How Bench And The Bar Can Manage Symbiotic Relationship By Y. C. MAIKYAU
Posted: 08/Nov/2018

As is expected in preparing for this session I endeavored to keep in view, the theme of the conference Rethinking and Retooling Legal Practice for the challenges of our time For me, the theme of the conference, recognizes and acknowledges the existence of certain thoughts, mindset and tools which guided or still do guide Legal Practice in Nigeria. The theme from my understanding does recognize that, the dimension of our present day experience in Legal Practice, as aptly described in the Welcome Address of the Chairman of the Section on Legal Practice, is inconsistent with the ideal standards of the Legal Profession, thus the call to rethink and retool Legal Practice. This truth cannot be overemphasized. But to deal with this growing menace, which has so seriously threatened the Profession of Law in Nigeria, what does the call for rethinking and retooling of the Legal Practice entail?

As observed earlier, the profession of Law in Nigeria has thrived on a certain pattern of thought/mindset, applying certain set of tools, which together have accounted for the high respect for the Legal Practice in Nigeria from within the Continent of Africa and beyond. Should we therefore in this conference, (Rethinking and Retooling Legal Practice) be looking at introducing new thoughts and tools to regulate the Legal Practice? Or, are we to reflect on those thoughts, mindset and tools that were responsible for the emergence of Nigeria, as a nation with rich, qualitative and a highly established Legal culture, which led to the export of our Legal resource both within the Continent of Africa and beyond, to serve as the bench mark for dealing with our present day challenges in the Legal Profession?

While doing the former would help us consider ways by which to meet up with the changing times and particularly the emerging technological trends and development, I believe the latter, which entails an interrogation of our past, is and should be, the core concern of this Conference. Not the least because of the huge impact recorded by the Legal Profession in Nigeria within and outside the African Continent. In this regard, names of highly revered, Legal minds and internationally acclaimed Lawyers and Jurists such as Hon. Justice Charles Dadi Onyeama, Hon. Justice Taslim Olawale Elias, Hon. Justice Akinola Aguda, Prince Bola Ajibola, Hon. Justice Emmanuel Ayoola, Hon. Justice Ibrahim A. Amosun and Sir Udo Udoma, CFR, KBE, (just to mention a few) readily come to mind.

Hon. Justice Charles Dadi Onyeama, JSC, 1964 – 1967, ICJ 1967 – 1976,  Hon. Justice Taslim Olawale Elias, CJN – 1972 – 1975 and President International Court of Justice – 1982 – 1990.  Hon. Justice Akinola Aguda – was the first indigenous African Chief Justice to head the Supreme Court of Botswana.  Hon. Justice Emmanuel Ayoola – was the Chief Justice of Gambia, between 1983 to 1992.  Hon. Justice Ibrahim A. Amosun, CJ Gambia, 1992 – 1995.   Prince Bola Ajibola – was at the international Court of Justice, Hague, between 1991 to 1994.

Sir Udo Udoma, CFR, KBE – was the first indigenous African Chief Justice of Uganda, between 1963 to 1969, who also doubled for sometimes as the Governor General of Uganda while he served as the Chief Justice.

These great men attained these outstanding feats in their Legal Practice by an understanding of who they were/are, what they represented/represent, as members of the Legal Profession and allowed the thoughts of who they were/are and what they represented/represent, to influence the use or application of the tools of Legal Practice available to them. While I do not have a catalogue of what these tools are, suffice it to say that, what however stood out in their Legal Practice either as members of the Bench or Bar, is their deep knowledge of Law which they deployed in their practice on the platform of honesty, sincerity and fairness. Little wonder, for those that have passed to the great beyond (may their souls rest in perfect peace) their sterling qualities continue to speak. And for the personalities that are still with us (and may they continue to live long in good health), they remain shining examples not only to the Legal Profession but also to other fields of human endeavor.

