By Niran Adedokun
The Nigerian judiciary needs an honest and urgent rethink of how to reclaim the people’s trust and remain the bastion of democratic hope. This all-important arm of government is becoming a joke amongst the general populace, for whom it should hold hope in the face of the traditional selfish tyranny of other arms of democratic governance.
This is the impression I came away with after reading the Court of Appeal’s defence of the misnomer that followed its decision on the Kano State governorship petition.
According to media reports, the Chief Registrar of the Court of Appeal, Umar Bangari, issued a statement penultimate Wednesday, saying that discrepancies between the pronouncements of justices of the court in the matter and the concluding part of the Certified True Copies, obtained by parties was a “mere clerical error.”
They quoted his statement inter alia: “What happened in the part of the judgment is just a mere clerical error that ought not to draw any issue. The court is empowered to correct such clerical errors and would be done as appropriate…The clerical error would be rectified once parties in the matter file a formal application to that effect.”
The statement came off as contemptuous of parties in the case and disrespectful of Nigerians. Most importantly, however, Mr Bangari’s declaration, which went on to cite Order 23 Rule 4 of the Court of Appeal handbook as the foundation upon the court’s powers to rectify the so-called clerical error, spared no thoughts for the reputation of the court and the judiciary in its entirety.
Like a man already under the threat of being set on fire, who now douses himself with petrol, the Registrar forgot the speedily eroding trust between the judiciary and Nigeria as he explained the issue away as an everyday occurrence that does not affect the emotions of people. He discountenanced the age-long aphorism: “Justice must not only be done but must be seen to be done.” Branchandbench.com says the expression came from a 1923 judicial pronouncement by Lord Hewart in a minor traffic collusion case.
In Rex v. Sussex Justices,  1 KB 256, Mr McCarthy collided with another motorcyclist, Mr Whitworth, whose wife was in the sidecar. The couple sustained injuries and instituted a civil case alongside the criminal charges pressed by the police. Whitworth engaged the firm of Messrs Langham, Son, and Douglas to represent him in his claim for damages.
A bench of judges in Sussex, whose clerk, Mr Langham, was a partner in the law firm, tried the criminal case. At some point during the trial, the clerk went on holiday, and his younger brother, also a partner in the law firm, acted as clerk.
After the hearing, the justices retired to the chamber to consider their decision; the acting clerk also retired. They eventually pronounced McCarthy guilty, convicted him and imposed a fine of just £10 with costs. He appealed the decision, and “one of the grounds was that it was improper for the clerk to have retired with the justices before they delivered their verdict. He contended that he was a partner of the law firm that was engaged to sue him for damages in the civil case, and it was improper for such a partner to also retire with the justices.”
Lord Hewart presided over The King’s Bench that sat over this appeal. His court considered the affidavit filed by justices of the lower Court of Sussex stating that although the younger Langham retired with them, he “had scrupulously abstained from any discussion on this case, and that they had arrived at their decision unbiased by the fact that the deputy clerk was a member of the law firm which was engaged to sue Mr McCarthy for damages.” Their lawyer argued that the clerk’s presence should not invalidate their decision.
Hewart, the then Lord Chief Justice of England, disagreed! In a judgment he delivered on November 9, 1923, he accepted that the presence of the deputy clerk did not influence the judges’ decision, that Langham scrupulously abstained from referring to the civil case in which his firm and that the clerk’s presence may not have influenced the judges. Regardless, however, he quashed the conviction.
In his judgment, he noted that, “It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”
He pointed out that the question was not whether the presence of the deputy clerk influenced the decision or whether his firm’s involvement in the civil case had any role to play in the conviction. The important thing, according to him, was “not what was done but what might appear to have been done.” He finally held that “nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” Judicial officials in Nigeria, their registrars and spokespersons forget this fact when they defend public criticisms.
In the case in point, for instance, Bangari sat on the high horse of his office and spoke like the court could fall into clerical errors at will, and that Nigerians were wrong to criticise.
He should have realised that even though they are human and fallible, the presiding justices fell short of the measure of diligence expected of jurists of their status when they appended their signatures to such a misleading document as this CTC. This conclusion is without prejudice to the facts of the case under discussion. The perception that the Court of Appeal could have a population of sloppy justices is a death knell on public confidence, without which the judiciary is like a king stripped of all his honour, and this is bad.
Society takes a bad slant when we take out the sanctity of our courts by decisions and judicial behaviours that are subjected to interpretations of laymen. When judgment malfunctions as it is with the appellate decisions in the Kano governorship election and courts danced without its coveting robes, the mystic of our courts is taken away and the courts are stripped of their dignity, society becomes inchoate.
This is why the institution must promptly introspect. Immediate-past President of the Nigerian Bar Association, Olumide Akpata, has lately shouted himself hoarse “the sub-optimal” screening of potential justices of this court. He claimed that some candidates “displayed a confounding lack of knowledge of fundamental legal principles.”
In a recent statement, Akpata quoted from his intervention at the Annual Conference of the International Bar Association. He claimed to have told the audience at a symposium that “the lethal combination of a shoddy recruitment process and the impoverishment of judges and the judiciary, by the executive arm of government at both national and sub-national levels is an insidious attempt by the Nigerian political class and their collaborators to “capture” the judiciary, and this constitutes a clear threat to the rule of law in Nigeria…”
I do not know if the situation with the legal profession in Nigeria could be more aptly put. Sadly, disaffection is growing, and as Nigerians increasingly lose confidence, even lawyers are questioning so many otherwise sacrosanct and transparent processes, including appointing senior advocates by the Legal Practitioners’ Privileges Committee. It should not be heard that the legal profession has become the very perpetrator of unsavoury actions that compromise democratic values and jeopardise the people’s freedom. It is a dangerous irony that practitioners must contend with all their might. Nigerians’ eyes are now fixed on the judiciary like never before.