By Hon. Justice Ishaku Usman
1.1 The Synergy between the Bench and the Bar in the dispensation of justice (The perspective of the Bench)is a Paper presented by Hon. Justice Ishaku Usman of Niger State Judiciary, at the 20th Year graduation anniversary of Class U97/98 Faculty of Law Ahmadu Bello University (ABU) Zaria, at Toprank Hotel, Utako/Jabi Abuja FCT, Nigeria on 28th January, 2023.
1.2. With mixed feelings, I appreciate the privilege to present this Paper on the topic; The Synergy between the Bench and the Bar in the dispensation of justice. It is an honour to me most especially the fact that the actors in the discourse occupy an enviable position in our society and the world at large. The mixed feeling is because of the fear that I may not be able to hit the standard expectation in paper presentation. The Class which is now blessed with Associate professors, holders of Doctorate Degrees, Judges of High Courts, Magistrates, Authors, Lecturers, clergymen Newspaper Columnists, renowned legal practitioners, another member would have handled the exercise more appropriately than Myself.
1.2.2. My confidence stems from the fact that it is the same class that made me. The same Class should be held vicariously responsible for any underperformance in the exercise. Nevertheless, the opinions, suggestions, conclusions etc in the paper, (to some extend) remained mine and not representation of the general Bench.
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1.2.3. For the sake of the invited guests and well-wishers of the Class who are here but not vast with the terms “Bench” or “Bar”. Bench refers (loosely) to Justices, Judges, Magistrates etc of Courts who sit and give decisions over cases/complaints brought before them. The Bar is a term referring to Persons who have been certified or licensed to practice as lawyers/solicitors. While synergy is the cooperation by groups or persons to achieve an end.
2.1 The relationship between the Bench and the Bar shall be our foundation and extend in exploring where best the duo can synergize in the dispensation of Justice. The relationship is complex, dynamic and critical. In developing the relationship, it is vital that it is entirely professional. There is a difference between knowing a Judge and playing golf with one. Any personal relationship is a potential ethical dilemma. A Judges’ role requires an impartial lens influenced by law, not personal beliefs. The relationship of the Bar is governed by RULES OF PROFESSIONAL CONDUCT.
The Bench- Bar relationship is governed by interlocking rules from both sides. Lawyers are limited in what they can say to a Judge, as well as when and how they can say it. On the other hand, Judges are subject to similar rules that shape what, when and how they communicate to the lawyers and parties appearing before them. This is because what may seem like a neighborly gesture, might lead to petitions against a Judge or the Judge and the lawyer.
3.0 STATUTORY REGULATIONS OF THE BENCH AND BAR RELATIONSHIP
3.1 While Judges and Lawyers are cut from the same cloth and operate in same constituency; the dispensation of justice, their relationship is regulated. The revised Code of Conduct for Judicial Officers of the Federal Republic of Nigeria (2016) dedicated a whole Chapter (chapter 2) to the regulation of such relationship. Thus;
RULE 2 Personal relations with individual members of the Legal Profession.
2.1 A Judge shall in his or her personal relations with individual member of the legal profession, who practice regularly in the Judges’ Court, avoid situations which might reasonably give rise to the suspicion of or appearance of favoritism or partiality.
1.2 Although social contact between members of the judiciary and members of the legal profession is a long standing tradition and is proper, a Judge should act on basis of common sense and exercise caution in this aspect of this social contact with members of the profession. A Judge would therefore be wise to avoid recurrent contacts with a Lawyer appearing before him in the course of a particular case if this could lead to a reasonable perception that the judge and the lawyer have close personal relationship.
2.3 A judge shall not allow the use of the Judges’ residence by a member of the legal profession to receive clients or other members of the legal profession. It is inappropriate for a judge to permit a lawyer to use his or her residence to meet clients or use the Judges’ telephone in connection with that lawyers’ legal practice.
