*Says The lawyer serves the demands of justice best when he acknowledges that it is not his job to win cases by all means, but to assist the Court with his mastery of facts and law.
*Says the Judge serves the institution best when he hears and decides matters within his knowledge of the law, unbiased or not influenced by considerations other than what has been presented before him in the course of hearing.
A justice of the Court of Appeal, Honourable Justice Onyekachi A. Otisi, has stressed the need for the Bar and the Bench to work together.
Otisi made this call on July 14, 2021, during the NBA Ikeja Branch’s 2021 Annual Conference.
He said Unless the Bench and Bar work together harmoniously, justice cannot be effectively administered through the courts of law. Every aspect of society would be affected. The lawyer serves the demands of justice best when he acknowledges that it is not his job to win cases by all means, but to assist the Court with his mastery of facts and law. The Judge serves the institution best when he hears and decides matters within his knowledge of the law, unbiased or not influenced by considerations other than what has been presented before him in the course of hearing. When both sides operate within their settled responsibilities, justice is truly served.
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I want to thank the Ikeja Branch of the Nigerian Bar Association for this invitation to share my thoughts at the Branch’s 2021 Annual Law Week. The theme of the Week is The Nigeria of Our Dreams and the topic for this discourse is Judiciary and Bar: The Need to Constantly Work Together.
I want to commend the Branch for the theme, which was set to discuss burning National issues. There is no gainsaying the fact that the Nigeria of our Dreams must function with a strong, powerful, unbiased, active and competent judiciary (Bench) and a vibrant, fearless Bar that operates within accepted professional ethics.
The sole purpose of the judicial system is to enthrone justice in every sphere, whether it be over issues pertaining to life and liberty, family matters, business or commercial disputes, labour disagreements, to mention but a few. A stable society is ensured by a functional judicial system that can be trusted and relied on to do justice without prejudice or compromise. But this is an objective that the judiciary cannot achieve on its own.
The operative and functional part of our judicial system is made up of the Bar (the lawyers) and the Bench (the Judges). Judges administer the law with the assistance of the lawyers. The Bench enables the articulation and judicial interpretation of legal principles as submitted by the Bar, while the Bar interfaces with the public. A smooth and effective administration of justice involves mutual cooperation between the Bar and the Bench. Therefore, synergy between these two components of the judicial system is not only desirable but also essential for the effectiveness of the system to ensure enthronement of the rule of law and thereby meet legitimate public perception of justice.
Although each pillar has its own unique role to play, their functions are so entwined that the failure of one pillar would unfailingly, ultimately affect the other. This point cannot be downplayed. A firm understanding of the importance of this relationship, that has been described as symbiotic, in justice delivery, will enable improved and active participation by both sides.
In this presentation, I shall first examine the role of each pillar – the Bar and the Bench; give my perception of factors that may account for some antipathic experiences in the relationship between the Bar and the Bench; and proffer suggestions for a progressive path.
The important role played by the Bar as a twin pillar of the Bench in the administration of justice cannot be overstated. Literally, the Bar provides the oil that ensures the continuous successful spinning of the wheels of the judiciary. Lawyers have variously been described as officers of the court, or ministers in the temple of justice. I would take a twofold look at this role.
First, is the duty of the Bar to show due respect to the Bench and indeed to other members of the Bar, particularly in the face of the Bench. The relationship between the Bar and the Bench is grounded on mutual respect. This relationship, which is almost cult-like, rises from the awareness that both pillars in the administration of justice have the singular goal of ensuring that justice is not only done but is also seen to be done. In Chukwu v INEC (2014) LPELR-2222(SC), the Apex Court, per Muntaka-Commassie, JSC,
“The rule of professional conduct requires lawyers not only to display a respectful attitude towards the bench but also to exhibit a high level of decorum, candor and fairness to the court and to other lawyers. A court of law, especially the apex court, is a place for serious legal business of adjudication, and not a domain for the exchange of all sorts of insult and defamatory innuendos. The age long and sacred traditional decorum of the bar must be protected, maintained and held in high esteem in the discharge of counsel duties to their clients.”
There is no doubt that in the course of the discharge of duties, the Bar and the Bench may get into dialogue which could be sometimes humorous, sometimes heated and sometimes harsh. This interchange in Court is usually steered by the duty of the Bar to present the case of its client guided by decorum and professionalism, and the responsibility of the Bench to competently direct the proceedings with rectitude and knowledge of the law.