The challenges facing the Bench and the Bar in Nigeria are for me, a manifestation of the crisis of identity that seem to have overtaken some, if not most members of the Legal Profession. In consequence therefore, we witness amongst members of the Bench and Bar, conducts that are inconsistent with who we truly are and what we represent. This is true for all members of the Profession either serving on the Bench, Bar or other fields of Legal Practice. This lack of or misunderstanding of our true identity has adversely affected the relationship between the Bench and the Bar and is largely responsible for the sharp practices we see amongst members of the Legal Profession which has seriously tainted the perception of Legal Practice in Nigeria. Those involved in such sharp practices, may be fewer in number, but they have brought so much disrepute to the Profession because they have remained resolute and determined to Practice the Law the way they do, either because they are ignorant of who they are or they deliberately conduct themselves in that manner, for their selfish pursuits. Neither of these, is good or acceptable. We must therefore as a body, resolve to tame those erring members of the Profession (Bench or Bar) with the view to bear and showcase the fruits of our true identity.

The topic for this session has afforded me the premise to begin a reflection on what I see as the identity element, militating against what should have been the ideal relationship between the Bench and the Bar. For me (with due respect to the framers of the topic for this session), the Bench and the Bar, are not in a symbiotic relationship. Symbiosis is a Biological term. It is defined in Webster Comprehensive Dictionary as, the consorting together or partnership of dissimilar organisms, as of the algae and fungi in Lichens. The term ordinarily connotes an association which is mutually advantageous. The Bench and Bar, are not dissimilar organisms, who found themselves in an association which is mutually advantageous. The Bench and Bar are, members or parts of the same body of a person known as JUSTICE, within the limited sense of a given set of rules or norms, applied as the bench mark/threshold for ascertaining the presence of the person – JUSTICE. THOUGH THIS MAY NOT ALWAYS REPRESENT THE TRUTH, IT IS ACCEPTED AS A FAIR DEAL TO THE PARTIES. The Bench and the Bar are two parts of the same body (JUSTICE) performing different functions for the benefit of JUSTICE. Both the Bench and the Bar, share the same life, flowing from the person of JUSTICE. The Bench and the Bar are autochthonous parts of the organism called JUSTICE.

They originate from JUSTICE, and it is in this organism – JUSTICE, that we find the Bench and the Bar performing their functions. In the discharge of their functions as members of this body, whatever appears adverse to the interest of JUSTICE is fought jointly by the Bench and the Bar. The Bench and the Bar have symphony, harmony and are concerted against any external force or influence which contends with the thresholds set by JUSTICE and they always resolve the contention in favour of JUSTICE.

The Bench and the Bar do not work for themselves but for their body: JUSTICE. Whatever the interplay between the roles or functions of the Bench and the Bar decides in any given contention or dispute, is equal to or tantamount to JUSTICE. There ought not be a dissent between the Bench and the Bar. The Bar defends the integrity of the Bench and the Bench does likewise. This is the ideal relationship between the Bench and the Bar. When this identity of the Bench and the Bar is allowed to pervade the consciousness of the members of the Bench and the Bar, the challenges of the Legal Practice, as captured by the Chairman in the Welcome Address, will be reduced to the barest minimum if not eliminated completely. On the contrary, a misunderstanding of this identity will inevitably lead to abuse.

An understanding of this relationship will see members of the Bar, conduct themselves with decorum, respect and candour, while performing their roles as engaged by JUSTICE, before the members of the Bench. The Bar will not abuse the Bench, it will not collude with “strangers” to harass and disparage the Bench, the Bar will not rejoice over the ordeal that befalls the Bench. Rather, the Bar will be protective of the Bench. What we experienced in recent past, where “strangers” to this autochthonous existence of the Bench and the Bar, broke into the premises of Justices and Judges in a supposed bid to address injustice in the form of corruption and compromise, was the highest manifestation of failure on the part of the members of the Bench and Bar, engendered by a complete lack of understanding of our true identity.

