In Defence of the Defencelss: Judges who are doing their according to dictate of their conscience

By Achi. William-Wobodo

Being a judge, is a tough personal call to make. It is a highly demanding and ethical job to do, which makes a judge vulnerable and prone to bullying. A judge is trained to rise up in defence of the defenseless, yet he cannot defend himself. The rot in our society has made the job even more hazardous.

For every judgement that does not go in the way of public opinion and expectation, the judge is blamed and accused of corruption. This is unpatriotic. Judges are not employed to pander to public opinion. I am not in anyway suggesting that there are no corrupt judges in the system, but I honestly believe that the incorrupt ones are much more than the corrupt ones.

As we know it, Nigeria operates an adversarial legal system, which means that the parties are responsible for providing evidence upon which the court predicates its judgement. This is different from the inquisitorial system where the Court gets involved in the investigation of the facts of a case. Our legal system forbids a judge from applying extraneous facts in the determination of a case, except those brought before it by the parties in accordance with the law of evidence. In others words, even if a judge witnesses an event, he cannot apply his eye-witness account/evidence in his determination of the case. At best, he may recuse himself from such a case.

In the last few months, on account of THE POLITICAL CRISIS IN RIVERS STATE, Judges of the Federal High Court, especially, have come under serious public attacks and aspirations from some misinformed members of the public and MISCHIEVOUS LAWYERS, some of whom are either ignorant of courtroom practices and procedures or are indulging in clout chasing ventures. It is even more reprehensible and shameful when lawyers, who ought to have known better, are the ones indulging in such unethical and unprofessional conducts. These lawyers know that JUDGES HAVE NO RIGHT OF PUBLIC REPLY, yet they chose to castigate and cast aspersions on them; Most times, based on unsubstantiated allegations.

It is AN ACT OF COWARDICE TO CONTINUOUSLY ATTACK A DEFENSELESS PERSON.

LET ME EVEN CONSIDER TWO SCENARIOS FROM RIVERS STATE AS EXAMPLES.

In the wake of the crisis now rocking the Rivers State Government, between the Executive arm (the Governor) and Legislature arm; over the “alleged division” in the Rivers House of Assembly (RSHA) at the time. The Speaker of the RSHA (Rt. Hon. Martins Amaehwule) and the RSHA itself approached the Federal High Court for the determination of several questions, including: whether or not the “ALLEGED CRISIS/DIVISION IN RSHA” had crystallized to the point that the National Assembly (NASS) can takeover the functions of the RSHA pursuant to SECTION 11(4) of the 1999 Constitution, whether there was division in the RSHA, who was the authentic Speaker of the RSHA, etc.

Based upon which Rt.Hon. Amaehwule and the RSHA asked for declarations that Rt.Amehwule is the authentic Speaker of RSHA, that the crisis in RSHA did not warrant the NASS to takeover the functions of the RSHA, that the RSHA is entitled and empowered to make Appropriation Laws for Rivers State, including 2024 Appropriation Law, etc. Most of the Defendants in the case put up nominal appearance and defence in the matter, EXCEPT FOR the Governor of Rivers State and Rt. Hon. Edison Ehie (factional speaker at the time) who put up contest in the case.

Before or on the day fixed for the hearing of the case, Mr. Governor through his Counsel withdrew his Counter Affidavit/Defence (for reasons best known to the Governor and of course he is entitled to) and his Defence to the case was accordingly struck out. In same vein, Rt. Hon. Edison Ehie not only withdrew his own Counter Affidavit/Defence to the case, he presented a letter indicating his resignation as a Member of the RSHA. In other words, he also affirmed to the Court that he has lost his right, if any, to the claim of Speakership of the RSHA.

