the noble profession in the dock

THE NOBLE PROFESSION IN THE DOCK

By

Nsongurua J. Udombana, LL.D.

“‘The lawyers in Nigeria boast of a disciplined and honourable profession, yet many of their members including some very senior ones are so indisciplined and irresponsible; they

flagrantly disobey their code of ethics. This notwithstanding, they go about unpunished by the profession, despite the profession’s elaborate disciplinary rules’, Discuss“.1

1.

Prologue

Exactly one month ago, that is on 15 February 2017, at 16.41 GMT, I received a call from His Lordship, Hon. Justice Edem Akpan of Akwa Ibom State Judiciary. After exchanges of courtesies, His Lordship requested to know if I could be available to present a public lecture as part of valedictory activities in honour of the retiring Chief Judge of Akwa Ibom State, Hon.

Justice Stephen E. Okon. Of course, my standing here to make this address proves my acceptance of that invitation. I accepted the invitation because it affords me an opportunity to reflect on the present state of our profession. I thank the Valedictory Committee for the honour to me which, to quote William Wordsworth, is “One of those heavenly days that

cannot die”. But it is also a humbling act, since there are obviously better minds who could do justice to the topic. Let me specially congratulate His Lordship, the retiring Chief Judge, for serving Akwa Ibom State and humanity with distinction and bowing out in grace. We must not take moments like this for granted, because some judicial officers started well but ended badly – if the scandal

currently plaguing our Judiciary is anything to go by. Besides, working in Nigeria could be, in fact is, a nightmare. There is a near absence of basic infrastructures that enhance productivity and make living meaningful, things that workers in other climes take for granted. One can only imagine the number of days that His Lordship sat to dispense justice,

or of nights he wrote judgments, without electricity from our power with-holding companies. 

© 2017. Professor of International Law, Babcock University, Ogun State, Nigeria; Pro-Chancellor, Ritman University, Akwa Ibom State,

Nigeria. The views expressed or contained in this paper are those of the author and do not necessarily reflect the views or policies of any institution or entity with which he is, or has been, associated. 1

Extracted from “Revision Questions”, in Jide Olakanmi, Legal Ethics: Lawyers Handbook (LawLords Pub. 2014) 262.

© 2017: Nsongurua Udombana

If you add the tedious manual recording of court proceedings – which remains one of the scandals of 21st Century Nigeria – and the burden of running a State Judiciary and undertaking one thousand and one non-judicial activities, then it is a no small achievement

to live, work, and retire in good health. I wish His Lordship many more years of a healthy and happy life in retirement and more service to humanity. The Valedictory Committee asked me to speak on the topic: “Nobility of the Legal Profession

under Trial”. After a little reflection, I took liberty to sharpen the title by amending it to read: “The Noble Profession in the Dock”. I probably should have sought ‘Leave of the Honourable Court’ for the amendment, but I hope that their Lordships will overlook my self-indulgence,

more so, as my modification goes to semantics, not substance. That the Committee chose this theme for this lecture speaks volumes and invites introspection. Our profession is maimed; it is floundering and staggering like a bird with a broken wing. There is no segment of the

profession – be it the Bar, Bench, Chair (academics), or Corporate – that is not infected with corruption virus. More worrisome is the Bench, which is, or ought to be, the refuge for the oppressed. In the past, the disquiet among Nigerians had been from incessant allegations of corruption in the inferior courts. Today, the higher – even highest – courts that were once

regarded as the sanctum sanctorum have been defiled by corruption. The Judiciary is sinking in search of a bottom, of course, with exceptions. What ought to be a rare exception is

increasingly becoming the norm, as recurring scandals dent the shield of justice. It has never been this bad, at least not in recent memory. The topic of this lecture implicates on professionalism and legal ethics, including judicial code of conduct. Of course, there are plethora of regulations on these issues. The problem, as

always, lies in practice. Since the topic also assumes that the Legal Profession is a noble one, I shall begin my excursion by interrogating that word.

2.

The Noble Profession

As an adjective, the word ‘noble’ has the following synonyms: ‘honourable’, ‘principled’, ‘moral’, ‘decent’, ‘upright’, ‘gallant’, ‘polite’, ‘self-sacrificing’. The word ‘honourable’, in turn,

means ‘admirable’, ‘worthy’, ‘praiseworthy’, ‘good’, ‘respectable’. And so on! Does the Legal Profession really deserve these adjectives? Yes, it does, but before we blow our trumpets too loudly, let me hasten to add that two other professions share in the prestige of being called ‘noble’. These are Medicine and Divinity. The common denominator among the three

professions was, or is, that they offer ‘essential services’ that incorporate the moral duty of not refusing a client or patient without cause or explanation. They are distinguished by their self-discipline and unselfish service to humanity.

Uyo, 15 March 2017: Page 2 of 24


In the beginning, as Lord Denning explained in Rondel v. Worsley,2 lawyers practised gratis, merely for honour. Unlike other professions, the lawyer could not sue for his fee, since the

obligation to pay him was binding in honour, not in law. Whatever he received from a client was a gift or honorarium, similar to what scholars receive when they speak at conferences or

seminars. This was the significance of the flap at the back of the lawyer’s robe, with a little pocket where the client could place his gratuity without his lawyer knowing! Things are

different now, but the principle remains that law is a noble and honourable profession. The lawyers’ role even goes beyond court room forensics. Eso describes the lawyer as “the weekend of all problems, by all around him. They look up to him for solution to their problems of life. The lawyer can reduce anything to mathematical zero. He can raise a problem to what

would look like a chemical equilibrium”.3 Lawyers are also known for their courage, for speaking truth to power. It is in recognition of the uniqueness of this noble profession that the Nigerian Constitution gives ‘statutory flavour’ to the Office of the Attorney-General and Minister of Justice, the only

ministerial portfolio to be given a distinctive recognition. A lawyer or anyone else can occupy other ministerial portfolios. In fact, three ministries, such as those of housing, works, and power, could be combined and vested in a lawyer. However, the Constitution provides: “A

person shall not be qualified to hold or perform the functions of the office of the AttorneyGeneral of the Federation unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than ten years”.4

The legal profession is particularly noble because it revolves around the search for justice, of which lawyers and judges are its custodians. All ideas in all ages have sought to address the moral concerns of justice and injustice, or “age-old and universal questions about the relationship between individuals and their larger society”.5 The great codes of Hammurabi and of Justinian (who was a lawyer king) proclaimed justice as the constant and perpetual

will to give everyman his due. The Judaeo-Christian Scripture invokes ideas of justice. We are to “judge righteously between every man and his brother, and the stranger that is with

him”.6 We must not discriminate against the physically challenged: “[T]hou shalt not curse the deaf, nor put a stumbling block before the blind”.7 Above all, we are to love our neighbour 2 3 4

(1967) 1 Q.B. 443 [CA]; (1969) 1 A.C. 191 [HL].

Kayode Eso, Thoughts on Law and Jurisprudence (MIJ, n.d.) 116.

Constitution of the Federal Republic of Nigeria 1999 (as emended), Cap. C23 Laws of the Federation of Nigeria (LFN) 2010, S. 150(2)

[“1999 Constitution”]. 5 6 7

Paul Lauren, The Evolution of International Human Rights: Visions Seen (2d edn Univ. Pennsylvania Press, 2003) 12.

Leviticus 19:18; Deuteronomy 1:16-17. Leviticus 19:14-15.



as ourselves, love being the fulfilment of the law. 8 The law of love translates into two broad obligations: first, a negative legal obligation not to injure our neighbour;9 and second, a positive moral responsibility to share a part of our resources with a neighbour in need.

