In the case of DANTATA
V. MOHAMMED[1], the Supreme Court cautioned thus:
Care must be taken to ensure that what is
supposed to be a machinery of justice should not be made to grind so slowly
that persons who stand to benefit by the delay will succeed in converting the
machinery of justice to that of injustice.
Similarly,
in the case of PRINCENT
V. STATE[2], the apex
court stated thus:
The obligation of the courts is primarily
to do everything possible to achieve justice in any dispute between parties on
the evidence presented
and not simply to invoke rules of technicality for the
purpose of defeating the justice of a case before the court.
In
yet another case of AMOO V. ALABI[3], it was noted that:
“Rules of court are designed to aid the
administration of justice and not intended to impede effective and efficient
administration of justice. The duty to do justice is fundamental to its
administration”.
Then in DUKE V. AKPABUYO
L. G4, the apex
court yet again stated:
Rules of procedure are to be used by the
court to discover justice and not to choke, throttle or asphyxiate justice.
They are made to help the convenience and orderly hearing of cases in court.
They are made to help the course of justice. They are aid to the court and not
masters of it. For a court to read rules in the absolute without recourse to
the justice to the cause, will be making the courts slavish of the cause. This
is certainly not the raison d’etres of rules of courts.
Indeed,
these decisions of the court, from the cases above will actually push us to
delve in properly into the administration of justice by Judges in courts; starting
from the historical point of view.
The
organization of the Judiciary in the country was until 1954 centralized. There
was a single Supreme Court for the whole country together with various
subordinate courts. With the adoption of the Federal System of Government in
1954 came the regionalization of the judiciary. The decision to regionalize the
judiciary was not without opposition, based on the fact that this would result
in different standard for the appointment of Judges, as the increased number of
Judges that would be required to man the various High Courts might result in Judges
of lower caliber being appointed.
Under
section 126 of the Republican Constitution, 1963, the Federal Government had
power to establish Federal Courts in the Regions, but this power was not
exercised. For this and the above reasons, the organization of the judiciary
during the first republic was characterized by two factors – the
regionalization of the courts and the absence of federal courts of the first
instance in the regions. The method of appointment is no doubt of great
importance to the independence of the judiciary. Just as indicated by Schwartz
in American Constitutional Law (1955) on page 130:
“The quality of justice… depends more upon
the quality of the men who administer the law than on the content of the law
they administer”5.
Undoubtedly,
though with a lot of interference and pressure from the other organs of
government, Judiciary has always strived to stick to uphold judicial activism through
proper interpretation of law. Because this is the only arm of government whose
members are not elected and which tries to bring to book any erring politician,
some writers see it as playing a “counter-majoritarian” and “undemocratic” role
because it subjects the actions of those who are elected and who act, based on
majority decision, to judicial review.
At
present, the judiciary has developed the innovative strategy of public interest
litigation for the purpose of making basic human rights meaningful for the
citizens and making it possible for them to realize their social and economic
entitlement.
In
Dickson v. Commissioner of Police,
Hon. Justice Nnana Nwachukwu6, a High Court
Judge in Imo State, who was appointed the Chairman of
a Commission of Inquiry to look into certain contracts awarded by the
government between 1979 and 1983. In the course of the proceedings of the
commission, Hon. Justice Nnana Nwachukwu received a letter to which he took
objection. Without making an investigation whatsoever, he ordered the arrest of
one Dickson Ikonne. There had been a long history of mutual animosity between
the two men, which had nothing to do with the proceeding or the subject of the
commission. Ikonne applied to a High Court Judge to quash the warrant of arrest
which the Judge did.
Subsequently,
Hon. Justice Nnana Nwachukwu made an application for leave to appeal against
the order of the Judge, but leave was refused. The court having subsequently
granted leave, Ikonne then appealed to the Supreme Court. Aniagolu, JSC said:
It is clear from the fact of this matter on
appeal that the judge, the Hon. Justice Nnana Nwachukwu, had no valid legal
reason for issuing the warrant of arrest complained of on his appeal. The issue
of the warrant of arrest was, in the circumstance of this matter on appeal, an
abuse of legal process and abuse of authority. It is particularly painful that
I should come to this conclusion concerning a judge of the High Court, but the
conclusion is inevitable having regards to the facts and circumstance of this matter
on appeal. The conduct of the judge in issuing the warrant of arrest upon what
was obviously a fictitious reason, had the undesirable effect of denigrating
the judiciary in the eyes of the public and eroding the confidence of people in
judicial process and the rule of law
.
