The Bench and the Bar-Inseparable Partners in the Dispensation of Justice

THE BENCH AND THE BAR-INSEPARABLE PARTNERS IN THE DISPENSATION OF JUSTICE.

BEING A LECTURE DELIVERED AT THE

1ST CHIEF G.O. SODIPO MEMORAL LECTURE

The letter of invitation dated 14th November 2000 and signed by Dr. Bankole Sodipo contains such contents that must naturally compel any human being of good disposition to life not to decline the request to deliver this lecture) indeed the first one in celebration of the life and times of Chief Gabriel Oliyide Sodipo, a committed legal practitioner of many years of active legal practice before he answered the great call. Paragraph two of the said letter talks of his Motto as "Contentment with Godlines is great gain" He practised this valued rule of behaviour and he was said to have taught all those who came across him while he sojourned on this side of the divide its tenets. It is therefore undoubtedly a great pleasure and honour to me to have been invited to deliver the first lecture. I therefore wish to place on record my profound gratitude for being given the rare privilege to deliver this lecture. It is no doubt a great responsibility that the organisers of this lecture have placed on themselves. Records have shown, in this country that many first and even second lectures put up in honour of our great men have ended up at that stage. You have a duty to make this event a continuous one. I do hope and pray that an event like this in honour of such a great man of God will be an unbroken annual event. It was also indicated in the said letter that I could base my lecture on any area of law that interests me. After ruminating on his Motto while he was with his us here and having regard to his calling, I came to the irresistible conclusion that this lecture must centre on the two arms of the profession - THE BAR and THE BENCH - their duties to dispense justice.

OUTLINE OF THE LECTURE

I shall divide this lecture into three compartments (1) THE BENCH (2) DISPENSATION OF JUSTICE - the pursuit of and (3) THE BAR and ITS ETHICS (4) THE MAN-CHIEF GABRIEL OLIYIDE SODIPO.

THE BENCH

The role or cardinal duty of any judge sitting in the citadel of Justice, in any country that upholds the rule of law as a way of life, is the attainment of justice in any case that comes before him. When it is realized that the basis of societal conflict finds clear expression in the refusal by man to give to man what is due to man then the importance of dispensing just order cannot but be appreciated~ On the shoulders of judges would therefore rest the initial burden of ensuring that no one unjustly suffers the deprivation of his liberty or freedom or is denied his rights without adherence to the due process of law. It follows that the, crucial service which a judge must render to the society is one removing from it a sense of injustice. To be well prepared to discharge this service, a judge must possess a high sense of impartiality. He must be a person possessing, in full, the qualities of that ideal bridegroom approaching marriage or an ideal priest approaching priesthood. If he yields or bends at all, it is straight to the side of the truth and honour's sake. He must present the picture of a person ready to make any sacrifice provided that justice will be the ultimate result. And such is the indispensability of justice that it is repeated in several portions of the HOLY BOOKS - the Holy Bible and the Quran. Cicero in his book "ON DUTIES" said;

"The brightness of virtue shines above all in justice."

Aristotle in his NICHOMACHEN EHTICS paints justice in a glowing poetic manner thus:

"Neither the morning Star nor the evening Star is -·as glorious as justice."

But the job of judges is by no means an easy one. They often do what the rest of the people seek to avoid; handing down judgments. And this function, they perform in the public. They are mere mortals yet they are always called upon to perform a function that is truly divine. In St. Matthew Chapter 7 Verse 1 the WORD OF GOD SAYS "DO not judge or you will be judged"

It must not be lost sight of that as mere mortals that judges are, they are subject to the same ambitions, passions, prejudices and fears as their other human beings. Ambitions, passions, prejudices and fears are some of the vices that militate against dispensation of true justice. Over the years several attempts have been made from several quarters and in several geographical territories to get those elevated to the post of an adjudicator to drop the toga of vices. Sir Alfred Denning (popularly referred to and called 'Lord Denning Mr, R.) of blessed memory, in his book "The Road to Justice" said:

"Once a man becomes a judge, he has nothing to gain from further promotion – though it may not escape his attention that High Court Judges are paid less than Court of Appeal Judges who are paid less than Law Lords and that more attention is given to the pronouncement of more senior judges."

