By Garba Abubakar Shehu, Esq.
A paper presented at Walima/luncheon and symposium jointly organised by Muslim Lawyers Association of Nigeria and Law Officers Association of Nigeria, Kebbi Chapter in honour of Their Lordship Hon. Justice Hassan Shehu Kuwwa, Hon. Justice Maryam Abubakar Ka’oje, Hon. Justice Shamsudeen Jaafar Hon. Khadi Nasiru Umar Zagga, Kabir Aliyu (SAN), Hauwa Usman Usara, (Secretary/legal Adviser, NAMA) and Alh. Salihu Hamisu Gulma.
It is pertinent to start with the definition of ethics before dwelling into the meaning of ethics and etiquettes of a judge under our legal system. The word ethics is defined in the Oxford Advanced Learner’s Dictionary 8th Edition at page 500 as:
“The branch of philosophy that deals with moral principles”.
In the black law dictionary 10th Edition at page 670 it has been defined as:
“a system of moral tenet or principles; the collective doctrines relating to the ideals of human conduct and character”
Similarly, the word etiquette has been defined in the oxford dictionary as:
“The customary code of polite behaviour in society or among members of a particular profession or group.”
The ethics of a judge therefore encompasses those set of values that a person occupying the office of a judge should be adhered to by virtue of the office he occupies.
Therefore, the topic of this paper will focus on the values and moral principle expected from a person occupying the noble position of a judge under the Nigeria legal system.
The Nigeria legal system consist of:
- The common law including the statutes of general application received before 1900.
- The Nigerian legislations
- Case law
- The Islamic law
- The customary law
Both whenever there is a Nigerian legislation on a subject the application of common law and statute of general application will no longer be allowed, for this reason with the codification of judicial ethics as contained in the revised code of conduct for judicial officers of the federal republic of Nigeria 2016 which contained judicial ethics for the regulation of the behaviour of judicial officers. I shall made reference to some of the rules contained therein and where circumstance require reference will be made to the judicial ethics of a judge under Islamic law being part of the Nigeria legal system.
The reasons why there is a greater emphasis on the ethics and etiquette of a judge is because judges stand out as the pivot around which the judicial system and the administration of justice in our country revolves. This is because they wield and exercised enormous and far reaching judicial powers which our constitution denoted to the 3rd Arm of Government under the provision of section 6 of the constitution of the federal republic of Nigeria 1999 as amended.
According to the Roman Slave PUBLICUS SYRUS in one of his moral saying published in the Punch newspaper of 8th January, 2010. He said:
“The greater a man is in power above others, the more he ought to excel them in virtue. None ought to govern who is not better than the governed”
For the purpose of this paper permit me to borrow the words of his lordship Hon. Justice S.D. Kawu, the Chief Judge of Kwara State High Court in his paper delivered virtually titled; Judicial Ethics and code of conduct, where he stated:
“None ought to sit in judgement over his fellow human, except he is better in good behaviour and character. In other words, judges who judges their fellow men must be high up in the ladder of judicial ethics and conduct”.
In other to ensure this high degree of moral value a code of conduct for judicial officers of the federal republic of Nigeria has been put in place in 1998 which was revised in February, 2016.
The code contained 15 Rules and a long preamble which constitute integral part of the code in fact according to the code of conduct for judicial officers of the federal republic of Nigeria, the preamble to the code shall be construed as an integral part of the code and its provisions shall be as enforceable as the provisions of the specific rules in the code. The code as adopted came into force on the 24th February, 2016 which serves as the minimum standard of conduct to be observed by each and every judicial officer as defined under the code.
The definition of judicial officer under the code, means a holder of the office of the Chief justice; a Justice of the Supreme Court; the President or the Justice of the Court of Appeal; the Chief judge or Judge of the Federal High court; the President or Judge of the National industrial court; the Chief judge or Judge of the High court of a state and of the Federal capital territory, Abuja; the Grand Khadi or Khadi of the Sharia court of appeal of a state and the Federal capital territory, Abuja and every holder of similar office in any office and tribunal where the duties involve adjudication of any dispute or disagreement between persons and persons (Natural or legal) or person and government at federal, state and local government levels including the agent and privies of any such person.
According to the code, it applies to the categories of judicial officers throughout the federation as defined in the code. And violation of any of the rules contained therein shall constitute judicial misconduct and or, misbehaviour and shall attract disciplinary action.
The code requires that a judge should avoid any dishonest. Immoral or inappropriate behaviours. A judge should avoid breaching the laws of the land, this is because if he does, then public confidence in the integrity of the entire judicial system will be eroded especially when the same judge may be called upon to try those who contravene the same law another day.
A judge is also enjoined to maintain professional secrecy and avoid discussing any confidential information which he may acquire in the course of his duties with any body including his family.
