By Associate Professor Ibrahim Abdullahi, SAN
The preamble to the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that Nigeria is a “Sovereign Nation under God.” The foundation of Nigeria’s democracy is “Freedom, Equality and Justice.” These are the three essential pillars of democracy. Every person or authority is to be treated equally and in accordance with the dictates of justice. Both the Holy Quran that is recognized by the Muslims or the Holy Bible by the Christians in Nigeria show how justice should be administered in the Courts. This is in such a manner as not to overburden or wear down the litigants nor the judges in the Court of trial nor Justices in the Court of Appeal nor the Supreme Court.
The legislature is the custodian of a country’s Constitution in the same way that the Executive is the custodian of the policy of Government and its execution, and also in the same way that the Judiciary is the custodian of the construction or interpretation of the Constitution.
Niki-Tobi, JCA (as he then was) in UBA PLC vs. MODE NIG. LTD (2001) FWLR (Pt.40) 1664 at P. 1681 paragraph B observed that “justice” is “…that very expensive commodity.” Judges and Justices that administer justice in the Courts carry the judicial burdens of every nation. The National Judicial Council is the “watchdog” of Judges and Justices. They render returns of their determination every quarter of the year, and are saddled with the performance of other judicial tasks, judicially or administratively, that are of benefit to the Federation of Nigeria.
There are certain fundamental norms in the system of administration of justice we operate. That system is the adversary system, in contradistinction to the inquisitorial system. In that adversary system, parties with their counsel and the judge have their respective roles to play. Basically, it is the role of the Judge to hold the balance between the contending parties and to decide the case on the evidence brought by both sides and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules. Therefore, a Judge must not under the system do anything which can give the impression that he has descended into the arena, as, obviously, his sense of justice will be obscured.
All courts in Nigeria have a duty which flows from a power granted by the Constitution of Nigeria to ensure that citizens of Nigeria, high and low get the justice which their case deserves. The powers of the court are derived from the Constitution not at the sufferance or generosity of any other arm of the Government of Nigeria. The judiciary like all citizens of this country cannot be a passive on-looker when any person attempts to subvert the administration of justice and will not hesitate to use the powers available to it to do justice in the cases before it. That justice must not only be done but seen to be done as exemplified in the case of THE ADMIN. & EXEC. OF THE ESTATE OF ABACHA vs. EKE-SPIFF & ORS. (2009) LPELR-3152(SC) at Pp. 36-37, paras. E-G.
The nature of the office and functions of judicial officer’s call for a high sense of duty, responsibility, commitment, discipline, great intellect, integrity, probity and transparency. So important is the place of Judiciary in the scheme of things that the Constitution in Section 4(8) forbids the legislature from enacting any law that; “Oust or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”. By the above, although Courts of law have powers to intervene in the exercise of powers of the legislature, nevertheless the legislature is deliberately and expressly forbidden from making law that would oust the jurisdiction of the court of law.
The Judiciary been the third arm of government has the onerous function of interpreting the laws. Its functions may be expressed in the latin words jus-dicere non jus dare which is to declare the law and not make one. It is for the judge to declare the existing law and not make one (Judicis est jus dicere non dare). This principle was confirmed by the Supreme Court in the case of OKUMAGBA vs. EGBE (1965) 1 ALL NLR 62 at p. 65.
Suffices to state however that the law still grows by process of judicial law making. In this regard, HOLMES J. in SOUTHERN PACIFIC CO. vs. JENSE (1917) 244 US 205 at p. 221 posited thus; “I recognized without hesitation that judges did not and must not legislate but they do so only interstitially”
In the execution of its mandate of interpretation of law and administering justice the Judiciary is not tied to the apron strings of any political party, pressure group, religious, racial or ethnic group, sex, geo-political entity, etc and this explain why the symbol of justice is depicted as a blindfolded person (Lady) holding two even scales, meaning that the Judiciary is to dispense justice to all manner of people without fear or favour, affection or ill-will. So fortified is the pronouncement made by the judges that their decision and or pronouncements remains valid until set aside by a more superior court of record.
