Attention My Lords
This interesting and somewhat humorous article by Bob James, discusses not just slips of Advocates, but what he describes as a more insidious problem, the failings of the Judiciary, which he believes have culminated in the decline of adjudication in our l
TSlips of Modern Day Advocates here has been much talk in recent years about the alarming rate of the decline in the quality of advocacy in Nigeria and, sadly, not without justification. You need only to pick up a few law reports and see proof for yourself. One of the irritating and common examples of this decline is seen in the way grounds of appeal are couched. Very often you come across someone writing: “The learned trial Court erred in law in holding that.............”, or even more stupid, “the learned court of Appeal erred in law in holding that”......................
A building cannot be learned, it is the personnel who man the courts who are, so the correct thing is to say is “The learned trial judge”, for the High Court or “learned Justices of the Court of Appeal”, or “their lordships of the Court of Appeal”.
Very often in oral argument in court, you hear a lawyer address a judge saying, “You gave an order on so and so date, “or you adjourned the case to today for hearing”, etc. The complaint here is that that is illiterate expression. The use of the pronouns “you”, “he”, “she”, “they” in reference to Judicial officers, even in writing, is offensive and more offensive when used during court proceedings, “Your Lordship’’, “Their Lordships’’, etc are the accepted conventions.
Declining Quality of Our Legal System
In a lecture delivered at the 1990 edition of a continuing education forum for judicial officers, the legendary Justice Chukwudifu Oputa of blessed Memory stated:
“It has been said that no one can calculate the aggregate amount of evil inflicted on the community by a bad decision”, and then quoted the famous Roman Jurist, Justinian who said:
“Ignorantia judex est calamites innocetis – “ignorance of the judge is the doom of the innocent”.
The matter is now such a big problem, that the concerned judicial authorities must address it squarely. Too many bad judgements, which reflect terribly on the learning and intellect of the judicial officers, emanate from the courts every day. It is terrible, if you cannot walk into a court and take it for granted that the judge is reasonably competent, and knows at least the ABC of the law.
Judicial Examples
Two recent judgements of the Supreme Court of Nigeria, bring into sharp focus the problem being discussed here.
The first is HASSAN v FRN (2017)6 NWLR, pt 1560, pg 64. The appellant in that case and 14 others, were charged before the Federal High Court for the offence of terrorism under Section 15 of the EFCC Act, found guilty and sentenced to 10 years imprisonment. Their conviction was affirmed by the Court of Appeal, and on further appeal to the Supreme Court, the conviction was set aside and the trial declared a nullity. The conviction was nullified for the sole reason that the arraignment in the trial court, was not in compliance with the procedure for arraignment as stipulated in Section 215 of the Criminal Procedure Act.
The Supreme Court stated: “The frequency of appeals to this Court, in recent times, on the improper arraignment of defendants before trial Courts should be a cause of concern to the relevant authorities. This is somewhat surprising, since the jurisprudence on arraignment is, truly, robust. Against the background of what transpired at the trial Court, as regrettably affirmed by the lower Court, I am constrained to reel off some of these decisions for the umpteenth time, in the hope that this embarrassing development should abate”. Per Nweze, JSC at pg 84.
Arraignments are the first stage in a criminal trial, and consist of that part of proceedings where the charge or charges, as the case may be, against the accused, is read to him and then he is asked whether or not he is guilty. Section 215 of the Criminal Procedure Act and Section 187 (1) of the Criminal Procedure Code spell out in black and white, what must be done by a trial court during arraignment.
1st step: The accused person is called to enter the dock, and must be unfettered; unless the court has reason to allow him to be otherwise restrained whilst in the dock.
Step II: The charge, or if there is more than one count in the charge, all the counts must be read and explained to the accused, in the language he understands and by an officer of the court.
The court must be satisfied that the accused person understands what was read to him, and the usual way of doing this is for the court official, after reading each count to ask the accused directly: “Do you understand the charge or do you understand what I have just read to you?”
If the accused does not understand English language, an interpreter must be provided by the court, to explain the charge in the language of the accused.
Step III: Immediately after each count of the charge is read and explained to the accused and he says he understands it, he must be asked whether the charge is true or false, or to use the old familiar phraseology, “are you guilty or not guilty”? And his answer to that count, must be recorded by the judge before the next count is read, explained, and the same question of guilty or not is repeated for the new count, and so on and so forth.
This process must be repeated for all the counts, separately, even if they are 100.