2.4 Depending on the circumstances, some degree of socializing is acceptable, provided the Judge does not create either the need for frequent contacts or the reasonable appearance that his impartiality might be compromised.
2.5 A Judge shall not accept gift from a lawyer who might appear in a case before him if the gift is not one given to judges generally at festive seasons such as Christmas or Sallah gift: provided always that the gift is not more than that ordinary given or not of pecuniary nature.
2.6 A Judge shall not in or outside Nigeria accept accommodation provided by a lawyer either in his house or in a hotel paid for by the lawyer or allow to be hosted by a lawyer who is or is likely to appear in his Court.
2.7 Whether a judge may attend a party given by a law firm depends upon who is giving the party and who else might attend as well as on the nature of the party. Special care should be taken where a particular law firm may be seen as marketing itself or services to clients or potential Clients. The Judge must ensure that Judges’ appearance of impartiality or approval of the Judge
2.8 A judge shall avoid developing excessive close relationship with frequent litigants – such as Government Ministries or their officials, Municipal official, Police prosecutors in any Court where the Judge often sits, if such relationship could reasonable create an appearance of partiality.
2.9 A Judge shall not belong to Association, Union or group where Lawyers who appear before him or her are also Members.
2.10 A Judge shall not participate in the determination of a case in which any member of the Judges’ family member represents a Litigant or is associated in any manner with the case.
2.11 Where a Judge is socially involved in a dating relationship with lawyer, the Judge should not ordinarily sit on cases involving that lawyer or members of his family.
4.0 MUTUAL RESPECT
4.1 Basically, the need for synergy between the major actors (Bench and the Bar) in the dispensation of justice cannot be overemphasized. It translates to having a much more decent and dynamic society. Therefore it is the society that will bear the brunt for the lack of the synergy. The dispensation of justice to the society will be better enhanced where the main actors (Bench and Bar ) are in a trustworthy and positive mutual relationship. In the case of ANOZIA vs. AG LAGOS STATE (2010) NWLR part 1216, Per Salawu JCA (rtd) aptly described the need of the synergy thus; “The legal profession popularly known as the learned profession is most undoubtedly the honourable profession given its far reaching and cherishingly indispensable impact on the society.
Thus both the Judges and lawyers as privileged members of the executive club of learned gentlemen and are under the onerous duty of upholding the well cherished tenets and ethics laid down in the legal practitioners Act 2004, the rules of Professional Conduct for legal Practitioner made pursuant to the Act”.
4.2 It is therefore incumbent on the Bar to respect the Bench in other to ensure the viability and product of the synergy. Lawyers should eschew from an unprovoked efforts in undermining the credibility of the Bench. Casting aspersion on Judges or their decisions, rather than seeking lawful procedural redress will bring down the entire institution, wherein the Bench, the Bar and the society will be negatively affected. In EGBUCHE vs. EGBUCHE (2015) LPELR 25868- ( among other holdings in the case). Lawyers were enjoined that; “Clients come and go but the Court which is his primary constituency remains”. Also in – LAWAN vs. ZENON PETROLEUM AND GAS LTD. AND OTHER (2014) LPELR-23206-CA. it was emphasized that; “No matter the level of disapproval of decision of a learned Judge by learned counsel, the Rules of our professional conduct and ethics requires that lawyers and litigants use decent language in Court.
4,3 Per Niki Tobi in ABEKE vs. THE STATE (2007) ALL FWRL Pt. 366, page 644 at 662 said “Parties do not win cases by aspersion on a Judge who has no opportunity to defend himself beyond the cold records of Appeal. Let Counsel refrain from bringing the Judge, the unbiased umpire “so to say” to the theatre of litigation and rubs him with muck. That will be tantamount to reducing the height that the law has bestowed on the Judge”. Also in ANOZIA (supra) it was commented that “Is a very bad way of showing discourtesy to a Lady Judge or in fact any Judge at all by referring to him or her in third person pronoun. It is absolutely unethical and unpardonable and whether the Judge is a HE or SHE, reference should be made to THE LEARNED JUDGE or even HON.JUDGE”.
