THE BENCH AND THE BAR - INSEPARABLE PARTNERS IN THE DISPENSATION
OF JUSTICE.
BEING A LECTURE DELIVERED AT THE
1ST CHIEF G.O. SODIPO MEMORAL LECTURE
The letter of invitation dated 14th November 2000 and signed by Dr. Bankole Sodipo
contains such contents that must naturally compel any human being of good disposition
to life not to decline the request to deliver this lecture) indeed the first one in
celebration of the life and times of Chief Gabriel Oliyide Sodipo, a committed legal
practitioner of many years of active legal practice before he answered the great call.
Paragraph two of the said letter talks of his Motto as "Contentment with Godlines is
great gain" He practised this valued rule of behaviour and he was said to have taught
all those who came across him while he sojourned on this side of the divide its tenets.
It is therefore undoubtedly a great pleasure and honour to me to have been invited to
deliver the first lecture. I therefore wish to place on record my profound gratitude for
being given the rare privilege to deliver this lecture. It is no doubt a great responsibility
that the organisers of this lecture have placed on themselves. Records have shown, in
this country that many first and even second lectures put up in honour of our great
men have ended up at that stage. You have a duty to make this event a continuous
one. I do hope and pray that an event like this in honour of such a great man of God
will be an unbroken annual event. It was also indicated in the said letter that I could
base my lecture on any area of law that interests me. After ruminating on his Motto
while he was with his us here and having regard to his calling, I came to the irresistible
conclusion that this lecture must centre on the two arms of the profession - THE BAR
and THE BENCH - their duties to dispense justice.
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OUTLINE OF THE LECTURE
I shall divide this lecture into three compartments (1) THE BENCH (2) DISPENSATION
OF JUSTICE - the pursuit of and (3) THE BAR and ITS ETHICS (4) THE MAN-CHIEF
GABRIEL OLIYIDE SODIPO.
THE BENCH
The role or cardinal duty of any judge sitting in the citadel of Justice, in any country
that upholds the rule of law as a way of life, is the attainment of justice in any case that
comes before him. When it is realized that the basis of societal conflict finds clear
expression in the refusal by man to give to man what is due to man then the
importance of dispensing just order cannot but be appreciated~ On the shoulders of
judges would therefore rest the initial burden of ensuring that no one unjustly suffers
the deprivation of his liberty or freedom or is denied his rights without adherence to the
due process of law. It follows that the, crucial service which a judge must render to the
society is one removing from it a sense of injustice. To be well prepared to discharge
this service, a judge must possess a high sense of impartiality. He must be a person
possessing, in full, the qualities of that ideal bridegroom approaching marriage or an
ideal priest approaching priesthood. If he yields or bends at all, it is straight to the side
of the truth and honour's sake. He must present the picture of a person ready to make
any sacrifice provided that justice will be the ultimate result. And such is the
indispensability of justice that it is repeated in several portions of the HOLY BOOKS the Holy Bible and the Quran. Cicero in his book "ON DUTIES" said;
"The brightness of virtue shines above all in justice."
Aristotle in his NICHOMACHEN EHTICS paints justice in a glowing poetic manner thus:
"Neither the morning Star nor the evening Star is -·as glorious as justice."
But the job of judges is by no means an easy one. They often do what the rest of the
people seek to avoid; handing down judgments. And this function, they perform in the
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public. They are mere mortals yet they are always called upon to perform a function
that is truly divine. In St. Matthew Chapter 7 Verse 1 the WORD OF GOD SAYS "DO not
judge or you will be judged"
It must not be lost sight of that as mere mortals that judges are, they are subject to the
same ambitions, passions, prejudices and fears as their other human beings. Ambitions,
passions, prejudices and fears are some of the vices that militate against dispensation
of true justice. Over the years several attempts have been made from several quarters
and in several geographical territories to get those elevated to the post of an
adjudicator to drop the toga of vices. Sir Alfred Denning (popularly referred to and
called 'Lord Denning Mr, R.) of blessed memory, in his book "The Road to Justice" said:
"Once a man becomes a judge, he has nothing to gain from further
promotion – though it may not escape his attention that High Court Judges
are paid less than Court of Appeal Judges who are paid less than Law Lords
and that more attention is given to the pronouncement of more senior
judges."
