk of conflict with his judicial duties. A Judicial Officer may engage in the arts, sports and other social and recreational activities if such avocational activities do not adversely affect the dignity of his office or interfere with the performance of his judicial duties.
A Judicial Officer shall not take or accept any Chieftaincy title while in office. A Judicial Officer should not serve as the executor, administrator, trustee, guardian or other fiduciary, except for the estate, trust, or person of a member of his family, and that only if such service will not interfere with the proper performance of his judicial duties. A Judicial Officer and members of his family shall neither ask for nor accept any gift, bequest, favour, or loan on account of anything done or omitted to be done by him in the discharge of his duties.
THE QUESTION OF INDEPENDENCE OF THE JUDICIARY
In carrying out functions without fear or favour, the independence of the Judiciary is an essential element. It is a sacrosanct principle which goes hand in hand with the doctrine of separation of powers as well as the principle of checks and balances. However, these principles are difficult to realise as several impediments stand in the path of Judicial Independence. For example, the budgetary allocation to the Judiciary is determined by the Executive at the Federal or State level, respectively.
Another example is the recent amendment of laws by a few state governments in a bid to exert influence over the judiciary. For example in Rivers State, the power to assign cases now lies in the hands of the Chief Registrar instead of the Chief Judge of the State. Recently, the Abia State House of Assembly passed a resolution for the dismissal of the Chief Judge by the Governor, although the attempt to get the Chief Judge removed was unsuccessful.
These instances of issues that hamper judicial independence has led to clamours by Stakeholders in the judiciary for a reform of the judicial system. Recently, the Judiciary Staff Union of Workers (JUSUN) embarked on a 21-day strike demanding judicial independence of the judiciary and financial autonomy of the state judiciary. This occurred as a result of an awareness of the fact that in order to uphold the rule of law and ensure that the functions of the judicial officers are carried out like well-oiled machinery, judicial independence must be guaranteed.
From the process of nomination, selection, appointment, remuneration, discipline, promotion, dismissal and retirement of all judicial officers, there must be no room for bias, preferential treatment or subjective opinion. Another way of ensuring judicial independence is by granting life tenure for Judges, which frees them to exercise their judicial discretion justly. The twin pillars of judicial independence, i.e. security of tenure and conditions of service must be deeply rooted in the foundation of society.
Chief Gani Adetola-Kazeem, SAN, recently remarked thus:
…Over the years, we found that the Executive have assumed so much power. They exercise so much authority over the other arms of government that some of the times, the judiciary is in a fix as to what to do. They don’t have independence in the appointment of Judges, they don’t have independence in terms of funding, they don’t have independence in terms of what they are able to do apart from sitting in court and writing the judgments and all these pinch upon one another.
…It is supposed to be the last hope of the common man and therefore it is important that it is independent in the dispensation of justice…it must be able to control its own resources even though the resources come from the same pool, when it comes from the consolidated revenue fund. But in a situation where this is under the control of an authority of the Executive for example, they just dole it out the way they want. This affects the independence of the judiciary. …A government that is overbearing will hold on to these funds and the head of the courts, that is, the Chief Judges of the various high courts quite often will have to go cap in hand to the governor or whoever the executive of the state is to bid for funds. Once you have overbearing government that wants it bidding to be done the judge will either have to bend to do whatever the executive wants before they can have funds released to them or before they can find court equipped or provide many other amenities or many other things they want to do. …
Ikechukwu Ikeji added that:
Independence of the judiciary requires the principle of separation of powers balanced by the principle of checks and balances. A situation where the executive arm of government always has its preferred candidates for different judicial positions does not augur well for the independence of the judiciary. Where judges’ salaries are controlled by the executive is not good enough.
