Indeed,
the confidence which the entire public has in the judiciary for its high level
of impartiality in the discharge of its functions by the judicial office
holders is perhaps the greatest bulwark to the resilience of the institution.
Though, many condemn and impugn the integrity of judges, there are some who
extol their virtues and dependability. The complete confidence which successive
Governments have reposed in the integrity of the judiciary is demonstrated by
the many commissions and tribunals into which judges are appointed. In 1982, Fatayi-Williams
C.J.N., (as he then was) observed:
Except, perhaps, in Australia up to the
first quarter of this century, it is doubtful whether any other country in the
English speaking world has had as many
tribunals of inquiring presided over by judges of the superior court as Nigeria
has had during the last 15years. The military administration started the
practice and the new civilian administration is perpetuating it.
The
attitude is still much the same. In his address in the all Nigeria
conference of judges in 1982, president Shehu Shagari said:
My confidence, indeed my faith, in the
independence of our judiciary and the impartiality of our judges has been
demonstrated beyond question. They have been appointed to head various
commissions of inquiry which have made far-reaching recommendations on matters
of national interest and importance. In this way they have played a very
significant role in helping this nation to resolve issues which would otherwise
have been intractable. He continued, on previous occasions I told the world
that our judiciary is comparable to the best. I believe this is a view that all
Nigerians share with me….
The general theme that the judiciary
is the last hope for the common man is expected to be a reality. The Constitution
of this country has held out the judiciary as the priceless asset by the
individual for the protection of his property and defense of his liberty. It is
only by total public support can it discharge these functions, free from
political interference to prejudice of the victims of wanton oppression.
The
right of parties to a fair hearing before a judge is a subject of fundamental
right under the 1999 Constitution of the Federal Republic of Nigeria. Section
36(1) of the Constitution provides:
(1) 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.
Whilst these provisions apply to
civil proceedings, similar directive in respect of criminal proceedings is
contained in subsection (4) of section 36 of the constitution. It reads:
“(4) Whenever any person is charged with a
criminal offence, he shall, unless the charge is withdrawn, be entitled to a
fair hearing in public within a reasonable time by a court or tribunal.”
As part of the function of deciding
disputes, the Judges or courts provide a public service at almost no charge, or
next to nothing, to their customers- the litigants, some of whom are
meddlesome, vexatious, exhibitionist, aspiring to be famous or make a name
thereby .Judges are expected to resolve such disputes wisely, according to the
law, so that the parties before them can conclude that they have had a fair
hearing. Undoubtedly, a wide variety of disputes which have otherwise been
insoluble come before the judges. Some times the Judges are invariably unable
to display omniscience on the legal and non-legal issues raised in their
courts. Indeed, Judges are found from research that they are necessarily
influenced in the decisions they make by their upbringing and experience.
According to a distinguished English Judge, Lord Devlin, in his book “The Judges1,
the Judge said:
The social service which the Judge renders
to the community is the removal of a sense of injustice. To perform this
service, the essential quality which he needs is impartiality and next after
that the appearance of impartiality. I put impartiality before he appearance of
it simply because without the reality the appearance would not endure.
In truth, within the context of service to
the community, the appearance is the more important by the two. The Judge who
gives the right judgment while appearing not to do so may be thrice blessed in
heaven, but on earth he is of no use at all… impartiality and the appearance of
it are supreme judicial virtues.
In some of the examples given by Hon.
Justice M. L. Uwais, CJN, CON, in his paper presentation on “The Court an
instrument of Justice and Democracy” under the aspect of Impartiality and Bias.
In 1781, Lord George Gordon provoked riots in which the house of Chief Justice Mansfield
of England
got burnt. He was accused of treason and put up for trial before Chief Justice Mansfield
who presided fairly. The trial resulted in the acquittal of Lord Gordon.