Since judges are men, mere mortals and not saints, infallibility is not their virtue. We must expect from them in things done by them foible and/or frailties. We should not because of this lapse make a total and irredeemable condemnation of this class of human beings. Rather, we can and indeed we must take necessary precautions to evolve a panacea to limit or reduce the damage such imperfections might otherwise do to the interest of justice. It seems to me that by a careful scrutiny of all aspects of the judiciary we can have the hope to detect, deter and defeat potential injustices. Let it be said loud that a judiciary that is not independent or seen to be truly independent - a judiciary that goes cap in hand to beg for money to run its affairs can never and should never be expected to discharge its sacred duty 'of dispensing justice in the ideal way it should. Hon. Justice Oputa (a retired Justice of the Supreme Court in his Essay In Law, Justice and Stability in Nigeria an integral post of collection of Essays all titled "Towards Greater Efficiency in the Dispensation of Justice in Nigeria - in honour of Hon. Justice Kayode, Eso C.O.N. (another retired justice of the Supreme Court said:

"Without judicial independence, no Judge or Justice however well prepared by qualities of heart, mind and professional training, can give full effect to the enduring values enshrined in our basic law - our constitution. Since the independence of the judiciary is a concept and a role which have been unconsciously and sometimes willfully misunderstood, as the judiciary trying to turn itself into a government within government, it becomes necessary to emphasize that any freedom, any immunity, any privileges accorded to the judge are not accorded so much for their own sake, as for the sake of the public. No judge tries his own case, nor should he try any involved. Any power given to the judge, therefore is not given for self - advancement or self aggrandisement. Such powers are necessary for greater efficiency in the administration and dispensation of justice. They are given for the advancement of - that being free and independent in judgment, so that they may better and mare efficiently and more effectively perform their necessary duties to the course of justice including protecting all of us - the government and the governed; the powerful and the weak - from power and its abuse A weak - kneed and dependent judiciary can be awful, an ill-wind that blows no one any good."

I would like to say that for as long as rule of law is prevalent in our society for so long shall the judiciary be unable to shirk its sacred duty to the nation to maintain the rule of law. It is both in the interest of government and all persons. The judiciary exists to foster the rule of law. We should not fail to remind ourselves that when we are in power and we think we do not require the law and its protection and we consequently lock up the door of the law and throwaway the key; if eventually after leaving office we feel we now require the law we will not be able to find the key. We would then be victims of the operation of anarchy. In the Supreme Court decision in ELESO VS. GOVT OF OGUN STATE (1990) 2 NWLR (PT 133) 420 Hon. Justice Karode Eso brought into focus the importance of the rule of law when he said:

"In exercise of his powers as a matter of order, peace and good government the Governor must have a recourse to law. The Governor is certainly not there to seize the power of other functionaries, nor is he there to rule in dictatorship in disregard of the established laws of the land. That would not bring order nor peace nor good government."

ESO J.S.C. further reasoned in his "Thoughts on Law and Jurisprudence published by MIJ Professional Publishers Ltd at page 253 thus:

"For 'Law to be justified in any society, it must be just. It is justice that enables law to appear in any society as an accepted norm, or an agreeable concept, and it is justice that could ever give 'law a socially and culturally high significant meaning.

One cannot but agree with VISCOUNT RADCLIFFE when in his write - up titled "The Law And Its Compass he said:-

"If the law is to stand for the future as it had stood for the past, as a sustaining pillar of society, it must find some point of reference more universal than its own internal' logic."

I cannot but recollect here with admiration the thought as expressed by Lord Reid on the purpose of the pursuit of law which is justice when in delivering the judgment in MYERS VS. D.P.P. (1965) A.C. 100 he said and I quote him.

"Law must be developed to meet changing economic conditions and habits of thought."

The rule of law is about the dispensation of justice which itself is never given rather it is a task that must be achieved. Justice should be demanded as of right. It has never been and it will never be a marketable commodity. In Section 4 of the MAGNA CARTA it is provided thus:

TO no one will we sell …………………………………………

……………………...... right of justice.

I will not have satisfied myself if I fail to say that though the independence of the Judiciary may be expressed in the courageous manner in which a judge adjudicates in disputes between the citizens and the executive, a balanced judiciary should not be seen to set itself in a head-on collision with the executive or the legislature and the judiciary. In foistering harmony, the judiciary must never set out to be more executive than the executive itself. In its very crucial and delicate duty of examining matters or disputes affecting the executive and/or the legislature its pre-occupation is to chart the solid and clear path that leads to justice.

