ROLE OF JUDGE IN ADVERSARIAL SYSTEM: Need To Hold The Balance To Act In Interest Of Justice

MEANING OF THE PHRASE ‘INTEREST OF JUSTICE’ The phrase “Interest of justice” is now like a song in the judicial process. Counsel love it so much. The judge recites it like school pupil recites the National Anthem. The phrase however eludes a precise definition. “Esho J.S.C(as he then was) stated in Willoughby v. I.M.B (1987) 1 N.W.L.R (Part 47) 105 at page 121 parg B, that “the phrase interest of justice is not a carte blanche or license for an unimpeded exercise of power, even against the Rules, in the guise of interest of justice. Justice as a concept is not easy to define despite postulates from great jurists from time immemorial even to Roscoe Pound who dwelt extensively on this concept. It is perhaps for the reason of the difficulty in an objective definition of justice that it has been considered safest to regard justice to be done once it is according to law, and law must necessarily include the procedure laid down for its attainment. To leave the attainment of justice at large and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely, such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land”

ACTING IN THE INTEREST OF JUSTICE– To act in the interest of justice, the judge must remain neutral throughout the proceeding. Under no circumstances must a Judge under the system do anything which can give the impression that he had descended into the arena, as obviously his sense of justice will be obscured. His vision to do justice would be blurred. See Sunday Okoduwa & Others. v. The State (1988) 2 NWLR (Pt. 76) 333 at pp. 354-355. To act in the interest of justice, the judge must not embark upon cloistered justice by making enquiry into the case outside the court; not even by examination of documents which were in evidence when same had not been examined in open court. A judge is an adjudicator; not an investigator’. See Omisore v. Aregbesola (2015) 15 NWLR (Pt 1482) 205, page 299, Parg D, per Fabiyi JSC. To act in the interest of justice, a Judge should be in control of his court and not allow Counsel, however highly placed (or “highly SANNED”) to take charge of the court. A counsel cannot insist on the order of proceedings/procedure because a court (the Judge) is in control and not counsel, neither can a counsel dictate how a court will direct itself during proceedings” See E.F.C.C v. Akingbola [2015]14 N.W.L.R (part 1478)1 at page 42 parg B8D per Obaseki-Aderjumo J.C.A.

Like Caesar’s wife, a judge must always be above board. Every judge should act as the master of his own court and should not allow anybody (no matter how highly placed) to tele guide and dictate to the court how to conduct its proceedings. A court has a duty to guard against any attempt by any of the parties to make an ass of the law and the rule of procedure. To act in the interest of justice, the Judge must completely detach himself from sentiment, sympathy and emotion. For emotion and sentiment has no place in law. It is highly desirable that justice should be administered by persons who cannot be suspected of improper motives. Court should remain detached, and no matter the appearance of the facts of the case, resist the push of soap opera emotions as it were and base its verdict on hard evidence. In Willoughby v. I.M.B. [1987] 1 N.W.L.R (part 47) 105 at pages 132, parg F-H Oputa J.S.C (as he then was) held “I agree wholly with Ademola J.C.A in his lead judgment that ‘the interest of justice is not served or helped by emotional considerations’. I would have said emotional exuberance. Decisions based on sympathy alone are but quicksand in the law, and if indulged in, will soon swallow up every principle laid down by and in previous judgments of this court…Justice…can only mean the end which ought to be reached by the strict adherence to, and application of the principles as laid down by the decided cases…Nothing more and nothing less will produce justice- not justice to the party that has the trial courts sympathy, but even handed justice. Justice will certainly fare better without the bandage or sympathy round her eyes”