According to Hon. Justice Uwais, he said – a judge who has a financial interest
in the outcome of a case is not to sit in judgment on it. He also said – that
any judge who considers himself unable to decide a case impartially for some
reasons is obliged not to sit in judgment of the case.
|
In
the case of Federal Republic of Nigeria V. M. K. O. Abiola3, an application was made by counsel for the
respondent objecting to seven Justices of the Supreme Court sitting on the case
because they had earlier brought actions individually for libel against the
Concord Newspapers Limited in which the respondent had a controlling share of
90%. The application was granted and two out of the five Justices that
constituted the panel disqualified themselves on the ground that justice is
based on public confidence and that there was the likelihood that reasonable
persons in Nigeria
would feel that by reason of the libel action, the Justices disqualified would
be biased against the applicant.
The partiality, that invariably
affects Judges has been noted in cases with a political flavour. When Sir
Winston Churchill was Home Secretary in 1911, he made the following statement
in the House of Commons:
Where class issues are involved… it is
impossible to pretend that the courts command the same degree of general
confidence (as in other case). On the contrary, they do not, and a very large
number of our populations have been led to the opinion that they are
unconsciously no doubt biased4.
Similarly, Lord Scrutton made the
same point in 1920 when he noted that judicial impartiality is difficult to
attain. He was not speaking conscious impartiality, but the habits Judges are
trained in, the people with whom they mix, lead to their having a certain class
of ideas, they do not give as sound and accurate judgments as they would wish5.
|
Also
Judges have to know that every case has some deep relevance and serious
consequence or concern for the parties involved. Like the soldiers rightly say,
there is nothing like an unimportant war. To prevent undermining the essence
and very existence of the court, the trial judge should show seriousness and
concern in every case that comes before him.
Judges
must not let ennui overcome them. The work of Judges is very important, and
the results of their action, very far reaching. As Piero Calamanderi, the
Italian lawyer and scholar once observed:
The Judge
who becomes accustomed to rendering justice is like the priest who becomes
accustomed to saying mass. Fortunate is that country priest who, approaching
the altar with senile step, feels the same sacred tabulation in his breast
which he felt as a young priest at his first mass. And happy is that Judge who
even unto the day of his retirement experiences the same religious exaltation
in rendering judgment which made him tremble 50 years before, when as a young magistrate he handed down his first
decision.
However, biblically, the first
recorded institutionalized appointment of Judges was that made by Moses. Moses
had led his people, the Israelites, from Egyptian bondage. As they wandered,
thousands of them in the wilderness of Sinai, restive and guarre-some, Moses
was the absolute ruler, answerable only to the God of Israelites. He only
needed a spokesman to reduce the difficulties of his stammering and stuttering.
There was nothing like separation of power. Moses was the executive, the
judiciary and the legislature.
He
was religious, political, legislative and judicial leader. And the burden of
his absolutism began to tell on him.
Moses’
father-in-law, Jethro, took, one careful look at him, and was convinced that there
had to be a change if he was not to prematurely bury a son-in-law. And this was
his advice to him:
The thing that you do is not good. Both you
and these people who are with you will surely wear yourselves out. For this
thing is too much for you, you are not able to perform it by yourself. Stand
before God for the people, so that you may bring the difficulties to God. And
you shall teach them the statutes and the laws, and show them the way in which
they must walk and the work they must do. Moreover, you shall select from all
the people able men, such as fear God, men of truth, hating covetousness: and
place such over them to be rules of thousands, rulers of hundreds, rulers of
fifties and rulers of tens. And let them judge the people at all times. Then it
will be that every great matter they shall bring to you, but every small matter
they themselves shall judge7.
And also, in the book of Deuteronomy
the virtues of Judges are again stated as follows:
You
shall appoint Judges and Officers in all your gates, which the lord your God
gives you, according to your tribes, and they shall judge the people with just judgment.
You shall not pervert justice. You shall not show partiality nor take a bribe,
for a bribe blinds the eyes of the wise and twists the words of the righteous.
You shall follow what is altogether just that you may live and inherit the land
which the lord your God is giving you.