Since judges are men, mere mortals and not saints, infallibility is not their virtue. We
must expect from them in things done by them foible and/or frailties. We should not
because of this lapse make a total and irredeemable condemnation of this class of
human beings. Rather, we can and indeed we must take necessary precautions to
evolve a panacea to limit or reduce the damage such imperfections might otherwise do
to the interest of justice. It seems to me that by a careful scrutiny of all aspects of the
judiciary we can have the hope to detect, deter and defeat potential injustices. Let it be
said loud that a judiciary that is not independent or seen to be truly independent - a
judiciary that goes cap in hand to beg for money to run its affairs can never and should
never be expected to discharge its sacred duty 'of dispensing justice in the ideal way it
should. Hon. Justice Oputa (a retired Justice of the Supreme Court in his Essay In Law,
Justice and Stability in Nigeria an integral post of collection of Essays all titled "Towards
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Greater Efficiency in the Dispensation of Justice in Nigeria - in honour of Hon. Justice
Kayode, Eso C.O.N. (another retired justice of the Supreme Court said:
"Without judicial independence, no Judge or Justice however well prepared by
qualities of heart, mind and professional training, can give full effect to the
enduring values enshrined in our basic law - our constitution. Since the
independence of the judiciary is a concept and a role which have been
unconsciously and sometimes willfully misunderstood, as the judiciary trying to
turn itself into a government within government, it becomes necessary to
emphasize that any freedom, any immunity, any privileges accorded to the
judge are not accorded so much for their own sake, as for the sake of the
public. No judge tries his own case, nor should he try any involved. Any power
given to the judge, therefore is not given for self - advancement or self aggrandisement. Such powers are necessary for greater efficiency in the
administration and dispensation of justice. They are given for the
advancement of - that being free and independent in judgment, so that they
may better and mare efficiently and more effectively perform their necessary
duties to the course of justice including protecting all of us - the government
and the governed; the powerful and the weak - from power and its abuse A
weak - kneed and dependent judiciary can be awful, an ill-wind that blows no
one any good."
I would like to say that for as long as rule of law is prevalent in our society for so long
shall the judiciary be unable to shirk its sacred duty to the nation to maintain the rule of
law. It is both in the interest of government and all persons. The judiciary exists to
foster the rule of law. We should not fail to remind ourselves that when we are in
power and we think we do not require the law and its protection and we consequently
lock up the door of the law and throwaway the key; if eventually after leaving office we
feel we now require the law we will not be able to find the key. We would then be
victims of the operation of anarchy. In the Supreme Court decision in ELESO VS. GOVT
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OF OGUN STATE (1990) 2 NWLR (PT 133) 420 Hon. Justice Karode Eso brought into
focus the importance of the rule of law when he said:
"In exercise of his powers as a matter of order, peace and good government
the Governor must have a recourse to law. The Governor is certainly not there
to seize the power of other functionaries, nor is he there to rule in dictatorship
in disregard of the established laws of the land. That would not bring order
nor peace nor good government."
ESO J.S.C. further reasoned in his "Thoughts on Law and Jurisprudence published by
MIJ Professional Publishers Ltd at page 253 thus:
"For 'Law to be justified in any society, it must be just. It is justice that
enables law to appear in any society as an accepted norm, or an agreeable
concept, and it is justice that could ever give 'law a socially and culturally high
significant meaning.
One cannot but agree with VISCOUNT RADCLIFFE when in his write - up titled "The
Law And Its Compass he said:"If the law is to stand for the future as it had stood for the past, as a
sustaining pillar of society, it must find some point of reference more universal
than its own internal' logic."