Notwithstanding lawyers’ unique roles in maintaining law, order, and stability and adjudicating disputes in the society, they have sometimes been treated with mistrust, even

disdain, by segments of the very society they serve. In Henry VI, Shakespeare famously quipped: “The first thing we do, let’s kill all the lawyers”.10 It was meant to be a joke, but it reflected the age-old mistrust that existed and still exists between segments of the society and the legal profession. We are also familiar with the old cliché, “Lawyers are liars”! They are

often accused of taking any brief and defending any cause, no matter how ‘dishonourable’. But a lawyer is an advocate. He does not necessarily have to convince himself that his client is on the right before he acts for him. It is the province of the Bench, not Bar, to evaluate the

justice or ‘rightness’ of a case and pass judgment on it. I submit that the old mistrust of the profession was generally borne out of ignorance, if not envy, rather than any proven or provable mischief by lawyers. Besides, the self-discipline inherent in the profession always served as a firewall against unfounded attacks.

The legal profession is one of the most regulated disciplines, which is intended to enhance its nobility. The corpus of regulations falls under what is referred to as ‘legal ethics’, which the

Black’s Law Dictionary defines as “Standards of professional conducts applicable to members of the legal profession”; or “A lawyer’s practical observance of or conformity to established

standards of professional conduct”.11 Rhode and Luban also have interesting perspectives of legal ethics: In one sense the term ‘legal ethics’ refers narrowly to the system of professional regulations governing the conduct of lawyers. In a broader sense, however, legal ethics is simply a special case of ethics in general, as ethics is understood in the central traditions of philosophy and religion. From this broader perspective,

legal ethics cuts more deeply than legal regulation: it concerns the fundamentals of our moral lives as

lawyers.12

Thus, the lawyer is expected to conduct himself in a manner worthy of his calling. He has a sacred duty to uphold and observe the rule of law, promote and foster the cause of justice, and maintain a high standard of professional conduct. A lawyer should not be heard to See Matthew 22:37-39; cf. Luke 10:25-37. Cf. Donoghue v. Stevenson [1932] A.C. 562. 10 William Shakespeare, Henry VI, Act IV, Scene II, Line 73. 11 Bryan A. Garner (ed.), Black’s Law Dictionary (9th edn Thomson Reuters, 2009) 976. 12 Deborah L. Rhode & David Luban, Legal Ethics (Foundation Press, 1992) 3 (italics supplied). 8 9



engage in any conduct that could bring his profession into disrepute. A Judge, in particular, sits on a higher pedestal, literally and figuratively. An institution that has the power of life

and death over other mortals should, like Caesar’s wife, live above board. When we say, “As the Court pleases”, or “As My Lord pleases”, to judicial pronouncements – including sentences of death – we are invariably saying, “Thy will be done”. Those phrases are divine, not ordinary; and to whom much is given, much is expected.

The legal ethics were laid down in many landmark cases, including the locus classicus Rondel

v. Worsley referred to earlier. Permit me to quote Lord Denning’s counsel in extenso:

As an advocate, a [barrister] is a minister of justice equally with the judge. . . . This carries with it a corresponding responsibility. A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid his fee . . . He must accept the brief and do all he honourably can on behalf of his client. I say ‘all he honourably can’ because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what

he wants; or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duty to the court. The code which requires a barrister to all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.

In Nigeria, these ethical principles are synthesised in Rules of Professional Conduct in the Legal Profession, elaborated by the General Council of the Bar pursuant to the Legal

Practitioners Act 1975 (as amended).13 I will not reproduce the Rules here since every lawyer is presumed to know them at heart.

3.

Judicial Power, et al.

The judiciary is the bedrock and anchor in any legal system. It occupies a sacred and, probably noblest, position in the legal profession. Courts perform an essential function in any

politically organised society. They interpret and apply the law to resolve disputes through well-articulated and objective procedures. The Realist School even asserts that law is nothing but prophecies of courts. The maxim is, Judex est lex loquens – “The judge is the speaking 13

Cap. L11 LPA 2010.



law”. In any event, law is a check on our imperfections. It arises, in part, out of man’s selfish, quarrelsome, and disputatious propensities. There would probably be no need for law in a society of angels, except such rules that are necessary for the discharge of their celestial

functions. “To act on rules confidently”, says Fuller, “men must not only have a chance to learn what the rules are, but must also be assured that in case of a dispute about their meaning

there is available some method for resolving the dispute”.14 This is the essence of the judicial function. Let me elaborate.

a)

Judicial Power and Review

Nigeria practices a constitutional democracy, at least in theory. Constitutionalism places restraints on governmental activities. Courts play unique roles in enforcing those restraints by acting as bulwarks against predatory political organs that often prey on individual liberties. According to Nwabueze, “the mere existence of the court’s checking function, and

the knowledge on the part of the government that a violation of the constitutional and other legal limitations might call forth its exercise, cannot fail to produce in the government a restrained and tolerant attitude towards power”.15

The Nigerian Constitution recognises the court’s unique role in constitutionalism. It vests courts with judicial powers,16 which extend to “all inherent powers and sanctions of a court of law” and to “all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination

of any question as to the civil rights and obligations of that person”.17 Judicial power, says Nwabueze, “necessarily implies a power to give a binding decision or determination”.18 Justice Latham, once the Chief Justice of the Australian High Court, emphasised that the ability to take action to enforce a decision is, perhaps, the most distinctive attribute of judicial power: “If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then, but only then, . . . all the attributes of judicial power are

plainly present”.19 Justice Holmes, one of the best minds to grace the United States’ judiciary, observed: “A judicial inquiry investigates, declares and enforces liabilities as they stand on

present and past facts and under laws supposed already to exist. That is its purpose and end”.20

14 15 16 17 18 19 20

Lon L. Fuller, The Morality of Law (Yale Univ. Press 1969) 56-7.

B.O. Nwabueze, Judicialism in Commonwealth Africa (C. Hurst & Co. 1977) xi.

See 1999 Constitution, S. 6(1)&(2). Id. S. 6(6)(a)&(b). Nwabueze (n 15) 2.

Rola Co. (Australia) Ltd. v. The Commonwealth (1944) 69 C.L.R. 185, 199. Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226.



It is impossible to examine here all aspects of judicial power, including the question of justiciability. However, I shall single out, for emphasis, the subject of judicial review as an

aspect of judicial power and show how all of this implicates on judicial ethics. Judicial review is a self-imposed responsibility that is rooted in the Lockian creed. The partisan conflict that culminated in Thomas Jefferson’s election in 1800 provided the opportunity for Chief Justice Marshall to establish and institutionalise the ameliorative role of the judiciary. In the famous

case of Marbury v. Madison,21 Marshall asserted: “It is, emphatically, the province and duty

of the judicial department to say what the law is.” Marshall justified federal courts’ power to ignore enacted laws that were inconsistent with the American Constitution on the ground that such laws fell outside authority that the people delegated to the government, as expressed

in the Constitution.22 Thus, judicial review removes issues of executive policy to the realm of adjudication, but it “implies a prior recognition of the principles to be legally interpreted”.23 Critiques of judicial review insist that it is an act of judicial usurpation or, at best, a “bald effrontery”.24 They argue that, “given the principle of electorally accountable policymaking, all noninterpretive judicial review is illegitimate.”25 Bickel adds his authoritative voice,

arguing, “nothing can finally depreciate the central function that is assigned in democratic theory and practice to the electoral process; nor can it be denied that the policy-making power of representative institutions, born of the electoral process, is the distinguished

characteristic of the system. Judicial review works counter to this characteristic”.26 Critiques further contend that courts are undemocratic and lacking in “the passive virtues”;27 and that legislatures alone should legitimately resolve controversial issues. In his dissenting judgment in Eakin v. Raub,28 Justice Gibson maintained that judicial review violates the doctrine of separation of power and that “the construction of the constitution in this particular belongs

to the legislature, which ought therefore to be taken to have superior capacity to judge of the constitutionality of its own acts”.29 Michael Perry writes that “[i]f judicial review does not run counter to the principle of electorally accountable policymaking, it is at least in serious tension with it”.30