EXERCISE OF JUDICIAL POWER

Let me however say that the power of the judiciary to hold the government or the elected accountable, in law, for all their deeds and misdeeds, is precious but it appears to be fragile. We must not forget that under our system which is fashioned after the British legal system, our Judges are not elected nor do they govern. But imbued by our special training, judges are under a duty to ensure that those who govern, be they elected by the people or not act in accordance with the law. Much as this type of intervention is desirable, I think the judiciary must be watchful not to exceed the bounds which command the respect of the society. Nor must judicial intervention be allowed to be given the colouration of political sympathies or the universal belief in the impartiality of that institution will be lost and respect for it will soon decline. The delicacy of the main duty of the judiciary together with the preservation of its universally acclaimed image of impartiality must always be kept in mind as the areas of growth of the judicial role are surveyed. This call for assessment, from time to time, of what judges can and what they cannot, achieve. However, at the risk of sounding to be immodest, judging from the nature of the atmosphere under which the judiciary of this country has operated or found itself before or after independence whether under the colonial administration, the civilian regime or military regime, it has performed creditably well. Prior to the advent of the British on our soil, the people have fashioned for themselves certain usages by which their lives were regulated. Such usages are called a body of unwritten customs and traditions which the people came to accept as obligatory for the regulation of the relationship between them. However, such usages often called customary law, do often adjust positively to changing social conditions. The judiciary, a keen watcher of social changes never failed to strip any custom of its character of law if it failed to respond to changing social conditions no matter its claim of acceptance by the people. It is its quality of ability to adopt to changing social conditions that has earned customary law, through court's pronouncement, the appellation of "mirror of accepted usage" The courts have never hesitated to pronounce as legally ineffective or dead, customs which are reasonably seen to be repugnant to equity, natural justice and good conscience. The court has never failed to impose the culture of rule of law on the society-. The first salvo of this imposition was fired in the well-known case of ESUGBAYI ELEKO VS. GOVT. OF NIGERIA (1931) A.C. 663. When it declared:

"No member of the Executive can interfere with the liberty or property of a subject except on the condition that he can support the legality of his action before a court of justice."

Since the Esugbayi Eleko case our law reports have become replete with instances of where the courts have remained resolute in the defence of the Rule of Law see the cases such as (1) GOV. OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR (PT 18) 621 (2) GARBA VS. F.C.S.C. (1988) 1 NWLR (PT 71) 449 (3) LAKANMI VS. A-G. WESTERN STATE & ORS (1971) 1 U.I.L.R. 201 and (4) BALEWA VS. DOHERTY (1963) 1 WLR 949.

A FORWARD LOKKING JUDICIARY

Man's desire for excellence in all his endeavours is insatiable. He believes that there is room for improvement. The art of judging, which is the pre-occupation of the judiciary, is a divine contrivance. I shall soon support this statement with authorities. But, being propelled by man, a device for self-improvement of the judiciary must always be in place - perhaps this explains why we have the Continuous Legal Education Seminars and Conferences within the Judiciary. The position of a judge is undoubtedly on all-powerful one. And to whom much is given much is desired of. Joseph Barkin in his book said:

“To the public mind and conscience the judge is the trustee of the assurance of justice ...... He presides, he administers, he decides …………..... There is no other civil officer clothed with such summary power.

To my mind a judge must represent justice and integrity in all his undertakings. Every judge must not only, in theory, but more importantly, in practice, adhere to clause 40 of MAGNA CARTA 1215 which enjoins all judges to put themselves in positions where they will be able to say with all good conscience and without any fear of equivocation that “TO NO ONE WILL WE SELL JUSTICE, TO NO ONE WILL WE DENY OR DELAY RIGHT OR JUSTICE - the LATIN MAXIM being NEMINI YENDEMUS, NEMINI NEGABIMUS AUT DIFFEREMUS RECTUM AUT JUSTITIA. Judges must always realise that they hold justice in trust for GOD who is the SUPREME JUSTICE of all.

SUMMARISING CODE OF CONDUCT FOR THE JUDEX

I shall now attempt to go into the celestial code of conduct for adjudicators. If judges will have a second look at the Oath they took on the occasion of their swearing - in ceremony, they will discover that their ultimate allegiance for everything they do is to GOD ALMIGHTY. This is because at the end of each of the Oaths they made applications to God Almighty for His assistance to discharge their duties well. The concept of appointing judges is as old as human evolution. Such appointment of judges must always receive DIVINE APPROVAL accompanied by divine ethics binding the appointees. The HOLY BOOKS are replete with this ethics. In II Chronicles Chapter 19 Verse 6 it is said:

"Consider carefully what you do because you are not judging for man but for the Lord who is with you whenever you give a verdict.

I posed the question who is JUDGE?"

I find answer in Psalm 50.6 where the Psalmist says:

"And the heavens proclaim His righteousness for GOD HIMSELF IS JUDGE."

Human beings privileged to be appointed as Judges are therefore His servants directed by HIM to discharge that sacred duty.

The qualities which an ideal judge must possess are clearly spelt out in the HOLY BOOKS. In Exodus 18:21-22 it is said:-

"But select capable man from all the people - men who fear God, trustworthy men who hate dishonest gain - and appoint them as officials over thousands, hundreds, fifties and tens. Have them serve as Judges for the people at all times."

In the same book of EXODUS 23:6-8 Judges are enjoined thus:

"DO not deny justice to your poor people in their law suits. Have nothing to do with false charges and do not put an innocent or honest man to death, for I will not acquit the guilty. Do not accept bribe, for a bribe blinds those who see and twist the words of the righteous. Do not oppress an alien, you yourselves know how it feels to be aliens, because you were aliens in Egypt."