A Critical Appraisal of the Misapplication of Discretion in Judicial Proceedings in Nigeria

Justices, Judges, Magistrates and Presidents of Area and District Customary Courts in Nigeria are very powerful.

What they say and write is the Law, which you must obey. The latitude and discretion however given to My Lords, Their Worships, and Their Honours are however too wide and sometimes unfettered. This could give room for abuse and perversion of justice. It was Lord Atkins who said power corrupts, and absolute power corrupts absolutely.

The following are some practices and procedures in the Justice Delivery System in Nigeria that require guidelines to ensure uniformity in the application of the Application of the Law and Discretion in the Nigerian Legal System. The same is currently being abused and misapplied by some:

1. Ex Parte Orders or Interim Injunctions:

Ex parte Orders or Interim Injunctions are orders that are made for the time being , usually to provide succour for a person in an urgent situation, in a way that if you do not do so, the res-subject matter will be destroyed. This Procedure is being abused by some Nigerian Judges, Magistrates and Court Presidents, who some times determine the main issues in a matter at the Ex Parte Stage. There are no guidelines for the issuance or refusal of Ex Parte Orders. Judicial Officers usually hide under the hazy and nondescript concept of the word “Discretion”, to do what ever they wish , even if some times such is not allowed by Law.My Noble Lord, The Chief Justice of Nigeria (CJN), must as a matter of urgency provide a Practice Direction to establish the compass of how to and how not to grant Ex Parte Injunctions .

This should be like the one that was given that stopped conflicting Judgments of Courts. This is very important to delimit the ambit of the Law on this subject and make the granting and refusal of Interim Injunctions ascertainable. It will also stop the current practice of some parties going about looking for Interim Injunctions.

There should pointers to the grant or refusal of same, pointing to the names of the parties, whether they are juristic persons, the jurisdiction of the Court to hear and determine the main matter before the determination of an Interim Injunction, whether there is real urgency, which must be established and not by mere deposition in an affidavit of urgency. For example the Judge will ask the question:

“What will go wrong in the event that the order party is put on Notice ?”. Will the heavens fall ?

The current practice of any thing goes in the grant or refusal of Interim Injunction is one of the reasons for the perceived disdain with which the Legal Profession is viewed in Nigeria today. The Narrative among the public is not palatable. While I concede that Judges do not give their Verdicts based on Public Perceptions, the Judiciary should however realise that the general public are the customers of our Judicial System and like a good Customer Care Service, it is important we get the feedbacks from the public, to know how we can improve our services. We must not operate among people that live on earth and act as if we live in planet Mars. There must be a symmetry of purpose between the Law and the Society.

2. The need for sentencing guidelines:

The concept of sentencing is a creation of Statute and Case Law. If the Body of Laws says you can give an option of fine, why should a Judicial or Presiding Officer Order otherwise? The needless imprisonment of Citizens is one of the reasons our Prisons are congested. There should be a uniform Sentencing Guideline issued to all Judicial and Presiding Officers, which My Lords, Their Worships and Their Honours should subscribe to and apply to the Letter.A Matter with the same facts and circumstances should not be determined in a different manner. This will obviate the abuse of Sentencing Powers of Judicial and Presiding Officers to preclude them to be too excessive or too mild in exercising their sentencing powers.

3. Granting of Bail

The Granting of Bail by Judicial and Presiding Officers even require more streamlining as it the most abused of the discretionary powers of Judicial and Presiding Officers. Bail is no longer entirely at the discretion of Court. The Administration of Criminal Justice Law Act and Laws of different States have indicated Matters in which a Judicial and Presiding Officer must grant bail. So, it is no longer a privilege to the Defendant for such Matters indicated in the Administrative of Criminal Justice Act (ACJA) and the Administration of Criminal Justice Law (ACJLs), but a right,for which they could even seek redress, if denied Bail.

To this end, to ensure that the Law is followed in symmetry l, Guidelines should be issued stating all the Offences and conditions therein for Bail, which should follow the Statute creating the Offence and should not be too excessive or too mild. This is to avoid allegations of bias,malice and ensure Judicial Powers are exercised,without affection or ill will.

4. Election Petitions
Election Petition Cases though sui generis, appear mysterious and esoteric in the way and Manner that two Election Petition Cases for example, in the same State, in two Constituencies, will be determined differently by the same Panel, with the facts and applicable authorities being the identical, evaluated differently to reach a different conclusion. This is completely unacceptable!

Election Petition Cases are even more grave, because they deal with the destiny of the Local Governments, States and Country.

To this end, I recommend that only retired Justices and Judges of the applicable Courts are used for Election Petition Matters and Appeals. This will also ensure that cases in the Courts do not suffer owing to the absence of Justices and Judges that conduct Election Tribunal Cases and Election Appeal cases respectively.

There should also be penalties for Members of a Tribunals and Appeal Panels who fail, neglect and/ or refuse to follow Judicial Precedents set by higher Courts of Records and their own Court, when the facts and circumstances of the Matters decided are on all fours, with the referenced Judicial Precedents. The scenario above should also be applicable to the Court of Appeal and Supreme Court that reverses themselves intermittently with out any new facts or Law arising. In those days, the Supreme Court hardly reversed itself, the proliferation of reversal of decisions of the Supreme Court is quite worrisome and leaves much to be desired.

Justices of the Supreme Court and the Court of Appeal should no longer be Members of the National Judicial Council hereafter called the NJC. We can get a retired Chief Justice of Nigeria hereafter called the CJN or retired President of the Court of Appeal, hereafter called the PCA to be the Chairman and Vice Chairman respectively of the NJC and retired Justices of good standing as Members ,by way of Constitutional Amendment.

If you Complained against the CJN, a Justice of the Supreme Court hereafter called JSC or a PCA who investigates it at the NJC and how do we guarantee the transparency of the Process, knowing that the Judicial Officers indicated above are Members of National Judicial Council (NJC ). Even when they say they will recuse themselves there appear to be a conflict of interest in the Structure of the National Judicial Council (NJC), which requires an urgent review.

5. Tendering of Documents:

Documents to be tendered in Court have minimum Standard of meeting the admissibility test as indicated by Statute and Case Law.These Legal Standards should be followed to the letter. Admission of Documents in a Trial is not discretionary; it is mandatory when they have met the relevance and admissibility test. There should be a uniform system in place by way of Guidelines to ensure a uniform standard in the admission or rejection of a document at trial that has met the relevance and admissibility test or otherwise.

The Applicability of these Principles above will ensure certainty of process and more fairness in the Administration of Justice in Nigeria. Our Judicial System as it is currently, could be manipulated as it is open to abuse .We should use the matter of the recently conducted United States elections as a case study. All the cases filed by Donald Trump and his team never saw the light of day due to established precedents spanning centuries. Perhaps, if same scenario played out in Nigeria, the outcome would be different.

Justice Chukwudifu Oputa aptly captures the dilemma Nigerians face as it concerns the Supreme Court, when he, a former Justice of the Supreme Court stated thus:

“We are not final because we are infallible, we are infallible because we are final.“

This Article Was Written By: Douglas Ogbankwa, Esq., a lawyer, writer, and policy analyst who is the convener of the Vanguard for the Independence of the Judiciary (V4IJ).

Source: @BarristerNG