Sylva Ogwemoh , has expressed the opinion that:
…The Judiciary, being the last hope of the citizen must uphold the Constitution and other laws of the land at all times and must courageously challenge it when the occasion presents itself particularly when the executive actions exercised outside the confines of the constitution and other extant laws of the country are thrown up. To be able to do this effectively, the judiciary must be free and independent. For the judiciary to be free and independent, each Judge must enjoy both personal and substantive independence. Personal independence means that the terms and conditions of judicial services are adequately secured by law so as to ensure that individual judges are not subjected to executive control. A judge is subject to nothing but the law and commands of his conscience.
NATURAL JUSTICE AND ABSENCE OF FEAR OR FAVOUR
The twin pillars of justice are nemo judex in causa sua and audi alteram partem . The former is a Latin expression that means, no one should be a judge in his own cause. By this principle of natural justice no person can be the judge in a case in which he has an interest. It is a strict rule, which must not be mistaken as applying only to cases where the Judge is a litigant in the matter before the same Judge, a clear breach of the rule which rarely occurs. The principle is breached if there is any relationship between the Judge and a party to the case. It is also breached where the Judge or the Judges’ assistant has previously been connected with the matter in any capacity. Lord Justice Hewart declared in R v Sussex Justices, ex parte McCarthy :
“ a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
In R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No. 2) a House of Lords Judgment on the immunity of former Chilean dictator General Augusto Pinochet was set aside because Lord Hoffman who sat in the matter failed to declare his and his wife’s link to Amnesty International, an intervener in the appeal.
The latter Latin maxim, audi alteram partem means hear the other side . The fair hearing principles are encapsulated in the 1999 Constitution of the Federal Republic of Nigeria. In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. Similarly, whenever any person is charged with a criminal offence, he shall:
1) unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal;
2) be entitled to defend himself in person or by legal practitioners of his own choice and examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal, and among other things,
3) be entitled to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution.
It is these pillars that ensure that Judges discharge their duties without favour. A breach of any of these rules would therefore indicate that favour has been done, to the benefit of either the judicial officer or the party who profits from the bias.
JUDICIAL OATHS: ANY CONFLICT?
The Judicial Oath contained in the 1999 Constitution of the Federal Republic of Nigeria has vows to be made by the Judicial Officer in question, that he would be faithful and bear true allegiance to the Federal Republic of Nigeria, and that he would discharge his duties and functions honestly and to the best of his ability as well as in accordance with the Constitution and also abide by the Code of Conduct contained in the Fifth Schedule to the Constitution; that there would be no conflict of interest and he would preserve, defend and protect the Constitution of Nigeria.
The Judicial Oath in the Oaths Act is however more detailed. The Judicial Officer is made to vow to a list of principles he would abide by. The vow that he would be faithful and bear true allegiance to Nigeria at all times is present, alongside vows to: truly exercise judicial functions and do right to all manner of people without fear or favour, affection or ill-will; place service to the nation above all selfish interests; diligently performing judicial duties and avoiding all forms of conflict of interest whether directly or indirectly; eschew corruption in all its facets, and follow the path of justice, honesty and concord amongst all people of Nigeria in all he does.
This seems like a more detailed oath than that in the 1999 Constitution especially in the light of the fact that the 1999 Constitution, in the judicial oath, refers to the Code of Conduct in the Fifth Schedule. This Code is however a general code for Public Officers which makes provisions for conflicts of interest in duties, restrictions on specified officers, prohibition of foreign accounts, retirement, restriction on loans, bribery, abuse of powers, membership of societies and declaration of assets, among others. It does not refer specifically to the standard of conduct expected from an officer of the judiciary, bearing in mind that judges are ministers in the temple of justice.
Arguably, the most important phrase which is conspicuous by its absence from the judicial oath in the Constitution and its presence in the Judicial Oath in the Oaths Act is without fear or favour. The importance of the absence of fear from the minds of our judicial officers in the discharge of their judicial functions cannot be overemphasised. A “timorous soul,” cannot effectively and efficiently dispense justice. Only a courageous soul can. Every effort must therefore be made to ensure that judges do not have to work with fear (whether they admit it expressly or not). However, in the event of any conflict between the Judicial Oath in the Constitution and the Oaths Act however, section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria is to the effect that the Constitution shall prevail, and the other law shall, to the extent of its inconsistency, be void. Similarly, where an Act of the National Assembly provides, in an identical manner, for issues already dealt with by the Constitution, such an Act becomes inoperable, null and void if not inconsistent.