Speaking
on the role of a Judge, Denning M. R.7
said:
My root belief is that the proper role of a
judge is to do justice before him. If there is any rule of law which impairs
the doing of justice, then it is the province of the judge to do all he
legitimately can do to avoid that rule- or even to change it – so as to do
justice in the instant case before him…
Prof. I. Sagay,[1]
commenting on the role of the judiciary in view of the decision of the Supreme Court
of Nigeria in CHIEF
GANI FAWEHINMI V. COL. HALILU AKILU & ORS[2]
said:
“the
greatest in our legal history on the question of the Rule of Law… and our Supreme
Court perhaps currently the greatest foundation of justice in the world of
which turned the spark of justice (lit by Gani Fawehinmi, the appellant in the
case) into blazing sunlight have ensued that justice must be done in Nigeria, no
matter who is involved… by this singular act, they have rescued the Nigeria
legal system from ignominy and contempt and raised it to the greatest heights
of glory. We can all sleep a little better in the knowledge that the law is
there to protect us, no matter whom! or what!”
In
the administration of justice, there is such notoriety that justice cannot
operate or be administered on a baseless ground.
This
is because when justice is administered without laying hands on the law of the
land, that justice is nothing but an exercise in futility.
In
the strict legal sense, justice is the end of produce of the effective application
of the law of the land made by the competent law making authority. In the
mosaic era, for example, justice meant on more than paying back an offender in
his own coin, for the doctrinal teaching was “an eye for an eye, a tooth for
tooth”. In more appreciable sense, justice is fairness, fairness in
adjudication, fairness in the process of adjudication and in the ultimate
decision reached by the decision-making body or authority. It is this kind of
justice that accords not only with the rule of law, but also ensures equality
of treatment to all and sundry. Where there is a strict application of an
unjust law, an unjust decision would and an unjust decision is sure to result
in injustice and create problems for the system. That is to say, justice to be
done according to law, the law itself must be just, fair and equitable. Be that
as it may, it is an incontrovertible fact that the primary duty of the court is
to do justice according to law. Just as Mamman Nasir, PCA (as he then was) once
said:
Justice cannot be administered in vacuum.
It must be administered according to the constitution and the law of the land.
Indeed,
Oputa JSC, in his paper “Towards Justice with a Human Face” also pointed out
that:
Under constitutional provisions
guaranteeing the right to justice, the justice to be administered is not an
abstract justice as conceived by the judex but justice according to law. Having
seen the imperfections of the strict law as the hand maid of justice, it fellows,
that to have justice with a human face the rule of equity must form part of the
entire social experiment.
The society, indeed, attaches a very
strong interest in the judiciary, as its last hope, as they always pray that
justice be done based on the law of the land.
In
a constitutional democracy, the fundamental and basic law is the Constitution.
It is the supreme law of the land, the fons
et origo, superior in every respect; in
scope, content and effectiveness to any other law of the land; and any law
which is inconsistent with its provision is no law. To the extent that such law
is inconsistent with a constitutional provision, it is null and void and of no
legal effect. Take for instance, the provisions of section 1(1) (2) and (3) of
the Constitution of the Federal Republic of Nigeria, 1999 (with amendments
2011). It is also trite to say that the Nigerian constitution in its pure and
pristine form guarantees and protects individual and collective rights. It is
the embodiment of the people’s rights and obligations. Therefore, it is
sacrosanct. And unless and until it is subverted by the Decree of the Military Government
after a successful coup de tat or
revolution, as has often been the case in this country, the constitution
remains the veritable ground norm, the potent legal force for the sustenance of
the legal order that has been created, the rule of law and the proper
administration of justice. The constitution is indeed, the source of all powers
and authority exercisable by governmental bodies and institutions which owe
their very existence to it. As much as possible, its regulatory provisions
cover very conceivable scheme and situation which make for, or are likely to
assure a stable and enduring polity.
