By Ebun-Olu Adegboruwa
Increasingly but alarmingly, it is gaining ground that Nigerians now believe that justice is for sale. This position seems to be gaining ground increasingly. Is it possible to buy justice? Is it true that some politicians have all manners of mobile injunctions already typed and prepared, stocked in their portfolios and they just bring them out to suit any occasion?
Can it be true that there are some judges who have been earmarked for such jobs as issuing out any order, injunction or judgment? Can it ever be said that parties before a court of law can know their fate even before the case starts?
I am worried and worried. Not long ago, Chief Robert Clarke, SAN,
warned about the dangerous dimensions of the influence of politics on justice
administration generally. ‘So, one disadvantage in Nigeria today, which we have
to look into, is how to curb the excesses of these politicians. They have
ruined the judiciary. I feel sorry for them’, says Chief Clarke. I have also
heard speculatively, that hardly is there any judgment from any election
tribunal that is not a product of ‘transactions’.
My personal view is that most judges are incorrigible, above board
and they decide cases according to law and their conscience, but the things
that I hear are very troubling. They are spoken in hushed tones amongst the
senior lawyers, they are posted with style on restricted WhatsApp platforms and
they are ripe with the clients themselves.
The question then is this: what is Transactional Justice? It is
one in which the decision of the court on a case pending before it is procured
or influenced by extraneous considerations other than the merit of the case.
Such influence can be financial, tribal, religious or even social. At times it
can be relational, such as when family members of a judge are recruited to put
pressure on him to bend the scale of justice. The sphere is almost endless.
In Transactional Justice, there are lawyers involved as couriers
of monetary offers to judicial officers and it is prevalent mostly in election
petition cases. The politicians have become so desperate that they will do just
anything to cling on to power, by all means necessary. The ugly side of this is
that once it is possible to influence a judge in a particular judicial
transaction, then the door is open permanently for other subsequent influences,
as for instance once you are able to sway a judge to tilt the even scale of
justice in an election petition, then that judge becomes a permanent customer
even in other regular cases, whenever the need arises.
This
is how it goes. The litigant hires the very best lawyers in the field of his
case, pays them well to handle all legal issues in the open court and then turn
around to hire other lawyers or individuals in the background, purely for
networking. These latter set of people have no business in the preparation of
the case on the merit, they are not involved in the settlement of pleadings or
briefs of arguments and they care less about the knowledge and erudition of
counsel on record, but to work to secure victory for the paying litigant at all
cost. They know the text of the judgment well ahead of time.
There are other aspects of Transactional Justice, I’m told. Some
lawyers have perfected the style of always getting their cases assigned to a
particular judge and God save you if you have to appear against them in any
case, because you are doomed to always lose any point of law, no matter how
brilliant you are and even if that point of law has been settled up to the
Supreme Court.
I don’t know how this works but it is said to be very common,
especially amongst a few senior lawyers. It will surely take the connivance of
court officials and the judge himself for this to happen, because once a judge
has noticed the trend that a particular counsel is always appearing before him,
almost on a daily basis, then that should raise the flag, if there is no
collusion.
Then there are the professional litigants, who have no personal
court cases of their own but have been recruited to help monitor the progress
of some cases and to help secure victory ultimately. You see them in the
courtroom, sitting prominently, for the judge’s attention and recognition. The
court registrars know them, to always reserve vintage positions for them in the
courtroom.
In some very bizarre cases, they exude such irritating arrogance
as to even sit by the entrance of the judge’s chambers, on each day that the
cases come up, so that even the opponent would feel the pressure of the
unofficial lobby. These ones are in the categories of family members,
classmates, religious associates, social partners, either in the club or in the
cult. The other side of this is that it gets so bad that even the registrars of
the judges at times do complain openly.
How does it sound that judgment is no longer based on law or
precedents? That law has become totally unpredictable, even for the same set of
facts? We are unable to properly advise clients who approach us for legal
counsel, as we now have different decisions, even of the Supreme Court, in the
same set of facts and circumstances. Whereas this can be due to human error
precipitated by the workload of judicial officers based on the volume of cases
that they handle daily, it is also said that it can be the result of
Transactional Justice.
Good
enough I have not had cause to be involved in any form of Transactional
Justice, even for my own personal cases, all of which I believe I have won or
lost purely due to the facts of the cases and the application of law thereto.
But I have no doubt that there is a high possibility that Transactional Justice
is real.
Part of the Judicial Oath goes thus: ‘… I will discharge my duties
and perform my functions honestly, to the best of my ability and faithfully in
accordance with the Constitution of the Federal Republic of Nigeria and the
law; that I will not allow my personal interest to influence my official
conduct or my official decisions.’ Transactional Justice is allowing personal,
family, social or financial benefit to influence judicial decisions. But we all
call it the ‘High Court of Justice’, as it is described in the Constitution.
According to the learned authors of the very persuasive Black’s
Dictionary of Law, the notion of justice is ‘the fair and proper administration
of laws’, meaning that it must be balanced, be equitable, be fair and just and
it must substantially conform with known principles and standards of law. In
human affairs, the judge is next to God, which is why they have earned the
title ‘My Lord’.
In the same way that the words of God become established to man
without question, so also are we all enjoined to obey all decisions of courts
in order to guarantee peace and orderliness in the society. But then, how do
you go about obeying Transactional Judgments, procured through fraud and other
extraneous influences?
This has raised a great challenge for the judiciary and the
Nigerian Bar Association, to tackle as a matter of national emergency, or else
we should all just close down our chambers and leave legal practice for
Transactional Lawyers. Why on earth should I bother myself to prepare for a
court case that I know I will win or lose, as the case may be, and one in which
the outcome is already predetermined?
Now the trouble in all of these is that the rich and affluent, the
ones so very well connected and powerful, will always get the upper hand in
situations of Transactional Justice, which will be a game for the highest bidder.
The poor man and his lawyer, the weak litigant and the lowly members of society
stand to lose in all cases where Transactional Justice is at play, as they
simply cannot match the stakes.
The
negative consequence of Transactional Justice is that impunity, lawlessness and
wickedness will continue to plague society, if the wicked and lawless oppressor
cannot even be called to order by the court. When they breach your rights, they
then turn around and taunt you to go to court, if you feel sufficiently aggrieved.
‘We will meet in court’, is what you get when you dare challenge impunity.
It has gotten to the point that there are now individuals and even
corporate entities that their names evoke fear, such that once you mention
their names, people just throw up their hands in the air in total submission,
meaning that you waste your time challenging any of their actions in court.
But this should not be at all. We must not drive people to the
point of frustration that will lead them to take law into their hands. If the
courts cease to be the last hope of the common man, then the consequences can
be very dire indeed. The rule of might, the power of money and the influence of
man, should not determine the ends of justice.
I believe in my heart as most lawyers do that judges are human and
they can err at times, but all cases of Transactional Justice should be met
with open resistance and humiliation by all lovers of justice, less we all
become helpless victims of injustice, because when judgment is procured by any means
whatsoever and howsoever, it ceases to wear the noble garment of justice.
*Adegboruwa
is a Senior Advocate of Nigeria (SAN).
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