21 22

Marbury v. Madison (1803) 5 US (1 Cranch) 137. Id. 176 (“That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most

conduce to their own happiness, is the basis on which the whole American fabric has been erected”). 23 24 25 26

L. Hartz, The Liberal Tradition in America (1955) 16.

F.R. Strong, Judicial Function in Constitutional Limitation of Governmental Power (1997) 21. M. Perry, The Constitution, the Courts, and Human Rights (1982) 37.

A Bickel The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962) 19.

See A. Bickel ‘The Passive Virtues’ (1961) 75 Harv. L. Rev. 40. Eakin v Raub (1825) 12 Seg. & R. (PA) 330. 29 Id. 350. 27 28

30

Perry (n 25), 9.



Notwithstanding these criticism, judicial review has become firmly established in many constitutional democracies. It is a feature of many constitutional arrangements in Africa, including Nigeria. Its overriding virtue and justification “is to guard against governmental

infringement of individual liberties secured by the Constitution”.31 Its virtue lies in the court’s ability to say ‘no’ – ‘no’ to legislators, presidents, governors, local government authorities, in short, ‘no’ whenever “the needs of the political moment clash with constitutional

guarantees”.32 This is the meaning of saying that courts are the last hope of the common man. In Federal Civil Service Commission v. Laoye,33 Oputa J.S.C. explained:

When the court is described as the last hope of the common man that implies that it is the duty of the judiciary to ensure that any encroachment on the rights of the individual, any coercive action is justified by law. In the unequal combat between those who possess power and those on whom power bears, the court’s primary duty is protection from the abuse of power.34

b)

Judicial Ethics

The court’s enormous powers, including judicial reviews of acts of political organs, carries with it an enormous responsibility. They require an independent, strong, respected and respectable judiciary. They require high standards of conduct and integrity by judicial

officers. They demand judges that take their Judicial Oath seriously, part of which reads: “I

will not allow my personal interest to influence my official conduct or my official decision”, ending with “So help me God”.35 The Judge is expected to do justice to all manner of people without fear or favour, affection or ill-will. Such undefined constitutional phrases as “inherent powers and sanctions of a court of law” necessarily require judges to envelop

themselves in dignity and self-restraint. They must strike the right balance between legal

certainty and adaptation, or between fidelity to law and judicial creativity. “We do not”, says Justice Frankfurter, “sit like kadi under a tree, dispensing justice according to considerations of individual expediency”.36 Or, as Benjamin Cardozo cautioned:

The Judge, even when he is free, is still not wholly free. He is not to innovate at his pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty and goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and

31 32

J. Choper Judicial Review and the National Political Process: A Functional Reconsideration of the Supreme Court (1980) 64.

The Hon. M.H. Marshall, Speech: “Wise Parents Do Not Hesitate to Learn from Their Children: Interpreting State Constitutions in an Age

of Global Jurisprudence” (2004) 79(5) N.Y. Univ. L. Rev. 1633, 1639. 33 34 35 36

(1989) 2 N.W.L.R. (Pt. 105) 652.

Id. 702.

1999 Constitution, Seventh Schedule. I shall comment on the implication of this God-invocations in my Epilogue.

Terminiello v. City of Chicago (1949) 337 U.S. 1, 11 (dissenting).


© 2017: Nsongurua Udombana unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. 37

It is for these and for other reasons that the Code of Conduct for Judicial Officers was adopted. There is no need for me to embark on an elaborate overview of that Code, as that will amount to preaching to converts. Permit me to just extract Rule 1, which is self-explanatory:

A Judicial Officer should avoid impropriety and the appearance of impropriety in all his activities. (1) A Judicial Officer should respect and comply with the laws of the land and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary. (2) Social Relationships (a) A Judicial Officer must avoid social relationships that are improper or give rise to an appearance of impropriety, that cast doubt on the Judicial Officer’s ability to decide cases impartially, or that bring disrepute to the Judiciary. (b) A Judicial Officer shall not be a member of any society or organisation that practices invidious discrimination on the basis of race, sex, religion or ethnic origin or whose aims and objectives are incompatible with the functions or dignity of his office.

Before signing off on this segment, let me also extract, in extenso, the self-explanatory remarks of Hon. Thurgood Marshall, then Associate Justice of the US Supreme Court, at the

Conference of World Association of Judges in Abidjan, Cote d’Ivoire. They are at the heart of judicial function, independence, and ethics: 

Judges sit astride the crucial nexus where the citizen meets his government; the Courts deal with people and their individual problems on a case by case and day by day basis. If the system is working inequitably, the Judges are likely to be the first to know, since they are the ones called to send innocent defendants to prison, or deny legal claims which in justice, should be granted.



The Courts have a special responsibility to preserve and enforce the moral pillars upon which the society is built.



Tyrants cannot flourish where governments recognises the worth of every individual, as the courts do every time they resolve a lawsuit.



We Judges may be impotent on the day of ultimate battle, but we are powerful indeed, when it comes to confronting injustice in the scores of individual cases which, in the aggregate, make the difference between a humanitarian democracy and a ruthless dictatorship.



If Courts are to perform their role as the guardian of the long term ideals of the society, then it is essential that they remain independent of the other branches of government.



For every case where a tyrant snatches the judicial power from the courts, there are three or four where judges of their own volition yield their moral authority.

37

Benjamin Cardozo, The Nature of the Judicial Process (New Haven, 1921) 141.


© 2017: Nsongurua Udombana 

People obey Presidents and Kings because they control the instruments of sanctioned violence. But judges and magistrates have no guns. Their power rests on their moral authority.



In the halls of justice, people are just people, and each man’s claim against the state rest solely on the strength of his legal argument.





Our obligations (as judges) are to the law and to justice, and when any one of us ceases to pay allegiance to those masters, the moral force of law is everywhere thereby dismissed. A society can be said to be truly lawful only when every lawsuit before every judge is decided in accordance with principle rather than expediency.38

4.

Remembering Our Past Heroes

Let me begin this segment with a back story. As a law student at the University of Lagos three

decades ago, I remember with nostalgia the awe or reverence that the names of Udo Udoma,

Chukwunweike Idigbe, Kayode Eso, Chukwudifu Oputa, Gani Fawehinmi, Aka Bashorun, et

al., elicited from us. The mention of their names evoked images of boldness, creativity, resourcefulness, incorruptibility, activism coupled with professionalism, and so on. We graduated and proceeded to the Nigerian Law School, where we met the Ibironkes of legal

education who preached and lived by the best ethics of the profession: expertise, integrity, neatness, accountability, service to humanity, and so on. Many of my audience here will identify with my reminiscence, because you witnessed those golden years. And to think that

those icons practiced, adjudicated, and taught law during the military years, with their characteristics of rigidity, regimentation, uniformity, authoritarianism, and obsession against dissent! Who would read Kayode Eso’s dissenting judgment in Awolowo v. Shagari,39or Udo Udoma’s lead judgment in Nafiu Rabiu v. Kano State,40 and not be enamoured by their deep legal reasoning and scholarship mixed with courage? Itse Sagay SAN, a respected member of the

Bar and presently Chairman of Nigeria’s Advisory Committee on Corruption, chronicled those golden years of legal craftsmanship.41 I take delight in quoting from Udoma’s judgment in Rabiu’s case, where the Learned Justice stressed the necessity for liberalism in constitutional interpretation:

My Lords, it is my view that the approach of this Court to the construction of the Constitution should be,

and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis

valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provisions of 38 39 40 41

Quoted in Chukwudifu Oputa, Judiciary Under the Military Regime (Univ. of Lagos, 1997) 20-21. (1979) 1 S.C. 1.