If there are two or more accused persons, the procedure must be repeated for each accused person in respect of every count in which he is charged, and his plea to each count separately recorded, as well as the fact that the count was read, explained to him to the satisfaction of the court and he said he understood same.
You should feel as angry as Justice Nweze, if in performing a procedure as elementary as the steps enumerated above, even a junior magistrate should blunder, let alone a High court judge. It is simply intolerable that in this modern world, an appeal should get to the Supreme Court and be thrown out on something as elementary as proper arraignment. A Senior Magistrate who cannot handle proper arraignment, should just be demoted and never smell the rank of Chief Magistrate. For a High Court Judge, he should just be sacked or redeployed to the Ministry of Agriculture.
The second case to be highlighted is OGBU v THE STATE (2017)8 NWLR pt 1567, pg 236. The unfortunate facts were that a very young boy of 16 years was standing in front of a carpenter’s workshop in Makurdi when another youth, without any provocation whatsoever, just set upon him with “ferocious” blows. In self defence, he picked up a knife which was lying nearby, and stabbed the aggressor in the chest. That was the only way he could free himself. Unfortunately, the attacker died within a few hours in the hospital.
The boy was arrested, and charged for murder in the High Court in Makurdi.
The trial judge from the evidence before him, determined that the plea of self defence, called right of private defence in the Penal Code under which the boy was tried, was established by the defence, in other words, that in attacking the aggressor with the knife in the circumstances of that case, he acted in self defence.
Now, the first thing you learn in your undergraduate criminal law class before you even get to the law school, is that the major difference between the defences of provocation and self defence is that provocation, if proved, reduces the offence of murder to manslaughter, whereas self- defence, if proved, exoner-
""IT HAS BEEN SAID THAT NO ONE CAN CALCULATE THE AGGREGATE AMOUNT OF EVIL INFLICTED ON THE COMMUNITY BY A BAD DECISION”, AND THEN QUOTED THE FAMOUS ROMAN JURIST, JUSTINIAN WHO SAID: “IGNORANTIA JUDEX EST CALAMITES INNOCETIS – “IGNORANCE OF THE JUDGE IS THE DOOM OF THE INNOCENT""
ates the accused out rightly.
Section 59 of the penal code in plain and emphatic language enacts that “Nothing is an offence which is done in the lawful exercise of the right of private defence”. This is the settled law, under both the penal code and criminal code, as laid down by the Supreme Court in countless cases, some dating back to over 40 years.
Surprisingly, the High Court Judge in the Ogbu case aforementioned, in spite of his finding that the boy acted in selfdefence, still sentenced him to 10 years in prison without option of fine. The case went on appeal to the Court of Appeal, Makurdi Division, and, wonder of wonders, a 3 man panel of Appeal Court Justices, after upholding the finding that the accused acted in self defence, upheld the conviction and sentence of 10 years imprisonment. It was in a further appeal to the Supreme Court, that the decision of the two lower courts were reversed, and the Apex court stated the law: “The correct position is that self-defence is a complete defence under the criminal code and penal code, and a successful defence of self-defence leads to the discharge and acquittal of the accused” per Augie, JSC, at pg 265-266.
The Supreme Court said the conviction of the accused by the trial court, was “inconceivable and absurd”. Pg 271. For the Court of Appeal, to have affirmed that the defence of self defence, did avail the defendant and still proceeding to affirm his conviction amounted to a “judicial somersault of great proportion” per Galinje, JSC at pg 280.
The boy had spent close to 10 years in prison before the Supreme Court freed him. So 10 years of his life, in his prime, was wasted as a result of ignorance of basic law from judges. This is apart from the resources and time, that were wasted on prosecuting appeals that were absolutely avoidable. So, the Roman Jurist, Justinian was right “Ignorantia judex est calamites innocetis – “ignorance of the judge is the doom of the innocent”.
Arraignment This year alone, a number of convictions have been quashed by the Supreme Court, on grounds of matters as mundane and elementary as arraignment. Appeals still get to the Supreme Court, on matters as elementary as the law that governs admissibility of documents.
Every day, in trial courts in the country, trial judges give rulings that frustrate prosecutions.
A common example arises, when an IPO seeks to tender the statement made by an accused person during interrogation. In some cases, the particular officer who recorded the statement, may have retired from service, or transferred to another state, etc. The correct law is that any police officer who was part of the investigating team, who was present when the statement was recorded, and who is familiar with the signature and handwriting of the officer who recorded it, can tender it, after laying foundation.
