PRESENTATION BY GROUP ONE

VARIOUS MEANS BY WHICH JUSTICE MAY BE ATTAINED IN THE SOCIETY BEARING IN MIND THE PECULIAR NATURE OF THE NIGERIA SOCIETY; AND THE VARIOUS DOCTRINES APPLIED BY THE COURT TO DECIDED CASES BEFORE THEM.

Submitted in partial fulfillment of the course requirement for JURISPRUDENCE AND LEGAL THEORY II

LECTURER IN CHARGE

A. OLAGUNJU PHD

INTRODUCTION

A commonly accepted definition of Justice is that it is a moral standard of all men to one another requiring them to perform their social and moral as well as legal obligations to each other and to grant to each other all that fairly be granted.

Even in our indigenous society from time immemorial, people have lived under various notions of justice and have built their society on the principle of justice. One of such principles is the ‘live and lets live’. Others are ‘do unto others what you want them to do unto you and also what is sauce for the goose is sauce for the gander.

The importance and significance of justice can never be underestimated in the affairs of men. This is so because according to Pope Pius XII, just as, in fact, there can be no peace without order so there can be no order without justice.”

The various means of attaining justice is therefore crucial to the development of any society whether traditional or modern because justice is the bedrock of the confidence people have in their legal system. This question is however more important for the Nigerian society since justice has transformed into various kinds for various people. Justice is no longer one and the same.

In the course of this work, we intend to investigate the concept of justice which we will discover goes beyond equality. We further look at the various means applicable to the attainment of justice. With particular emphasis on the Nigeria judiciary, we shall look at various judicial attitude and conclusively the doctrines applied by the court to decide cases before them.

THE CONCEPT OF JUSTICE

As soon as anybody states that a law or a court’ decision is unjust, he is quickly met by the question: “whose say-so establishes what is just or unjust?” The question of Justice could be said to be one of the concepts that defy definition because of the issues it brings along with it. Such issues include: what is just?; whose say-so establishes what is just and unjust?; how is it determined?; is it known to all?; can it actually be achieved?, to mention a few. Yet in spite of these sub-questions, justice is not far from what we know it to be i.e. fairness, equality.

However, it suffices for our present purpose to note that justice requires that freedom, equality and security be accorded to human beings to the greatest extent consistent with the common good. For Adaramola, the concept of Justice connotes the legal equality of human beings i.e. equality of all citizens before the law and in society generally for all practical purposes.[1]

Justice is not synonymous with equality. Equality is one aspect of it, no more. Justice is not a once and for all capture formula. It is a process, a complex and shifting balance between many factors including equality[2]. For Friedrich[3], Justice is never given; it is always a task to be achieved.

Aristotle makes a classification of justice into local (particular) justice and universal justice. Particular justice is further analysed under distributive and corrective justice. Distributive justice is founded on the assumed principle that there is equal distribution of distributable things amongst equals in a given society. But where distributive justice is distorted the judge applies corrective or rectificatory justice to restore the pre-existing distributive position.[4] Universal justice is absolute justice from where particular justice gets its completeness, since it is not possible for legal justice to cover all forseeable situations. In other words, that which is resorted to in order to make up for the omission is universal justice and its nature is equitable.

‘Justice as fairness’ according to J. Rawls refers to an original position of equality such that each person’s choice of principle in his interpretation or understanding of the word is not influenced by his position. He states: “thus it seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles.”[5]

Justice for Rawls is thus developed under two principles;

First: that each person is to have equal right to the most extensive basic liberty compatible with a similar liberty for others.

Second: that social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to every one’s advantage and (b) attached to positions and offices open to all.

These principles are to govern the assignment of rights and duties and to regulate the distribution of social and economic advantages. He considered the basic liberties of citizens as roughly speaking: political liberty, freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of person with right to hold personal property; freedom from arbitrary arrest.

According to the first principle, these liberties are all required to be equal since citizens of a JUST society are to have the same basic rights. On the second principle, which is applicable to the distribution of wealth and income and in the design of organizations that make use of differences in authority and responsibility, distribution of wealth and income need not be equal but it must be to every one’s advantage and at the same time, positions of authority and offices of command must be accessible to all.[6]

Rawls’ position on his two principles of justice could therefore be summed up as follows: all social values – liberty and opportunity, income and wealth, and the bases of self respect are to be distributed equally unless an unequal distribution of any or all of these values is to everyone’sadvantage.

This notion of Justice is preferable and adaptable especially as it pertains to the dignity of the human person. Equality in justice is not absolute. It is qualified. This is because, borrowing Aristotle’s concepts, there are distributable things and there are equals in the society. It is not out of place to posit that creation itself is not just, since though we are created by God and in His image, yet we are not equally endowed[7]. Some suffer a lot to achieve, some do not suffer that much. Does this connote injustice? In a layman’s view it may. However the position of Rawls takes all these into cognizance and yet holds that there can be equality where basic rights fundamental to the human person are involved and where wealth and income, power, privileges, authority, are involved, justice is attained by equality in opportunities. Eventually, no one is disadvantaged.

A classical definition found in Book 1,1 of the Justinian Institute[8]states that “Justice is the constant and unceasing will to render to each one his due”. Elegido[9], commenting on the definition says that it depicts justice as a specific area within morality since morality “tells me how I should behave towards others in order to avoid offending them.”  Based on this, the question of whether justice is objective will lead us to the argument whether morals is itself objective[10]. If justice is morality, which is not agreeably objective, how can we rely on such in objective concept to determine objectivity.

In relation to law, a further question would be: “whose say-so determines the justness or unjustness of a law? Again, where principles are objective, nobody’s say-so matters. A given law is in itself either just or unjust according to whether or not it complies with those objective principles of justice.

JUSTICE IN THE LAW

An unjust law damages the common good of the community. An unjust law is simply a law, which prescribes something, which is immoral and wrongs one or more people. A citizen’s obligation to obey a given law derives from the fact that doing so is the only way of promoting the common good. Does the citizen have an obligation to obey an unjust law? Aquinas states that: “such unjust laws do not oblige in conscience, unless perhaps to avoid giving bad example or causing public disorder…”[11]

If we take our minds back to the Naturalists, Positive Law, to be just must meet three requirements: it must serve the common good, its burdens must be distributed according to proportionate equality and finally, it must be issued by a legislator within the bounds of his authority. Where these requirements are not met, there is unjust law. Does this give the citizen a right of resistance against such laws in a country like Nigeria?

The definition of justice and its attendant questions have raised a lot of issues and concerns that one might think there is no way law can be used to achieve justice. KayodeEso[12] in resolving this question has said:

“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 acceptable norm or an agreeable concept, and it is justice that could give “law” a socially and culturally high significant meaning…it is the concept of justice, which could be attainable thereby, that gives the concept (law) life.”

Since equality is only an aspect of justice, the problem of justice cannot be solved merely by treating people equally in law when in fact they are unequal. Hence, to achieve justice, various factors other than equality must be weighed and considered. It therefore behooves the judges to formulate principles that are considered relevant to be applied for the attainment of justice.

MEANS OF ATTAINING JUTICE VIS-A-VIS THE NIGERIAN PERPECTIVE.

Flowing from the description of justice, and the various ideas of thinkers on the subject, it is expected that these lead us to a discussion on the means of attaining justice. Justice as a concept though elusive is necessary for the administration and development of any society, Nigeria not being an exception.

Justice attainment in the society is the collective duty of the judiciary and the legislature. Nigeria being a society bedeviled with multi-cultural and ethnic diversity is an epitome of an unequal society. This is not negative since essentially not all things are equal or distributable. However, justice comes as a process a complex and ever shifting balance between differing factors including the question of inequality.

Justice can be attained through; distributive justice, corrective justice, universal justice and functional or social justice. These species of justice are collectively employed by both the legislature and the judiciary.

Briefly distributive justice according to Aristotle is founded on the assumed principle that there is equal distribution of distributable things among equals in the society. This is in the realm of the legislature who through legislation distributes ‘goods’ among equals. On the other hand where there is a distortion or disturbance of distributive justice, corrective justice comes in to restore and rectify the anomaly through the necessarily incidental performance of judicial functions.