Any social relationship that may give members of public an impression that he will not be impartial in deciding cases, should be avoided by a judge. Impartiality is a cardinal requirement; thus, a judge must show clearly that in respect to or in connection with proceedings in his court, he shall remain impartial. A judge is required to harbour no prejudice, passion or personal feelings against any party while deliberating over cases submitted to him for adjudication. He is required to evaluate facts as presented to him by the parties in a balanced manner without any predilection. He must hold the balance of the scale of justice evenly it is as a result of this fundamental requirement of impartiality that it is often said justice must not be only done but must manifestly and undoubtedly be seen to be done. See THE ADMIN & EXEC OF THE ESTATE OF ABACHA VS. EKE-SPIFF & ORS (2009) LPELR 3152 (SC).
A judge is therefore required to either disqualify himself or disclose on record, where he feels he is in doubt of his impartiality in a case he is handling. Therefore, where he discloses the reason why he feels he should not hear the case and the parties still want him to proceed with the case, none of them will rely on the said reason to impugn his decision. See OLUE & ORS V. ENENWALI & ORS (1976) LPELR – 2612 (SC) where the Supreme Court in dismissing the appeal held:
“In the circumstance of the present case we cannot see how the independence or the impartiality of the learned trial judge could be impeached, the learned trial judge expressly drew the attention of the counsel and their clients to the fact that he was the counsel to one side at the early stages of the proceedings and offered to withdraw from continuing with the proceedings. Both counsel and clients expressly wanted the judge to go on. We cannot see how section 22 can apply in this case. We also consider the argument of learned counsel for the respondents, that the parties have expressly waived their right under section 22 as well founded.
The right to challenge or impugn proceedings of any court or tribunal which was tainted by the adjudicator being disqualified by interest or likely hood of bias may be lost by express or even by implied waiver of the right to object to the adjudicator at the first opportunity during the proceedings”.
Section 22 of the 1963 constitution is in pari materia with section 36 of the 1999 CFRN as amended.
Similarly, a judge is allowed to engage in arts, sports and other social and recreational activities, provided they do not adversely affect the dignity of his office or interfere with his judicial work.
A judge should not accept any chieftaincy title while in office. See Rule 13.2 of the Code.
The judge and members of his family and staff shall not ask for or accept any gift, favour or loan in connection with the discharge of his judicial duties. But he can accept gifts from relations or personal friends on occasion and in quantities that are recognized by custom e.g. at weddings, naming or burial ceremonies. He may also accept books or law report supplied by publishers on a complementary basis or loan from banks or lending institutions on terms generally available to members of the public.
A judge shall not practice law nor act as an arbitrator while still serving as a judicial officer.
A judge must discipline himself and his staff on resumption and closing times, he can achieve this by sitting in court promptly at 9:00am and if he will not be able to do so, either due to ill health or for some other good reasons, he should notify parties or their counsel and prosecutors on time through his registrar or clerk. Now with the advent of social media platform some registries can notify parties easily through platforms created by them for that purpose.
By Rule 11 (iii) of the code a judge is enjoined a supervisory role over his staff. The rule provides.
“A judicial officer should require his staff and other court officials under his direction and control to observed “the standard of integrity and diligence that apply to him”.
A judge can do this by ensuring that the court employees adhere to the code of conduct for court employees which demand a minimum standard of conduct, from them and which was adopted and prescribed with effect from 1st March, 2004.
A judge must give fair right of hearing to every person legally interested in a proceeding or his legal representative, and except as authorised by law he must not encourage or undertake communications in a pending or impending proceedings with one party in the absence of the other. Similarly, granting exparte application should only be made on a real urgency situation not an imaginary urgency situation, the justification for granting exparte order of injunction is stated clearly in case of KOTOYE VS. CBN (1989) 1 NWLR (Pt. 419) at 449 Para B – C per Nnaemeka – Agu JSC as follows:
“The basis of granting any exparte order of injunction, particularly in view of section 33 (1) of the constitution of 1979 is the existence of special circumstances, invariably, all pervading real urgency which requires that the order must be made, otherwise an irretrievable harm or injury would be occasioned to the prejudiced of the applicant.
Put in another way, if the matter is not shown to be urgent there is no reason why exparte order should be made at all; the existence of real urgency, not self-imposed urgency, is a sine qua non for a proper exparte order of injunction”.
In his words Hon. Justice S.D. Kawu stated that:
“in performing his judicial duties a judge must maintain order and decorum, he must be patient and courteous to all those who appear before him as parties, counsel and witnesses. He must possess self-control and must never lose his temper or be angry.”
According to Niki Tobi JSC of blessed memory, in his book the Nigeria judge at page 74 states:
“The word anger is only one letter short of danger and yet it is the only one letter different from angel. So much harm will be done to the judicial process if a judge is regularly angry. Since the community of angry people is a danger centre, a judge should try as much as he can to ensure that his court is not a danger centre.”
In SALIM VS. IFENKWE (1996) 5 NWLR (part 450) 564 at 586-587 the court frown at the conduct of the judge as follows:
“It is the height of irresponsibility for any judge to take advantage of his judicial immunity to harass, abuse and intimidate (litigants)… no language is strong enough to condemn the conduct of the judge in these proceedings. He had abdicated the known norms of judicial conduct and has therefore, brought the sacred duty of adjudication into disrepute.”
A judge or khadi must be DOMINUS LITIS all the time. To be in total control of his court, require that a judge is above board.
