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Nigerian Judicial System – Separating the Wheat from the Chaff By SAM KARGBO


Sam Kargbo


Conflict is a part of the nature of humanity. It is, therefore, not surprising that every era of human development has witnessed the creation and operation of mechanisms for the resolution of conflicts. Whereas conflict may not by itself be good or bad, its management or mismanagement may make it positive or negative. Thus, to be effective, enduring and self-sustaining, the mechanism of conflict analysis, processing, management and resolution must be fair and just to the conflicting parties and the public. The nature of conflict also calls for the intervention of the third party with authority to pass binding judgment over the conflict and personify justice. For unconvincing reasons, the State or sovereign has always considered it necessary to retain judicial powers. But Jethro’s advice for Moses, his son-in-law, is quite instructive. In Exodus 18:18, he warned Moses, “You and these people who come to you will only wear yourselves out. The work is too heavy for you; you cannot handle it alone.” Thus, in Exodus 18:21-22, he counselled Moses to “select capable men from all the people – men who fear God, trustworthy men who hate dishonest gain – and appoint them as officials over thousands, hundreds, the fifties, and tens. Have them serve as judges for the people at all times, but have them bring every difficult case to you; the simple cases they can decide themselves. That will make your load lighter because they will share it with you.”

In consonance with the need to delegate powers to persons who will not pervert justice, who will not show partiality to the poor or favoritism to the rich or powerful, but judge neighbours fairly, section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) vests the judicial powers of the Federation of Nigeria to the courts of the land.This background should give the leeway to use the words “judge”, “justice”, and “courts” interchangeably.

Under section 290(1) of the Constitution, a person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed by the Constitution and has subsequently taken and subscribed to the Oath of Allegiance and the Judicial Oath prescribed in the Seventh Schedule to this Constitution. The Oath of Allegiance by which a judge promises absolute fidelity to the Federal Republic of Nigeria enjoins judges to preserve, protect and defend the Constitution against its breach and perversion. The Judicial Oath, on the other hand, is as follows:

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 the 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.

The Judicial Oath is not in any way different from Moses’ injunction to the judges he chose for the Israelis in consideration of the counsel of Jethro, his father-in-law, when he said in Deuteronomy 1:16-17, “I charged your judges at that time: Hear the disputes between your brothers and judge fairly, whether the case is between brother Israelites or between one of them and an alien. Do not show partiality in judging; hear both small and great alike. Do not be afraid of any man, for judgment belongs to God. Bring me any case too hard for you, and I will hear it.”

A judge must be a handmaid of justice. There should not be a distinction between a judge handling a case and the justice of the case. Whereas in theory, the moral force in the legal system is personified by a blindfolded virgin maid who holds a scale of justice on a balanced and steady left hand and a judgment sword on right hand, the justice or otherwise of a case or conflict is personified in the judge or adjudicator. A judge must judge litigants fairly. The Holy Bible forbids a judge to accept a bribe, “for a bribe blinds the eyes of the wise and twists the words of the righteous.” A judge must “follow justice alone.”As the Bible stresses, judges should consider carefully what they do because they are not judging for man, but for the God, who is with them whenever they give a verdict. Any judgment delivered in accordance with either the judicial oath or religious injunctions will certainly not countenance partiality or bribery. A bad or corrupt judge is one who devises injustice in his or her heart and wrecks violence on the society whose confidence he or she equally betrays.

No bad judge acts alone. He or she is part of a ring of injustice. The Bible says, in Jeremiah 5:26-28, “Among my people are wicked men who lie in wait like men who snare birds and like those who set traps to catch men. Like cages full of birds, their houses are full of deceit; they have become rich and powerful and have grown fat and sleek. Their evil deeds have no limit; they do not plead the case of the fatherless to win it, they do not defend the rights of the poor.” The confluence or conspiracy of this ring of evil is described in Micah 7:3-4 as follows: “Both hands are skilled in doing evil; the ruler demands gifts, the judge accepts bribes, the powerful dictate what they desire – they all conspire together. The best of them is like a brier, the most upright worse than a thorn hedge.”