4.4 On the other hand, as it is said, respect is reciprocal. The Bench is also expected to respect the Bar, all lawyers that appear before them. Per Ayoola (JSC)in SAEBY JERNSTROBERI MASKIN FABRIC A/S vs. OLAOGUN ENTERPRISES LTD. (1999) 10-12 SC Pg. 46 stated- “That a comment which impugns the probity of Counsel in the conduct of the case should not be lightly made and should not be made, unless the probability of such conduct is clearly beyond per adventure”.
5.0 CIRCUMSTANCES THAT ENHANCE MUTUAL RESPECT BETWEEN THE BENCH AND THE BAR
5.1 As stated above that the relationship between the Bench and the bar is substantially professional, some factors (aside mutual respect highlighted above ) also play vital roles as the fulcrum to the relationship. They include:
- Prompt and regular sitting of the Court
- Having a lawful and timely cause of action.
- Parading Credible witnesses
- Knowledge of the substantive law and procedures
- Precision in drafting pleadings, plaints, applications,
- Hard work etc
few practical instances where some of the above factors can be displayed..
- Fundamental Rights Enforcement Procedure cases.
- Dispute of Title to Properties.
- Summary Judgement.
- Matrimonial Causes.
- Money Lenders Proceedings.
- Defamation Proceedings.
- Application to prefer charge in criminal cases.
- FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE CASES
This are class of suits filed mostly against law enforcement Agents- Police, Army, Civil Defence etc. for the enforcement of the rights of persons aggrieved by the Agencies’ operations or even persons who foresee that their rights will be trampled upon, need not wait for the occurrence. Such person can also initiate the procedure to forestall any harm to their person.
The bone of contention is that most times the procedure is abused or not necessary in certain instances and applications based on them will likely fail;
- Criminal Complaint lodged in police station against the Applicant, wherein an invitation to the Applicant by the police for questioning.
- Cases referred by the Courts to the Police for investigation.
- Mass arrest of persons at rioting or disorder scenes.
- Arrest of the Applicant sequel to an Order of Court.
- Applicant arrested while committing a crime.
Invitation or arrest by the Police in the above instances may be justified as the police are statutorily obligated to investigate Crimes. Peradventure in the process of the invitation, arrest, investigation or questioning when unconventional or inhumane tactics are implored or the span of time the Applicant is kept exceeds that allowed by the Constitution or rights which the Accused/Applicant deserves are denied, then the application may be granted.
- DISPUTE OF TITLE TO PROPERTIES.
Disputes of title to properties say land are common in Courts. The Bench are mostly swayed by parties with a better knowledge and presentation of the status of the Property in dispute. This can be achieved by;
- Prior visit to the property before filing processes in Court.
- Tendering a Sketched or map of the property.
- Making searches about the property from relevant authorities and from neighbouring property owners.
- Having as witness(es) some boundary neighbours.
- Relaying an unbroken and credible chain of title in both the pleadings and statements on oath.
- Good study of the opponent’s/adversary’s case.
- live questions during cross examinations of adversary’s witnesses
- SUMMARY JUDGEMENT PROCEDURE
This procedure is adopted where the Applicant believes that the adverse party has no defense in the Applicants claims. This procedure is only adopted in suits involving liquidated monetary demand, that is where the amount of money claimed is known with exactitude.
The procedure can be avoided or aborted and the Court will transfer the suit to the GENERAL CAUSE LIST where a full trial will ensue. This is when the adverse party filed an objection to the application and intention to defend the claims of the Applicant coupled with filing of a meritorious Statement of Defense. Where the Court discovers that the defense filed by the Defendant/Respondent is otiose, frivolous or time wasting it will summarily grant the application of the Applicant without going into full trials.
Instances abound when the Court will refuse the grant of the application and order a full trial.