Professional ethics, and of course Rules of Professional Conduct for Legal Practitioners, prohibit a lawyer from engaging in frontal conflict with the Bench. In an interview granted by the Law Lord, of blessed memory, Hon Justice Kayode Eso, JSC to The Observatory Journal published by Access to Justice in June 2003, he said he had two commandments. One, that no lawyer should ever be rude to a judge and, two, that the judge should never be rude to the lawyer. However, it can be said without equivocation that these two commandments are now being broken, daily, unchecked. It is no longer strange to hear incidents of the Bar and Bench openly exchanging punches, as it were, during proceedings. The cause for this decline in the relationship between the Bar and the Bench is one of immense concern. I shall return to this point shortly.
Another aspect of the role of the Bar is the duty of Counsel to the cause of truth and justice and to the system of administration of justice, and not just to his client. The Bar must vigorously pursue and defend the interest of its client. In this duty, the Bar must also act in a manner that brings honour and engenders confidence in the judicial system. Implied in this obligation is the duty to present the case of the client without any form of sharp practice, which includes deliberately misleading the Bench howsoever. In Dariye v FRN (2015) LPELR-24398(SC), the Apex Court, per Ngwuta, JSC, of blessed memory, said:
“Lawyers are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conduct are subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients but as lawyers they must act within the rules regarding ethical conduct. They owe a duty to their client but they owe a higher duty to a higher cause – the cause of justice.”
Lawyers should not allow themselves to be used by litigants to bring the justice system into disrepute; Mbas Motel Ltd v Wema Bank Plc (2013) LPELR-20736 (CA). The Bar has a duty not to misuse their knowledge of the law and legal procedure to stultify the process of administration of justice. Lawyers who do this have been described as “a disappointment and constitute a clog to the progress of the legal profession.”, per Abiru, JCA in Salihu v Gana (2014) LPELR-23069(CA), cited with approval by the apex Court, per Nweze, JSC in Idisi v Ecodril Nigeria Ltd & Ors (2016) LPELR-40438(SC). See also: Mafila v Bakinde (2018) LPELR-44680(CA); Oluwalogbon Motors Ltd & Anor v NDIC (2018) LPELR-46482(CA).
I have mentioned that the relationship enjoyed by the Bar and Bench is grounded on mutual respect. The two commandments advocated by Hon Justice Eso, JSC, of blessed memory, have been mentioned above. On the part of the Bench, unwarranted negative comments in open Court about a lawyer should not be made. In similar vein, the lawyer should be allowed to conduct his matter without unnecessary interruptions from the Bench, save where absolutely necessary, which may include for clarification or to check pertinence in order to promote the swift disposal of the case. The Judge should never descend into the arena of conflict lest he be blinded by the dust of the battle.
Judges should hear matters before them devoid of prejudice or bias. Public perception of every decision made in the course of a trial ought always to be that the Court acted impartially and that the litigants were granted a fair hearing. The Bench should therefore always exude integrity, moral soundness and discipline.
Current experiences affecting the relationship between the Bar and the Bench
I do not think there would be any serious challenge to the observation that there has been some degeneration in the relationship between the Bar and the Bench. I would address this perceived degeneration by expanding the context of respect for the Bench.
In my understanding, the lot usually falls on the Bar to maintain, secure or defend the respect that ought to be accorded the Bench. This includes publicly responding to any aspersions cast on the Bench or violations made to the independence of the Bench. The Bar, as well as the Bench itself, ought to defend the integrity of the Bench. The lawyers are the voices that speak for the Judges. They are foot soldiers for the Judges. Lamentably, much of these acts of valor are no longer witnessed. Rather, the Bar is often seen at the forefront of public lampooning of the Bench, speaking with so much disrespect. I often ask the question: How did we get here? This disposition cannot be part of the Nigeria of our dreams. An attempt at correction or restoration of the right disposition has to commence from a recognition of the problem and its foundation.
I want to attempt to trace a history which appears to my mind, to account for what went wrong. No building is brought down by water in one day. It takes a while of constant erosion of the foundation of the structure until it finally caves in. Nigeria had a prolonged military rule, which, only few would dispute, negatively impacted every system of the society. One fall out of that period was an obsession for power and money, which attacked and destroyed much of our national values. No sector of society was immune from the effect of this devastation. The sharp decline in our values as a people found its way into the judicial system.
Now, when a society becomes afflicted by dishonourable standards, people are corrupted. Moral standards become blurry. Lawyers and Judges, with their human frailties and weaknesses, who live in the same society, are not immune from a diminished sense of acceptable standards.
Further, the method of appointment of judicial officers at the material time did not help. Some appointments to the Bench were merely political favours, leaving the favoured unhealthily beholden to their benefactors. The threat of removal from office also hung above the heads of judicial officers like the sword of Damocles. Naturally the judicial system became affected. A predictable consequence was the gradual erosion of public confidence in the judicial system to accord them justice.