(1980) F.R.N. 509 (SC) [“Rafiu case”].

See Itse Sagay, A Legacy for Posterity: The Work of the Supreme Court 1980-1988 (Nigerian Law Pub. 1990). For other biographical

works, see generally J.F. Ade-Ajayi & Y. Akinseye-George, Kayode Eso: The Making of a Judge (Spectrum, 2002); Ekong Sampson, Law and

Statesmanship: The Legacy of Sir Udo Udoma (Patrioni Books, 1997); id., The Path of Justice Chike Idigbe (Distinct Universal Ltd., 1999).


© 2017: Nsongurua Udombana the constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.42

The same erudition defined Justice Idigbe’s judicial career. When Justice Idigbe died tragically

in 1983, The Guardian penned an Editorial on 17 September of that year titled, “Homage to a Fine Jurist”. It read, in part:

Justice Idigbe’s death is an irreparable loss for reasons of his unique example. For instance, his enormous contributions at the Supreme Court to the development of our law are indisputable. An erudite and principled Judge who delighted in legal arguments, the late Judge wrote, in his ten years in the Court, some of the most lucid and tidy judgments to be found in the books. It is perhaps not an accident, as records of our Law Reports will show, that the judgments he wrote, both as a High Court Judge and also at the Supreme Court, are some of the most frequently cited by lawyers. Even his own peers at the highest court of the land deferred to him and acknowledged his quickness of perception. And when Mr. Rotimi Williams (S.A.N.), spoke of Idigbe’s ‘unrivalled capacity to get quickly to the heart of matters in debate’, he spoke for many at the bar who were endeared to this brilliant jurist.

Akinola Aguda, himself a former judge of no mean repute and integrity, referred to Justice Idigbe as “one of the best Judges this country has ever produced”.43 I had the honour of delivering the 13th Justice Idigbe Memorial Lecture in December 2012, on the invitation of

the University of Benin. I remarked, inter alia: “Justice Idigbe belonged to what has become

the endangered species of the Nigerian Bench”.44 May their lights not go off completely before we could trace our way back to the old path, walk in it, and find rest for our famished souls.

Nigeria has produced some of the finest lawyers and jurists who did exploits oversees and served honourably as ambassadors of our legal profession. Teslim Elias was once President of the International Court of Justice (ICJ) at The Hague, among other numerous national and international assignments which he served with distinction. It will take a book to write his

citations. Udo Udoma was once Chief Justice of Uganda before returning home to join the Supreme Court. Even in death, he remains the pride of Akwa Ibom people. Akinola Aguda served in the Botswana Court of Appeal. He once resigned, on principle, as Chief Judge of the old Western Region when the Executive tried to pressure him to compromise his judicial oath. Emmanuel Ayoola was once Chief Justice of The Gambia. He later became Chairman of the Special Court for Sierra Leone’s War Crimes before returning home to head the Independent

Corrupt Practices Commission (ICPC). Chile Eboe-Osuji is currently a Judge at the ICC. The names pile up!!! Rafiu case (n 40) 519. Akinola Aguda, Flashback (Spectrum, 1989) 113. 44 Nsongurua Udombana, Africa and the International Criminal Court (Univ. of Benin, 2012) 13. 42 43



Many of us will recall the late Gani Fawehinmi’s constant opposition to bad laws and policies, his fight against corruption, his struggle for social justice and human rights, and his defences of students and the down-trodden. His activism earned him the title of “Senior Advocate of the Masses”, but it also earned him constant arrests and imprisonments. This attribute of

courage has a long history, stretching back to Edward Coke, who boldly resisted James I, then King of England. When the King, claiming to rule by divine right, attempted to flout the law,

Coke declared: Quod Rex non debet esse sub homine, sed sub Deo et Lege, meaning “The King is under no man but under God and the Law”. James I dismissed him as his Attorney-General,

just as the late Nigerian Dictator Sanni Abachi dismissed Dr. Olu Onogoruwa as Attorney-

General for disowning one of his obnoxious decrees. There is always a price to pay for siding with justice and speaking truth to power. Corrupt and bad leaders, whether in politics, business, education, judiciary, or any other sector, have a bunker mentality of ‘we’ against ‘them’. Feeling insecure, they get frightened even by their shadows.

Edward Coke later became England’s Chief Justice. In John Colt & Glover v. Bishop of

Coventry & Lichfield,45 he again stood up against the King’s pretensions. Two gentlemen had a case against the Bishop of Coventry and Lichfield concerning the right to present a

clergyman to the living of a church at Clifton Camvill. The King sent a message to the judges demanding a stay of proceedings until he was consulted. Coke refused and said: “Obedience to His Majesty’s command to stay proceedings would have been a delay of justice, contrary

to the law, and contrary to oaths of the judges”.46 Coke was again dismissed from office as a judge. Of course, even in the present debased state of our nation, there are many bright, conscientious, and distinguished members of the legal profession. It goes without saying that many lawyers in Akwa Ibom State and elsewhere are working hard to uphold professional

standards while providing sound legal services to their clients and other members of the society. Some new-testament lawyers are breaking grounds in emergent legal fields like

Telecommunications Law and Cyber Security Law. We are benefiting from innovative

automated law reports and allied services provided by such entities as Law Pavilion, thereby

complimenting existing print reports, including the famous Nigeria Weekly Law Report. Some lawyers are involved in public interest ligation, providing free or affordable legal

services to those whose rights have been, or are being, violated by the powerful. We should appreciate their dedication of many of our members to the cause of justice. Deserved praise

45 46

1 (1617) Hob 140.

Quote in Lord Denning, What Next in the Law (Butterworths, 1982) 9.



and commendation are essential even in the simplest relations of life, just as a grease is necessary to wheels that they may run smoothly. I also share Olujinmi’s sentiment that, “There are some quite fine, outstanding courageous, brilliant and incorruptible Judges who always stand in defence of the truth”.47 Those who

have been rescued from tyrannical fists will appreciate the sacrifices the Bench is making in

an environment of executive impunity. Many of our judges still uphold the maxim, Fiat

justitia ruat caelum – “Let justice be done though the heavens fall”. Often, such a resolve

comes with a price, as political organs habitually withhold appropriated resources from the Bench, notwithstanding constitutionally guaranteed judicial independence. Very recently,

Nigerians witnessed a classic example of ‘Executive Lawlessness’, as a sitting Governor shut down the State Judiciary for more than a year and sent lawyers and judges into the wilderness of idleness.48 Power intoxicates, and political power intoxicates wildly. Notwithstanding past and present progress, our report card generally shows that the number of leavens that now leaven our profession is on the increase. Let me explicate.

5.