Universal justice on the other hand, is the objective and absolute justice, which comes in to fill up or complete any omission on the part of the legislature to make laws for distributive justice. In other words, where new situations arise not covered by law or where the law on a particular point becomes practically unworkable to achieve justice, it behooves the judiciary to apply this sort of justice as a correction of law. The judge comes in to correct the omission- to say what the legislator himself would have said had he be present and would have put into his law if he had known of this variety of issue.[13]

In our peculiar nature, Nigeria has exemplified approaches to the attainment of justice yet we are still a long way off. Justice has been sacrificed on the altar of discrimination to the disadvantage of other citizens; merits have been sacrificed on the altar of political expediency. Also, qualitative opportunity to education has been sacrificed on the basis of ‘catchment areas’ and ‘quota systems’ (in a quest to give everyone a so-called equal opportunity) to mention but few instances. We are faced with various indigenization policies where some state governments give undue preference to indigenes at the expense of other citizens. Where then is the sense of justice? What about the ‘made in Nigeria justice’ i.e. justice for the rich and influential?

Justice demands the equal allocation and reallocation of benefits to citizens subject to individual capacity for their effective utilization. In turn every citizen has the duty to use his goods for the benefit of those in need once his own reasonable needs and those of his dependants have been satisfied. The question of justice and its attainment is a question of balance. There is a saying which states that ‘virtue lies in the middle’. The striking of this balance is not a once and for all attainment but the continuous view and review to suit the changes in time and situation.

The case of Adeyinka Bosede Badejo v Federal Minister of Education[14], where in the common entrance examination taken by the appellant, the cut-off point for Ogun state (the appellant state of origin) was 235 meanwhile she scored 230. While she was not given admission, her counter-part in the other state had their cut-off point at 189 and at such were they met with the minimum while she would have to re-sit the examination. Such idea of justice is faulty but as far as Nigeria is concerned it was provided in law. The Supreme court in the case held inter-alia that her action failed on the ground that the discriminatory procedure on quota system was made pursuant to one of the directive principles (Section 15(2))[15] which enjoins all government to execute their functions in accordance with the formula of federal character.  

Under situations like this, there must be a resort to functional justice. This is the application of rules and principle of legal justice to social everyday problem that are brought before the court and quasi-judicial and administrative bodies. This process also referred to as social justice draws its vitality from the sense of justice.[16] It demands that there must be established a scheme or plan of distribution of claims and obligations which inspires confidence and commands acceptability among the people.

The question posed by the above peculiar instances under the Nigerian justice delivery system is whether the various means of justice attainment guarantee a mechanical jurisprudence in the growth of justice in Nigeria? Although justice arbiters in Nigeria have record operational success in certain mechanical or procedural aspects of their work albeit inconclusive, inelegant and admittedly defective with regards to the very backdrop of the notion of justice. One may therefore be quick to say it is a big fat NO; based on a spate of unjust instances and examples that have demonstrated obvious practical injustice.

Therefore, a well-planned programme of distribution must take into account all the existing equities, i.e., the basic means, needs and legitimate wants and aspirations of citizen both individually and corporately, it is expedient so as to know how best to share the claims and obligations among the different and competing sections of the community in other to maintain a reasonable and safe equilibrium of justice within the community.

The instances discussed in the following part of this paper will depict how the judiciary has responded to the question of attainment of justice.

JUDICIAL MEANS OF ATTAINMENT OF JUSTICE

LOCUS STANDI

Introduction

As intimated earlier, there are various synthetic jurisprudence making up the philosophical or perhaps, jurisprudential perspective of justice. Under this heading, for the purpose of chronology, attempt will be made to lay bare the relationships if any, between the institutional concept of locus standi and the administration of justice in Nigeria with its related philosophical problems.

The term locus standi is by nature complex and technical so much that many people tend to view it with impatience and often even with cynicism. Of particular significance is the question whether locus standi as espoused by our courts adequately enhance and protect the concept of justice vis a vis the various means and methods of attaining justice.[17]

Definition

Vining in the preface to his book asserts that locus standi or standing is a term of art that mesmerizes.[18] It is part of special language lawyers’ love to use and non lawyers quiver on hearing. Why? Because it is not easy for a non lawyer who rightly assumes unfettered access to court, to appreciate lawyers’ conception of the term.

Simply put, locus standi is the right of a person to appear before a court and be heard.[19]

The question therefore is whether in private or public law, what interest must a person possess before he can be accorded standing to maintain an action? Answer to this question is important in that the merit or otherwise of the case need not be investigated or determined if the plaintiff lacks locus.[20] Indeed once this question of locus standi is negatively decided, it precludes the consideration of the issue in dispute, thus, a wrong may be perpetuated without a remedy.

Common law position;

Notwithstanding its sometimes elusive in character, in practical application the common law position in relation to locus standi in general is relatively free from ambiguity except in terms of details. The common law orthodox approach to the concept of locus standi is that the authority of the court cannot be invoked in vain but can only be invoked by an aggrieved person seeking redress for his complaints. From this stand point, to be an aggrieved person, the plaintiff must establish his interest in the subject matter in dispute under the realm of private law[21].

It is perhaps the realm of public law that the divergent judicial altitude in the application of the doctrine of locus standi as remarkably manifested. This again varies from jurisdiction to jurisdiction depending in some cases on the type and nature of the governing constitution.

More than a century ago, the position espoused by various common law courts with respect to when an individual will be accorded standing to enforce a public right is if he can show personal and sufficient interest or that he suffers special damage peculiar to himself from the interference with the public right[22].

It is however, noticeable that of recent, there have been strong judicial opinions or pronouncements, which tend to weaken the orthodox approach at common law. Particularly where its strict application may not enhance the course of justice[23]. This no doubt constitutes a shift however slight from the orthodox rule[24]. This is a liberal approach. But of late, the crusade for a more liberal approach has received a set back. In Gouriet v Union of post workers[25], “The House of Lords asserted that it was a fundamental principle of English law that, public rights could only be asserted in a court action by the Attorney General.

To drive home the point, Lord Denning’s liberal dictum to the contrary in point of Attorney General v. Independent Broadcasting authority[26] was expressly disapproved.

Interestingly, Lord Diplock was more forthcoming on the side of a wider approach to the concept of locus standi; he stated emphatically thus;

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayers were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped”[27].

This view was quoted with approval in R. v Horsham justices by Lord Denning[28]. While there may be flash or shift from the strict orthodox doctrine of locus standi, this shift as remarkable as it may appear, cannot accommodate the unrestricted access to court to any litigant who is not able to show sufficient interest.[29] The American and Canadian approach to the doctrine is not too dissimilar basically under the aspect of public litigation.

Nigerian Judicial Approach’s

The stance of the Nigerian court on the question of locus standi has so far not evidence any significant shift from the common law approach notwithstanding the aura of judicial pronouncements of locus standi in the so called celebrated case of Adesanya v President of the republic[30].

Ademola J.C.A rightly noted this point in Thomas and ors v. Olufusoye; he concluded on this point and said; “to entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he had sustained or is in immediate danger of sustaining an injury to himself, and which interest and injury is over and above that of the general public. It may well be that the attitude of the Supreme Court to the issue of locus standi is the rather orthodox approach, happily. This court does not have to take a different position from that of the Supreme Court[31]”.

In the context of private law, the orthodox common law approach to the doctrine of locus standi would not appear to have created much difficulty. As been pointed out, application of the orthodox common law approach to the doctrine in the area of public law would not seem to have produced consistent principles a fortiori agreeable acceptance. The crux of the problem is and has always been whether justice is enhanced if a person is not accorded standing to challenge the constitutionality of a statute or to ask for a judicial review of the acts of actions of public officials acting in the course of their duties as a result of locus standi.

Jurisprudentially, Adaramola in this regard termed the doctrine as the green eyed locus standi monster and said; the ubiquitous locus standi doctrine, erected a virtually insurmountable barrier on the path of social justice, and constituted a perpetual beacon of despair to those who contemplated resorting to the courts for a redress of real or perceived violation of their rights and interests, or those of the society as a corporate entity[32].