I cannot but recollect here with admiration the thought as expressed by Lord Reid on
the purpose of the pursuit of law which is justice when in delivering the judgment in
MYERS VS. D.P.P. (1965) A.C. 100 he said and I quote him.
"Law must be developed to meet changing economic conditions and habits of
thought."
The rule of law is about the dispensation of justice which itself is never given rather it is
a task that must be achieved. Justice should be demanded as of right. It has never
been and it will never be a marketable commodity. In Section 4 of the MAGNA CARTA it
is provided thus:
TO no one will we sell …………………………………………
…………………….......right of justice.
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I will not have satisfied myself if I fail to say that though the independence of the
Judiciary may be expressed in the courageous manner in which a judge adjudicates in
disputes between the citizens and the executive, a balanced judiciary should not be
seen to set itself in a head-on collision with the executive or the legislature and the
judiciary. In foistering harmony, the judiciary must never set out to be more executive
than the executive itself. In its very crucial and delicate duty of examining matters or
disputes affecting the executive and/or the legislature its pre-occupation is to chart the
solid and clear path that leads to justice.
EXERCISE OF JUDICIAL POWER
Let me however say that the power of the judiciary to hold the government or the
elected accountable, in law, for all their deeds and misdeeds, is precious but it appears
to be fragile. We must not forget that under our system which is fashioned after the
British legal system, our Judges are not elected nor do they govern. But imbued by our
special training, judges are under a duty to ensure that those who govern, be they
elected by the people or not act in accordance with the law. Much as this type of
intervention is desirable, I think the judiciary must be watchful not to exceed the
bounds which command the respect of the society. Nor must judicial intervention be
allowed to be given the colouration of political sympathies or the universal belief in the
impartiality of that institution will be lost and respect for it will soon decline. The
delicacy of the main duty of the judiciary together with the preservation of its
universally acclaimed image of impartiality must always be kept in mind as the areas of
growth of the judicial role are surveyed. This call for assessment, from time to time, of
what judges can and what they cannot, achieve. However, at the risk of sounding to be
immodest, judging from the nature of the atmosphere under which the judiciary of this
country has operated or found itself before or after independence whether under the
colonial administration, the civilian regime or military regime, it has performed
creditably well. Prior to the advent of the British on our soil, the people have fashioned
for themselves certain usages by which their lives were regulated. Such usages are
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called a body of unwritten customs and traditions which the people came to accept as
obligatory for the regulation of the relationship between them. However, such usages
often called customary law, do often adjust positively to changing social conditions. The
judiciary, a keen watcher of social changes never failed to strip any custom of its
character of law if it failed to respond to changing social conditions no matter its claim
of acceptance by the people. It is its quality of ability to adopt to changing social
conditions that has earned customary law, through court's pronouncement, the
appellation of "mirror of accepted usage" The courts have never hesitated to pronounce
as legally ineffective or dead, customs which are reasonably seen to be repugnant to
equity, natural justice and good conscience. The court has never failed to impose the
culture of rule of law on the society-. The first salvo of this imposition was fired in the
well-known case of ESUGBAYI ELEKO VS. GOVT. OF NIGERIA (1931) A.C. 663. When it
declared:
"No member of the Executive can interfere with the liberty or property of a
subject except on the condition that he can support the legality of his action
before a court of justice."
Since the Esugbayi Eleko case our law reports have become replete with instances of
where the courts have remained resolute in the defence of the Rule of Law see the
cases such as (1) GOV. OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR (PT 18) 621 (2)
GARBA VS. F.C.S.C. (1988) 1 NWLR (PT 71) 449 (3) LAKANMI VS. A-G. WESTERN
STATE & ORS (1971) 1 U.I.L.R. 201 and (4) BALEWA VS. DOHERTY (1963) 1 WLR 949.