It must be stated that within this same period, majority of the members of the Bar and the Bench remained principled, uninfluenced by the surrounding decline and unfazed by the famous ouster clauses, which were found in a number of Military Decrees promulgated at the material time. There were Judges who did not lightly esteem the dignity of their office. The hall of fame showcased Noble Law Lords such as Adetokunbo Ademola, C.J.N; Bello, C.J.N.; Obaseki, J.S.C; Eso, J.S.C; Uwais, C.J.N.; Belgore, C.J.N.; Aniagolu, J.S.C.; Nnaemeka-Agu, J.S.C.; Karibi-Whyte, J.S.C.; Oputa, J.S.C.; to mention but a few. They upheld their oath of office, sometimes at great personal cost. Their firm convictions in upholding the rule of law as well as their steadfast resolve to contain the excesses of the Executive at the time are evident in their judgments which still grip the foundations of our jurisprudence. This era was graphically described in page 244 of the book: Kayode Eso: The Making of a Judge, as follows:
“It was in the Mohammed Bello era, which began on 9 March, 1987 that the Supreme Court began to wax revolutionary. The Court began to use the powers of the judicial branch guaranteed in section 6 of the 1979 constitution, to build a fortress for the protection of the rule of law and human rights, which would later enhance the popular struggle against military rule. The Chief Justice himself, although a self-professed conservative, often found himself championing some progressive moves of the court. Thus it was the Bello era that inaugurated the golden age of a progressive Supreme Court, which contributed immensely to restoration of civil rule in the country.”
There were lawyers who stood firm on the path of justice for all. The Bar produced great unforgettable men such as late Chief Gani Fawehinmi, SAN, and late Alao Aka-Bashorun, Esq. who led Bar triumphantly during perhaps the most difficult days of the military rule. Some of those lawyers are still with us today, bearing the scars of that period.
When democracy was restored, some politicians, who, by now, were exposed to the culture of impunity fed by power and money, continued the onslaught against the judicial system. Egged on by the inordinate desire to hold on to power at all cost, corruption increased and the integrity of the Bar and the Bench was further weakened. These politicians made inappropriate contact with some judicial officers, with some lawyers, that sometimes included very senior members of the Bar, aiding and abetting. These judicial officers could be induced, by threats, money or favors, to rule in favor of one party, irrespective of the merits of the case. Some unscrupulous members of the Bar could be used as conduits for the perfection of corrupt deals between these judicial officers and parties.
The natural growth from this evil root of lawlessness and corruption was mistrust between the Bar and the Bench. The lawyer appearing before a Court had his suspicions that the Judge before whom he was appearing had been compromised. The Judge before whom the lawyer appears also had his suspicions that the lawyer had taken an enticement to purport to influence the decision of the court or tribunal. With these mutual suspicions in existence, the court often became a theatre for fireworks, set off on both sides of the divide. Most lawyers saw unfavorable decisions from courts as a reflection of their failure to either induce the judge as much as the successful party or at all. The justice of the case was not the consideration.
With the ensuing mistrust, synergy between the Bar and the Bench waned. In its place, finger pointing, criticism and bad blood stepped in. It became common place to hear open accusation of the Bench by the Bar in the media, unveiled disrespect and disregard for the Bench, and feisty relationship between the Judges and counsel in Court. On the part of the Bench, deliberate poorly considered decisions could be found. At the receiving end was society, with a dwindling faith in the judicial system as their last hope for justice!
There would always be a party who loses and a party who wins in any matter submitted for adjudication. But it dishonours the Bench and it is very disheartening to the Bar, as well as society in general, whose attention is on the matter at hand, when a party loses his case, not because the Judge genuinely believed in the decision made, but because he was compromised or influenced by external factors.
The litigants as well as the public do not always understand the reasons for the decision reached by the Bench. As previously mentioned, it lies within the bosom of the Bar to explain the decision to the litigant and to defend any aspersions cast on the Bench. But stark evidence of the degeneration is seen where the lawyer, unsure if he lost the case because he failed to persuade the Bench on the validity of his client’s case, commences and encourages the vilification of the Bench. That said, it must also be clear that no sane and rational lawyer would, in normal circumstances, stick out his neck to defend an indefensible decision, such as when the law is clearly stood on its head leading to palpable suspicion that there has been some measure of compromise. In such circumstances, the Bar, foot soldiers of the Bench, usually lose their voices and melt away with the public outcry, completely bowed and totally emasculated. Indeed, in Ayoade v. Spring Bank Plc & Anor (2013) LPELR-20763(CA), the Court of Appeal, per Abiru, JCA, reminded that it is not part of good advocacy to seek to defend orders of Court which are clearly unsupportable simply because they are beneficial to a client.
