Ibibia Lucky Worika Ph.D.Saturday, August 16, 2003
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Port Harcourt, Nigeria



n recent times, there has been a spate of Nigerian Judges withdrawing from topical cases brought before them, or running away and hiding when called upon to take certain decisions. For example, the swearing in of a Deputy Governor as Governor when the whereabouts of the Governor is either unknown or said to have resigned. One would easily recall that the Chief Judge of Anambra State was nowhere to be found when faced with the prospect of having to swear in the Deputy Governor as Governor. The same Chief Judge later appeared when the dust over the whereabouts of the Governor began to settle.

The trial of the former Deputy Governor of Osun State and others over the murder of a former Justice Minister and one-time Governor of Oyo State, Chief Bola Ige has witnessed the withdrawal of three Justices in quick succession, the latest being Justice Moshood Abbas. The latter Judge was more forthcoming in his reasons for washing his hands off the case as he claimed to have come under intense pressure to miscarry justice. As if this is not enough, Justice Binta Murtala-Nyako of the Federal High Court Abuja threw in the towel in a matter filed by Chief Chris Uba, the acclaimed godfather of Anambra politics as well as the Speaker of the State House of Assembly, Mrs. Eucharia Azodo challenging the continued stay of Governor Chris Nigige, the embattled Governor of Anambra State in office as Governor.

We are told that Justice Binta Murtala-Nyako later transferred the case to Court One presided over by Justice Wilson Egbo-Egbo, whose handling of the same matter has been tainted by the Nigerian Press. What if Justice Wilson Egbo-Egbo equally decides to withdraw from the case citing as reason the fact that his earlier order restraining Governor Ngige from parading himself as the governor and ordering his deputy to take over the running of the State's affairs was misinterpreted by the public in general and the Nigerian Press in particular and leading to his being ridiculed in the eyes of right-thinking members of the public?

It is equally instructive that amidst this macabre dance by the Nigerian Judiciary not a word has been heard from the Nigerian Bar Association (NBA) on the conduct of their members at the Higher Bench. What implications does this propensity of Judges to withdraw from cases in Nigeria portend for justice or its administration in Nigeria, or to put it rather bluntly, should a Judge withdraw from a case?

Attempts have been made throughout human history to define the term, 'Justice' and, even to this day, there is hardly unanimity on what exactly it means. The books of jurisprudence and legal philosophy are replete with complimentary and sometimes contending versions and perspectives of jurists, who in their own right have expressed what in the final analysis boils down to their respective ideological inclinations or attitudinal chemistry on what justice actually is.

In these circumstances, while it may be futile to attempt any definition of the term, 'Justice', it is nevertheless worthwhile to draw from contemporary views, one of which was expressed on the official website of The Law Offices of Frederick J. Taylor in the U.S., which is that: "In the best of human tradition and in biblical perspective", justice "builds peace, pursues truth, shapes community, upholds right and delivers the oppressed. In so doing, it reflects God's character. The good news is that justice is sacred because it is a dimension of the One who makes us just". While some would argue that this is more or less a theological perspective as opposed to a strictly legal perspective, it nevertheless gives us some premises on which to begin our discourse. Strict legal justice may not be necessarily synonymous with what is just.

What is 'Just'? What is 'Just' is said to be what is "Ethically, morally & legally correct". Again, not many would agree with this though since what is legally correct may not necessarily be morally or ethically sound or vice versa. Yet we all feel a sense of justice or injustice depending on the circumstances of a given case. In Nigeria's adversarial system of justice, borrowed largely from the common law tradition of England, doing justice in any given case may not be different from simply righting wrongs and, indirectly, deterring would be offenders from violating the rights of others. The word, 'offenders' is not exclusively used in the criminal law connotation, but encompasses civil offenders of the rights of others as well.

Within this context, Aristotelian prescription of the constant and perpetual disposition to render to every man his due is one of the signposts of justice. Accordingly, if a Judge, who has sworn to uphold justice under the constitution and to uphold its values, withdraws from a case, or washes his/her hands off the case on the ground that he/she has come under intense pressure to pervert the course of justice, it is arguable that such a Judge has refused to uphold or do justice in the given case. As ludicrous as a Judge withdrawing from a case may seem, it has become the emerging scenario in the Judiciary's administration of Justice in Nigeria.

The Judiciary in Nigeria as indeed in all other democratic and even not so democratic societies the world over is vested with the sole responsibility of doing justice between the various other arms of government, between one tier of government (federal) and another (State) as in a federal system, between the State and its citizens as well as between citizens qua citizens. Such a responsibility is, no doubt, onerous, as it is the final say on any disputes in the country. It also has the final say on matters relating to the interpretation of the constitution of the country. It is against this backdrop that some have said that as unpalatable as it may seem, any nation can live with legislative or executive tyranny.

In the final analysis, the people have a right in a democratic setting to vote out members of the executive or legislature. But this is not the case with the judiciary, whose members are not just carefully and constitutionally selected from only the legal profession, but whose mode of removal is also studiously spelt out to avoid intimidation from any of the other arms of government. It is equally instructive that members of the judiciary have been largely insulated from even military coup d'etat in Nigeria.

It is generally agreed the world over that the technical legal training given to lawyers not just on strict legal rules but on professional ethics at the Bar make them fit and proper to discharge these constitutional obligations over and above all others within any given society. Admittedly, traditional Africa did not have lawyers schooled in western legal system rules and yet administered justice. But, except we are suggesting that African States should go back to pre-western civilization era in not just the administration of justice but in all areas of human endeavour, we must accept that the legal profession is most suited to resolve conflicting interests and claims that arise from modern transactions.