- Where the Claims of the Applicant include declaratory reliefs
- Where the facts in issue between the parties are contentious and evidence is needed for clarifications.
Take note that most times when the above instances are not present to void the grant of the application and the defendants defense to the Applicant/Plaintiff’s claims has no merit, the Court will out of excessive fairness, take the difficultpath to order for full trial of the suit toconvince the Respondent/Defendant that his defense really lacked merit.
- MATRIMONIAL CAUSES
This is the procedure where the rights of a spouse in a marriage are restored; relationship between spouses are determine/dissolved or where the right of custody of the children of an estranged marriage are decided etc.
- It is necessary that a Certificate of Marriage issued at a Marriage Registry be exhibited or attached to the Notice of Dissolution of marriage or in its absence evidence of the ceremony of the marriage followed by cohabitation of the parties may be given. OSHO AND OTHERS VS PHILIPS AND OTHERS (1972)1 NWLR P. 279 Per Madarikan JSC” Section 32 of the Marriage Act, a marriage could be proved by the production of a copy of the certificate of marriage filed in the office of the Registrar”.The certificate is the determinant of the jurisdiction of the Court. Only marriages conducted under the Act (statutory marriage) or by a licensed places of worship can be entertained at the High Court.
- Strangely, parties to a divorce proceeding due approach the Court to issue them a divorce Certificate; that they are in unanimous agreement to opt for the divorce without going through trials.In ORERE vs. ORERE (2017) LPELR- 42160(CA) “For a petition for the dissolution of marriage to succeed, the Petitioner must prove one of the ingredients contained in section 15(2) of the Matrimonial Causes Act, failing which the petition will not succeed even where the divorce is desired by both parties”. The Matrimonial Cause Act is categorical about trial. section 15(2) MCA “A Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the Petitioner satisfies the Court of one or more of the following facts-“
- Also to take notice, is the position of the verifying affidavit in filing Notice of Petition. Most times it is misplaced, whereas the Matrimonial Causes Rule provides that it should come immediately after the Notice of Petition or at the foot of the petition. (Order V rule 10 MCA) Penalty for misplacement of the verifying affidavit may be dismissal of the application.
- Custody of the children of estranged marriage should not be an issue in divorce proceedings. Spouses should come to consensus in this regards, so that the innocent children will not bear the consequences of the failed relationship. At most, the good welfare of the Children after divorce, may serve as launching pad for the revival/rekindling of the erstwhile relationship.
Nevertheless, certain factors are considered before decision on Custody.
- Age and sex of the child.
- Financial standing of a spouse
- Affinity of a spouse to the child
The moral standing of a spouse also plays into the mind of the Court, as the welfare and good upbringing of the Child is uppermost in the consideration of the Court.
Availability of a spouse is also a factor taken into consideration notwithstanding financial standing of a spouse or other consideration.
- MONEY LENDERS PROCEEDING
While the Money lenders laws of various States provides that only
- Banks, insurance Companies
- Co-operative Societies,
- Licensed Money Lenders
d/ Pawn broker
can lend money at interest or lend a sum of money in consideration of a larger sum being repaid. Persons or institutions not in the above category cannot lend money and charge interest as its illegal. The consequences is the forfeiture of the interest and the principal sum as the laws will not assist him to recover the money. The law does not promote illegality.