A FORWARD LOKKING JUDICIARY
Man's desire for excellence in all his endeavours is insatiable. He believes that there is
room for improvement. The art of judging, which is the pre-occupation of the judiciary,
is a divine contrivance. I shall soon support this statement with authorities. But, being
propelled by man, a device for self-improvement of the judiciary must always be in
place - perhaps this explains why we have the Continuous Legal Education Seminars
and Conferences within the Judiciary. The position of a judge is undoubtedly on all7
powerful one. And to whom much is given much is desired of. Joseph Barkin in his book
said:
“To the public mind and conscience the judge is the trustee of the assurance
of justice ........... He presides, he administers, he decides …………..... There is
no other civil officer clothed with such summary power.
To my mind a judge must represent justice and integrity in all his undertakings. Every
judge must not only, in theory, but more importantly, in practice, adhere to clause 40 of
MAGNA CARTA 1215 which enjoins all judges to put themselves in positions where they
will be able to say with all good conscience and without any fear of equivocation that
“TO NO ONE WILL WE SELL JUSTICE, TO NO ONE WILL WE DENY OR DELAY RIGHT
OR JUSTICE - the LATIN MAXIM being NEMINI YENDEMUS, NEMINI NEGABIMUS AUT
DIFFEREMUS RECTUM AUT JUSTITIA. Judges must always realise that they hold justice
in trust for GOD who is the SUPREME JUSTICE of all.
SUMMARISING CODE OF CONDUCT FOR THE JUDEX
I shall now attempt to go into the celestial code of conduct for adjudicators. If judges
will have a second look at the Oath they took on the occasion of their swearing - in
ceremony, they will discover that their ultimate allegiance for everything they do is to
GOD ALMIGHTY. This is because at the end of each of the Oaths they made
applications to God Almighty for His assistance to discharge their duties well. The
concept of appointing judges is as old as human evolution. Such appointment of judges
must always receive DIVINE APPROVAL accompanied by divine ethics binding the
appointees. The HOLY BOOKS are replete with this ethics. In II Chronicles Chapter 19
Verse 6 it is said:
"Consider carefully what you do because you are not judging for man but for
the Lord who is with you whenever you give a verdict.
I posed the question who is JUDGE?"
I find answer in Psalm 50.6 where the Psalmist says:
"And the heavens proclaim His righteousness for GOD HIMSELF IS JUDGE."
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Human beings privileged to be appointed as Judges are therefore His servants
directed by HIM to discharge that sacred duty.
The qualities which an ideal judge must possess are clearly spelt out in the HOLY
BOOKS. In Exodus 18:21-22 it is said:"But select capable man from all the people - men who fear God, trustworthy
men who hate dishonest gain - and appoint them as officials over thousands,
hundreds, fifties and tens. Have them serve as Judges for the people at all
times."
In the same book of EXODUS 23:6-8 Judges are enjoined thus:
"DO not deny justice to your poor people in their law suits. Have nothing to do
with false charges and do not put an innocent or honest man to death, for I
will not acquit the guilty. Do not accept bribe, for a bribe blinds those who see
and twist the words of the righteous. Do not oppress an alien, you yourselves
know how it feels to be aliens, because you were aliens in Egypt."
When money or wealth is lost, it is said that nothing is lost. The DIVINE PROVIDER can
if it pleases HIM recoup hundred fold. But when integrity is lost in a man all in him is
lost. Perhaps it would have been better if he were not born. In ECCLESIASTICUS
otherwise called the Church's Book Chapter 7 verse 6 the Holy Book says:
"DO not scheme to be appointed a judge in case you are not strong enough to
stamp out injustice, in case you let yourself be swayed by an influential man
and so risk the loss of your integrity."
Similar exhortations can be found in (1) Leviticus 19:5. Deuteronomy 1: 16-17; 16:1820 and Proverbs 17:23; 24:25.
The Incarnate God, Jesus Christ Himself said in John 7:24:
“Stop judging by mere appearance and make a right judgment.”
In the HOLY QURAN, Surah 4 Ayah 135: Allah says:
"Believers conduct yourselves with Justice and bear true witness before Allah,
even though it be against yourselves, your parents or your kinsfolk. Whether
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he be rich or poor, know that Allah has better right over both. So do not be
led by passion, lest you should swerve from the truth. If you distort your
testimony or decline to give it, know that Allah is cognisant of all you do."