We often take for granted that unlike most other professions, there are strict rules and codes of conduct guiding the appointment of Judges even within the legal profession in Nigeria. After spending six years at the law faculty of a university and an additional year at the Nigerian Law School, a person must have spent at least an additional ten years practicing in the profession to be appointed to the position of a Judge of High Court in Nigeria. In practice, this usually exceeds ten years because of the increasing number of legal practitioners declaring a preference to become members of the higher bench.

In addition, all such nominees usually undergo a screening process informally with the local branch of the National Bar Association (NBA), but formally and firstly with the State Security Service and, secondly, from the National Judicial Service Commission (NJC). Even when a person has passed through these various stages, he/she might still not be sworn-in on account of say a petition filed against him/her, which must be considered nonetheless on its merit. It is against this backdrop that the emerging scenario of withdrawal of Judges from topical cases continues to perplex one to silence.

The implication of this emerging scenario is either that the process of the selection, screening and appointment of Judges in Nigeria is not gapless or that indeed Judges are subjected to very intense pressures of a kind that is perhaps, life threatening. To be sure, within the Nigerian context, it is certain that the system for the selection, screening and appointment of Judges cannot be faultless. Those who nominate them are human and within the fallibility of human nature in Nigeria, emotions or sentiments based on friendship, kinship, tribe, political sympathies, old-boys or club associations cannot be completely ruled out. Those who do the screening and appointment are equally human, subject to the same biases or prejudices not quite uncommon in Nigeria.

We may tighten the rules, but we would still be dependent on the sense of equity and good conscience (justice) of those doing the nomination, selection, screening and appointment. However, this is not peculiar to Nigeria as it is the same in all other societies. What is lacking in Nigeria's procedure for the nomination, selection, screening and appointment of Judges is transparency. Until there is an inbuilt transparency in the rules and procedure we will continue to miss the bus. By transparency is meant publishing the names of those nominated as Judges and those to do the nomination, selection, screening and eventual appointment and giving Nigerians the right, or at least members of the legal profession the right to raise objections, which must be looked into fairly and objectively by another Panel. This is not to suggest that transparency would completely eradicate the problem of appointment of persons, who though lawyers with over ten years experience at the Bar are not fit and proper to be Judges of the High Courts in Nigeria. What transparency would do is to reduce the gap in such a manner as to make it difficult if not impossible for such unfit and improper persons to be Judges in Nigeria.

The second implication is that Judges in Nigeria are sometimes subjected to pressures that are so intense, perhaps, life threatening. Indeed, this is to be presumed in all cases brought before a Judge and even when the Judge is not in Court. That is the reason why Police protection in the form of orderlies is attached to Judges, whether at home, in the office or in transit. True, with the murder of late Justice Minister, Chief Bola Ige, who had not just an orderly but several mobile police men guarding him, who allegedly went to eat at the time the Killers struck, one cannot confidently say that police protection for Judges can absolutely guarantee safety of their lives. Even so, at the time of writing, one cannot recall with certainty the murdering of any Judge in Nigeria, not that a Judge must necessarily be murdered before threats to their safety should be taken seriously.

In any event, some would argue that what is life threatening may not be so direct. That even where a Judge is threatened with unceremonious retirement, discrimination, or marginalisation in the perquisites of his office as to create reasonable apprehension in him/her, there is threat to his/her life. One disagrees with this view. Even if this were conceded, it may not be sufficient to justify why a Judge should withdraw from a given case. Even the threat of imprisonment or death may not legally justify a Judge's withdrawal from a case.

To be precise, there are circumstances in which a Judge can withdraw from a case such as where he/she realizes that he/she has an interest in the matter pending before him/her. This is on the strength of the maxim that one cannot be a Judge in one's own cause - nemo judex in causa sua, one of the foremost principles of natural justice. A Judge, who goes on to determine a case in disregard of this principle will have his/her decision nullified on appeal. The other circumstance cannot strictly be described as 'withdrawal' because a Judge for instance lacks competence to hear the matter. A lack of competence arises where he/she lacks jurisdiction, or where jurisdiction is vested in another court or tribunal and, the case is mistakenly or erroneously brought before the Judge. Aside from these instances, our laws in Nigeria make no provision for a Judge to withdraw from a case on the ground that he/she is under pressure to subvert justice, which the Judge has sworn to uphold in any case.

It is the opinion of this writer that Judges who withdraw from cases on the ground that they are under pressure to subvert justice do not respect their oath of office under the constitution. Such Judges are not fit and proper to continue as Judges of the States of the Federation or of the Federal Republic of Nigeria. While we applaud their courage to let us know that they are under pressure to subvert justice, such courage does not go far enough to do justice in the circumstances. It is even worse when it is considered that none of the Judges involved has ever told Nigerians where such pressures are coming from or those involved in pressurizing them. The popular statement, "My hands are tied", still does not tell us who is tying the Judge's hand.

The case of Anambra State, where the Chief Judge simply vanished from the scene rather than confront those involved and tell them straight in their faces that what they were about to do is illegal, smacks of judicial timidity in the face of arrogant ignorance. It is said that all it takes for evil to triumph over good is for good men to do nothing. By being silent, ignoring, or acquiescing to the current disgusting propensity of Judges to withdraw from topical cases, the members of the Nigerian Bar Association and the nation's judiciary are gradually sliding towards the abyss in terms of their capacity to administer justice in the land.