Unfortunately, this saw some members of the Bar conspire as it were, with aliens to our autochthonous existence as organs of JUSTICE, to wreak havoc to the Institution of JUSTICE. Members of the Bar discussed these matters with relish on TV and on the pages of newspapers. I am sure that, while we must not and should not condone the practice of corruption in any form or guise, an understanding of our identity, would have seen us approach the matter differently. The spate of petition writing by members of the Bar merely because a decision by the Bench did not suit their positions, is equally a manifestation of the absence of the understanding of our true identity and roles in the pursuit of JUSTICE. Otherwise, if a member of the Bar had approached the Bench with the sole purpose of attaining JUSTICE in a matter, a decision against his position would not result to a petition. Such a member of the Bar would rather resort to the provisions made by JUSTICE in such circumstances. In the book Our Temple of Justice by Honourable Justice Oputa, JSC, of blessed memory, His Lordship quoted Crampton’s Classic and historic dictum in R. v. O’Connel on the Court as a Temple of Justice, which described the Bench and the Bar as being under a perpetual retainer on behalf of truth and JUSTICE. The Judge was quoted on pages 12 – 13 of the book as follows:

“This Court in which we sit is a Temple of Justice, and the Advocate at the Bar as well as the Judge on the Bench are equally ministers in that Temple. The object of all equally, should be the attainment of justice; now justice is only to be reached through the ascertainment of the truth, and the instrument which our law presents to us for the ascertainment of truth and falsehood of any criminous charge is the trial by jury; the trial is the process by which we endeavor to find out the truth. Slow and laborious, and perplexed and doubtful in its issue that pursuit often proves, but we are all – Judges, Jurors, Advocates and Attorneys – together concerned in this search for truth; the pursuit is a noble one, and those are honoured who are the instruments engaged in it. The infirmity of human nature, and the strength of human passion, may lead us to take false views, and sometimes to embarrass, and retard, rather than assist in attaining the great object; the temperament, the imagination and the feelings may all mislead us in the chase – but let us never forget that the advancement of justice and the ascertainment of the truth are higher objectives and nobler results than any which in this place we can propose to ourselves… I would say to the Advocates upon this subject – let your zeal be as warm as your heart’s blood, but let it be tempered with discretion, and with self respect; let your independence be firm, uncompromising but let it be chastened by personal humility, let your love for liberty amount to a passion, but let it not appear to be a cloak for maliciousness.

“Such I do not conceive is the office of an Advocate. His office is a higher one… He gives to his client the benefit of his learning, his talents and his judgment, but all through he never forgets what he owes to himself and to others. He will not knowingly mis-state the law – he will not willfully mis-state the facts, though it be to gain the cause of his client. He will ever bear in mind, that if he be an Advocate of an individual… yet he has a prior and perpetual retainer on behalf of truth and justice and there is no crown or other licence which in any case or for any party or purpose, can discharge him from that primary and paramount retainer.”

My Lords, gentlemen colleagues, with all due respect, as with the Bar, the Bench is no less under a corresponding duty to show respect and protect the Bar. There are Judges whose Courts members of the Bar dread to appear; these include, senior members of the Bar, in order to avoid a situation that will further bring Legal Practice to disrepute. These Judges are uncourteous and use languages that should not even be associated with an autochthonous member/organ of JUSTICE, let alone use same to address other members of the body of JUSTICE. There is a need for such members of the Bench to be temperate. Speaking on His Lordship Sir Udo Udoma, JSC, of blessed memory, as a Judge of the FCT Lagos, Honourable Justice M. L. Uwais CJN (Rtd) said:

“In this office, he soon demonstrated his innate judicial qualities. He presided over trials with dignity and authority, with courtesy and understanding.”

This I believe, should be the description of the conduct of every member of the Bench. It goes a long way in boosting the confidence of members of the Bar (particularly, the younger colleagues) and cultivates respect from Litigants and the general public towards the process of dispensation of JUSTICE. His Lordship Sir Udo Udoma, was reputed for his contribution towards the moulding of the legal profession and the Ugandan Bar, during its infancy. In a tribute delivered by Honourable Justice Joseph N. Mulenga JSC of Uganda, at the Valedictory Court session held in honour of Sir Udo Udoma JSC, the distinguished Legal Practitioner and Jurist, was described as one who nursed the Legal Profession in Uganda as a nanny nurses a baby. Nurses don’t abuse, insult and ridicule persons kept under their care. Honourable Justice Mulenga JSC, (Uganda) recalled an incident which he used to illustrate the role played by Sir Udo Udoma, JSC vis a vis the Ugandan Bar as follows:

