Sat. Jul 31st, 2021

Impatient Judge As A Threat To Administration Of Justice

johnson O. Esezoobo Esq

Impatient Judge As A Threat To Administration Of Justice  By Johnson O. Esezoobo Esq

Some irregularities are fast becoming the norm in our otherwise noble profession. I am concerned because administration of justice is foundational to ‘peace, order and good government’ for which by our Constitution, law is enjoined to be made. And we lawyers, and Judges, are major players in this sector of our nation. By this singular fact, I see it as unjustifiable alibi when there is a break-down of peace and order such as we are yet to recover from after the EndSARS protests for us lawyers and Judges to blame politicians or other players in the administration of law. To the extent that law regulates every sector of human activities, we must take responsibility for the fate of law and order in our society.  

I note with great concern that we lawyers, and of course, Judges, do not seem to realise that we rule the world; as such we are leaders. We rule the world through our legal arguments in Court while Judges through their judgments. It is a combination of both that shapes the destiny of the nation. It is for this reason that we must guard jealously our actions and pronouncements particularly in the administration of justice of the nation so as not to mislead the nation. It is also for this reason that we must remember that unless we take serious matters of law and justice seriously, by guarding jealously what we do and say, it will be difficult, if not impossible, for us to help Nigeria out of the woods. Consequently, it is incumbent on us to address as a matter of urgency, the various problem(s) besetting administration of justice in Nigeria, if we want to revive this Country. 

Let me start with our attitude, after which we go to corruption in the judiciary. The attitude of many of us including Judges, denigrates the legal profession. And it is worrisome. I was at the Federal High Court on the 23rd of November 2020. The Judge opened up the proceedings by saying he did not quite understand the matter I brought before the Court. To me, the problem was simply identifying the ‘right of action’ and the Cause of action’ from the facts. But the disposition of the Judge showed that he came to Court with a closed mind.  He would not allow me address him on the point he needed clarified. He interjected again and again saying “I am getting impatient”. “I am getting impatient” etc. He then went into a lamentation saying “…the problem with the legal profession in Nigeria is that lawyers do not go through the legal education…”   He rejected my opinion that “My Lord, mine is to address the Court, and My Lord will rule”.
  To avoid the hostility the proceeding was likely to tend toward, I requested “for adjournment to a more convenient date when My Lord will be patient to hear me’. I thought this was the standard which we grew into in the early times. But the Judge refused and insisted I must go on. At that point, I had the option of refusing to talk any further but to create a stalemate such as I witnessed between Honourable Justice Tofowomo, a fire brand Judge and late Clement Akpamgbo (SAN) in Enugu sometime in 1983. The Judge was hostile and the late SAN said; “I am at the mercy of my Lord”. He remained standing but would not talk even when the Judge said “Go on”, eheen,  eheen, “Go on” until it became clear that nerves were relaxed. 

For two reasons however, this option could not be of appeal this time for: one, the Brief system against oral advocacy that was in the days of Akpamgbo (SAN) would help that course. Second, the level of judicial impunity in contemporary Nigeria is very high; the Judge could maliciously strike out the case and award a punitive cost. So, I opted to adopt my written address at the end of which adoption I said “I will furnish additional authorities and copy my learned friend”. And the Judge said, “I am already writing my judgment”, in a highly contentious matter involving exchange of affidavits, counter affidavits and further affidavits. What impression does this leave the by-stander with? 

Any right to harass Counsel? Ordinarily, a Judge has no right to harass a Counsel or a litigant, neither has he any right to hear or decide a case with grief. No matter his perception of the matter before him, a Judge should patiently hear the cause and decide. He is not expected even in his disposition to leave anybody in doubt as to his impartiality. A Judge who is impatient to hear a cause presented by Counsel on behalf of his client cannot say he is independent and impartial. He has no business on the Bench. 

On the other hand, lawyer is presumed to know, as well as understand, that a Judge deserves the highest level of respect. He commands it by the aura of that office; he does not demand or ask for it because he is not there by himself. He is there by the authority of law personifying the nation or the state as the case may be. He is therefore, not expected to conduct himself in such a base manner as not to command that respect that he already earns by reason of his being a Judge. The various comments that have attended, and still attending, the conduct of the CCT Chairman in slapping a security guard in public, not conduct while sitting as a Judge, tells of the high standard expected of a Judge, also a lawyer.