One unfortunate result of the pervading mutual mistrust, as recent
events have witnessed, is that even in instances when the Bar ought to speak up in defence of the integrity of the judicial institution, not necessarily in defence of a particular person, the Bar has failed to be heard to speak with a united voice. The Nigeria of our dreams cannot remain at that point.
The need to constantly work together
The axiom that the Court is the last hope of the common man is profound. The Court is usually the last option approached when all other options for settlement of any dispute have been explored without success. Public confidence in the judicial institution is buoyed when the main pillars of the institution, the Bar and the Bench, can be relied on to deliver justice. When this confidence is shaken and doubts exist, the slide to self-help and anarchy can be swift. The need to maintain a healthy synergy between the Bar and the Bench is therefore of utmost importance.
To my mind, firstly, a restoration of mutual respect is necessary for the maintenance of the cordial relations between the Bench and Bar. Lack of respect for the Bench by the Bar reveals their lack of confidence in the ability of the Bench to dispense justice without fear or favour. In like vein, a lack of respect for or confidence in the Bar expressed by the Bench is self-defeating. Every Judge was once in the Bar. Appointments to the Bench are made from the Bar.
Once the dignity and impartiality of the Bench is called into question by the Bar itself, or the competence and trustworthiness of the Bar is called into question by the Bench, practically every aspect of society is negatively impacted. For instance, there cannot be progressive economic growth in the Country if an investor is unsure of the integrity of the administration of justice system. Therefore, the two focal ministers in the Temple of Justice must exhibit mutual confidence and respect. One can only have boldness to speak up in defence of another in whom he has confidence.
The restoration of mutual trust and confidence would take personal and collective commitment on both sides. Our personal and collective stables have to be cleaned out. There must be the recognition of the fact that synergy of both the Bar and the Bench is essential to the administration of justice and that it is in the interest of both parties to protect our means of livelihood. On the side of the Bench, I can immediately confirm that much of stable cleaning is going on. To compliment this effort, the Bar needs to step up in this direction.
There exist Rules of Professional Conduct for Legal Practitioners made by the General Council of the Bar (the Bar Council) pursuant to the Legal Practitioners Act for the maintenance of the highest standards of professional conduct, decorum and discipline. These Rules, particularly Rules 30 – 38, make adequate provisions for the relations the Bar has with the Bench. There is also a Code of Conduct for Judicial Officers of the Federal Republic of Nigeria. I believe that due compliance with these regulations would enhance synergy between the Bar and the Bench.
Let me voice another aspect that I find troubling. In present day Nigeria, there are a teeming number of young persons who do not have a proper understanding of nuances of acceptable behaviour. Narrowing this down to the legal profession, a number of juniors do not understand the ethics of the profession. I believe in the power of mentoring. I also recognize that there are two aspects to mentoring.
Firstly, the mentee has to be teachable. Without a teachable spirit, no one can successfully be mentored. Secondly, one can never give or teach what he does not have or does not know. That is to say, if a mentor shows by conduct that misleading, compromising or disrespecting the Bench is the way to go, then that is the path the junior will tow. It is worse when the purported mentor would sermonize and pontificate about corruption at the Bench and yet be part of the sleaze. The junior learns to live a double life. Another Jekyll and Hyde character is born, who may ultimately make his way to the Bench.
There are meetings of the Bar and the Bench held occasionally within in a judicial division. I think these meetings ought to be encouraged and regularly held. Any problems or difficulties can be discussed and differences or disagreements resolved at such meetings.
It is also important to mention and consider the fact that the ethics of the legal practice make an undue close relationship between the Bar and the Bench inappropriate and suspect but for good cause. Judicial officers ought to avoid unwarranted professional relationships with legal practitioners who have cases before them or who may have cases before them in the future. This fact has to be considered and a healthy balance maintained. The goal of this rule is to protect the independence of the Judicial Officer and ensure that the courts are seen to remain fair and unbiased.
It has been said that a strong, powerful, impartial, active and capable judiciary is the greatest need of a State. I completely agree. Unless the Bench and Bar work together harmoniously, justice cannot be effectively administered through the courts of law. Every aspect of society would be affected. The lawyer serves the demands of justice best when he acknowledges that it is not his job to win cases by all means, but to assist the Court with his mastery of facts and law. The Judge serves the institution best when he hears and decides matters within his knowledge of the law, unbiased or not influenced by considerations other than what has been presented before him in the course of hearing. When both sides operate within their settled responsibilities, justice is truly served.
Our ultimate goal should be to maintain public confidence in the integrity of our judicial system and our commitment to justice. The Bar and the Bench, therefore, need to constantly work together and ensure that public expectation and confidence in the judicial system are not dashed. I believe we can, Bar and Bench, do this together.
I thank you for your attention.
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