“In 1967 I was among the few young lawyers who appeared before the Lord Chief Justice Sir Udo Udoma to be ceremoniously entered on the roll of Advocates of the High Court of Uganda. Among us was a colleague who was appearing for the second time because on an earlier occasion he had been turned away on the ground that he was not correctly attired. He was sponsored and was being introduced by no less a dignity than the Solicitor-General. When his turn came the Solicitor-General stood up and said: “My Lord, despite the mishap of last time, I am happy to introduce to you Mr. Fred Lulume.” The Chief Justice cut in to say: “Mr. Solicitor, it is apparent that there has not been much improvement since last time. However you may proceed. I hope with practice he will improve in your hands.” Apparently this was because the flaps had slip below, so that the stud in the front of the wing collar was showing. S

Udo Udoma did not tire in providing guidance on Court decorum and professional etiquette as well as on substantive and procedural law. ”

If members of the Bar are to play their roles of effectively protecting the integrity of the Bench, measures must be put in place to ensure capacity, over and above any other requirement, as this plays a key role in the process of appointing any member of the Bench. In the present day Nigeria, the negative perception about the Bench, which is as much a dent on the Bar, can be changed if capacity becomes the main focus, both at the point of entry and while on the Bench. It is said that, incompetence has the same appearance as compromise/corruption and neither is good for the Bench. Similarly, for members of the Bar, as stated by Chief Kehinde Sofola, SAN at the valedictory session of Sir Udo Udoma over two decades ago:

“There is need to activate disciplinary action against those lawyers who recklessly damage the interest of their clients due to their erosion of their legal knowledge.”

Mr. Sofola, SAN went on to say: ‘’My Lords, the late Mr. Justice Udo Udoma has left his footprint on the sand of time. He has fought a good fight. Let us strive to follow his example and boast of a virile, courageous, fearless yet responsible and trustworthy Bar and an honest, upright and clean Bench because people’s sense of justice may well depend on what they see and what they hear in and about our courts. Justice can degenerate into a mockery if the public has no confidence in our Bench and Bar’’.

He applied the law equally in all situations and to all persons to which it relates without fear and favour, to the rich and the poor, to the powerful and the humble alike. He applied the law without discrimination.

I recall an occasion when he declared that if a court found in favour of a powerful litigant not because it was genuinely persuaded of the truth but because it wished to show favour to the powerful either out of fear of the consequences of an adverse decision or on account of bribery or hope of future benefit or advancement, then a legal injustice has been committed.”

Let me use this opportunity and take the liberty I have to speak on this subject to let the Bench know that, the Bar is very much appreciative of the difficulties of functioning as that member of the body of JUSTICE. Members of the Bench are humans, who are subject to limitations as all other human beings. I shall here refer to the paper delivered by Lord Neuberger, titled “The Role of the Judge: Umpire in a Contest, Seeker of the Truth or Something in Between?” at Singapore Panel on Judicial Ethics and Dilemmas on the Bench on the 19th of August 2016. His Lordship noted that the notion that the work of a Judge can be equated to a referee or umpire in a sporting event can be misleading. After noting some peculiarities of the rules of sports and the expectation from the referee or umpire proceeded to summarize the function of the Judge in the following words:

“By contrast, although judges normally have the luxury of being able to take time for their decisions, they are routinely called on to make decisions which involve difficult resolutions of factual disputes, value judgments and balancing exercises, and an analysis and resolution of legal issues, all of which can call for an assimilation and assessment of complex facts, and complex legal arguments.

So far as facts are concerned, even in a very simple factual dispute, it can be very difficult to know whom to believe. Indeed, in some ways, it is particularly difficult to resolve evidential differences when there are no contemporary documents and only one issue of fact on which the parties differ. On the other hand, in complex cases, resolving issues can be particularly difficult partly because it is very rare indeed that one finds that any party’s evidence is wholly reliable, partly because there is normally a mass, even a morass, of oral and documentary evidence.