The case of Olawoyin v. A. G. Northern Region of Nigeria[33] is perhaps the most notable forerunner of the Nigerian approach to the doctrine of locus in the realm of public law. The court in this case Per unsworth F. J put it thus; “There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business or other activities… the appellant failed to show that he had a sufficient interest to sustain a claim… to hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law which he may in future come in conflict. The interpretation of the court in this case has been reiterated by academic scholars and a spate of judicial decisions[34]. The practical application of the above concept is a denial of access to the litigant.

Although, there is a shift from this case of Olawoyin in the area of constitutional and criminal violations[35] and also in relation to matters of fundamental human rights,[36] Consequently, Olawoyin’s case is no longer authoritative on the question of locus in this type of cases. This shift has been termed as the liberal approach albeit inconclusive. This resurgence of interest in the jurisprudence of locus standi is traceable to the willingness of our courts not to sacrifice social justice on the altar of technicalities such as locus standi.

However, what seems to make the difference here is absence of statutory provision empowering any person to challenge unconstitutional or suspected unconstitutional behavior on the part of public functionaries. Sometimes however, courts have argued that a departure from the orthodox approach will open the flood gate of courts to unwarranted, frivolous and vexations suits and consequently lead to a departure from the spirit and letter of the constitution in that it does not allow the court to concentrate on real and proper matters.

Indeed, courts have seen the vagaries of locus standi as strong as that of jurisdiction of the court. Obaseki J.S.C for instance saw standi as an aspect of justiciality and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent in justifiability[37].Very recently, the court of Appeal in Yakubu v Governors of Edo State[38] and INEC v Ogbadibo Local Government Council[39]. Both in 2014; likened the vagaries of locus standi with the concept of jurisdiction and said inter alia: The vagaries of locus standi is the same as that of jurisdiction therefore locus standi or standing of a party either cloths the court with jurisdiction or divest it of such”.

By and large, the important question here is whether it is true or not that locus standi diminishes the practical relevance of social justice under the Nigerian jurisprudence? It must be pointed out that; while it seems to be generally agreed that in deciding the question of standing, it is not relevant that the substantive issues in the litigation might be non justiceable. It is nevertheless both appropriate and necessary in order to wage a decisive battle against injustice in all its ramifications to look into the substantive issues for another purpose; namely’; to determine whether there is a logical nexus between the status asserted and the claims or complaints sought to be adjudicated. Such inquiries between the status asserted and the claims or complaints he present are, per se essential to assure that he is a proper and appropriate party to invoke the jurisprudence of judicial power of the court rather than having a blind adherence to the concept of locus standi at the expense of social justice.

It is therefore rightly asserted that the range of remedies, on behalf of the public enterprises, must be drastically widened in a society that must discipline itself in order to survive[40]. Our Nigerian society to say the least is very much undisciplined and a mechanical application of the concept of locus standi under our jurisprudence will no doubt work injustice under so many instances. For instance, as seen in fawehinmi v akilu[41] and if not for the relaxed approach of the Supreme Court to the doctrine of locus standi, so many persons would be made victims of social injustice and violators of the rule of law would walk around boisterously on the street evading justice.  

I therefore conclude; it might be that at a time, the concept of locus standi had worked to achieve justice, but various societies have developed and modified this concept so that a blind adherence to this concept will no longer accord with modern justice delivery system[42]. Perhaps, the view of Roscoe pound with respect to the draconian measures of locus standi on social justice could be used to put an end to this point. He said:

“Legal systems have their periods in which a scientific jurisprudence becomes a mechanical jurisprudence, given a period of growth through justice speculation and judicial decision; there is little danger of this. But whenever such a period has come to an end, when its work has been done and its legal theories have come to maturity, jurisprudence tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules…… barred by barricades of dead precedents.”[43]

 On a general note, if a minded citizen seeks to infuse discipline in the society by instituting an action to challenge what he considers to be an obviously wrongful act, he should not be randomly denied access on the basis of the strict application of the principle of locus standi. Thus, a wider and more liberal interpretation in the process is to be employed. This suggestion meets the justice of the complex nature of Nigeria and serves the interest of humanity, modern day justice delivery system and universal notions of justice.

THE CONCEPT OF STARE DECISIS

Judicial precedence otherwise known as stare decisisis a procedural mode of attaining justice.The 9^th edition of the Black’s Law Dictionary define stare decisis as “the doctrine of precedent under which a court must follow earlier judicial decisions when the same points arise again in litigation.”[44]

This doctrine is one of the begotten doctrines of the English Common law system to Nigeria; it does not however imply that the Nigerian court will be bound by its English Counterpart decisions.[45]It is a pragmatic working formula the purpose of which is to ensure that the law is certain and predictable as it could possibly be. For if the law must be administered with fairness and firmness, it must not only be certain, it must also be fairly predictable.[46]

Judicial precedent can be classified into three broad types: original precedent also called primordal precedent. It is that precedent which knows no other precedent. Declarative precedent refers to a situation where a judge in deciding a case before him states the existing principle of law without broadening or narrowing it. Derivative precedent refers to a situation where a judge extends the application of an existing rule so as to fit the infinite varieties of facts in future similar cases.[47] Thus, for precedent to operate effectively, there must be in place a hierarchical court system and a system of law reporting so that past cases can be studied and followed.

In the Nigerian judiciary, the law or bindingness of judicial decisions operates from the High Court upwards in the judicial hierarchy and in the final stage, the highest court; the Supreme Court is not bound by its own decisions.[48]

By the rule of stare decisis, the apex court’s decision only binds courts where the facts therein are in pari material with the one being construed in the subsequent matter.[49]

RATIO DECIDENDI

The material facts and the decision of the earlier court is what constitute ratio decidendi or reason for deciding and this form the main plank of judicial precedent.[50] In Ajayi v. Ajayi,[51] the court defined ratio decidendi as “principle or rule of law on which a court’s decision is founded.”

It is the enunciation of the reason or principle on which a question before a court has been decided. In order words it is the general grounds on which is based detached or abstracted from the specific peculiarities of the particular case which arise to the decision.[52]In other words, it is only the ratio decidendi of the higher court that binds the lower court and not the obiter dicta in concurring judgements.[53]It follows therefore that the term ratio decidendi has two meanings:

I        reason for the particular decision

II       the part of the precedent which is binding on subsequent inferior courts.[54]

IDENTIFICATION OF RATIO DECIDENDI IN JUDGEMENTS

A patent fact from preceding paragraphs is that the ratio is the substratum of the doctrine of stare decisis and unless can be properly identified and acknowledged, there is no decision for the lower court to validly rely. To perform this staggering but diligent task, there are theories, which have attempted to postulate how such could be identified.

(A)      CLASSICAL THEORY

The proponent of this theory postulate that the principle for which a case is a binding authority is to be found in the reasons given by the judge and the judge’s statement is binding only if so far it is necessary to the decision. Hence, a voyage into the law will simply constitute an obiter.[55]This theory is demonstrably faulty since most Nigerian courts except for the Supreme Court would naturally deliver a precise judgement on the issues in the matter.

(B)       WAMBAUCH’S MECHANICAL THEORY

This theory simply stipulates that the ratio would naturally carry certain indicator by performing the following exercise: (a) state those reasons on which one thinks the judge based his decision; (b) insert a word which reverses the meaning of the proposition; and (c) then ask whether the court would have reached the same decision if it relied on altered proposition.[56] The weakness of the theory is its difficulty where the ratios in a single case are more than one, which is infact the order of the present judiciary.

(C)      AMERICAN REALIST THEORY

Though there are two groups within this category of philosophers; the extreme group and the moderate group. The extreme group however seems to have no call on this issue since they rejected stare decisis outrightly. The moderate group argues conversely to that of the classical theory, according to the, to find the principle which subsequent court will follow, one disregards the reason given by the judge and looks only at what he does.[57] One blatant error in the theory is that it did not take cognizance of the fact that not all the particulars of the parties are reported in the case.

(D)      GOODHART’S THEORY

This theory seems most satisfying and it is to the effect that; principle binding on subsequent court is to be derived from the judge’s decision in the light of the facts which the judge treated as material. His theory according to Adaramola lies between the Classical and American theories.