There are several departures by the Court from the foregoing, where a party wants to use the provision of the laws as a shield from paying back monies loan to him to revive his ailing business(es) or to settle a pressing need. The Courts in the absence of fraud, duress or misrepresentation have insisted on the enforcement of the terms of contract between the parties by paying the interest and the principal sum notwithstanding that the lender is not an authorized moneylender.KEHINDE VS OKPARAONU (2013) LPELR 21926 – Per. IGE JCA, on who qualifies as money lender within the provision of the money lenders law, determining factor of whether a transaction amounts to money lending. “I am not unmindful of the learned Appellants counsel’s submission attacking the learned trial Chief Judge for his failure to ask if the Respondent had the license to engage in that kind of business having held that whether it is money lending or supply of goods there had been monetary transaction between them leading to the Defendant issuing the cheques for the following amount to the plaintiff. This cannot be an answer to the positive finding of the learned trial Chief Judge showing the Appellant was indebted to the Respondent, the Appellant benefitted from the loan and he did not accuse his friend the Respondent herein of running an illegal money lending business when he was borrowing the money. It will be unconscionable for the Appellant to now turn round and contend that Respondent had no license to borrow him money so as to renege on his promise to pay back the loan. The Apex Court in the land has a piece of advice for persons of his ilk in the case of BEN E. CHIDOKA & ANOTHER VS FIRST CITY FINANCE COMPNAY LIMITED (2013) 5 NWLR (PART 1946) 144 at 162 F.H to 163 A-G Per MUNTAKA COOMASSIE JSC who said However, even if it was raised, can the Respondent be said to be a money lender or licensed Money Lender as to make the provisions of the Money Lender Law applicable to it? The Appellant cannot admit in his brief of argument that the Respondent was not a money lender or a registered Money Lender. In this respect I find the view expressed by Okoro JCA useful, in ALHAJI ABDULLAHI IBRAHIM VS MALLAM ZANGINA ABUBAKAR BOKORI suit No. CA/K/299/2016 (unreported) delivered on 2/7/2009 (Court of Appeal Kaduna Division) and I wish to adopt it in this Judgment. At pages 27 – 23 the Learned Justice of the Court of Appeal held as follows- A person engaged in other business who out of sympathy or pressure as in this case lends money to his friend to resuscitate his ailing business, should not by any stretch of imagination be termed money lender under the aforesaid law. I seem to agree with the view expressed by Farewell J. in LINTCH FILED VS DREYFUL (1906) 1 KB 554 that – the Act was intended to apply only to persons who are really carrying on the business not to person who lend money as incidental business or to a few friends. He continues and said, though not binding authority, I agree that the view so expressed represents the correct position of the law in this matter. I am always not comfortable at the practice where a party after seeking and obtaining money from his friend for resuscitation of his ailing or dwindling business will turn around to rely on technicalities or loopholes in the law as a cover to absolve himself from contractual obligation by putting up a defense under money lenders law as done by Appellants in this case. This is an example of business relations and this court would not lend support for such a party to bite the finger that fed him and deprive him of his hard earned money. A man who with his eyes opened and without the other party committing any fraud against him, enters into an agreement with another, should be prepared to abide by the terms of the agreement illegal or otherwise unenforceable in law, I cannot allow the Appellant, after collecting money from the Respondent to do business to now turn around to plead the money lenders law in order to escape the refund of the said money as governed by Exhibit “A” between them, it is on this note that I agree with the learned trial Judge that based on the pleadings and the evidence before the court, the Respondents are not money lenders. Accordingly, Exhibit “A’ is not governed by the law. My Lord though I am not bound by the above exposition of the law, I agree that the statement represents the law and as such permit me to adopt same as mine” – Per IGE JCA(as he then was).
- DEFAMATION PROCEEDINGS
In defamation proceedings, the plaintiff is under obligation to plead the defamatory words, signs etc or reproduced in his processes no matter how short or long they may be.OKAFOR VS IKEANYI AND OTHERS (1979) 12 NSCC. Pg. 43 which goes thus; “In case of libel, pleadings are of tremendous importance and so plaintiff who claims that an article is libelous of him, must reproduce the whole article verbatim or the particular passage he complains of in his pleading no matter how long the article is, it must be reproduced”.