THE PSYCHOLOGY OF FEAR
Problems for Judges often proceed from allegation to petition, sanction, intimidation and result in fear. The allegation could be of corruption, bias or incompetence. The motive for petitions is sometimes more of a vindictive rather than of a corrective nature – in local parlance, to “teach the Judge a lesson”. Most are written by or for politicians and business people who find it difficult to accept defeat. Then there is sanction, if not by the disciplinary bodies, then by Learned Brother Justices or the Society. In most cases, the punishment is by all. Imagine if the same litigant (or Counsel to the litigant) who made the allegation, wrote the petition that led to the punishment were to come before the same Judge, the Judge will be most certainly be intimidated or confused, if not afraid.
Psychologists posit that traumas or bad experiences can trigger a fear response within us that is difficult to suppress. A Judge who has an allegation of wrongdoing hanging over his head hardly receives any benefit of doubt or of innocent until proved guilty. Judges often get punished without proof beyond reasonable doubt that they have done something wrong. The situation has gotten so bad that some Governors trying to vent their vindictive grievances against Judicial Officers remove them without following due process. The danger is that the nation’s Judges may transit from fearless to the frightened! Therefore all who are interested in the justice system must work assiduously to eliminate this threat to the health of our judiciary. The war against corruption in the judiciary must go on simultaneously with a new war that the author advocates – that is the war against intimidation and fear in the judiciary. It is a source of relief that the Supreme Court has ruled in the appeal by the former Kwara State Chief Judge that Governors and Houses of Assembly cannot appoint or remove Judges arbitrarily and without the recommendation of the National Judicial Council.
Whilst Judges are expected to perform their functions in accordance with the highest standards, lawyers, judges, regulatory authorities, society and other stakeholders are required to support them to ensure that there is efficient and effective justice delivery. A situation where a litigant refuses to take advantage of the right to fair hearing and constitutionally entrenched right of appeal to the Appellate Courts; and prefers instead to write baseless petitions against Judges if the judgment goes against them is condemnable. Often times, the grounds of the petition could very well be the grounds of appeal. In Akinduro v. Alaya , the Supreme Court observed thus:
Learned counsel for the appellant submitted that the appellant was denied fair hearing on the ground that the Court of Appeal allowed the respondent to raise a fresh issue without giving an opportunity to the appellant “to prepare himself with the evidence necessary to present his case fittingly to the Court of Appeal.” I do not think appellant is correct in saying that he had no opportunity to respond to the issue. Paragraph 5.09 of the brief of the respondent in the Court of Appeal the appellant in this court, at page 81 of the record reads:-
“It is submitted that even if exhibit 1 is expunged, there is still enough documentary evidence to sustain the finding of a valid sale of land to the plaintiff.”
The appellant as respondent had the whole world at his feet to respond to the 1st issue in the appellant’s brief in the Court of Appeal. He did nothing. He only made a statement of concession which did not in any way help him. And he now complains of fair hearing. Why? I have said it in the past and I will say it again that the duty of the court is to create the environment for fair hearing and it is the decision of a party to take advantage of the environment created. A party cannot blame the court if he fails to take advantage of the environment created by the court. I see such a situation in this matter. The appellant should not blame the Court of Appeal. He has himself to blame.
The Court’s duty is to provide the parties fair trial and hearing. There is nothing wrong with justifiable complaints (the etymology of the word ‘petition’ connotes a beyond grievance issue) to the National Judicial Council against suspected erring judicial officers as such petitions could for instance ensure that the necessary correction is made within the system. It should not be a means to setting aside a judgment, or getting ones reliefs which were not granted.