THE NIGERIAN JUDICIAL ATTITUDE

Unarguably, the doctrine of stare decisis remains a sine qua non in the hierarchical organogram of our courts in order to ensure the certainty of the state of the law and its application. Hence, the subordinate court are duty bound and without question, must abide by and remain bound by the decisions of the higher courts. Therefore, it will be tantamount to “gross insubordination” for a lower Court to refuse to follow and be bound by a decision on the point of law involved in the matter before him which had already been settled by a higher court. Indeed the doctrine of stare decisis and bindingness of judicial precedents are the cornerstone or our legal system.[58]

The Supreme Court gave a classical exposition of the doctrine in Abacha v. Fawehinmi when it held: “by the time-honoured doctrine of precedent as it operates in Nigeria and common law countries, the decision on a given issue of law handed down by the apex court, which for us in Nigeria is supreme court, is not only superior but binds all subordinate courts, including all courts exercising appellate jurisdiction. It is the law that a decision of a court of competent jurisdiction, no matter that it seems palpably null and void, unattractive or insupportable, remains good law and uncompromisingly binding until set aside by a superior court of competentjurisdiction.”[59] It is necessary to state that the principle of judicial precedence is designed to ensure orderliness, certainty and discipline in the judicial process. Where the lower court are encouraged not to follow the previous decision of the higher court on similar facts, such an encouragement is designed to promote anarchy, chaos and judicial rascality which is not the design or purpose of the principles of the Rule of Law.[60]

The Nigeria court, at least the apex court hold this principle sacred and have had reasons to show the extent and importance it attached to it. Thus, some judges who have for one consideration or the other refused to follow decisions of the higher courts have not escaped the sharp rebuke of the higher court.[61] In Enugu v. Okefi,[62] where a lower court refused to follow the decision of the Court of Appeal, the court in the following word handed down its rebuke for the trial court: “it is insufferably arrogant and runs against the canon of judicial ethics to have refused to follow the decision of this court… to say the least, by this refusal to follow the decision of this Courton the pretext of distinction which is borne out by the case the learned appellate judge has acted with uncommon effrontery and deservesthe fury and venom of the Supreme Court.”

Similarly, in Onuoha v. Okafor,[63] where the court neglected the Supreme Court decision in the case, concluding (in the word of the Supreme Court arrogantly)that the Supreme Court should “re-amend its position on the internal affairs of political parties”, the Supreme Court expressed it displeasure describing the refusal of the judge as ‘gross insubordination’, ‘judicial rascality’, ‘reckless’ and describing the judge as ‘a misfit in the judiciary’.

JUSTIFICATION FOR THE CONTINUED EXISTENCE OF THIS DOCTRINE IN THE NIGERIAN JUDICIARY; A LOOK AT THE CRITICISMS AND BENEFIT

The judicial policy of stare decisis has continued its impeccable existence like a celestial creation, although some have actuated either by scholarship or lack of it, or some nobler and sometimes esoteric ideals of justice or some other considerations that this dogma hinders justice, but this argument can be easily putt off on the fact that even justice requires that the law must be administered with fairness and firmness, for it will no longer be rule of law if law is left to the conscience of the judges but a “rule of mind.”

Another blow struck at the foundation of this doctrine by it very potent antagonist is its rigidity. This contenders suggest on strong but overemphasized terms that the binding force of precedent prevent the adaptation of law to changing social and economic order and further contend that though the doctrine promotes respect for the opinion of elders and that such respect may be desirable but wisdom of our ancestors must be located within their time and age.[64] It follows therefore that the proponent of this argument simply asserts and prefer that each case should be decided and concluded on the believe of each judge and not an established ruling. This will in no time lead to explosion in varying judgements and uncertainty.

Justice Dahiru Musdapher, a former Chief Justice of Nigeria, flayed the Nigeria Judiciary for conflicting judgements which he believed are capable of undermining the integrity of the judicial system, in his words he said: “The contradictory judgements being given by our courts these days portrays the judicial process as a game of Russian Roulette where any outcome is possible.[65] It should be borne in mind that a court decision must be founded on law and evidence before the court, and keeping with sound legal principles and tradition. It is not at the whims and caprices of the judge, as per the waves of his brain and feeling.[66]The negative consequence of this encouragement can be seen in the recent Lagos hijab ban matter where the High Court of Lagos refused to follow the court of Appeal decision in whose facts are in all fours but chose that of England.The tools of its existence are simply the advantages.

The most fundamental of the advantages is the certainty in law. In N.I.M.B. Ltd v. U.B.N Ltd, the Supreme Court enjoined the Courts to maintain the certainty of the law. Pats Acholonu, JSC stated that: “the theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. coordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter…each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercises a restraining influence on our courts, so too do discipline in the courts in dutifully adhering to normative order by which court of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law.”[67]

Other advantages of this doctrine are that it fosters stability and enhances the development of a consistent and coherent body of law, it spares the judges the task of re-examining rules of law, principles, with each succeeding case, it preserves continuity and manifest respect for the pastu,[68] and it entrenches the principle of equality.

If however an antagonist still stands against this principle, then he should know that: “to do a great right, do a little wrong”[69]

PLEA BARGAIN

The term “plea bargain” has become one of the most popular in Nigeria’s legal circles in recent times, thanks to the increase in the rate of corruption-based offences. Since it became part of the legal process in Nigeria, it has become the easiest way out for embattled corrupt public officials.

However, divergent opinions have been expressed as to the applicability and moral justification of plea bargain towards the administration of justice in Nigeria. 

Concept of Plea Bargain

Plea bargaining is a negotiation which takes place between an accused person and the prosecution where the former pleads guilty to some of the offences which he is charged (usually lesser offences), while the latter agrees in turn to drop one or more of  the  other  offences  with  which  the  accused  person  is  charged;  or  the accused  person  may  plead  guilty  to  one  or  more  offences  in  return  for  the prosecution  conceding  to  a  milder  penalty. 

In a similar tone, the Black’s Law Dictionary,[70] defines it thus,

“A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense  or  to one  of multiple charges in exchange for some concession by the prosecutor usually, a more lenient sentence or a dismissal of the other charges.’’

One obvious inference from the meaning  of  the  concept  of  plea  bargaining  in  relation to the underlying philosophy of the Nigerian criminal jurisprudence is that once  an  accused  person  accedes  to  the  use  of  plea  bargaining,  his  right  to  presumption of innocence and the corresponding duty of the prosecution to prove its case beyond reasonable doubt abate. A guilty plea would be entered and a pre-negotiated penalty follows. Again, any person convicted in this circumstance cannot appeal, unless fraud can be proved or there is a fundamental breach of his rights, just like a consent judgment in a civil case.

Origin Of The Concept Of Plea Bargain

Plea bargaining is an invention of the American legal process, it started by convention but having been accepted by the courts; it is now entrenched in their federal and state criminal procedure rules[71] with the State of California even providing a seven-page form to guide the prosecution and defence in the formulation of their agreements.[72]

Plea bargaining, a creation of the American criminal justice system has in recent years gained some endorsement in Nigeria.  It  is  said  that  an  average criminal  case  in  America  is  disposed  off  through  the  use  of  plea  bargaining.  In Santobello v. New York,[73] the US Supreme Court held;

“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining’, is an essential component of the administration of justice. Properly administered, it is to be encouraged.”

While plea  bargaining  is  a  new  trend  in  Nigeria,  the  practice  is  considered  a common  phenomenon  in  the  U.S  legal  system  and  it  can  be  argued  that  the American  criminal  justice  system  would  simply  cease  to  function  without  plea bargaining.

Kinds of Plea Bargain

Specifically, there are three kinds of plea bargain;

1.      Charge Bargain:  this entails the prosecutor allowing the accused to plead guilty to a lesser charge or to some of the charges preferred against him or her, which typically occur or negotiated at the pre-trial phase.

2.     Sentence Bargain: is offered when the defendant is told in advance what the sentence will be if he or she pleads guilty. In a similar tone, Black’s Law Dictionary[74] defines it thus; “A plea bargain in which a prosecutor agrees to recommend a lighter sentence in exchange for a plea of either guilty or no contest from the defendant.

3.     Fact Bargain: this kind of plea bargain is very rare in practice. It involves the defendant admitting to certain facts in return for agreement for the prosecutor not to introduce certain facts into evidence before the trial court.