There are still instances, when trial courts wrongly uphold objections to the admissibly of such documents, resulting, where the document is a confessional statement and the key plank of the prosecutor’s case, in total abortion of the trial or a time consuming and useless appeal on the matter.
Extension of Time This writer is involved in a case in the High Court of FCT, where the defendant failed to file his statement of defence within time. Defence counsel brought an application for extension of time to file statement of defence and in the affidavit in support, this is all that is stated:
“(1) That I am a litigation secretary in the office of MB & Co, the counsel to the Applicant and by virtue of my position I am conversant with the fact of this case.
(2) That I have the authority and approval of both my employer and the applicant to depose to this affidavit.
(3) That I was informed by Barr. A.B.C........... a legal practitioner under the employment of MB & Co, counsel to the defendant in this matter at our office at plot 510, Wuse Zone 1, Abuja at about 1:00pm of the following facts, of which I verily believe to be true as follows:
a. That the Defendant/Applicants are yet to file and serve their statement of Defence and witness statement on Oath (the processes) in this suit.
b. That the Defendant /Applicant is out of time to file and serve the processes.
C. That the leave of this Honourable court is required to file and serve the processes.
d. That the processes are ready and have been filed and served along with this application on all parties.
e. That the Plaintiff/Respondents will not suffer any prejudice if this application is granted.
f. That it will be in the interest of justice to grant this application.
(4) That I depose to this affidavit consciously believing its contents to be true and in accordance with Oath Act.
It is only in a loose and lay man sense, that such worthless paper can be called an affidavit.
It is true that a trial court will normally grant applications made in good faith, for extension of time to file pleadings, or indeed, to take any other step in the trial process, because, the courts exist to do justice, and not to punish litigants for mistakes made by them in the course of trial. However, it is also firmly established that, a court NEVER grants such indulgence as a matter of course; an applicant who applies for it, must give good and cogent reasons for failing to have performed the act within time.
To grant such an application on the basis of the “affidavit” deposed to above, is purely to encourage tardiness in advocacy and render the rules of court nugatory.
You can, if you are an over liberal judge, grant the indulgence for very poor reasons, or even for no reason at all, because of the over used clichés that you don’t punish litigants for the sin of counsel, or that courts now lean in favour of substantial justice and not technicalities. Then at least, award costs and make the parties sit up. The judge in that case, admitted the affidavit and over ruled our opposition. How can that be excused?
It is settled law that, for all professionals, a reasonable degree of skill is expected in the discharge of professional duties, and any act of omission or com- mission which falls far below acceptable standards of competence, attracts sanctions.
Why Should this not Apply to Judges?
The Court of Appeal, recently had opportunity to punish a Magistrate for an act which was either a deliberate defiance of the law, or grave ignorance. That was in the case of BAUCHI STATE JUDICIAL SERVICE COMMITTEE v DANJUMA (2017)7 NWLR Pt 1565, p9 432. In that case, a Magistrate in Bauchi, in apparent disregard to the clear provision of the law, convicted and sentenced an accused person before him, to a term of imprisonment not provided for in the law under which he was charged, and with an option of fine equally not provided in the law.
Now by section 13 of the Trafficking in Persons (Prohibition) Act, it is an offence to procure a person below the age of 18 to have “unlawful carnal knowledge” with any other person, and whoever does so, commits an offence punishable by 10 years imprisonment.
Now if a judge upon conviction of a person charged under that law decides to jail the accused for 20 years, it is either he has not read that law (ignorance), or read it and just doesn’t bother about law (recklessness). Why should he not be removed for either offence? Unfortunately the Court of Appeal, dismissing the appeal of Bauchi State Judicial Service Committee, held that the Magistrate’s offence did not amount to misconduct, since there is always room for appeal against wrong judgements, and thus set aside his dismissal. It is submitted with due respect, that the Court of Appeal was wrong.
It is not too much, to expect judges to pay attention to the fine points of the law, in the administration of justice.
Bob James Esq.,Legal Practitioner, Abuja
"YOU CAN, IF YOU ARE AN OVER LIBERAL JUDGE, GRANT THE INDULGENCE FOR VERY POOR REASONS, OR EVEN FOR NO REASON AT ALL, BECAUSE OF THE OVER USED CLICHÉS THAT YOU DON’T PUNISH LITIGANTS FOR THE SIN OF COUNSEL, OR THAT COURTS NOW LEAN IN FAVOUR OF SUBSTANTIAL JUSTICE AND NOT TECHNICALITIES. THEN AT LEAST, AWARD COSTS, AND MAKE THE PARTIES SIT UP"