Dirt at the Bar and Temple

It is no longer news that corruption has become the ‘Directive Principle of State Policy’ in

Nigeria. Its cancer metastasizes throughout the polity. True, corruption is not only a Nigerian problem. The rot is pervasive and entrenched in Africa, leading the African Union (AU) to inaugurate a special Advisory Board on Corruption on 26 May 2009, pursuant to Article

22(1) of the AU Convention on Preventing and Combating Corruption.49 But why must Nigeria always be in league with the crooked? The answer is in the crisis of leadership that continues to imperil us even today. As Achebe pointed out decades ago:

The trouble with Nigeria is simply and squarely a failure of leadership. There is nothing basically wrong with the Nigerian character. There is nothing wrong with the Nigerian land or climate or water or air or anything else. The Nigerian problem is the unwillingness or inability of its leaders to rise to the responsibility, to the challenge of personal example which are the hallmarks of true leadership. 50

47 48

Akinlolu Olujinmi, The State of Legal Profession in Nigeria (NIALS, 2011) 33.

See, e.g., Mike Odiakose & Patrick Andrew, “Revealed: How Amaechi Crippled Rivers judiciary”, Nigerian Pilot, 7 Nov. 2015, available at

http://nigerianpilot.com/revealed-how-amaechi-crippled-rivers-judiciary/. 49 50

Adopted 11 July 2003, entry into force 5 Aug. 2006, AU Doc. Assembly/AU/Dec.27(II) (July 2003). Chinua Achebe, The Trouble with Nigeria (Heinemann, 1983) 1.



Every now and then, the curtains part and we get a glimpse of Nigeria’s leadership deficit; of

brutal leaders (read rulers) who, like the devil in Paradise Lost, take delight in doing evil;51 of ‘Big Men’ who are fooled with vanities of sycophants, seeing beauty where none exists; and

of ‘leaders’ who imagine vain things and exhibit vain glory. Many of our ‘leaders’, whether at the centre or periphery, are erotic; they are motivated by considerations of desire, power,

and acquisition of things. They glory in vanity, believing that it makes them the object of attention and approval. According to Adam Smith: “The rich man glories in his riches because he feels that they naturally draw upon him the attention of the world, and that mankind are

disposed to go along with him in all the agreeable emotions with which the advantages of his situation so readily inspire him”.52 The truth is, lawyers and judges are not angels; neither do they live in Plato’s Utopian Republic

or Augustine’s City of God. They live and practice their trade in our decadent society and are prone to be infected by the pathologies that afflict other members of the society. This is no

more than an explanation – certainly not a justification – for our moral failure. Indeed, when provision is made for human imperfections, there remains a lowest common multiple of moral excellence expected of a profession whose dramatis personae pride themselves as “most

learned and most honourable”. Benefits and burdens go together, so says the law. As citizens,

lawyers and judges are also expected to show fidelity to the National Pledge, which reads: “I pledge to Nigeria my country; to be faithful, loyal and honest; to serve Nigeria with all my strength; to defend her unity and uphold her honour and glory; so help me God”. Sadly, things are different now, and there are provable reasons for the unease. Actually, obvious facts are not in need of proof, since it is clear to all that ours is increasingly becoming a mercenary profession. We are all neck-deep in the mire, as professionalism with ethics

takes a flight. The unthinkables of yesterday have become realities of today. And we cannot blame the society for perceiving lawyers as people who rip off and betray their clients; or

engage in corrupt practices to perpetrate and perpetuate injustice; or collude with politicians to supress voters’ mandates. Some lawyers have a penchant to seek frivolous adjournments, and some courts encourage such unprofessional conducts. What sort of profession do we

hope for when, as is often the case, litigants cannot obtain justice within a reasonable time as guaranteed by Section 36(1) of the 1999 Constitution?53 We also know that many lawyers engage in sharp practices, such as deliberately filing frivolous and irregular applications or

51 52 53

See John Milton, Paradise Lost (1667) Bk I, line 160-1 (“To do ought good never will be our task, But ever to do ill our sole delight”). Adam Smith, The Theory of Moral Sentiments (Liberty Classics, 1982) 50.

Providing: “In the determination of his civil rights and obligations, . . . a person shall be entitled to a fair hearing within a reasonable time

by a court or other tribunal established by law . . .”).



filing vital documents late in order to deny the opposing side adequate time to respond.54 Such unethical practices are most common in post-election petitions, which are usually timebound.

The regularity with which professional misconduct is levelled against our members should

give us cause for concern. Indeed, our profession has degenerated to the level where, a few years ago, Bar Examination Questions allegedly leaked at the Nigerian Law School.55 It was not so at the beginning; indeed, such acts were unthinkable. Some of our would-be-lawyers,

both in universities and at the Law School, are known to contract others to write examinations for them, with computer-generated fake identification cards. There is so much information

these days – at a ‘mouse’ click – but there is so little knowledge. Many students, including some law students, habitually ‘copy and paste’ other people’s published works, from

Wikipaedia or google or other online sources, and submit them as ‘original’ research/project

works. In one instance that I personally dealt with a few years ago, a final year law student in one of our universities took an old project from another university, printed a new cover with his name and particulars on it, replaced the cover of the stolen work, and submitted it as his ‘original’ work, with every other thing intact, word for word. The thief did not even care to look at the ‘Acknowledgement Page’, which had the name of another supervisor and

other names unknown to him. There are probably such rogues in our profession answering the title of “Barristers and Solicitors of the Supreme Court of Nigeria”. Even some so-called academics allegedly plagiarise others’ works and use them for promotions. I sometimes pose a casual question in class to my final year law students on why they opted to read law instead of other disciplines. Majority of them usually answer that law is a lucrative profession (whatever that means). Some say that being lawyers enhance their chances in

elective politics in the future. The bottom line in those answers is money. And in our rat race to make it big, we jettison morality and ethics, forgetting that poverty with integrity is better

than wealth with dishonesty. The laws or regulations of most Nigerian universities state that students will graduate upon meeting two criteria: good academic standing and good personal character. This requirement was probably based on the sound logic that knowledge, in and

by itself, cannot change a man’s character, but that education without values, as useful as it is, will only make man a clever devil. But who pays attention to personal character these days?

How do we build character when we remove religious and moral instructions – ‘civics’ – from basic education curricula, in the name of libertarianism? Only the Nigerian Law School 54

See, e.g., Kwaptoe v. Victor Tsenyil (1990) 4 NWLR (Pt. 600) 571, 575; Densa Engineering Works Ltd. V. UBN Plc (1999) 1 NWLR (Pt.

585) 162. 55

See, e.g., Adelanwa Bamgboye, Nigeria: “Exam Leakage - Law School Cancels Award Ceremony”, Daily Trust, 3 Dec. 2010, available at

http://allafrica.com/stories/201012030671.html (reporting that the Director-General of the Nigerian Law School cancelled “the special awards ceremony often organised for some of the best students . . . following allegations of examination malpractice . . . ”).



bothers with character issues in admitting law graduates. Even then, it is often too little too late. The Council of Legal Education (CLE), where I once was privileged to serve as a member, is under constant pressure to relax its disciplinary rules. The result is that among the mixed multitudes who are called to the Nigerian Bar each year are, possibly, drug addicts and traffickers, cultists, examination fraudsters, advance fee fraudsters, money launderers, rapists, ex-convicts, sexual perverts, and such like.

In 2014, the National Human Rights Commission (NHRC) empanelled a Technical Working Group (TWG) of experts to review election-related judgments for possible evidence of violations of the Constitution and electoral or criminal laws. I was privileged to serve as the Chairperson of the TWG, which included eminent legal scholars from the six geopolitical

zones. In carrying out our mandate, we took possession of 2,731 certified judgments from the Court of Appeal Registry in Abuja, covering 2007 and 2011 general election-related cases.