The above scriptural references are clear evidence that judicial ethics have long been in
existence, in written form, and brought to the knowledge of adjudicators. All I have said
prior to these scriptural references are a re-statement of the divine ethics for the judex.
Socrates summed up an ideal judge in this glowing language:
"Four things to a Judge, to hear courteously, to answer wisely, to consider
soberly and to decide impartially."
In my own modest assessment, an ideal judex is one who is sound and learned,
impartial, incorruptible, independent and courageous.
THE BAR & ITS ETHICS
THE BAR and the BENCH are inseparable. One cannot be a judge of any of our superior
courts unless he has acquired legal education - in the present context he must have
acquired a law degree from any of our universities that has a Law Faculty, undergone
the required practical law courses at the Nigerian Law School and engaged in the
practice of law for the minimum period stipulated by the Constitution. The practice of
law may either be in the Ministry of Justice as an employee of the government or in the
private legal practice. The BAR, in my view, is therefore the mother of the BENCH. The
BAR is also a reflection of the BENCH.
DUTIES OF THE LAWYER
The general view is that legal practitioners owe two primary duties: (i.e) a duty to the
court which demands inter alia respectful attitude and (2) a duty to the client which
entails the prosecution of his (Clients) case to a successful end. Added to this duty is
that sacred demand on the lawyer to see to it that dispensation of justice is uninhibited
in the citadel of justice. It then follows that the duty of the lawyer to his client cannot
be absolute. The performance of a lawyer's duty carries with it the display of
transparent honesty in discharging his professional duties. In counselli.ng his client, a
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lawyer must express his opinion in full and in a friendly manner about all issues arising
from the case. Clients who brief counsel are entitled to some degree of loyalty from
such counsel. Thus, in Devi Vs. Singhair 1917 P.C. 80, the Judicial Committee of the
Privy Council pointed out the impropriety of a legal practitioner who has acted for one
party in a dispute …....... acting for the other party in a subsequent litigation between
them relating to or arising out of that dispute. Such conduct is, to say the least of it,
open to misconception, and is likely to raise suspicion in the mind of the original client
and to embitter the subsequent litigant.
Some legal practitioners may not fully appreciate that they can only wear one hat in the
court. In the case of R Vs. Secretary of State for India in Council, Ex Parte Ezekiel
(1941) 2 K.B. 169 it was said that I shall like to go further by saying that it is a serious
violation of professional ethics for a legal practitioner to appear by dubious device, for a
plaintiff and a defendant in the same case before the same court.
DUTY TO THE COURT
For the healthy administration of justice, it is of importance that a lawyer maintains
towards the court a respectful attitude. It goes without saying that generally, a man
who is respectful is the favourite of all and he gets a lot of things done to his own
advantage and even beyond his expectation.
Once a legal practitioner puts the case of his client before the court, he must keep his
personal opinions on the merits of the case (legal or otherwise) to himself and not
make them subject of his submissions. He is however entitled to take all possible
points, bad as well as good. But he has no right to set himself up as the judge of his
client's case. He should not forsake his Client on any mere suspicion of his own or any
view he might take as to the client's chances of ultimate success. As Baron Bramwell
explained in JOHNSON VS. EMERSON & SPARROW (1875) L.R. 6 Ex 329 at 367.
"A man's rights are to be determined by the court and not by his solicitor or
counsel…………...
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A client is entitled to say to his counsel,
“I want your advocacy, not your judgment. I prefer that of the court."
I need not say that a lawyer must make courage his desideratum in the discharge of his
professional duties. If he is not courageous it well be impossible for him to overcome
impediments that may be placed in his way by the opposing counsel and witnesses and
even by the judge himself in the way and manner he interjects in his quest to get at the
truth of the matter before him.