Indeed, the holy bible has
therefore, ordained the moral foundation of a Judge of the people. As Blackstone
once declared:
|
A
Judge must be able, God-fearing and a man of truth and integrity. A judge should
hate or avoid covetousness, that is to say a judge should not be avaricious,
greedy or very desirous of acquiring material wealth. A judge identified with
these virtues will administer justice fearlessly, courageously; without
ill-will or favour, without distinction of race, tribe, greed, religion or sex.
He will be upright and devoid of corruption. Such a Judge will not take bribes
to assist litigants in cases before him. His errors of law are in good faith,
not contrived subterfuges, because no matter how he tries, he must make
mistakes for no man is infallible.
As Oputa,
JSC, stated in A. T. Bakare V. T. S Apena & Ors9. “Perfection
is a laudable aspiration. But for a trial Judge, it is not necessarily a
virtue. For one thing strive as you can, you may never attain perfection. No Judge
however brilliant, however hard-working can claim immunity from error. The very
existence of appellate courts assumes that the courts of first instance may
sometime be in error. Then it becomes the duty of these appellate courts to
correct that error”.
|
This judicial virtue, the
“impartiality”, was also given credit by the eminent Jurist, Hon. Justice. C.
A. Oputa, in his book “the Law and the Twin Pillars of Justice”, when he
observed:
|
Questioning
by the Bench should therefore be done sparingly and only when it is absolutely
necessary. The normal thing is that the Judge does not and should not examine
witnesses. This is a task better reserved for counsel. The Judge should realize
that he is an umpire and that his job is to hold the scales evenly. It is true
that when an umpire enters the arena and participates in the conflict he ceases
to be an umpire, he then becomes a contestant, and in such a case his vision is
definitely bound to be clouded by the dust of the contest.” These therefore
indicate that the esteemed diligence of the judiciary in its adjudication
remains the utmost expectation of the litigants from the Judges.
As was humorously put by Lord Hewart:
11
The business of a Judge is to hold his
tongue until the possible moment and try to be as wise as he is paid to look.
Also, Lord Birkett had observed
thus:12
People unaccustomed to the procedure of the
court are likely to be overruled or frightened, or confused or distressed when
under the ordeal of prolonged questioning from the presiding Judge. Moreover,
when the questioning takes on a sarcastic or ironic tone, as is sometimes
almost inevitable, the danger is not only that witness will be unable to present,
but to be begin to think, quite wrongly it may be, that the Judge is not
holding the scales of justice evenly.
|
REFFRENCE
Justice in
the judicial process (Essays in Honor of Honorable Justice Eugene Ubaezonu,
JCA).
The Judiciary
in the Government of Nigeria
– by T. Akinola Aguda.
Modern Constitutional
Law in Nigeria
by Ben. O.Igwenyi (MON).
Constitutional
Law in Nigeria
–First Edition By –P.A.O Ouyede
The Law
and the Twin Pillars of Justice by – Hon. Justice C.A.Oputa, JSC.
The 1999 Constitution
of the Federal Republic of Nigeria.
Human Rights
in Nigeria-
Millennium Perspective – by Obiaraeri, Nnamdi Onyeka.
Human
Rights Law and Practice in Nigeria.
Vol 1-by Okpara Okpara.
It’s your
Duty to know your Rights- by Agbo Ikechukwu. O (esq).
The Court
and Administration of Law in Nigeria.
Dr. Chief Fidelis Ejike Ume.
The
Black’s Law Dictionary, Ninth edition.
The
Relevance of the Judiciary in the Polity in Historical Perspective- Hon.
Justice A.G. Karibi- White, JSCN Journal of Human Rights Law and Practice
vol.2. Number 3, November, 1992.
All Nigeria Judges
Conference Papers 1995-Kano.
Ife Juris
Review- A journal of Contemporary Legal and Allied Issues. 2004 vol. 1 part 2.
Journal of
Human Rights Law and Practice, vol. 3, number 1, 2,3, December 1993
Nigerian Bar
Journal vol.5 no. 1 February,
2007.
News Watch-
Nigeria
weekly news magazine February
23, 2009.
The
Nigerian Bar Journal- vol. 1. No. 1, 2001.
News Watch-
Nigeria
weekly news magazine-September 21, 2009.