We submitted our Final Report in 2016, which is available on the NHRC Website.56 The Report indicted several individuals and institutions – including lawyers – of various malfeasance. Below are extracts from some of the judgments. The case of Alabi Oladjide Idowu & Anor. v. Adeolu Aluko & Ors.,57 was in respect of the

House of Assembly seat for Ise/Orun Constituency of Ekiti State. The case got up to the Court of Appeal; and below is an extract from the Judgment: Mr Tayo Akindahunsi added a curious twist to the entire narrative. It would appear from the record that he did not fare well at all during cross examination. He even made an admission against the interest of the

petitioners. What is more, he implicated learned counsel in the act of perjury which he committed in the

process of making his deposition on oath. Listen to him: I do not know when I left my unit.(sic) I wrote exhibit PW6A. It was not good enough and Chief Adeniyi [Petitioner’s Counsel] improved it for me. I did not see Chief Adeniyi in my unit on 14.4.07. I was in unit 1 as a party agent. I was never PDP member. I

have never seen PDP registered members’ list[58]. . . . In the first place, their attitude to the testimony of the only eye witness cannot be faulted. That tribunal of eminently learned jurists found it difficult, indeed,

unsafe to rely on his evidence: learned counsel who unabashedly doctored the deposition of this witness on

oath was no where around the Opolokegun unit on the day of the election in question. 59

In All Nigerian Peoples Party & Ors. v. The Resident Electoral Commissioner, Akwa Ibom State

& Ors.,60 which originated from Uyo Federal Constituency, the Court of Appeal again strongly condemned a lawyer’s antics before the Election Tribunal: 56 57 58 59 60

See http://www.nigeriarights.gov.ng/downloads/NHRC%20End%20Electoral%20Impunity%20Project%20Final%20Report.pdf. Appeal No: CA/IL/EP/H A/13/2007.

Akindahunsi testified as PW6, page 445 lines 28-31 of Record.

Id. 8 & 12, per Nweze, J.C.A. (as he then was) (italics supplied). (2008) 8 N.W.L.R. (Pt. 1090) 453, C.A.



In the instant case, rather than deposing to an affidavit, the National Secretary of the ANPP, with the

apparent connivance and encouragement of the appellants’ counsel, chose to shamefully resort to writing a letter to the Chairman of the Tribunal. . . . The scenario evinced through the proceedings at the lower

Tribunal is a show of shame; no honourable men should be credited with it. Antics that will lead to delay of

justice must be abhorred by officers in the citadel of justice.61

Courts have also implicated lawyers who use ‘creative ways’ to “frustrate the legal process in election matters”.62 When a counsel connived with a political party to disobey a pre-election decision of the Federal High Court, the Court of Appeal remarked: The ingenuity of counsel in trying to manipulate the legal system calls for a corresponding ingenuity and dexterity from the bench. The bar have thrown all sorts of balls at us, we must keep our minds on the goal post, which is the attainment of substantial justice in election petition. If not we would surely disappoint the electorate who voted at ward level, state level and national level on polling day with a view to putting who they feel would best actualize the dream of democracy which is the greatest good of the greatest number.63

Some Attorneys-General encourage impunity by abusing the nolle prosequi power granted to them by the Constitution.64 Such practices happen frequently during attempted

prosecutions of politically-exposed suspects. According to the Uwais Committee Report, “The reason why electoral offences go unpunished in Nigeria is as a result of the failure of the respective Attorneys-General to prosecute offenders especially if those involved are members

of the ruling party or were acting in the interest of the ruling party”.65 The Committee

recommended an amendment of Section 174(1)(c) of the Constitution,66 but our National Assembly is too busy with the mundane to find time for the needful. Amidst the plethora of professional misconduct allegedly committed by lawyers, and regularly reported, we do not have statistics on disciplinary measures taken each year to cleanse the Bar. The Legal Practitioners Disciplinary Committee (LPDC) Section on the NBA website has form but no content.67 And if the LPDC cannot create a databank on such internal

measures, how do we monitor some Nigerian lawyers who commit crimes abroad, were tried, convicted and sentenced, yet return home to continue their illicit law malpractice? Even Id. 526 & 528 (italics supplied). Ochor Christopher Ochor v. Alphonsus Ojo & Ors. (2008) 13 N.W.L.R. (Pt. 1105) 524 at 540, C.A. 63 Id. per Ogunwumiju, J.C.A. 64 See 1999 Constitution, S. 174(1)(c) (providing that the Attorney-General of the Federation shall have power “to discontinue at any stage 61 62

before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person”). 65 66 67

Federal Republic of Nigeria, Report of the Presidential Committee on Electoral Reform, para. 4.2.26 [“Uwais Committee Report”].

Id. para. 4.2.27. NBA, LPDC Section, http://www.nigerianbar.org.ng/index.php/lpdc-section# (last visited 27 Feb. 2017).



efforts to discipline some senior lawyers in the past has been marked by unnecessary disagreements. Sometime in 2010, a petition was lodged with the Legal Practitioners Privileges Committee (LPPC) against Chief Michael Aondoakaa on allegation of misconduct

during his tenure as Attorney-General of the Federation and Minister of Justice between 2007 and 2009. In October 2010, the LPPC stripped Chief Aondoakaa of the rank of Senior

Advocate of Nigeria (SAN) “pending the outcome of investigation by [its] Subcommittee”. 68 Within days, Mr. J. B. Dauda, then President of the NBA reacted and ‘advised’ the LPPC “to

reverse itself on the steps taken so far”, because of what he called non-compliance with “the Rule of Law”.69 Which makes one to wonder why the NBA will be quick to defend ‘Big’ men and women within its rank and not quick to equally issue press releases or go to court to

defend “the Rule of Law” on behalf of the downtrodden whose rights are violated daily by the strong. What sort of profession do we hope for when lawyers commit serious professional infractions and get away with them due to procedural technicalities? The Bench itself is no longer a great advertisement for the rule of law or for justice with integrity. Sagacious allegations – yes, allegations, but embarrassing nonetheless – are routinely being levelled against the Higher Bench. Every now and then, we are confronted

with troubling headlines such as, “Toying with Corruption in the Temple of Justice”; 70 or “Corruption: EFCC Moves into Judiciary, Closes in on 5 Judges”;71 or “Nigerian Supreme Court judge charged with corruption”;72 or “Inside the Very ‘Corrupt World’ of Nigeria’s

Judiciary”;73 and etcetera. Of course, some of these sensational headlines may be mere sound and fury, signifying nothing. However, it will be absurd to dismiss all of them as media hype. There is no smoke without fire. Actually, the media prominence usually given to any and every judicial malfeasance, even if committed by a ‘Grade C Customary Court Judge’, is testament to the unique and uneasy position a judge occupies. As Eso points out:

The grade of the judex is usually not reflected in the prominence given to his transgression. . . . [T]he picture of the Lord Chief Justice of the country accompanies the publication. The propriety or not of the prominence in high-lighting the judex may be debatable, but suffice it to say that every judex is not only

answerable per se for his act but also for the fault of others in his class. A judex is both an ambassador of the judiciary as an entity and of his compeer as a unit. 74

68 69

Office of the Chief Registrar of Supreme Court of Nigeria, Press Release, available in Olakanmi (n 1) 249. Text of NBA’s Reaction, available in Olakanmi (n 1) 251, 252.