Plea Bargain In Nigeria

Plea bargain gained recognition in Nigeria when it was first used by the EFCC in 2005 to settle the case of corruption against former Inspector-General of Police Tafa Balogun. It was later used that same year for ex-Governor D.S.P Alamieyesagha of Bayelsa State for embezzlement and Emmanuel Nwude and Nzeribe Okoli who had defrauded a Brazilian bank.

It has subsequently been used in the cases of former Governor Lucky Igbinedion of Edo State for embezzlement (2008), and also the case of Mrs. Cecilia Ibru, erstwhile Managing Director of the then Oceanic Bank for abuse of office and mismanagement of funds (2010).

It has also been subsequently used in a number of other high profile official corruption and banking fraud cases.

In Nigeria, plea bargaining is usually employed in the trial of financial crime cases by  making  it  part  of  the  negotiation  for  the  accused  person  to  surrender  some portion of money which he has embezzled and for which he is being tried. This is why some have described it as “celebrity justice”.

The Economic and Financial Crime Commission[75] has generally defended itself on the basis of the provision of S. 14(2) of the EFCC Act[76] which reads inter alia:

“the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence”.[77]

It is also worth noting that some have declared that plea bargain has existed in certain statutes on criminal justice even before the enactment of the EFCC Act 2004 in particular Section 180(1) of the Criminal Procedure Act (CPA) and that therefore its use by the EFCC was not something done in abstraction or without statutory precedents. Section 180 (1) CPA provides:

 “When more charges are made against a person and a conviction has been had on one or more of them, the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court, of its own motion, may stay trial of such charge or charges.”

Others point to Article 37 of the United Nations Convention against Corruption (2003) which says that state parties should allow for the mitigation of punishment for accused persons who agree to give evidence of their corrupt acts in co-operation with prosecuting authorities.

Reflections On The Use Of Plea Bargaining In The Nigerian Criminal Justice System

The use of plea bargaining has been vehemently condemned by some legal practitioners and scholars, while some others have endorsed and seen it as a welcome development in the Nigerian criminal jurisprudence. For those who argue against the concept, it is their view that plea bargaining is unknown to the Nigerian jurisprudence especially the federal laws. Sometime in 2012, the Chief Justice of Nigeria, Dahiru Musdapher (as he then was), in his criticism of the concept, reportedly said at a public lecture that“…plea bargaining is a novel concept of dubious origin. It has no place in our law – substantive or procedural.”

As stated earlier, many people (both within and without Nigeria) are opposed to the practice of plea bargain because it conflicts with what they believe to be fair and just.[78]

We are of the opinion that it makes a mockery of the institutional notions of justice. This is not far- fetched from the reasoning (deducible from decided cases[79]) that the principle of plea bargaining has become a dirty tool in the hands of highly placed criminals, while disadvantaged citizens suffer the full weight of the law, when they commit misdemeanors.

For instance Lucky Igbinedion, the former Governor of Edo State was considered “lucky” indeed. Having being accused of looting about N 4.4 billion, he entered a plea bargain and at the end of the day, he was fined the sum of N 3.5 million while he forfeited three landed properties to the Federal Government.

Diametrically, people have been committed to prison for stealing much less than most of the public officers. For instance, a man bagged a 5-year jail term for stealing gold earrings worth N 25,000 recently. A young man in Ibadan was sentenced to a month imprisonment for stealing a duck that belonged to his grandmother sometimes ago. One Idowu Olayinka was confined to two years imprisonment sometimes ago for stealing vegetables. Nigerians from all walks of life have since opined that ‘big thieves’ are easily pardoned while ‘small thieves’ are made to face the full wrath of the law.

So far, plea bargain has tainted the image of the Nigerian Judiciary, as justice now seems to be for the highest bidder.

It is further argued that cases like corruption, rape, fraud and stealing of public funds should never be part of the concept of plea bargaining. It is imperative that criminals who committed major offences be made to serve the appropriate sentences.

Plea bargain should only come when it is difficult for the prosecution to prove a case of corruption as a means of recovering some of the looted funds.”

Those in favour of the practice, point to the fact that agreements to plead guilty without having to go through a trial are effective in saving time, costs of prosecution and reducing the burden of the courts.

It is imperative to point out in the Nigerian context, the opposition to plea bargain from the street is primarily due to the fact that it seems to be used for only rich and powerful thieves and not even an option extended to every criminal. The fact that people steal money meant for the use of the general society is the chief reason behind the decay and collapse of Nigeria as a country; as the absence of funds means social amenities and welfare programs cannot be provided. Consequently, the wrath of the people demands the rolling of the embezzlers’ heads and not merely the ‘slapping of their wrists’. Similarly, those who make away with peoples’ bank savings are not expected to get away lightly; the Nigerian people demand that the breach created in the public trust, be filled up by the most appropriate and deserved punishment of their betrayers. Criminal punishments should coincide with their crimes. No wonder jungle justice albeit discouraged is on the increase by the day.  

It is our contention that plea bargain leads to corruption and has reduced our moral values as it gives an indication that officials who have enriched themselves corruptly would serve light sentences while the poor are handed long-term punishment.

Legality of Plea Bargain in the Nigeria Criminal Justice System

According to the Black’s law dictionary,[80] Legality means “adherence to the law, prescription, or doctrine; the quality of being legal”.

Legal means; “to be established, required or being permitted by law”.[81]

The only Nigerian legislation that specifically mentions plea bargaining is the Lagos State Administration of Criminal Justice Law, 2007. Section 75 of this law provides,

“Notwithstanding anything in this law or any other law, the Attorney-General of the State shall have power to consider and accept a plea bargain from a person charged with any offence where the Attorney-General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process.”

It would be of interest to also note that some other legislation provide for a process akin, though this is debatable, to the concept of plea bargaining. This is found in the Criminal Procedure Act and the Economic and Financial Crime Commission (EFCC) Act, 2004.

Section 180(1) of the Criminal Procedure Act provides:

“When more charges than one are made against a person and a conviction has been had on one or more of them the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court, of its own motion, may stay the trial of such charge or charges.”

Section 14(2) of the EFCC Act, 2004, on the other hand, states as follows:

“Subject to the provision of section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, not exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence.”

In fact, EFCC introduced the concept into Nigeria by relying on section 14 (2) of their Act. It is however our submission that plea bargaining could not be justified under the two provisions (i.e. sections 180 (1) of the Criminal Procedure Act & 14 (2) of the EFCC Act) quoted above. Section 180(1) of the Criminal Procedure Act deals with the withdrawal or stay of some counts against an accused person where he is already convicted of some other counts in the same charge and as such that cannot be likened to plea bargaining. Plea bargaining, on its own, presupposes an agreement made at the early stage of trial or later but certainly before conviction. Similarly, it is wrong to equate a practice whereby a criminal charge against an accused person is completely dropped in order to use him as a “star witness” for the purpose of securing the conviction of his co-accused persons to plea bargaining.

Furthermore, we are of the view that section 14(2) of the EFCC Act, 2004, does not also, by literal interpretation of its wordings, imply a plea bargaining. This is because the section deals with the issue of truncating the trial of an offender by accepting some money from him as a fine which the court would have imposed on him, if he had been convicted, while plea bargaining advocates a negotiated agreement which is meant to shorten the course of trial whereby an accused person makes a guilty plea in order to receive a mitigated punishment. And in addition, as found in most cases, he would have agreed to forfeit some portions of his ill-gotten assets to the government. It would have been observed that, in plea bargaining, accused persons usually forfeit sums of money running to millions, even billions in some cases, whereas there is no law prescribing fines close to such amounts of money. 

This view is corroborated by the decision of the Court of Appeal (Benin Division) in F.R.N v. Igbinedion,[82] where the court, per Ogunwumiju (JCA), held, “… plea bargain is as at now generally unknown to our criminal justice administration and indeed our criminal jurisprudence.”

It should be pointed out that this court did not come to this position without considering the provisions of the Criminal Procedure Act (which has the same wordings as the Criminal Procedure Law quoted above) and the EFCC Act.

Conclusively; It may be conceded that plea bargaining hastens the process of criminal prosecution as it also enables the federal government, most especially, to retrieve stolen public funds. It is nonetheless a concept that is alien to the Nigerian criminal jurisprudence, though with the exception of Lagos State law. 