As
stated earlier, administration of justice is anchored on the law of the land.
There is no doubting the fact that the nature of the office and the functions
the holders are required to perform all for a high sense of duty,
responsibility, commitment, discipline, great intellect, integrity, probity and
transparency, and any one who gets appointed to the exalted position of a
judicial officer, without possessing these supreme qualities is sure to be an
obstacle to justice according to law. Indeed, a dishonest or corrupt Judge or a
Judge with little or no learning can be a most dangerous clog in the
administration of justice.
Meanwhile,
in the administration of justice, a Judge is expected to base his judgment on a
faultless ground and stick to maintain the judicial oath which he is required
to subscribe to, and which runs thus:
I,… do solemnly swear that I will be
faithful and bear true allegiance to the Federal Republic of Nigeria that as
chief Justice of Nigeria/Justice of the Supreme Court/President/Justice of the Court
of Appeal/Chief Judge/ Judge of High Court of the Federal Capital Territory,
Abuja/Chief Judge of … State/Judge of the High Court of …State/Grand Kadi of Sharia
Court of Appeal of the Federal Capital Territory Abuja/Grand Kadi/President/Judge
of the Customary Court of Appeal of … State, I will discharge my duties, and
perform my functions honestly, to the best of my ability and faithfully in
accordance with the constitution of the federal republic of Nigeria and the
law; that I will abide by the code of conduct contained in fifth schedule to
the constitution of the federal republic of Nigeria, that I will not allow my
personal interest to influence my official conduct or my official decisions,
that I will preserve, protect and defend the Constitution of the Federal Republic
of Nigeria. So help me God[3].
The central point in the Oath is a
commitment to the rule of law, to the dispensation of justice, honestly and
faithfully and according to the law and the Constitution. The Judicial Oath
demands that a judicial officer ought not to be influenced by any extraneous or
in proper consideration or by any act or conduct which does not become of a
judge.
In a paper presented by Hon justice
M.M.A. Akanbi, on “the Many Obstacles of Justice According to Law”, He said that:
“while a
judge with little or no adequate knowledge of the law may be considered a
nuisance and his lack of understanding and appreciation of the law may
constitute an obstacle in the path of justice, yet he is still more tolerable
than a corrupt judge. For a corrupt judge is not only a dangerous obstacle, he
is an anthemia and a disgrace to the profession or the institution to which he
does not deserve to belong”.
Speaking in the same vein, Okay Achike
observed:
“…while an incompetent judge is a misfit, a
corrupt judge is a disgrace to his peers and a course to our noble profession”.
Interestingly,
the Constitution of the Federal Republic of Nigeria, 1999, provided for the Right
to fair hearing of cases by a court or tribunal, constituted in a manner that
will reflect its independence and impartiality. Thus section 36 (1) of the
constitution stipulates:
In the determination of this 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 tribunal established by law and constituted in
such a manner as to secure its independence and impartiality.
This
section is of great significances. It emphasizes and underscores the need for
courts or tribunals in the country to be free, fair and just in the disposal of
cases and to strive to do so at all time within a reasonable time. This is
because justice delayed is indeed justice denied. The Constitution of the
country does not therefore, contemplate any obstacle being placed in the path
of the administration of justice according to law. This has been what the Judiciary
seeks to uphold as the society sees it to be their last hope.
It
is apparent, therefore, that under a normal democratic environment or setting,
the right of access to the court is guaranteed and is neither fettered nor
obfuscated. The law is generally allowed
to take its normal course. The reason for this is clear. The frames of the Constitution
envisaged a democratic state where social justice would reign supreme.
Accordingly, Judiciary has been used as a yard-stick to maintain the rule of
law though the administration of justice has terribly been affected under the
military regime. In ARIORI
V. ELEMO,[4] The
Supreme Court frowned at inordinate delay of trials. Sub-sections (5) and (6),
particularly Sub-section 6 of 294 of the Constitution[5]
provided stricter measures by treating such delay without satisfactory
explanation as a misconduct to be inferred to and treated by the National Judicial
Council with attendant sanction and punishment meted out to the erring judicial
officer.
