By Awa Kalu
Only a short while a ago, a business disagreement between two well established car retailers reverberated in the well of the apex court and sent shock waves through the echelons of the judiciary and the entire legal profession.
The confrontation between counsel for one of the parties in that case and the apex court raised quite a number of eyebrows. The Supreme Court was brazenly accused of bias. Again, just a few days ago, judicial feathers were ruffled in the supreme Court when a very senior counsel brought an application in which the essential prayer was for the Supreme Court to reverse itself on a previous judgement in which a sitting Governor was ordered to vacate his seat.
The bottom line of the argument of counsel was that the Supreme Court was guilty of judicial law making. In a tone brimming with contempt, learned counsel in fact accused the apex court of over reaching the law and the Constitution. To say the least, the court was not amused and said so to the counsel whose main motive was motive for bringing the application was difficult fathom,. What follows hereafter is satirised analysis of the implications of this approach to lawyering.
As a young boy, my siblings and I were accustomed to being taken to Sunday school where at an impressionable age, we were not only taught but drilled in lessons on the fundamentals of morality, ethics and good behaviour. Such lessons were imparted from religious passages fables and even folklore. Songs were often thrown in to lift our youthful spirits and rouse our enthusiasm.
Music, they say, is the soul of life. Since the unfolding drama in the Supreme Court began to unravel, the import of one of the popular songs that featured in our Sunday school days became clearer to me. The song concerns a person who brought a local dog to church. He was persuaded to take the dog away lest the dog bite the pastor.
Of course, if the dog bites the pastor, that would be the end of the service. Confusion certainly would reign but there is a consequence of perhaps, a lesser magnitude. It is this: the suspicion that if the dog did not bite the pastor, there was that likelihood that the dog would defecate all around the church thus messing up the entire premises. The result you would imagine is still the same â€” the church erupting in confusion!
Truly, a local dog has no business in a church or in any place of religious worship. My deduction from the scenario of a dog in a church is the fact that an institution â€” such as the courts or indeed the entire judiciary â€” is as fragile as a church congregation and can easily be fragmented. A certain kind of dignity and an aura that bears testimony to the majesty of the law especially having regard to the fact that the judicial powers of the federation and of the states is vested in the courts created by the Constitution or by other relevant statutes.
The courts exist for no other purpose than the settling of disputes that is, the due administration of justice. For this reason, Henry Sedgwick has argued that â€œthe importance of the judiciary in prejudiced construction is rather pungent than prominent.
On the one hand, in popular discussion of forms and changes of government, the judicial organ often drops out of sight; on the other hand, in determining a nations rank in political construction, no test is more constructive than the degree in which justice as defined by the law, is actually realized in its judicial administration, both as between private citizens and the members of the governmentâ€.
Relying on Sedgwick, Harold Laski (in A Grammar of Politics) holds that â€œno man can overestimate the importance of the mechanism of justiceâ€¦ when we know how a Nation- State dispenses justice, we know with some exactness the moral character to which it can pretend.â€
The courts are therefore often used as a mirror to determine the pulse of the nation in their dispute settlement function. Disputes may arise from trade or commerce, contractual disappointment or even inter-personal relationships.
As already hinted by Sedgwick, disputes may also arise from the discharge of huge responsibilities of government between the Federal Government and a State or States or between States or between an individual and any of the governments in the Federation recognized by the Constitution.
Although such disputes may be disposed of formally or informally, very often, more complicated disputes are resolved in a court of law or through such other body, as may have lawful authority to render a binding decision. This however is subject to the provision that if a body is acting judicially or magisterially, a person appearing before such a body is entitled to a fair hearing.
For that reason, the Constitution provides that in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Although this piece does not directly concern the independence of the judiciary, or of the courts, it will in due course dilate, even if tangentially, on matters that pertains to the independence and impartiality of the courts. The real matter that arises for discussion has been thrown up by the dust raised by an allegation of bias made by a Legal Practitioner against the Chief Justice of Nigeria in the course of which His Lordship; The Chief Justice of Nigeria was requested to disqualify himself from adjudicating or participating in the proceedings.
The facts of the case to which allusions had earlier been made are not in contention here but what appears to be central to our discussion is that a lawyer, in the well of the Supreme Court, accused the Learned Chief Justice of bribery and on that account surmised that the Chief Justice would be biased and for that reason was urged to withdraw from further participation in the proceedings.
It cannot be contented that this is the first time a judge, a court, and even the Supreme Court, has been charged with an allegation of bias. In Fassassi v A.R.C.O.N the late Chief F.R.A Williams (SAN) had asked the Supreme Court to give a guarantee that it would be impartial in the proceedings.
Asking for this guarantee appears to have arisen from a situation where the court put some questions directly to the litigant, â€œover the headâ€ of Chief F.R.A Williams as counsel. The Supreme Court rejected such a request and emphasized that the impartiality of a court is a fact that must be taken for granted. However, where reasonable grounds exist, a judge may withdraw from participating in adjudicating over a matter in the interest of justice.
It has been said that â€œconsiderable uncertaintyâ€ surrounds the origin of the rule against bias but it seems that fingers are often pointed in the direction of Natural aw and even Canon law. The rule is to the effect that an adjudicator, on grounds of consanguinity, affinity, friendship, or enmity with a party ought to be disqualified from participating in the case. Pecuniary interest in the subject matter of the suit is another predominant factor for asking an adjudicator to desist from presiding over a matter.
The underpinning for this requirement is thatÂ â€˜it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be doneâ€ (see R V. Camborne JJ., ex p. Pearce (1955) 1 Q.B 41. As ably summarized in de Smithâ€™s Judicial Review of Administrative Action, at page 251, â€œThe emphasis has shifted from the simple precepts of the law of nature to the more subtle requirements of public policy.
In order that public confidence in the administration of justice may be fully maintained, no man who is himself a party to proceedings or who has any direct pecuniary interest in the result is qualified at common law to adjudicate in those proceedings. If, however, it is alleged that the adjudicator has made himself a partisan, or is to be suspected of partisanship, by reason of his words or deeds or his association with a party who is instituting or defending the proceedings before him, the court will not hold him to be disqualified unless the circumstances point to a real likelihood or reasonable suspicion of biasâ€.
Professor de Smith further demonstrates that â€œdisqualification will not attach if the connection between the pecuniary interests of the adjudicator and the issues before them is very tenuous or if their pecuniary interest will arise only upon the occurrence of an improbable sequence of eventsâ€.
As has been noted in Leeson v G.M.C. (1889) 43 Ch.D. 366, â€œit is no doubt desirable that judges, like Caesarâ€™s wife, should be above suspicion; but it should be hopeless for the courts, to insist that only â€˜people who cannot be suspected of improper motives were qualified at common law to discharge judicial functions or to quash decisions on the strength of the suspicion of fools or other capricious and unreasonable peopleâ€â€¦â€¦.