Although he is the master of his court and as such must be in total control of proceedings, but should avoid constant and unnecessary intervention, but may engage in court room interaction to offer counsel opportunity to explain some points in his address or argument which he finds difficult to follow. See OKODUWA V. THE STATE (1998) 2 NWLR (PART 76) 333 at 335 where the Supreme court ordered retrial on the ground that the judge descended into the arena of conflict by asking questions that are more devastating to the defence than question asked by the D.P.P. himself.
Even though a judge is entitled to freedom of expression, belief, association and assembly but must exercise those rights in a manner that will preserve the dignity, integrity, impartiality and independence of the judiciary. The judge in the words of the code, “must adhere strictly to political silence” which require him not to ordinarily involve in public discussion that may undermine confidence in his impartiality.
This will bring us to the question whether a judge is permitted to open a personal or official page in a social media and engages the member of public in public discussion on matters of politics and security affecting the country (this is just a food for thought).
The judge shall ensure that his family, friends social and professional colleagues who are personally close to him do not improperly influence the performance of judicial duties.
Rule 10.1 (iii) provides that:
“A judge shall not give or take and shall not encourage or condone the giving or taking of any benefit advantage, bribe, however disguise for anything done or to be done in the discharge of a judicial duty”.
Corruption is a plague that judges must all avoid. Once a judge forms the habit of accepting bribes, news will quickly spread that justice can be bought in his court. This will make the judge to lose respect not only of the members of the public but also of the giver of the bribe. And this will reduce and erodes public confidence in the ability of the judiciary to administer justice, thus leading people to engage in self-help.
One of the reasons advanced by a group known as “Yan Sakai” in Zuru Emirate for their resorting to self-help by interference in matters pending before court of law is the corruption of some judges at the expense of the poor litigants.
A judge or Khadi should be mindful of the company which he keeps, where he is seen in the company of people of dubious and doubtful character, members of the public may view him as one of them, following the adage that birds of the same feather flock together.
Judges should understand that the roles of the Bench and the Bar are complementary, the duty which the Bar owes to the Bench is unqualified respect and assistance in the presentation of cases in court, while the Bench on the other hand owes the Bar duty to be an attentive listener and not an investigator. shouting at the parties or their counsel in proceedings before a judge, should be avoided because respect begets respect.
There should be harmonious and smooth interaction with bar and bench for easy dispensation of justice, where a counsel conduct himself improperly before him, a judge should not rush to wield the big stick but rather, he should point to counsel the errors committed or make a report to the Bar through the office of the Chief registrar. But contempt in the face of the court which amount to an attack on the integrity and authority of the court and administration of justice must however be punished for the protection of the court.
In his relation with individual members of the bar the judge must avoid circumstances that will create reasonable impression of favouritism or partiality, e.g. allowing his office, residence or personal facilities to be used by a member of the bar for the service of his client.
The content of this code is a replica of what a judge is required to observe under Islamic law. A judge is required to observe absolute impartiality as between the contending parties. There shall be transparent neutrality of the court to the parties in the way the judge listens and speaks to the litigants. Equal treatment is due to all parties without consideration for creed; age, status and sex. This should be the case even in suit between a Muslim and non-Muslim. No person is entitled to any special treatment in the process of dispensation of justice as there is no consideration for a highly placed litigant over his lowly opponent in sharia court.
Permit me to quote few paragraphs from a letter written by caliph Umar bn Khattab R.A. when he appointed Abu Musa Al-Ash’ari (may Allah be pleased with them) as a judge in Al-kufa about 1400 years ago where he states:
“Now the office of the judge is a definite religious duty and generally followed practice, understand the dispositions that are made before you, for it is useless to consider a plea that is not valid.
Consider all the people equal before you and in your attention so that the noble will not expect you to be partial and the humble will not despair of justice from you.
…Avoid fatigue and weariness and annoyance at the litigant. For establishing justice in the courts of justice, God will grant you rich reward and give you a good reputation”.
From the content of this historical document as transmitted to us by the famous scholar Ibn Khaldun in his Muqaddimah Vol. 1 page 453, the office of a judge is indeed a religious duty that attract reward or punishment in the hereafter depending on how the occupant of the office discharges his duty. Hence the judicial oath being administer on the date of swearing-in which demands a judicial officer to discharge his duties, HONESTLY, FAITHFULLY to the BEST OF HIS ABILITY with FIDELITY with the constitution and the law and to abide by the code of conduct contained in the 5th schedule to the constitution and not to allow his personal interest to influence his official decision. This oath taking is not a mere ritual or ceremony but a weighty and binding covenant between the judge and his creator with members of the public as witnesses, for which the judicial officer shall be questioned on the day of judgement by the judge of all judges on the way and manner he discharged his duties. That is why a judge should not allow himself to be cowed into any unethical conduct by threat or intimidation from any quarters whatsoever, but should fear only God our creator before whom each and everyone of us shall give account of our stewardship here on earth on the day of judgement.
I am grateful for this great opportunity given to me to address this gathering of noble men. May Allah guide you in discharging your duties. once again, I congratulate you all.
G.A. Shehu Esq.
Al-Ihsan Law Chambers
20th September, 2022.