Punch, 23 Sept. 2012, available at www.punchng.com. ThisDay, 16 Sept. 2012, available at www.thisdaylive.com. 72 BBC News Online, 21 Nov. 2016, available at www.bbc.com/news/world-africa-38053755. 73 Pulse, 10 Oct. 2016, available at http://pulse.ng/local/judges-arrest-inside-the-very-corrupt-world-of-nigerias-judiciary70 71

id5587874.html. 74

Eso (n 3) 140 (italics in the original).



How did we get to a situation where judges of superior courts are now routinely suspended or even dismissed by the National Judicial Council (NJC) for acts of impropriety? Some of the latest Press Releases on NJC’s website are headed: “NJC queries judge who allegedly took bribes from Lagos lawyer”; “NJC bars judge from elevation to higher court for misconduct”;

“NJC recommends retirement of two judges”; “NJC toughens stand on erring judges, queries Enugu CJ”.75 How did things fall apart that judges of superior courts now stand trial on

allegations of corruption in the same Temple where they once served as its priests? Where do we turn to when Temples of Justice is desecrated by some officers entrusted to protect and preserve them? Whom do we trust, if not judges? Sed quis custodiet ipsos custodies?76

Of course, one should not make a subjective commentary on the on-going trials of senior judicial officers in our courts, as they are sub-judice. Besides, every well-meaning member of the profession should condemn the military-style with which the Nigerian security

operatives handled the learned Supreme Court Justices recently indicted of corruption. I commend the NBA for its principled stand on the invasion of the Justices’ privacy: “We condemn the manner of arrest of the judicial officers by the Department of State Security

conducted in the middle of the night by masked and armed personnel. We view the action as illegal and unconstitutional. It is not in line with accepted norms in a democratic state. It is

unacceptable to the NBA”.77 The presumption of innocence is a fundamental principle recognised and cherished universally both in common and civil law jurisdictions. Section 36(5) of the 1999 Constitution provides that an accused is presumed innocent until his guilt is proven; and that applies also to judges.

That said, the image of a judge being cross-examined, if not ridiculed, in the dock over

weighty criminal allegations might be a testament to the rule of law – that all are equal before the law – but it certainly is not an advertisement for the legal profession. Such awkward, yet avoidable, scenes diminish the Bench and erode confidence in the profession. Whoever is concerned about the preservation of our profession’s nobility should be alarmed when heads of the nation’s Judiciary wash their not-so-clean linens in public. In 2011,

Nigerians witnessed the dishonourable exchanges between Hon. Justice Isa Ayo Salami, OFR, then President of the Court of Appeal, and Hon. Justice Aloysius Kastina-Alu, GCON, then Chief Justice of Nigeria (CJN) and Chairman of NJC. On 4th February 2011, Justice Salami wrote to the CJN protesting NJC’s plan to remove him as President of the Court of Appeal and 75 76 77

See NJC, Press Release, available at http://www.njcgov.org/press/allnews (last visited 27 Feb. 2017). Meaning, “But who is to guard the guards themselves”?

Statement by the Nigerian Bar Association at the End of the Second Meeting of the Crisis Management Committee of the NBA on the Arrest

of Some Justices of Superior Courts by the Department of State Security, 13 Oct. 2016, available at www.nigerianbar.org.ng.



to elevate him to the Supreme Court.78 He alleged that the proposal was nothing but an attempt by the CJN to replace him “with his minion or stooge”.79 He concluded with a subtle threat:

The present unholy move to push me out of the Court of Appeal for whatever reason has no preceden[t] in our legal history. I do not therefore think that it will be fair for the Chief Justice of Nigeria to seek to create a dangerous precedent which may give rise to chain[] reactions. Needless to say that the environment is already over-heated and in a state of flux. Let no one do anything to disrupt the status quo. Nigeria is after all greater than all of us.80

Salami’s Letter elicited a Press Release from the Secretary to the NJC.81 At paragraph 8 of the Release, the NJC defended its Chairman, arguing that he acted within his powers in

recommending Justice Salami for elevation to the Supreme Court. However, it noted that Justice Salami’s candidature had been withdrawn since the matter was sub-judice.82 The rest is now history, but it suffices to note that the Salami/Kastina-Alu saga occurred shortly after

the Court of Appeal handed down controversial judgments on some high profile post-election petitions. But wait, could that quarrel not have been resolved as a ‘family affair’, if need be, with the Body of Benchers mediating? What example does such incidents set for the lower

Bench, in particular, and the legal profession in general? The episode was so childish and comical, had it not been so sad. Our profession is the ultimate loser from such disgraceful fights over judicial positions. I often wonder why any respectable person should fight over a position – any position – if the intent is to offer selfless service.

6.

What Then Shall We Do?

So what shall we do? This question is for all concerned members of our profession, individuals and corporate. We – Nigerian Association of Law Teachers (NALT), Nigerian Institute of Advanced Legal Studies (NIALS), CLE, NBA, NJC, General Council of the Bar, Body of Benchers,

Body of Senior Advocates, Conference of Attorneys-General, National Judicial Institute (NJI),

Office of the Chief Justice of the Federation and of the Chief Judges of State, and etcetera – must work harder to raise professional standards. Nature aspires to perfection; so does the law. Which is why I commend the recent inauguration of the NBA Legal Profession Regulation

Review Committee on 24 January 2017. Speaking during the inauguration of the Anthony Idigbe, SAN, led Committee, the current NBA President Abubakar Mahmoud, SAN, said: 78

Salami’s “Letter”, 4 Feb. 2011, available in Olakanmi (n 1) 253.

Id. Id. 254 81 NJC, Press Release, 10 Feb. 2011, available in Olakanmi (n 1) 255. 82 Id. para. 10. 79 80



There have been growing concerns over the past decade or so about the falling standards in the legal profession. These concerns have been expressed among the Bench, Bar, and also by public. Areas of concern have included, low admission requirements, a sharp decline in the quality of legal education, and deteriorating standards of professional ethics. We have high rates of unauthorized practice of law, weak and inadequate statutes, weak legal, institutional and regulatory regimes for the legal profession in Nigeria, low level of compliance with the rules of professional conduct, poor and incompetent delivery of legal

services to client, lack of client care, corruption, and threats occasioned by globalization of legal services. 83

I could not agree any less! All lawyers of different hue should support Mahmoud’s initiative. We all feel the rot; don’t we? As Judges, I am certain that you have noticed the declining

quality of briefs and advocacy in your courts. I know what goes on in our Ivory Towers, so called because they were thought to pursue lofty ideas in a sublime environment, compared

to the ordinary life that exists outside. But our Ivory Towers have become “disaster institutions” – to borrow Oputa’s apt phrase84 – where we now celebrate mediocrity,

consecrate turpitude, and supress merit (the “pull him down syndrome”). Yet it is on these institutions, where “instruction consists mainly of handouts, which must be taken as gospel truth . . . that we have now to rely to produce our high-level manpower – our doctors, our engineers, our scientists, our jurists and our future leaders in commerce and industry”. 85 We are kidding. Mediocre men cannot build great professions and nations. We all know the maxim: Nemo dat quod non habet.