But there is a significant ethical dimension to the fact-finding exercise as well. We are all subject to conscious and subconscious biases, and such biases will inevitably influence our assessment of evidence and, in particular, of witnesses. Early on in my judicial career, I was listening to an oldish man who was giving evidence which was inherently unconvincing, and I noticed that I was trying to justify or explain away his inconsistencies and evasions to myself. I pulled myself up and tried to examine why I was doing this, and then I realised that, through his physical and vocal mannerisms, he reminded me of my father who had recently died, and that this caused me to want to believe him.

This is but one example, and a rather simple example, of bias, and it is nothing to be ashamed of. Indeed, we judges should all be as aware as we can be of our biases or, if you prefer, prejudices. I say “all” with confidence, because one cannot be a functional human being without having preconceived ideas and notions. The important thing is that judges are as aware as they can be of any biases or prejudices they suffer from, and that they acknowledge and take into account those biases and prejudices when evaluating witnesses and their evidence. Nobody is going to know all their prejudices and nobody is going to be able to allow in a perfect way for all the prejudices they know about. But that is no excuse for not trying to assess and allow for them. The fact that we cannot get the answer right every time is no excuse for not doing our best to get the right answer.

When it comes to issues of law, there is sometimes a strong temptation to “bend” the law, or even simply to cheat, if strict application of the cases or statute appears to lead to what appears to be an unmeritorious result in the particular case to be decided. In a sense, this can be seen as an ethical dilemma, especially when the law seems to produce a result which would appear to a non-lawyer to verge on the immoral. As a matter of principle, a judge should plainly resist the temptation to misapply the law in such a case. Not only would it be contrary to the judicial duty, indeed the judicial oath. It would also often be contrary to the interest of the very party whom the judge is trying to help: the other party would successfully appeal and the party who the judge is seeking to help would not only lose, but would have to pay two lots of costs.

In that connection, there is also the wider point that common law judges are not simply deciding the case before them. Their decisions represent part of the law of the land, at least unless and until they are reversed. So, when deciding a point of law, a judge should remember all the potential future litigants going to see their lawyers for advice. The need for certainty and clarity in the interests of many potential future litigants can be said with force to be more important than the need for a merits-based result in the particular case before the judge.

Of course, I must emphasise that this analysis risks over-simplifying things. The common law does not stand still, and, in some cases where application of the law appears to produce an unmeritorious result, it is possible for a judge to develop the law so as to produce the meritorious result. But before a judge takes such a course, he must admit to himself and explain in his judgment that he is developing the law, and how and why he is doing it. Otherwise, he is not acting in accordance with his duty. A judge has to be, and has to be seen to be, intellectually honest.”

Being a privileged member of the body of JUSTICE either on the Bench or Bar, comes with some limitations. For instance, there is a way one must dress to reflect the nobility of the Profession. There are certain hairdo which will not allow a wig to sit on a member’s head. They should be avoided. Membership of this body dictates the company one keeps, how and when to talk. All these flow from the consciousness of our identity and only by keeping to the dictates of this identity can we have a Bench and Bar that will earn the confidence of Nigerians and the world at large.

I therefore submit that, however potent the tools necessary for the effective workings of the Bench and the Bar are, without the ideal mindset and understanding of our identity as the vehicle by which we can convey the benefits of the tools, the Bench and the Bar will continue in a perpetual state of crisis with the attendant adverse effects to the society. It is our duty to forbid it. The way to do so is to constantly remind ourselves that we are perpetual retainers on behalf of JUSTICE and only then can the Bench and the Bar enjoy the best of relationship as autochthonous members of the body of JUSTICE.

Sir Udo Udoma, JSC, was appointed to the Bench in 1961. He remained active in the activities of the NBA and served as NBA’s Vice President from 1953 – 1963. This underscores the nature of the relationship that can exist between the Bench and the Bar and that indeed we are members of the same body, performing different functions for the benefit of the body, JUSTICE.

Thank you for your attention.

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