Invariably, there was NO CONTENDING DEFENCE to the case of Rt. Hon. Amaehwule and the RSHA. Justice Omotosho reviewed the evidence before him, which were DEEMED UNCHALLENGED and then reached conclusions and entered judgement for Rt.Hon. Amaehwule and RSHA to the effect that THERE WAS (IS) NO DIVISION in the RSHA, that Rt.Hon Amaehwule is the AUTHENTIC SPEAKER of the RSHA, that the RSHA led by Rt.Hon. Amaehwule is the rightful RSHA to make Appropriation Laws for Rivers State, that the Governor should present the 2024 Appropriation Bill before the appropriate RSHA.

It is important to mention that one of the issues raised by the Governor in his withdrawn Defence/Preliminary Objection was the fact that no Pre-Action Notice was served on the NASS before the action was commenced. Yes, the issue was jurisdictional in nature, but it a PROCEDURAL JURISDICTION ISSUE, not a substantive jurisdiction issue. The law is settled that a procedural jurisdiction question touching on non-service of pre-action notice can only be raised by the person directly affected, in that case NASS. The reason is because, the party concerned has an option to waive the right and proceed to defend the case against him without objection. The NASS took part in defense of the case.

In any case, the Governor withdrew his objection.

I have asked all those who fault the decision of Hon. Justice Omotosho in the media to point a finger to a fault, either in procedure or decision, in the judgement and I am yet to see o finger. Assuming anyone still had doubts about that judgement, the Court of Appeal had cleared the doubt.

The Governor who submitted to judgement by withdrawing his defence refused to obey the same judgement.

Not surprisingly, the Governor who in law is DEEMED TO HAVE CONSENTED TO THE CASE of Rt. Hon Martins Amaehwule before the Federal High Court, went to the Court of Appeal to challenge a JUDGEMENT OF FHC DEEMED TO HAVE BEEN ENTERED BY “HIS CONSENT”, WITHOUT THE LEAVE OF COURT to so do, contrary to SECTION 241(2)(c) of the 1999 CONSTITUTION and decided cases: See: ABDULKARIM VS. INCAR (NIG) LTD, (1992) LPELR-26(SC) (Pg.23-24, para D-A). The Governor also challenged the procedural jurisdiction of the Federal High Court predicated on non-service of pre-action notice on the NASS, a personal right of the NASS which was waived by the NASS by participating in the case without objection.

The Court of Appeal dismissed the appeal for lacking in merit, and the Court is blamed; it is corrupt.

ANOTHER CASE: All People’s Party (APP) filed an action before the Federal High Court seeking a declaration that Rt. Hon. Amaehwule and 26 others have lost their seat. The APP commenced the action through an ORIGINATING SUMMONS, which is a procedure used for determination of non-contentious and non-hostile facts. Perhaps, the APP and its lawyers had expected an easy sail from Rt.Hon. Amaehwule and members of the RSHA. They are used to defection cases where the Defendants would say, “yes we defected because our party has dispute or division”: and then the court is called upon to interpret the admitted facts vis-a-vis the law.

They had expected Rt. Hon. Amaehwule and co to say we defected. Unfortunately, they met an unanticipated shocker, a brick wall; Rt.Hon. Amaehwule and co stated that they did not defect. A case which APP and it’s lawyers had thought would be heard based on non-contentious facts, had automatically become contentious and hostile by that singular denial.

The APP and it’s lawyers had three (3) options open to them by that material denial: (1) withdraw the case and file a fresh suit via Writ of Summons, (2) apply to the Court to order the parties to file pleadings, which would allow them to call oral evidence to prove the allegation of defection or (3) continue the case in its form with ruptured foundation and foreseeable pitfalls. They opted for number (3) and proceeded with their Originating Summons, then filed FURTHER AFFIDAVIT to which they ATTACHED A FLASH DRIVE that “allegedly” contained video clip of a certain defection.

The questions and challenges then arose: how and where does the court watch or see the content of the flash drive? ls it while in his chambers writing the judgement? If there is anything that needs clarification from the flash, who does he turn to in his chambers? Would he call the APP or its lawyers for explanation?