We do not see the justice in the modus operandi of plea bargain in Nigeria as that is a door left open for abuse. When a crime is committed against a society, there should be deterring punishments, and to our mind, plea bargain is not one of such deterrents.”

In the opinion of most Nigerians, plea bargain has become the avenue being explored by corrupt government officials to escape just punishment for their criminal acts. One of the many disadvantages is that it sometimes puts the prosecution at a disadvantage, especially at the bargaining table. The offender sometimes has the effrontery to dictate which assets to give up.

Of course plea bargaining has also opened the eyes of corrupt Nigerians. It is our humble submission that it has become an encouragement to steal as much as can be stolen knowing fully well that after pleading guilty, a part of it would be taken away while the rest would be enjoyed without any disturbance. As such, Nigeria’s struggle to attain a corruption-free environment may continue for a while as public officials seem to have seen a new avenue of evading heavy punishments for financial crimes. Lastly, it operates in Nigeria as a mockery of the institutional notions of justice.

STATUTORY INTERPRETATION

In the course of attainment of justice, the judiciary has postulated tools, which have, stand the test of time, one of which is the mode of interpretation of statute. These rules of interpretation are usually referred to as the canons of interpretation.

It is generally accepted that words have no proper or specific meaning until they are put into a context of situation and would also depend on the operative intention of the particular user. Hence as Lord Denning puts it “English language is not an instrument of mathematical precision.”[83]

Thus as a result of the uncertainty over the meaning of words, statutory interpretation has been described as a non-subject[84]. Thus statutory interpretation is one of the cardinal functions of the courts and it is of compelling necessity[85]. Hence in view of this role by judges of interpreting or construing statutes, Lord Devlin has concluded that, “the law is what the judges say it is”. The court must not bring to bear on the provisions of the statute its prejudices as to what the law should be, but rather should   interpret the law from clear words used by the legislature. Hence the court must not amend the statute to achieve a particular object or result[86]. Thus, the practical effect of this role which the judges play in interpreting vague and ambiguous statutory provision is the consequence that arises from the fluid nature of the words used by the legislative draftsman.

Thus, the judges are concerned with discovering the true “intention” of parliament or of the legislator in order to give effect to the law,[87] i.e., to conjecture what parliament or of the legislators intend or what their own intention would have been had they been the parliament. Hence in construing a statute, every word or clause in an enactment must be read together; not in isolation but with reference to the context and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute[88]. In ascertaining the intention of the legislator, the courts have developed rules and principles, which would aid them in this regard. The following basic rules are resorted to;

The Literal Rule

This rule is predicated on the precise wordings of the statute. If the exact words used in a statute are plain and unambiguous, then they are bound to be construed on the strength of there natural meaning in ordinary sense. This mode of interpretation has received judicial imprimatur in Umar Ardo v. MurtalaNyako where the Supreme Court base on sound principle of judicial policy held that: “it is settled law that in the interpretation of statutes, the words used, in as much as they are clear and unambiguous, must be given their ordinary meaning, unless this would lead to absurdity or be in conflict with other provisions of the statute.”[89] This approach is also known as the “plain meaningrule.”[90]

The court are not allowed to derogate from the intentions of the legislature where the words of a statute are certain, plain and unambiguous and where they do not attract any other context other than their plain and natural meanings.[91] The literal rule may therefore be regarded as expressing an irrefutable presumption, that the legislature intends the ordinary and natural meaning of the words it employs.

The Golden Rule

The golden rule allows a judge to depart from a words normal meaning in order to avoid an absurd result. The reasoning behind this rule, since the concern of judges is to discover the real intention of parliament or legislator, and since it will be improper to ascribe to parliament or the legislator an intention to perpetrate injustice in society. Thus according to this rule, where the ordinary meaning of words would be “at variance with the intention of the legislator or lead to a manifestation of injustice or absurdity or repugnancy, the language may be varied or modified so as to remove the absurdity or repugnancy.”[92]

The Mischief Rule

The main aim of this rule is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. Thus using this rule, the court is able to consider the policy and purpose of the statute under construction. This is why the rule is often referred to as “purposive rule”. The rule was formulated in Heydons’ case[93] and it’s the oldest of the three main rules of statutory interpretation. Thus where a statutory provision is ambiguous, the court is to consider four things, viz;

a)                 The pre-existing law or situation before the act being construed was passed;

b)                The defect or mischief not covered by the pre-existent law or which was found in the pre-existing situation;

c)                 The remedy prescribed by parliament or the legislator to remove the defect or mischief;

d)                The true reason for the remedy[94].

The judge, thereafter the consideration of the above, is to make such construction as shall suppress the defect or mischief and advance the remedy prescribed by the Act.

Auxiliary Rules of Statutory Interpretation

Apart from the main rules or canons of interpretations above, other auxiliary rules usually relied on by judges to solve the problem of ambiguities in statutes include;

a)                 The  ExpressioUnius Est Exclusion Alterius rule:

In the rule of statutory interpretation, the principle is settled that in construction of statutory provisions, where specific things or persons are mentioned, the intention is that those not mentioned are not intended to be included[95].

b)                The Noscitur a Sociis rule:

This rule means that where words of doubtful meaning occur in a statue, their meaning may be clarified from the context in which it is used. Thus it is a rule of language used by the courts to help interpret legislations, under which the questionable meaning of a doubtful word can be derived from its association with other words.

Thus in the case of Foster v DiphwysCasson[96] which involved  a statute which stated that explosive’s taken into a mine must be in a “case or canister”. Here the defendants used a cloth bag. The courts had to consider whether a cloth bag was within the definition. Under noscitur a sociis, it was held that the bag could not have been within the statutory definition, because parliament’s intention was referring to a case or container of the same strengths as a canister.

c)                 The Eiusdem Generis Rule:

This rule of interpretation connotes that where particular words are followed by general words, the general words are to be limited to the same kind as the particular words. However, there must first be a category specified before the presumption can apply[97]. The rule was applied in Awolowo v. Federal Ministry of Internal Affairs[98] where the court had to interpret sections 21(5)(c) of the Constitution of the federal republic of Nigeria which provided a right for an accused person “to defend himself in person or by legal representative of his choice”. The court held that under the provision, if the legal representative is outside Nigeria, he must be a person who could enter Nigeria as of right and is under no disability.

Statutory Aids To The Interpretation Of Statutes

Basically, there are two aids under this heading; they are;

I.                   Intrinsic Aids

II.                Extrinsic Aids

Extrinsic aids to interpretation consist of everything not found within the statute, whereas intrinsic aids are those found within the statute being interpreted. The use of extrinsic aids thus implies non-adherence to literalism.

Criticism of Rules of Statutory Interpretation

The rules of statutory interpretation have been attacked as inconsistent, uncertain, and undesirable, both in what they say and how the courts apply them. Some of these criticisms have been directed at the rules generally, others at only certain types of rules, especially the plain meaning rule and those rules pertaining to the use of extrinsic aids in the interpretive process.If such attacks are justified, then the effect of statutes is unpredictable, because there is no way of telling in advance what rules of interpretation a court will choose to follow or ignore.

The law of statutory interpretation becomes a bag of tricks from which courts can pull respectable-sounding rules to justify any possible result that the judges desire.

This law also provides a cover behind which judges can hide to avoid carefully thinking through solutions to the problems before them, or to avoid declaring the real reasons for their decisions.

It encourages laziness and hypocrisy on the part of the bench and it weakens the discretionary pragmatism of judges towards the attainment of justice. A practical example of this situation was demonstrated in the memorable pronouncement of Honourable Justice Mohammed Bello[99] which he made ex cathedra. He said inter-alia:

“Justice, that is theoretical. We don’t do justice. We do justice according to the law; we pass judgments which do not comply with our conscience.[100]

In reiterating Chief Bello’s stand, a Cartoonist, Osazuwa Osagie has vividly portrayed the predicament of a judge in such circumstances. In the said cartoon, Osagie has depicted a judge who was passing a sentence on the accused to have said:“I believe you are innocent; but the law says you are guilty as charged.[101]

The blunt view of Chief Justice Mohammed Bello buttresses the point that the Nigerian judge cannot bend the law to do justice to the extent that an England judge can bend the law in England.