The above however does not mean that the judges are not fallible. Judges are human beings with mortal frailties but with specialized skills to dispense justice in accordance with the dictates of justice by virtue of their training and professional calling. The judges may therefore err but the revision of its decision can only be done by an orderly process of an appeal and not by disregarding the decision of the courts with impunity.
The Supreme Court in portraying the above within the context of the apex Court has this to say per Oputa JSC;
“We are final not because we are infallible; rather we are infallible because we are final. Justices of this court are human beings capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth”.
Thence, in the determination of cases, cases are to be determined not on the basis of technicalities but on the basis of substantial justice especially in election petition cases. The cases of HDP vs. INEC (2009) 8 NWLR (PT 1143) 29 at 319, Para D, RESIDENT ELECTORAL COMMISSIONER vs. NWOCHA (1991) 2 NWLR (PT 776) 732 at 749-750, OBASANJO VS BABAFEMI (2000) 23 WRN 30 at 46 and NWOBODO vs. ONOH (1984) 11 SCNLR 1 at p. 77 all shows the need for substantial justice in the determination of cases.
The exercise of judicial powers is not absolute. It has certain limitations summarized as follows:
- The general principle under the common law as applied in our court is that the court in the course of adjudication ought not to answer hypothetic questions.
- Nigerian judges cannot commonly apply their powers until someone brings a case before them. They lack the power of self starter. Thence, the court cannot initiate the power of reviewing legislative and executive acts. They must be moved and or initiated by someone.
It is of fundamental importance in the administration of justice that the court should not allow its judicial role as an impartial and unbiased arbiter to be diverted from the path of justice by the conduct of an inaptitude counsel.
The role of the judiciary in the administration of justice in Nigeria can be surmised as follows:
- The Primary Role of Doing Justice between the Parties before It.
- The Role of Interpretation of the Law
- The Role of an Unbiased Umpire
- The Role of Preserving and Upholding the Rule of Law.
- The Role in seeing that Substantial Justice is done to Parties.
- The Role of Speedy Hearing and Disposal of Controversies
- The Role to be Circumspect and act within the Confines of the Strict Rules of Law
The administration of justice cannot be achieved fully without the active support of lawyers who are expected to contribute to the effectiveness of the justice system, rather than seeking to jeopardize it. Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They are not to allow themselves to be used by litigants to bring the justice system into disrepute as recently exemplified by the filing of processes which constituted forum shopping and an abuse of court process leading to the issuance of conflicting exparte orders by courts of coordinate jurisdiction and the eventual approval of sanctions by the National Judicial Council (NJC) against the erring judicial officers. The eternal words of a great jurist J. Wesley McWilliams who writing in an American Bar Association Journal in January 1955 wrote in an article he titled “The Law as a Dynamic Profession” thus;
We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.
Conclusively, the Judiciary is the mighty fortress against tyrannous and oppressive laws. The importance of the Judiciary cannot therefore be over emphasized. It is not an overstatement to assert that an independent Judiciary is the greatest asset of a free people. The Judiciary by the nature of its functions and role is the citizen last line of defence in a free society that is the line separating constitutionalism from totalitarism.
There is however the need to appreciate that the position of the Judiciary in a democratic setting is a delicate one. More often than not, the Judiciary has been the sacrificial lambs on the altar of societal imperfection and contradictions. When politicians rig election, it is the Judiciary that is called upon to decide who actually won the election. Again, when politicians loot the nation’s treasury in their unconscionable quest to become millionaires and billionaires, it is in the judges that are called upon to hold the tribunals to inquire into their activities or to try them, and so on and so forth. In other circumstances, the Judiciary finds itself in a no win situation and whichever party loses readily cast aspersion on the integrity of the presiding judges or justices as the case maybe. This is the unfortunate stance the Nigerian Judiciary finds itself today.