On realizing the procedural error, the APP still had an option of applying to that Court to convert the case by filing pleadings and to call oral evidence in order to resolve the allegation of defection, they did not. Rather, they pushed on with yet another and graver procedural error. The APP decided to play the video in the flash drive in open court, WITHOUT ANY WITNESS TO DEMONSTRATE THE VIDEO, TO IDENTIFY THOSE IN THE VIDEO OR WHERE THE “MOVIE” WAS SHOT, OR TO IDENTIFY THE MAKER OF THE MOVIE (VIDEO) (the CONTENT CREATOR). They pushed the procedural comedy and errors to a finish and left.

The the Judge was expected to perform a miracle, regularize the errors and grant them judgement.

Anyways, based on settled position of the law as decided by the apex Court, the Federal High Court Judge had no difficulties trashing and discarding the flash and its content as a piece of document dumped on the court. With that trashy piece of evidence made worthless by the inadvertence of counsel off the way, the Court was left with reviewing any other means of proof of membership of the said RSHA members, which should include, either APC membership register, PDP membership register, letter of resignation, etc. Unfortunately, these evidence were not before the Federal High Court. The Court therefore had no difficulty in reaching a finding that the APP did not prove defection.

As we now know, a judge, based on our adversarial legal system, cannot apply his residual knowledge of or any extraneous facts, not duly presented before him in accordance with the Law of Evidence, in the determination of any case before him. So, it remains immaterial if the judge’s wife was a camera person who made the “alleged” video or that the judge himself was in the chambers of RSHA on such a day or that he read or saw on news media any of the facts in contention. The law is that such facts MUST NOT ONLY BE BROUGHT BEFORE THE COURT, BUT ALSO IN LINE WITH THE EVIDENCE ACT, otherwise the judge cannot rely on them.

Sadly, we do not see the public blame lawyers, who either by inadvertence, overconfidence, indiscretion, desire for speedy trial, etc, destroy a hitherto actionable and legitimate cause of action and eventually their clients’ case. All we see are aspersions on Judges.

If non-lawyers feign ignorance of the workings of the Court, it may be justified and pardonable; but should same go for lawyers, who should haven better. Every lawyer knows when he has made a mistake in the prosecution of case, he is human who is prone to errors. If he is not courageous enough to own his mistakes, he should at least be honourable enough to keep quiet and not pass his blame by alleging corruption against the Judge.

It is a moral issue for both the lawyers and the litigants who cast aspersions on the courts. For instance, In 2023, the Court of Appeal, Abuja Division and the Supreme Court of Nigeria affirmed the Governor of Rivers State as the duly elected governor of Rivers States, the Governor organized thanksgivings, where he eulogized the Court of Appeal and Supreme Court Justices as men of honour and integrity. Those who lost took it in good faith and obeyed the orders of Courts.

At that time, no one heard the Governor make any insinuations of corruption against these courts. Few months afterwards, the Governor was ordered to present Rivers State Appropriation Bill to the RSHA recognized by the same Court that had recognized the Governor few months earlier, and what we now hear from SAME Governor who eulogized SAME Courts are insinuations of corruption against the courts. It seems hypocritical to me.

Litigants and lawyers must stop this act of casting aspersions on judges simply because the judges are not allowed by the ethics of their job to react. Should any one have proof of corruption against a judge, let him seek redress lawfully rather the public opprobrium. And for lawyers, whom I believe to be legal scholars in the college of continuing legal education, if anyone strongly feels that a decision of a court is wrong in law, and he cannot resort to appeal because he is not counsel in the matter, then such a lawyer can do a legal essay to query/critic decision based on acceptable legal review mechanisms, not by deploying blackmail and defamation.

Judges are human, they also have feelings and emotions which are bruised by these aspersions.

Please, SAY NO TO SOCIAL MEDIA BLACKMAIL, BULLYING, IRRITATION, ASPERSIONS on judges doing their legitimate jobs according to the dictates of their conscience. If they err or are corrupt, seek legitimate redress.

Achi. William-Wobodo
Lawyer writing from Port Harcourt