Enhancing Judicial Integrity (Part 1): Adherence to precedent is Imperative

By

Adebayo Adejare

"There is nothing so finely perceived, so finely felt as injustice"- Charles Dickens

The matter of justice and its administration is very fundamental in a civilized society. It is even more so in an emergent democracy such as ours. Public trust in the subject-matter is placed on Judicial officers who are responsible for the exercise of judicial powers to do justice in justiciable disputes placed before them. Judges are guided by the law and are under a Constitutional oath to do justice without fear or favour. The whole body of principles, rules (statutory and customary) with which compliance is mandatory are often loosely termed judicial ethics. They facilitate the smooth dispensation of justice without which anarchy would reign.

The subject of judicial ethics can be classified into two broad categories i.e. ethics in the application/interpretation of law and ethics in conduct of personnel in and outside court. Both categories cut across and some acts amount to both law and conduct. The sources of the rules of right conduct in the judiciary are common law, the Code of Conduct for Public Officers under the 1999 Constitution and the Code of Conduct for Judicial Officers 1999. The key elements of these rules are rooted in four common law doctrines i.e. doctrine of precedent judicial impartiality, abuse of judicial discretion and avoidance of conflict of interest.

The foremost duties of judges is to interpret and declare the law in the resolution of justiciable disputes submitted to them for hearing and determination whether it be between individuals or between state authorities and individuals. They also exercise the power of judicial review of legislative and executive functions and pronounce on their constitutional validity. There is a hierarchy of Superior Courts of record but the most important point to note is that there are trial courts and appellate courts and at the apex of the hierarchy we have the Supreme Court. Judgments of superior courts are final and command obedience unless adjudicated upon on appeal and all court decisions are subject to appeal except the Supreme Court whose pronouncement is final in the sense that is not subject to review by any other court save by itself. All courts uphold the Rule of Law which prescribes that every person should be subject to law that court orders must be obeyed and that all are equal before the law.

Prolonged Military Dictatorship stunted Nigeria's democratic growth and its socio-economic development. Dictators created and fostered a culture of impunity not only within its own ranks but in the entire executive and judicial arms of government. They abrogated the Legislative arm and ruled by decrees. Their decrees were supreme unchallengeable law of the land and Tribunals vested with final and un-appeal-able adjudicatory authority were created. There occurred a glaring diminution of the jurisdiction, discretion, work, role and integrity of the judiciary in Military Rule.

But the soldiers and their civilian side-kicks paid loud lip service to Human Rights and the Rule of law but ceaselessly violated citizen's fundamental rights keeping the famous preventive Detention Decree (Decree 2) throughout the entire period of Military Rule. The role and function (including the mentality) of the judiciary and its personnel under Military dictatorships cannot be equated with its role under the present civilian democratic rule. The training, organization and even personnel may be the same but the institution has been strengthened to exist as a true check on excesses of executive and legislative arms.

There are fundamental issues such as jurisdiction with which every judicial officer must be conversant. There are also doctrines and principles of law and equity such as rule against double jeopardy, standing to sue (locus standi), standard of proof, finality and irreversibility of trial courts' determination (res judicata) the understanding and application of which are indispensable to the adjudicatory function. But Courts major tool of operation is the doctrine of Judicial Precedent otherwise called "stare decisis". It prescribes that cases of similar facts be decided on the same principle and that courts of the lower should adhere to decisions of courts of the higher hierarchy in their work.

Benjamin Cardozo (United States Supreme court Justice) has described the working of this doctrine graphically and succinctly as follows in his famous treaties ÔÇô "The Nature of the Judicial Process":

ÔÇśIf a group of cases involves the same point the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today as if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral of my rights. "

The duties of judicial adherence to precedent as well as obedience to statute are indeed cornerstones of the constitutionality and validity of the entire judicial process. Disobedience is a fundamental error that goes to jurisdiction depriving the entire process of any legal validity since the common law maxim is "Nullification is the usual and natural consequences of disobedience." Hence flagrant violation of statue or precedent is the height of injudicious conduct and a gross violation of judicial ethics. Non-adherence to precedent impugns public confidence in the administration of justice. In the immortal words of Judge Benjamin Cardozo once again:

"Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts." It logically follows that it is unethical for a trial judge to observe that although he accepts that he is bound by it, a decision of the appellate court is wrong. It is even more culpable for a trial court to refuse to implement a directive order, observation or decision of the appellate court on the excuse that they have no coercive or disciplinary powers or are employees of a different government e.g. Federal Courts. Criticism of Court Judgments by lawyers, the Media, academics even litigants cannot however be prohibited because citizen's Constitutional right to free speech remain inviolate in a civilian democratic dispensation. The only exception to the rule of mandatory obedience to precedent is where the precedent is distinguishable from the case in hand. This calls for careful study, meticulous analysis and fact-finding which skill usually comes by experience. While it is true that appeal machinery exists to remedy this evil i.e. miscarriage of justice, it is only a defective answer in view of its obvious limitations (see infra). The matter is more fundamental and anybody exercising any doubts should be reminded of the following instances of abuse of judicial discretion resulting in miscarriage of justice:

a.

The June 12, 1993 Presidential Election under the Transition to Democratic Rule Program in the Federation was retrained by an interim injunction by a high court.

b.

A Chief Judge of a state was restrained from office by an interim injunction.

c. A university convocation ceremony was restrained by an interim injunction.

d.

A land owner in occupation adjudged owner was restrained by interim injunction from possession by the same high court that gave him judgment notwithstanding on-going appeal proceedings.

e. National Convention of a political Party was restrained by Court Order at the instance of a few aggrieved Members

f. A sitting Governor was removed from office by Court Order

g. Presidential Election of June 12, 1993 was both prohibited and annulled by irregular court Orders. The Federal Attorney General (Chief Bayo Ojo) had to obtain a mandatory Injunction that 2007 elections proceed because of threats by some mischief-makers to stop Elections by Interim Injunction

g. Numerous Injunctions prohibiting Public Officers (e.g. Electoral and Law Enforcement Officials) from performance of their lawful Constitutional duties

In no area is the debilitating impact of these abuses better and more vividly demonstrated than in the area of contempt of court and Tribunal/Election Tribunal matters. Outcome of many Tribunal Proceedings have been less than judicial and some Judges and Members justifiably (and publicly) accused of giving Judgment to the highest bidder. Election Tribunal Proceedings over the 2007 Elections have resulted in severe damage to the image and integrity of the entire judicial hierarchy. Things have to be handled differently by the 2011 Elections Tribunals in order to salvage the battered image of the Institution.

Questions arise: Do the presumption of good faith and jurisdiction subsist even in the face of arbitrary capricious injudicious and flagrantly unconstitutional acts and decisions of a judicial officer? Are we right to continue wholesale importation and application of British ethical rules and discretionary power when we are operating a written constitution modeled along the American presidential system? Is brazen injustice not an invitation to self-help anarchy and violent conflict apart from diminution of judicial integrity and prestige? Can't we think and provide for other remedy for abuse of judicial discretion other than appeal or removal of the judge? Should it be a herculean task for the Nigerian State to obtain Justice in its own courts or should we continue to rely on foreign jurisdictions and systems for the pursuit of "loot" and apprehension of drug offenders?