The fact that we live at a time when judges judge for bribes, pastors and imams teach for a price, and prophets tell fortunes for money should bother us. This is why I am worried about the spate at which judges are being thrown out of the Bench on account of corruption and sundry breaches of the Oath of Allegiance and judicial oath. Six days ago, on Thursday, September 29, 2016, the National Judicial Council (NJC), recommended the removal (from office) of the Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Ladan Tsamiya, Chief Judge of Enugu State, Justice I. A. Umezulike, and Justice Kabiru M. Auta of the High Court of Justice, Kano State. The NJC is a creation of the Constitution and plays a proactive role in the appointment and removal of Federal and State judicial officials. In considering the purport of its recommendation, it is advisable that we look at its composition. The composition of the NJC, as prescribed in Paragraphs 20 of Part 1 of the Third Schedule to the 1999 Constitution, is wide and extensive. It comprises the following: (a) the Chief Justice of Nigeria who shall be the Chairman; (b) the next most senior Justice of the Supreme Court who shall be the Deputy Chairman;  (c) the President of the Court of Appeal;  (d) five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal; (e) the Chief Judge of the Federal High Court; (f) The President of the National Industrial Court; (g) five Chief Judges of States to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years; (h) one Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years;  (i) one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years; (j) five members of the Nigerian Bar Association who have been qualified to practice for a period of not less than fifteen years, at least one of whom shall be a Senior Advocate of Nigeria, appointed by the Chief Justice of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment: Provided that the five members shall sit in the Council only for the purposes of considering the names of persons for appointment to the superior courts of record; and (k) two persons not being legal practitioners, who in the opinion of the Chief Justice of Nigeria, are of unquestionable integrity.

While the NJC recommended the retirement of Justice Mohammed Ladan Tsamiya and Justice I. A. Umezulike, it recommended Justice Kabiru M. Auta’s dismissal from service with immediate effect, and ordered him to be handed over to the Assistant Inspector-General of Police, Zone 1, Kano, for prosecution. This, to my mind, should be worrisome in many respects. Ladan Tsamiya is a Presiding Justice of the Court of Appeal, a court that is second only to the Supreme Court in the hierarchy of the courts in the land. It is more than worrisome for such a person to be associated with the allegation of touting and trading in injustice to the point of his being recommended for early retirement. This should call the entire legal system to arms. Borrowing the words of Honourable Justice Monica Dongban-Mensem JCA, this should stir a volcanic reaction in the stomachs of members of not only the public and lawyers but judicial officers whose image is under trial.  Honourable Justice Dongban-Mensem had – in the case of Att. – Gen., Lagos State v. Eko Hotels Ltd. (2008) ALL FWLR (Pt. 398) 235 –admonished lawyers and the public to have faith in the judicial process. The learned Justice had a piece of advice for every Nigerian –conveyed in a very bold statement:

May the day never come when Judges will be reduced to puppets as in working in the terms of who pays the piper dictates the tune. This will totally negate the principle of the rule of law enshrined in our Constitution. All Nigerians will be the worse off for it. Let me drum it out again, for the repeated time like ‘Abiku’, that by the nature of the oath of office taken by every judicial officer, independence is conferred on the individual Judge to do justice among the people of Nigeria… in accordance with the Constitution of the Federal Republic of Nigeria and the law…’ (Ref.: Judicial Oath, 7th Schedule 1999 Constitution of the Federal Republic of Nigeria). Any Judge who cannot uphold this oath of office should take an honourable exit rather than remain and pretend to dispense justice. If there is such a Judge, he or she shall one day be dispensed with by justice. Although a learned counsel appears for different parties to whom they owe some form of loyalty, allegiance with the cause of justice must always be paramount; they are always ministers in the sacred temple of justice. Lawyers particularly should have faith in the judicial system. The stratified nature of the hierarchy of the judiciary should put the minds of litigants at rest. The principle of the adversarial administration of justice entrenches fair hearing at the epicenter of the administration of justice in Nigeria. Every proceedingstarts with one Judge at the trial, then three Justices at the Appellate stage as two heads are better that one. Then at the Supreme Court, we have learned Justices of proven prowess. If anyone should be doubted in this system, certainly, it should not be a learned counsel. We often run into difficulty when we look outside the law whenever we think the law is too slow. Learned counsels must encourage their clients and bear the torch of faith in the judicial system. The alternative is ugly, and none will survive, not even the perceived rich and powerful. Let us all consolidate and build upon the experience of the judicial arm with the democratic dispensation. No democracy will survive without the rule of law being applied equally to all in the courts of law and all persons, human, corporate and government alike.

With the case of a Presiding Justice of a Division of the Court of Appeal being fingered in perverting justice, everyone should be worried. The case of the Chief Judge of Enugu State, Justice I. A. Umezulike, is no less terrifying. He is a Chief Judge and therefore sits atop the judiciary in Enugu State. If he lacks the discipline and comportment to dispense promptly impartial justice to litigants in that state, then the trickle-down effect can only be imagined. The NJC also recommended the prosecution of Justice Kabiru M. Auta of the High Court of Justice, Kano State. I will, therefore, stay my comments on him in the hope that he will not be found guilty of taking bribes. If he is however found guilty, I shudder to think what such a conviction will mean for the judiciary.

I have always maintained – and will keep maintaining – that the few bad eggs in the judiciary should not be allowed to spoil or destroy the large basket of good and hardworking men and women on the Bench. It is in that spirit that I urge the leadership of the Bar to complement the efforts of the NJC. As the Bible says, corruption in the judiciary is a conspiracy of audacious conspirators that include members of the Bar.  The cases treated by the NJC should give the lead to the involvement of members of the Bar. Bad eggs should be shown the way out of the noble Bar.