Just hear me’ and ‘I will hear you’. Over the years, my principle has been: ‘Just hear me’. And unless there is something else, Judges turn round to say “I will hear you”. Such hearing does not necessarily assure me of success in the case. But as admonished by the apex Court said in Enigwue v Akaigwe [1991] NWLR (Pt.225)………. “a fair hearing, win or lose”. Thus, the sad encounter of 23rd November reminded me of early encounters with Judges of the same Federal High Court, such Judges as Sowemimo J. in 1982 or thereabout, Tofowomo, J in 1983, Ojutalyo, J. and Abdullahi Mustapha, J. as he then was. In the first case, I applied to the learned trial Judge of blessed memory to ‘call the defendant as my first witness’. And the Judge said “What kind of law is that?”. I replied, ‘My Lord, just hear me. It is my case. If I call my opponent as my witness and he spoils my case, it is my case’. And the Judge said, “Well, I will hear you. We may also learn from it.” 

Just as this exchange over the otherwise novel request was going on, a colleague beckoned at me and said, “Johnson, you are right. Gani Fawehinmi called Isah Kaita (or so) as his witness in the case of…” And I drew the attention of the Court to the useful hint by a colleague.  In the encounter with the Honourable Justice Ojutalayo, while the Counsel on the other side, a far older colleague, requested for adjournment “to study the submissions of my learned friend”, the learned trial Judge said, “I am almost swept off my feet myself by the submissions…”. But I did not win the case. The Judge reviewed the submissions and remarked that the argument  was ‘sound’ but he was not persuaded. As Lord Denning of blessed memory would have it, the argument might still be useful in future.

A party’s right to Counsel of his choice;The case in which Abdullahi Mustapha, J. was stunned and said, “Mr. Esezoobo, we read you a lot in the papers. I hope you are not one of those who write one thing in the newspapers and do something else…”, was an objection to a change of Counsel. One was withdrawing and the other was to step in. There was an impropriety the change of counsel was to cover up. The learned trial Judge quipped, “Ha, does a party not have a right to Counsel of his choice anymore?” And I replied, “My Lord, I concede… But just hear me and My Lord will see that there is an exception…” And the Honourable Judge said, “I will hear you. But I will give you a date…”  Interestingly, both Counsel abandoned that case and the hearing was frustrated.    

In 1994, Justice Silva of the Lagos High Court heard an argument he called ‘novel’ in Franca Okereafor v Aeroflot Airlines; whether Decree No. 107 of 1993 actually created a Federal Military Government. He found the argument “sound”, but was “not persuaded…” because he could not “depart from decisions of the Supreme Court”.  But Jinadu, J. was persuaded by the same argument a year later in Johnson O. Esezoobo v The PRC & 5 Ors just as Belgore C.J. of the Federal High Court then was in the same year in Johnson O. Esezoobo v General Abacha and saw ‘an error in the law’ 19 years later. 
 In 1997, Falase, J of blessed memory opened up the proceeding by saying, “I have read your motion. I don’t understand what you are saying”. The point in issue was whether a party whose Counsel was notified in writing by the other Counsel of adjournment could set aside a judgment obtained after the trial. And to the response, “My Lord, just hear me. I am not saying rule in my favour”. The learned trial Judge said, “Of course, I will hear you”. The other Counsel withdrew her objection after my submission and asked for cost. I conceded cost and the judgment was set aside. 

The whole idea of this story is to emphasise the virtue of hearing the cause with open mind. Hearing a cause with open mind and deciding justly is foundational to peace. Peace is rooted in truth and truth brings about justice which itself flows from righteousness. From the examples enumerated above, there appears to be a sharp contrast between the old generation Judge and the new.

If my encounter of 23rd November 2020 is anything to go by, there is great concern about what junior colleagues may be going through in the hands of Judges who hear the cause from a closed mind. What then should we be expecting in years to come if the trend is not stemmed now, a better Nigeria? Not possible. I am therefore, reiterating my point that the Bar and the Bench should interface on keeping the standards to be able to correct society. 

On the 9th of December 2030, a Judge said to me in open court when I pressed for doing it right, that I “…cannot change Nigeria”. This as remarked in my response, is an absolute truth. But with everyone of us insisting on doing it right, we can change Nigeria. Consider this dear colleagues. 

Coming next is issue of ‘Corruption in the courts’.  

Johnson O. Esezoobo Esq Can be reached via  -:+234 803 320 0595