Frivolous petitions must not be tolerated, and should have consequences for petitions containing proven falsehoods. A great number of times, those kinds of petitions could be tactics for intimidation and instilling fear in judicial officers. This is especially so because Judges are by the nature of their calling not the best to do their own defence. They are put in the position of the physician who must then heal himself, with the attendant challenges. They hardly have sufficient opportunity to explain their side of the story. It has become the style of some lawyers to write or instigate the writing of petitions against Judicial Officers rather than appeal their decisions. These petitions no matter how frivolous they may appear have the effect of psychologically demoralizing Judicial Officers. This practice does not augur well for our judicial system and our Judicial Officers must be protected from such so as to create the requisite environment for the dispensation of Justice without fear.
This paper has identified the increasing challenges that Nigerian Judges face in their duty of dispensing justice without fear or favour. Judges are called upon to do all that is possible to ensure that the task of efficient justice delivery without fear or favour is undertaken. Nigerians must also strive to eliminate intimidation and other negative tactics employed by unsuccessful litigants and their Counsel.
Panels set up by the NJC to investigate petitions against Judges should undertake detailed and thorough investigations. Both the NJC and its panels could be guided by a Revised Complaint Process . The idea here is to respectfully recommend that a procedure for the discipline of Judicial Officers that meets the demands of fair hearing be put in place. A sample Complaints Handling Procedure can be seen in the Appendix to this paper.
Dr Fabian Ajogwu, SAN
September 16, 2014
SUGGESTIONS FOR REVIEWING/ IMPROVING
THE JUDICIAL COMPLAINTS PROCEDURE
1) Review and Investigation of Complaints
a) The National Judicial Council should consider complaints about active Judges, and former judges for conduct occurring while they were active judges.
b) The NJC should review each written complaint about a Judge and determine whether sufficient facts exist to warrant investigation or whether the complaint is unfounded and should not be pursued. Until the NJC has authorized an investigation, the Council’s staff does not contact the judge or any court personnel. However, to assist the NJC in its initial review of the complaint, the Council’s legal staff will research any legal issues and may obtain additional relevant information from the complainant or the complainant’s attorney.
c) If the NJC determines that a complaint warrants investigation, the Council will direct legal staff to investigate the matter and report back to the Council. There should be two levels of investigation: a staff inquiry and a preliminary investigation. Most cases typically should begin with a staff inquiry. In more serious matters, the Council may commence with a preliminary investigation. Council investigations may include contacting witnesses, reviewing court records and other documents, observing courtroom proceedings, and conducting such other investigation as the issues may warrant. If the investigation reveals facts that warrant dismissal of the complaint, the complaint may be closed without contacting the judge; otherwise, the judge is asked in a letter to comment on the allegations.
2) Action the NJC Can Take
a) Close case (Dismiss the complaint)
b) Advisory Letter
c) Private Admonishment
d) Public Admonishment
e) Public Censure
f) Recommendation for Removal from Office / Involuntary Retirement
3) Close Without Discipline
a) Typically many of the complaints received by the Council would not involve judicial misconduct. For example, a judge’s error in a decision or ruling does not ordinarily constitute judicial misconduct. Appeal is the proper remedy for such an error, otherwise there should be no remedy. If upon proper review, a case brought before the Council does not reveal judicial misconduct, the Council should close the case. If, after an investigation, the allegations are found to be untrue or unprovable, the Council should close the case without any disciplinary action against the Judge. When cases are closed without discipline, the person who lodged the complaint should be notified that the Council has found no basis for action against the judge or has determined not to proceed further in the matter. Persons who bring frivolous or false complaints before the Council should be severely punished to discourage victimisation of Judges.