In EKONG VS OTOP AND OTHER (2014) 11 NWLR 1419 Pg. 549 on whether words alleged to be libelous must be specifically pleaded? “In an action for libel, a plaintiff must set out in his statement of claim the exact words which he alleges to be defamatory of him. this is to enable the court to determine whether they constitute a ground of action” – Per Okoro J.S.C also in ACCESS BANK VS MUHAMMAD (2014) 6 NWLR PART 1404 Pg. 613 on what a plaintiff must plead in establishing a claim of libel. “In establishing a claim of defamation, specifically libel, the law requires the plaintiff to plead and reproduce the alleged libelous words/statements in the pleadings and show proof/evidence of publication of the libelous words/statements in a manner that the plea/defenceof justification or privilege cannot avail the defendant”.
- Amendments; the rules of the Court (Order 24 Niger State High Court civil procedure rules 2018) do not provide for a deeming Order under amendment of processes, therefore, a proposed copy should be attached as an Annexure and upon grant of the application, a fresh copy must be filed.
- Bail application by Exparte: Bail application is a contentious issue and the where the response of the adverse party or Respondent cannot be dispensed with. In most applications for grant of leave to apply for the quashing (certiorari) of Orders, rulings, judgements of a subordinate Court, which is via exparte (adverse party not to be put on notice) application for bails are smuggled into the reliefs sought. The Courts cannot grant the application through the procedure, except the adverse party is put on notice (motion on notice).
- Interim injunction can be more effective after the Courts has been seized with the physical facts or visit of the property that the application of injunction is tied to.
- APPLICATION TO PREFER CHARGE IN CRIMINAL CASE
The Courts jurisdiction in a criminal matter starts to run when an application to prefer a Charge against the Accused Person(s)(Section 185 CPC) is before the Court and has been granted. Upon the grant, its incumbent on the Prosecution to file a fresh charge from the Courts ruling. This is because the initial charge was an annexure to the application and most at times or always, there are no deeming reliefs in the application.\
- POSSIBLE AREAS OF SYNERGY
- Encouraging settlement of cases out of Court (ADR).
- Always resort to precedence while drafting documents/processes
- Attend courts sittings promptly and regularly and to watch proceedings.
- Read law reports (recent), law journals etc regularly
- Always confirm that processes/documents are properly filed, complete fees paid and endorsements made on the processes before effecting services.
- Where need be, provide alternative reliefs to claims to avoid nonsuit or absolute dismissal.
- Ensure criminal Appeals are signed by the Accused person and not by Counsel..
- Develop good relationship with legal Departments of Law enforcement institutions and members of the official Bar,
- Un prejudicial prior study of opponent’s case or defense.
- Ensure witnesses sign their statements before Commissioner for Oaths or representative.
- Ensure Court processes are effectively served and Affidavit of service deposed thereto.
- Cross examination should not be too vague and time taken.
- Pupilage should be encouraged for young lawyers- greenhorns.
- Production of sketch map in land disputes.
- Observe decorum during Court’s proceeding and priorities should be given to Senior Lawyers.
As repeatedly stated that the relationship between members of the Bench and the Bar are highly professional, the nature of the relationship transcends just between the Bench and the Bar. The erstwhile informal nature of relationship between members of the Bench before ascension, with any other profession is curtailed or rather substituted with a much more formal one. The society stands to benefit immensely where there is a superlative synergy between the Bench, the Bar and the society.
- Critical Appraisal of breach of rules of Professional conduct by legal practitioners. What should be done differently?” Paper delivered by Hon. Justice Ishaku Usman at the Annual General Lecture of Nigerian Bar Association (NBA) Suleja. 10th Dec. 2021.
- Understanding the Bench to get it right. A paper presented by Hon. Justice Ishaku Usman on the 21st May 2021 at the monthly meeting of the Christian lawyers Fellowship of Nigeria (CLASFON) Minna Branch Niger State,
- Revised Code of Conduct for Judicial officers of the FRN 2016)
- Judicial professionalism and the relations between Judges and Lawyers. RT Shepard 2014.
- The Unique relationship between Lawyers and Judges- Litigation News. 8th Sept.2020.
Hon. Justice Ishaku Usman
High Court No.1 Suleja