To act in the interest of justice, the court must do justice to all parties (the Claimant, Defendant and the Court, and in criminal trials, the Prosecution, the Accused and the Court,) without fear or Favour. In Kwajaffa v. Bank of the North Limited (2004) All FWLR (part 215) 222, at 253 pargs. B-E the apex court admonished as follows: “This court being a court of justice is a temple of justice adhering to the symbol of a blindfolded woman with a scale on one hand and a sword on the other to render “justice” (not injustice), to all manner of people. Indeed, the beauty and greatness nay the purity of justice, in all its consuming allure and essence is to ferret out from the mass of facts and law before it, relevant points in order to give remedy to anyone who comes for that. Interest of justice includes the interest of the applicant, respondent and the court. See Willoughby v. I.M.B. [1987] 1 N.W.L.R (part 47) 105 at pages 121, parg B per Obaseki J.S.C (as he then was) To act in the interest of justice, the judge must master the procedure and maintain firm expertise of the law, so as to apply the law to the peculiar facts. That is justice well served. There are times when counsel ask for a relief with the full knowledge that the law is not on the side of his client. In such a situation, counsel merely tests the legal strength of the Judge, who in his capacity as the unbiased umpire and master and expert of the law, should give judgment according to the law. While the parties are the clients of the lawyers, the law is the Judge’s, clientele and constituency and he must apply it properly without fear or Favour. That is the oath he took on the day he was sworn in as a Judge qua judex. See Inakoju & Ors,. v. Adeleke & Ors. .(2007), 4 NWLR (Part 1025) 423Per Niki Tobi JSC (of blessed memory) To act in the interest of justice, he must deal fairly and equally with the parties before it in arriving at the result. It is not a question of whether the tribunal has arrived at a fair result – -the question is, whether the tribunal has dealt fairly and equally with the parties before it in arriving at the result.” …once he descends into the arena, the aura of impartiality ceases. He presents only a sham of justice, he becomes a poor actor who would never receive ovation, not even from the party with whom he takes sides. See Grace Akinfe v. The State SC.172/1987 [1988] 7 SCNJ 2

To act in the interest of justice, the judge should not act as a prosecutor and a judge at the same time. He should not take over the case by asking too many questions. “Let me say straight away that from what I have said above, it cannot be rightly said that the learned Judge did not ask too many questions. He did. Also, as I have stated, those questions were very probing and searching and were not even confined to facts which the parties themselves has placed before the court. They were certainly not limited to questions intended and designed to clear ambiguities or to fill up gaps… once it is shown, as in this case, that a trial Judge has turned both a prosecutor and a judge at the same time, the image of even-handed justice is destroyed and real likelihood of bias is established. See Grace Akinfe v. The State (supra). To act in the interest of justice, a judge should be bound by accepted rules.

A judge must be bound by accepted rules made under the law of the land in order not to leave the populace in the fear of saucy dreams of a judge, who would believe like Humpty Dumpty that “when I say this it must be so. And why? Because I say so and consider that to be in the interest of justice. See Willoughby v. I.M.B. [1987] 1 N.W.L.R (part 47) 105 at pages 118, parg E-F. To act in the interest of justice, Judges should shift away from technicalities and give more attention to substantial justice. In Nalsa and Team Associates v. N.N.P.C. (1991) 8 N.W.L.R. Part 212 SC 652, the appeal before the Court was incompetent, when the lawyer realized, he quickly filed a motion to rectify matters. Nnaemeka-Agu, J.S.C. (as he then was) at page 668 paragraphs A – B held as follows: “” [T]he erring appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. When such is the case, although in the hay days of technicality, the practice was to take the motion which sought to strike out the appeal as incompetent…I am of the opinion that that does not accord with the present inclination of court to do substantial justice, for the days of technicality are gone.” To act in the interest of justice, judges should be careful before receiving gifts and offers, particularly from politicians.

Most of the gifts are like the devils gift, made in anticipation of a Favour. We have seen a lot, especially in recent times. To act in the interest of justice, the judge should be mindful of his company. He must avoid social relationships that may cast doubt on the officer’s capacity to decide cases impartially or that may bring disrepute to the judiciary. See Rule 1, Code of Conduct for Judicial Officers. According to Oputa, “he should not be a socialite neither should he be a recluse”. He should carefully strike a balance.

Conclusively, Lord Denning, in his book, Family Story, said at page 174: “My root belief is that the proper role of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule or even to change it so as to do justice.

By: S. M. Oyeghe.