Literal Rule of Construction: Criticism

It is worthy to note primarily at the outset that different schools of thought have overwhelmingly argued for the continued existence of the literal approach to statutory interpretation as it undeniably promotes the certainty in the law which is one of the chief objectives of any legal system. However, certain criticisms have trailed this judicial attitude.

The most fundamental objection to the rule is that it is based on a false premise namely that words have plain ordinary meanings apart from their context. Prof H.L.A Hart of Oxford has argued that a word has a core meaning or standard instance in which no doubts are felt about its application even though at the edges there is a margin of uncertainty. But Professor Lon Fuller has contested this by urging that meaning attaches not to individual words but to sentences and paragraphs, and that 'surely a paragraph does not have a "standard instance" that remains constant whatever the context in which it appears. If a statute seems to have a core meaning 'this is because we can see that, however one might formulate the precise objective of the statute, this case would still come within it. The plain-meaning theory may be acceptable outside the courtroom, since it could be true that a high proportion of statutory materials and other legal documents can in fact be interpreted without recourse to any mischief or golden rule. But in the court room there are by definition two parties, usually represented by counsel, arguing over the meaning of the relevant passage. It makes little sense to dispose of the issue between them by reference to the plain meaning when there are two meanings in issue.

The literalist approach makes too little allowance for the natural ambiguities of language, for the frailties of even the most skilled of draftsmen and for the impossibility of foreseeing future events.

It is open to debate that to place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship; it presupposes that the draftsmen can always choose words to describe the situations intended to be covered by the provision which will leave no room for a difference of opinion as to their meaning. Such an approach ignores the limitations of language, which is not infrequently demonstrated even at the level of the House of Lords where Law Lords differ as to the so-called 'plain meaning' of words. 

The literal approach is based on a narrow concentration on the actual words used, to the exclusion of the surrounding circumstances that might explain what the words were actually intended to mean.

A final criticism of the literal approach to interpretation is that it is defeatist and lazy. The judge gives up the attempt to understand the document at the first attempt. Instead of struggling to discover what it means, he simply adopts the most straightforward interpretation of the words in question - without regard to whether this interpretation makes sense in the particular context. It is not that the literal approach necessarily gives the wrong result but rather that the result is purely accidental. It is the intellectual equivalent of deciding the case by tossing a coin. The literal interpretation in a particular case may in fact be the best and wisest of the various alternatives, but the literal approach is always wrong because it amounts to an abdication of responsibility by the judge. Instead of decisions being based on reason and principle, the literalist bases his decision on one meaning arbitrarily preferred.

Other possible methods of Statutory Interpretation

1.                 The Social policy approach: This is to the effect that the judge should give or attach significant weights to the subjective purpose of the legislature and adhere less to the formal rules of interpretation. There is no democracy without a recognition of the values and principles that shapes it. The judges must rely on the fundamental values in the interpretation of the legislation. By doing so the judge gives the statute a dynamic meaning and thus bridges the gap between law and the society.

2.                 The free intuition approach: The whole gist about this approach is that it argues for the creativity capacity of judges in interpreting exceptional cases.

Practically, to demonstrate the relevance of this theory under the present day reality, the following analogy will not be out of place;

“if for instance a man plying the highway becomes alerted either by traffic signs or by other means that there is an impending danger at the approaching end and under compulsory or human tension he decides to take a U-turn against traffic rules thereby violating the laws of the land. If such person is apprehended in the process and taken before the court, the Nigerian jurisprudence will no doubt leave the judge with no other option than to convict the accused regardless the fact that his transgression was done under a super-normal or an abnormal circumstance”.

Based on the above analogy, the philosophical question is whether social justice would be enhanced by punishing such a victim for such an offence or whether the free intuition policy will allow the judge to use his discretionary pragmatism to avail the victim having regard to the circumstance under which the accused had acted?

CONCLUSION

On the whole, so that one would not have a blind adherence to a verbal formula without regards to its consequences, the above exposition of justice and the various means through which it could be attained in Nigeria with vibrant postulations on their pit-falls and recommendations therefore behooves the relevant authorities administering same to exercise sound and careful pragmatism towards its improvement.

Our humble charge therefore to all those who are connected with the dispensation of justice is that we resolve in our minds at all times, with all honesty, that at the end of our stewardship in the citadel of justice, we shall find ourselves in a position to say truly that:

“We have found justice dear and we helped in making it cheap; found it in a sealed book, assisted in living it in a living letter; found it in the patrimony of the rich, joined it in the inheritance of the poor.”

 This is in tune with the institutional and universal notions of justice, we submit with respect.

BIBLIOGRAPHIES

Adaramola basic jurisprudence

(Put others)

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[1]  See Adaramola JURISPRUDENCE, Fourth Edition: lexis Nexis 2008. P.197.

[2]  Dias Jurisprudence, Fifth Edition.Butterworths: 1985 p. 66

[3] Friedrich ‘Justice: the Just Political Act’ 6 Nomos, Justice, at 34 in Dias  Jurisprudence. P.66.

[4]  Ibid. emphasis mine. This raises a question that Some things are distributable and others are not. As equal distribution will not cover all goods(things). Also, Aristotle’s position regarding equals suggests that justice is not possible. He states that Justice is only equality among equals and that inequality is just but only among unequals. As such, equals should be treated equally and unequals unequally.

[5] John Rawls: A Theory of Justice (Revised Ed. 1999) in LLOYDS Introduction to Jurisprudence. 8^th Edition M.D.A. Freeman (Sweet & Maxwell) 2008

[6] Ibid. pp. 632 -635

[7]   It is a self evident fact, that inspite of legal equality, it is actually impracticable to distribute things perfectly equally amongst citizens, eventhough it is a desirable goal. – Adaramola p.199

[8]   J.M Elegido JURISPRUDENCE. Spectrum Law Series (2000)p.360

[9]   Ibid.

[10] However, there are arguments in favour of the existence of objectively valid moral principles and norms.

[11] Summa Theologiae I- II q.96, a.4c.

[12] J. Eso, “Wither Nigerian Jurisprudence, Volkgeist?” Lecture delivered at the Faculty of Law, University of Ibadan, March 1986. Cited in I.E. Sagay, A Legacy for Posterity: The Work of the Supreme Court (1980-1988) (Lagos,1988), p.119

[13] See Adaramola, pg. 197

[14]  (1988) suit No; M/500/88 Appeal No: CA/L/405/88 (1990); 2 WBRN 48 CA

[15]  1979 Constitution of the Federal Republic of Nigeria

[16]  Adaramolapg 207

[17]  See preceding analysis for the methods and means of attaining justice

[18]  in his book entitled “Legal Entity”

[19]  Thomas v. Olufusoye (1986) 2 SC 325 at 380; Baker v Car(1969) US 186 at 204

[20]  Gamioba&Ors v. Esezi  (1961) 1 AII NLR 568 at 588; ogunsanya v. Audu (1982) 3 NCLR 529 at 537

[21]  See Fatayi Williams C.J.N in Adesanya v. President of Nigeria (1981) 2 NCLR 358

[22]  See Buckley J. in Boyce v. Paddington Borough Council (1903) 1 ch. 109 at 114.

[23]  R. v Paddington (1966) 1 QB 380 at 400-401.

[24]  R v Commissioner of Police (1968) 2 QB 118-122.

[25]  (1977) 3 ALL ER 70.

[26]   (1973) 1 ALL ER 689 at 696-99

[27]   Ibid

[28]   (1982) 2 ALL ER 269 at 282

[29]   Spates of judicial decisions under the common law jurisdiction have demonstrated this point.

[30]   (1981) 1 ALL N.L.R. 32

[31]   (1986) 2 SC 325 at 380

[32]  Basic jurisprudence (4^th ed.) by FunshoAdaramola pg. 245

[33]  (1961) ALL N.L.R. 269

[34]  RansomeKuti v. A.G. Federation (1985) LPELR- SC 123/1984; and a host of others.