I call on the Akwa Ibom State Judiciary to strive towards entrenching speedy justice delivery in the State. Every progressive legal system strives to dispense justice speedily, mindful of the

maxim that justice delayed is justice denied. Recently in the United States, two States – Washington and Minnesota – challenged President Donald Trump’s Executive Order banning some Islamic countries from travelling to the US. They got a restraining order from

the District Court. The Federal Government appealed, but the 9th Circuit Court of Appeal ruled against reinstating the travel ban.86 The filling of the appeal, submission of briefs, oral arguments, and the written appellate ruling, were all concluded within one week! That is the spirit of justice. That is the standard that the Nigerian justice system should aspire to attain. The Bench, by its case-flow management, plays a central role in advancing or impeding justice. The National Conference of 2014 recommended that, to expedite justice delivery, 83

Speech by Abubakar Balarabe Mahmoud, SAN, President of the NBA, at the Inauguration of the NBA Legal Profession Regulation Review

Committee at Abuja, on 24 Jan. 2017, available at www.nigerianbar.org.ng. 84

Chukwudifu Oputa, “Nigeria in Distress and the Nemesis of Mediocrity” in Chris Okeke (ed.), Towards Functional Justice: Seminar Papers

of Justice Chukwudifu A. Oputa (Gold Press, 2007) 242, 257. 85 Id. 86 See State of Washington & Anor. v. Donald Trump & Ors., Case No. 17-35105 (Feb. 2017).



there should be uniform rules of court for civil and criminal matters, “so that their applications do not vary from Court to Court or State to State”. 87 Further, where a judge is transferred, he should be allowed to complete cases he started before moving, “to prevent

such matters starting de novo except in cases of promotion, death or retirement of such a judge”.88 Even in the case of promotion, the judge should be allowed to conclude cases where evidence had been concluded.89 The Conference also recommended that all preliminary

objections and interlocutory matters should be taken together with the substantive matters; and that “[t]he practice of seeking leave of Court in cases of mixed law and facts or facts

alone, should be abolished”.90 I was a privileged member of the National Conference, so I fully align myself with its recommendations. Local branches of NBA should monitor activities of their members. This is not too much to ask; after all, what is the NBA for if not to advance the rule of law through ethical legal

practice? Lawyers who mislead judges should be sanctioned. But the NBA should also fight for the rights and privileges of every of its members. What sort of profession do we hope for when merit is driven to the back burner in conferring privileges at the Bar? Paragraph 1 of

the Guidelines for the Conferment of the Rank of Senior Advocate of Nigeria (SAN)91 provides: The award of the rank of Senior Advocate of Nigeria (SAN) is a privilege awarded as a mark of excellence to members of the legal profession who: (a) are in full time legal practice; (b) have distinguished themselves as advocates; and (c) have made significant contribution to the development of the legal profession in Nigeria.

Yet it is an open secret that the conferments are based largely on other subjective considerations. When different sets of principles are applied to similar situations, they dilute the meaning of equality before the law and the fundamental principle of non-discrimination

on the basis of geography or other considerations. Truth and justice must be uncompromisable because they represent the first virtues of human society. 92

The NJC, on its part, should continue to clean the Temple of Justice and weed out corrupt

judges who continue to give the Judiciary a bad name. As the National Conference recommended, “There should always be a balance between the administration of justice and its public perception in view of the fact that justice shall not only be done; but most be seen National Conference 2014 Main Report, 176 [“National Conference Report”]. Id. 89 Id. 177. 90 Id. 87 88

91 92

Adopted on 16 Dec. 2013, pursuant to LPA (n 13) S. 5.

See John Rawls, A Theory of Justice (Oxford Univ. Press, 1999) 4 (arguing, id., that in a just society, “the rights secured by justice are not

subject to political bargaining or to the calculus of social interests”).



to have been done”.93 But the NJC does not exist only for the discipline of judges. It should review the curricula for continuing legal education of judges to ensure efficiency and

excellence. Judges’ welfare should be guaranteed and their emoluments constantly reviewed to take into account run-away inflation and the unbearable high cost of living. I learn that judges in some States are owed arrears of salaries. That is shameful, particularly in a society

where many political office holders live in disproportionate affluence. We cannot fight judicial corruption and yet be indifferent to judges’ welfare. Judges are human. They might live unobtrusive lifestyles, but they source their basic needs in the open market. Corruption is like pressure cooker; it will explode without a valve. We need a root and branch review of legal education curricula. The CLE should urgently look into this, in conjunction with the National Universities Commission (NUC). The NBA, in consultation with NIALS and similar bodies, should regularly fine-tune its curricula for continuing legal education of lawyers to make it a living document rather than a parachute

to be remembered in the event of an emergency. Some subjects that are still being taught in law faculties are antediluvian, with no bearing on current global realities. Likewise the teaching methodologies. What sort of profession do we hope for when many law teachers

still dictate worn-out notes to students in this 21st Century that is driven by information and

communications technology (ICT)? Many law teachers – let us face the truth – spend most of their times chasing briefs and very little time passing knowledge or undertaking quality research. The NALT and CLE must address this abuse. Our children have potentials for greatness. What they need are dedicated hands to fan these potentials into flames. 7.

Epilogue

My effort in this Lecture has been to remind us of what we already know, which is that the root cause of the crisis and disorder in our society and profession lies in the gradual erosion

of morality from our lives and vocations. Since we also have an idea of what needs to be done to clean the Augean stables, let us stop talking and start doing, mindful that the present

determines the future. It is those of us presently at the Bar – or soon to enrol – who will move to the Bench to exercise judicial power, or proceed to the academia to instruct our children and grandchildren. The rest of us will continue to render legal services to the public. As we have seen, the public is no longer comfortable with our declining standards of services and conduct. We must arrest the drift, by returning to basics.

93

National Conference Report (n 87) 173.



Morality is the lubricant that enables the human machine to function smoothly; or to put it differently, it is the tiller and rudder by which the human machine is kept fixed and secure.

However, in our contemporary society, realism privileges power over morality and religion as the ultimate driving force of history. There is a famous passage from “The Grand Inquisitor” section of Dostoevsky’s The Brother’s Karamazov, in which Ivan Karamazov claims that if

God does not exist, then everything is permitted.94 In other words, if there is no God, then there are no rules to live by. We can do whatever we want since there is no moral law that we are obligated to follow. We now live in such a permissive and avaricious society. The result is our Descent Into Hell, to invoke the apocalyptic title of Charles William’s great novel.

I submit that we are moral beings. Therefore, it is rational for us to give thought to morality

and, by extension, legal ethics. When we invoke “So help me God” in our National Pledge,

Judicial Oath, or any oath at all, we bring morality into our vocation or testimony. Morality may be loose, vague, indeterminate, at times subjective, but it affords us the general idea of

the perfection we should aim at.95 Morality itself is a sub-set of religion. There can be no good law without morality and no morality without religion. As Lord Denning wisely remarked: “Religion concerns the spirit in man whereby he is able to recognise what is justice; whereas

law is only the application, however imperfectly, of justice in our everyday affairs. If religion

perishes in the land, truth and justice will also”.96 But religion is not a search for the ‘Absolute’, like a man searching for a lost coin, or like the search for the Golden Fleece in Greek Mythology. Such a search will end in despair. True religion means that a loving, personal, God took the initiative to seek and save lost humanity. It is actualised by personal faith in the finished work of Jesus Christ.97 My Lords, learned friends, ladies and gentlemen, we have strayed too far, and for too long, from the genuine faith of our fathers. Let us return to it, for therein lies our individual and professional salvation. Thank you for listening.

94

Fyodor Dostoevsky, The Brother’s Karamazov (Ralphe Matlaw ed., Norton & Co. 1976) 244.

Cf. Fuller (n 14) 6. Lord Denning, The Family Story (Butterworths, 1981) 183. 97 See John 1:12; 3:16. 95 96


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