NEED TO BE INDUSTRIOUS
I have somewhere in this paper said that an advocate ought, in compliance with the
ethics of his profession, put up his best in terms of professional service, in the defence
or in putting across the case of his client. Since advocacy cannot be learnt by studying
theory but only by actual practice; the young advocate needs to attract clients. This he
does by good comportment, hard work and resourcefulness.
Being well equipped in terms of training and learning and with strict adherence to the
ethics of their different callings, members of the BAR and the BENCH co-operating as
they should do, will be invaluable assets to mankind and obedient servants of GOD in
the citadel of justice.
THE MAN-HIGH CHIEF GABRIEL OLIYIDE SODIPO
In the letter addressed to me inviting me to deliver this lecture the late Chief G.O.
Sodipo was said to be a man who made contentment his watch word and who walked
in the path of God. In his biography given to me it was said of him inter alia:"Chief Sodipo was a conscientious and contended Christian lawyer throughout
his lifetime. He has religiously adhered to his father's philosophy which places
a higher premium on becoming rich through God's blessing on the little in your
hands, not through charging high professional fees."
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Above all, he was a quiet peace-loving, humble honest, dependable, frank
family and public man. He practised his Christianity and has also won many
souls for Christ."
No more comforting testimony can be given of a man than that contained in his
biography as quoted above. I must say that my heart goes to such a man of God. No
plan or path fashioned by a man and pursued with vigour as that which is characterised
with godly tenets can be more enduring than that which makes godliness its
foundation. I have never been opportuned to meet the deceased physically in his life
time. But the account of his extra- curricular activities given in his biography bears
eloquent testimony to the fact that he was truly a man of God. While some people in
his station of life would belong to all sorts of questionable societies he chose to belong
to societies of the Church rooted and founded on Christ Jesus. He was a foundation
member, a Chairman and Patron of many of them through which he served his LORD. I
have not been told but from his intimidating yet godly record, he would have faced a lot
of vicissitudes of life from the force of darkness. If one faithfully keeps steps with God
one will definitely be out of step with the world. The consequence of this is obvious; the
world will turn the heart of such a person. But as the Psalmist says, if one takes delight
in the LORD HE will, give one the desires of one's heart - Psalm 37:4. Perhaps he even
stepped on the toes of his children and some members of his family by not been able to
dole out heavy sums of money from his seemingly meagre resources derived from low
professional fees - I am told he never charged high professional fees.
Today, those who felt disappointed are undoubtedly deriving unquantifiable gains from
the virtuous life he led. I congratulate you for the GRACE OF GOD which made you to
forbear those seemingly hard times if indeed they were hard times. Let it be said that
the unrighteous may revel in their seeming victory which takes its root from high-level
immoral and corrupt life-style, but their celebration is always short-lived. The examples
abound in our society. To be rich in God is better than to be rich in goods. Today, we
are here celebrating life; life that was led in total dedication to christ. If there was some
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rough past for the deceased and I am sure there must have been; he was able to go
through it because Christ Jesus went before him. And Christ will always go before
anyone who chooses to follow HIM faithfully. The deceased was said to be a humble
man. I wish to say that this is because he knew God. He never allowed the world
around him to squeeze him into its mould rather he willingly submitted himself to God
to re-mould his mind from within. He trusted the WORD OF GOD hence he knew God's
will, all the above virtues attributed to him leaves me in no doubt that was a man who
always communed with God - he was a prayer warrior; Kneeling down before God at all
times. In my humble view, the most powerful position on earth is Kneeling before the
Lord of the Universe. Chief Sodipo held that position till the last.
I congratulate all the members of the great Sodipo family of ABEOKUTA for this rare gift
of God to you in the person of High Chief Gabriel Oliyide Sodipo a contented man with
godly virtues. He has left you all with a worthy legacy of life. You and all of us will do
well by following his virtuous principles. Let us all remember that contentment is not an
economic quality but a spiritual attainment. It is not also a state of accounts rather it is
a reflection of a virtuous heart.
I thank you all for your patience. God bless.
HON. JUSTICE PIUS OLAYIWOLA ADEREMI
Court of Appeal,
Lagos Division.
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