Under the
military regime, the doctrine of separation of powers is relegated the
background. The executive arm of government carries out both the executive and
legislative functions. The judiciary only exercises such powers as are
permitted by the executive arm of government. This now poses a question to the
decision of Lord Attkin in LIVERSIDGE V. ANDERSON AND ANOR.[6] Whether
in Nigeria
courts can be said to have spoken the same way in the military regime as it
speaks in the democratic setting. He (Lord Attkin) stated:
In this country (England) amid the clash of arms,
the laws are not silent. They speak the same language in war as in peace. It has
always been on the pillars of freedom,
one of the principles of liberty for which on recent authority we are now
fighting, that the judges are no respecter of persons and stand between the
subject and any attempted encroachment on his liberty by the executive, alert
to see that any coercive action is justified by law.
From the decisions of the courts in
this country, however, it would be idle to pretend that the law in a
constitutional democracy speaks the same language as in a military regime.
But
that not withstanding, we cannot afford to fail in praising the effort of the
judiciary so far as it has shown to the society that truly, it is the last hope
of the common man.
More
so, in the judicial administration, Judges have to see dignity and decorum as
essential to them both in and out-of-court. In court, proceedings should be
conducted with fitting dignity and decorum. Judges should avoid going into
heated argument with counsel. That lowers the prestige and dignity of the
bench. As Lord Hewart once observed:[7]
The business of a judge is to hold his
tongue until the last possible moment and to try to be as wise as he is paid to
look.
Also,
sir James Fitz James Stephens, in his history of the criminal law[8],
observed:
The
duty most appropriate to the office and character of a Judge is that of an
attentive listener to all that is to be said on both sides and not of an investigator.
After performing the duty, patiently and fully, he is in a position to give the
jury a full benefit of his thoughts on the subject.
A
Judge who gets unduly involved in proceeding before him is like an umpire who enters
the arena and becomes a contestant. His vision must, in the end, be clouded by
the dust of the contest. It is not dignified for a Judge to become a
participant for then he cannot, and may be will not, be holding the scales of
justice quite evenly as he should.
Finally,
corruption has been identified as endemic within the populace; it is without equivocation,
the greatest inhibitor to the right of access to justice. This is actually what
the Judges must eradicate through proper legal education and social justice. In
a democratic society like Nigeria,
corruption has outgrown to an alarming rate, jeopardizing both the Executive
and the Legislature and of very little in the Judiciary will be worse than
societal cancer. A retired Justice Mohammed Akanbi once observed about
corruption in the Judiciary as follows.
For
a corrupt Judge is not only a dangerous obstacle, he is an anathema and a
disgrace to the profession or the institution to which he does not deserve to
belong… he is an afflicted person… just like the carrier of the AIDS Virus or
Kleptomania. He suffers from a deadly disease. To him, justice is not his
primary concern. No. What matters to him is the corrupt money that is turned
over to him by his partners in crime. His conscience is warped. His Judicial Oath
means nothing according to law.
In
any case, by his nature, his a stranger to justice, and if he is not caught in
the act, he remains a perpetual obstacle in the way of justice until perhaps
nemesis catches up with him. Otherwise
he is unable to appreciate, let alone administer justice according to law.[9]
[1] Sagay,
Legacy for Prosperity, The Work of the Supreme Court (1980-1988), - Lagos, 1988, p. 39
[2] (1987) 4
NWLR (p.67), p.797
[3] 1999
constitution Federal Republic of Nigeria, Seventh Schedule-Judicial Oath
[4] (1983) 1
SCNL 1
[5] 1999
constitution, Federal Republic of Nigeria
[6] (1942)
AC 206at 244
[7] Justice
in the Judicial Process (Essays in Honour of Honourable Justice Eugene
Ubaezonu, JCA. Edited by C.C. Nweze p
202
[8] Ibid p.
202
[9] All Nigeria Judges
Conference Papers 1995 at page 47