[35] See. Fawehinmi v. the president (2007) 14 NWLR (pt. 1054) 275; also  Ganifawehinmi v. Akilu(1987) 4 NWLR (pt. 67) 767

[36]  S. 46(1) Constitutional of the Federal Republic of Nigeria 1999 (as amended); also, the provisions in the FREP RULEs 2009

[37]  Adesanya’s case (supra)

[38]  (2014) LPELR 22810 (CA)

[39]  (2014) LPELR 22810 (CA)

[40]  W.friendmann, Law in a changing society (2^nded) p. 432

[41]  (supra)

[42]  Now, the right to bring a private prosecution has existed and has formed part of the laws of many countries. For instance, see; Halsbury;s laws of England 4^th Edition; vol 11 para97 (1976); also, See Lord Diplock’s dictum on the concept of locus standi (ibid);   

[43]  Roscoe Pound, “the liberty of contracts”. [1909] 18 Yale L:j 454

[44] Bryan A. Garner p. 1537

[45] A.G Bendel State v. A.G Federation (1981) 10 SC 1 at p. 187-188, Eso JSC: “gone should be the days, if ever they were, when the decisions of the courts in any common law country are to be accepted in this country as precedent in the like of Delphic Oracle. The decisions of any court, other than those of this court, are only to be treated as the respected opinions of those courts, which were given in their wisdom, under given circumstances and given environmental and cultural background, no more. They are at best, to give guidance of what those courts did in those circumstances, and the wisdom to be drawn from them by this Court would be reflected in its dealing with the peculiar problems of this country, to which the Constitution which this country operates, is peculiar.”

[46]FunsoAdaramola’s Jurisprudence, 4h edition LexisNexis publications, p. 222

[47] Ephraim A. Ikegbu, S. A Duru and Dafe Emmanuel, Rationality of Judicial Precedent In Nigeria’s Jurisprudence, American Journal of Contemporary Research Vol. 4, No. 5; May 2014 at p. 150

[48]  Buckor-Macleen v. Inlaks Ltd (1980) 8 – 11 S.C 1.

[49]  Abu v. Adegbo (2001) 41 W.R.N. 1; Emordi v. Kwentoh (1996) 2 NWLR (pt. 433) 656 SC; Ladele v. Aromolaran II (1996) 6 NWLR (pt. 453 180 SC

[50]  j. oAsein, Introduction To Nigerian Legal System, 2^nd edition 2005 at p. 75; FRN v. Lawani (2013) LPELR-20376 (CA); National Electric Power Authority v. Onah (1997) 1 N.W.L.R 680

[51]  (2014) LPELR-22471 (CA)

[52]  Ajibola v Ajadi (2004) 14 NWLR (pt. 892) p. 14 at 21

[53]  Abacha v Fawehinmi (2000) A SC (pt. II)

[54]  FunsoAdaramola’s Jurisprudence, 4th edition LexisNexis publications, p. 224

[55]  ibid.

[56]  ibid.

[57]  ibid. at 226

[58]Abaye v. Ofili (1986) 1 NSCC 94; Chief Aliu Abu &Ors v. Chief AbubakarZibiriOdugbo&Ors (2001) 7 SCNJ 170; Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310; L.M.B Ltd v. P.T.F. (2006) 5 NWLR (pt. 974) 463 at 478; LawaniAdesokan&Ors v. Sunday Adetunji&Ors (1994) 5 NWLR (pt. 346) 540; Osemwingie&Ors v. Osemwingie&Ors (2012) LPELR-19790 (CA)

[59] (2000) 6 NWLR (pt. 660) 224; Igbani v. Bayelsa State INEC (2013) LPELR-21239; Babatunde and Anor v. Olatunji and Anor (2000) 2 NWLR (pt. 646) 557

[60] Per Onnoghen J.S.C Ardo v. Nyako (2014) LPELR-22878 (SC) at Pp 43-44

[61] Enhancing Transparency In The Nigerian Judicial Process: The Need To Adhere To The Rule Of Stare Decisis, text of paper presented by Chief Akin Olujimi SAN to the Civil Litigation Committee of the Section on Legal Practice of the N.B.A at the N.B.A Annual Conference held in Lagos from 17^th to 23^rd August, 2009

[62]  (2000) 3 NWLR (pt. 650) 620 at 639

[63]  (1982) 2 SCNLR 244

[64] Ephraim A. Ikegbu, S. A Duru and Dafe Emmanuel, Rationality of Judicial Precedent In Nigeria’s Jurisprudence, American Journal of Contemporary Research Vol. 4, No. 5; May 2014 at p. 152

[65] As a remark at the maiden National Monthly Law Reform Lecture themed: Judicial Precedence; Taming the Common Law” on 07^th June 2012

[66]  Ogolo v. Ogolo (2006) 5 NWLR (pt. 852) 494

[67]  (2004) 12 NWLR 12 (pt. 888) 599

[68]  Director General, State Security Services v. Ojukwu (2006) 13 NWLR (pt. 998) 575

[69]   Merchant of Venice Act 3, Scene 1

[70]   9^th Edition (2009)

[71]  Rule 11, Federal Rules of Criminal Procedure (United States of America)

[72]  Form CR-101, Plea Form with Explanations and Waiver of Rights-Felony, Judicial Council of California.

[73]  (1971) 404 U.S 257, 260 [92 S. Ct. 495, 498

[74]  9^th Edition

[75]  Hereinafter referred to as ‘EFCC’

[76]  2004

[77]   S. 14(2) Economic and Financial Crimes Commission (Establishment) Act. CAP E1 LFN 2004

[78]   See Onyema, Emmanuel; “EFCC AND PLEA BARGAIN ISSUE IN NIGERIA: MATTERS ARISING”: The Crime Free & Peace Initiative.

[79]  For instance, former Inspector General of Police, TafaBalogun who converted billions of Naira belonging to the Police Force for personal use was handed a six-month jail term for each of the eight counts brought against him as well as a fine of N 500,000 for each count. The terms were however to run concurrently while the judge also ordered that the 67 days he spent in detention during the trial should be deducted. In Balogun’s case, after sessions of plea bargaining, the multitude of offences he was alleged to have committed, including registering phoney companies, into whose accounts police funds were allegedly diverted and later withdrawn were collapsed into 8 counts. Though the former Inspector General lost a number of assets and paper money which were seized from him, the sentence he got was described by many as a “slap on the wrist”.

[80]  9^th Edition

[81]  Ibid

[82]  [2014] All FWLR Pt. 734, 101 at 144

[83]   See: Seaford Court Estate Ltd v.  Asher (1949) 2 KB,481, 498,499

[84]  Prof. LawerenceAtsegbua, “The Supreme Court Doctrine In The Interpretation And Construction Of Statute”: The Vanguard Newspaper, June 14, 2012.

[85]  Adaramola, “Book Review”: Maxwell On Interpretation Of Statutes, 11 (1970) 4 Nigerian Lj.

[86]  Basinco Motors Ltd. v. Woermann Line &Anor (2009) 13 NWLR (Pt.1157) 149 As Per Adekeye, Jsc At 189-190 H-A

[87]  Onasile V Sami (1962) 1 All NLR 272     

[88]    The State V Governor Of Osun State &Ors (2006) LPELR-11771 (CA)

[89]   (2014) LPELR-22878 (SC) p. 46; Nicholas ChukwujekwuUkachukwu v. Peoples Democratic Party & 3 Ors  [2014] LerSc 589/2013

[90]    (1963) 3 All ER 544 (Pc)

[91]   See Federal University Of Technology &Ors v. Academic Staff Union (2013) LPELR-20323 (CA)

[92]    Awo v. UsmanSarki (1962) NLR 178

[93]   (1584) 3 Co. Rep. 7(A) & (B) 1 All NLR 129

[94]  International Bank For West Africa Ltd v. Imano (Nig.) Ltd &Anor (1988) 3 NWLR. (Pt. 85), 633 At 668

[95]   Oluwalogbon V. Government Of United Kingdom And Anor (2005) LPELR-1131 (CA)

[96]   (1887) Q.B.D 428

[97]   A.G Cross River State V Esin (1991) 6 NWLR Pt.197, P.365 Ca.

[98]   (1962) Llr 177.

[99]    Immediate past Chief Justice of Nigeria

[100]  Mohammed Bello, CJN., ‘My Idea of Justice’ (an interview). ‘African Concord, December 18, 1989 Vol. 4 No 34 page 45. Quoted with approval by Livy Uzuokwu in the Article titled; ‘The Grundnorm, a Critical Appraisal’, published in Justice, October Edition 1990 page 85 at page 86.

[101]   Livy Uzuokwu, op. cit., at page 90