4) Confidential Discipline
a) After an investigation and an opportunity for comment by the judge, if the Council determines that improper conduct occurred but the misconduct was relatively minor, the Council may issue an advisory letter to the judge. In an advisory letter, the Council should advise caution or expresses disapproval of the judge’s conduct.
b) When more serious misconduct is found, the Council may issue a private admonishment. A private admonishment consists of a notice sent to the judge containing a description of the improper conduct and the conclusions reached by the Council.
c) Advisory letters and private admonishments are confidential. The person who lodged the complaint should be advised that appropriate corrective and remedial action has been taken, but the nature of the action should not be disclosed to the complainant.
5) Public Discipline
a) The Council may issue a public admonishment or a public censure in cases where the misconduct warrants a more severe sanction than private discipline or where the judge has repeated conduct for which the judge was previously disciplined. The nature and impact of the misconduct generally determine the level of discipline. Both public admonishment and public censure are notices that describe a judge’s improper conduct and state the findings made by the Council. The notice is sent to the judge and made available to the complainant, the press and the general public.
b) A public censure can be issued after a hearing or without a hearing if the judge consents. In cases in which the conduct of a former judge warrants public censure, the Council may also bar the judge from receiving assignments from any Nigerian Court or Arbitral Institution.
c) In the most serious cases, the Council may determine, following a hearing, to remove a judge from office. Typically, these cases involve persistent and pervasive misconduct. In cases in which a judge is no longer capable of performing judicial duties, the Council may determine – again, following a hearing – to involuntarily retire the judge from office.
d) A judge may petition the National Judicial Council or the Supreme Court to review an admonishment, public censure, removal or involuntary retirement determination.
a) Complaints to the National Judicial Council should remain confidential. They should be so treated by the NJC, Judges and Legal Practitioners.
b) The NJC should not confirm or deny that a complaint has been received or that an investigation is ongoing.
c) Persons contacted by the Council during an investigation are advised regarding the confidentiality requirements. After the Council orders formal proceedings, the charges and all subsequently filed documents are made available for public inspection. Any hearing on the charges is also public.
7) Procedures Relating to Subordinate Judicial Officers
a) The jurisdiction of the NJC is discretionary.
b) The NJC should ensure that adequate records of its proceedings are maintained.
8) Private Discipline
a) The Council may impose private discipline after an investigation and after the judge has had an opportunity to comment on the allegations.
9) Advisory Letters
a) If the Council determines that improper conduct occurred, but the misconduct was relatively minor, the Council may issue an advisory letter to the judge. In an advisory letter, the Council advises caution or expresses disapproval of the judge’s conduct.
b) Advisory letters may range from a mild suggestion to a severe rebuke. An advisory letter may be issued when the impropriety is isolated or relatively minor, or when the impropriety is more serious but the judge has demonstrated an understanding of the problem and has taken steps to improve.
c) An advisory letter is especially useful when there is an appearance of impropriety. An advisory letter might be appropriate when there is actionable misconduct offset by substantial mitigation.
10) Private Admonishments
a) When more serious misconduct is found, the Council may issue a private admonishment. A private admonishment consists of a notice sent to the judge containing a description of the improper conduct and the conclusions reached by the Council. Private admonishments are designed in part to correct problems at an early stage in the hope that the misconduct will not be repeated.
b) Private discipline may be considered by the Council in subsequent proceedings, particularly when the judge has repeated the conduct for which the judge was previously disciplined.
a) Advisory letters and private admonishments are confidential. The complainant should be advised that appropriate corrective action has been taken, but the nature of the corrective action should not be disclosed.
12) Summaries of Private Discipline
a) Private disciplinary action by the Council could be summarised, without identifying the judge involved. In order to maintain confidentiality, certain details of the cases should be omitted or obscured, making the summaries less informative than they otherwise might be, but because these summaries are intended in part to educate judges and the public and to assist judges in avoiding inappropriate conduct, the Council should describe the conduct in abbreviated form than to omit the summaries altogether.
13) Time line
a) There should be specific time lines for hearing and disposing of complaints against Judges, so that they do not have an unending anticipation of the outcome of the complaints against them.
14) Statistics and Records
a) There should be a record of the number of cases received as well as the statistics with dispersions for ease of comparison and trend analysis.