The Act of Judging in Nigeria

Foreword

It is my pleasure to write the foreword to this book, “The Act of Judging in Nigeria – A Matter of Interpretation and Judicial Discretion” and my delight is for two reasons. The first reason is the author of the book, Ari Niki-Tobi. I became acquainted with Ari about twenty years ago when she took up appointment as a Magistrate-Judge with the Lagos State of Nigeria Judiciary in 2005. I have since then watched and seen her mature, grow and blossom into the intellectual, international scholar and head of a judicial consulting firm she has become today. The second reason for my delight is the topic of the book. It is one that touches upon, and is in respect of, what has been my professional life for the last twenty-four years, since my appointment as a Judge of the High of Lagos State, Nigeria in 2001.

The act of judging refers to the process of making sound decisions, particularly in situations involving complex information, conflicting perspectives, or ambiguous circumstances. It encompasses the ability to analyze facts, apply relevant principles, and reach fair and well-reasoned conclusions. This involves not just knowledge of rules and procedures but also the development of critical thinking, discernment, and empathy. The renowned philosopher, Socrates, suggested that there were four aspects of being a fine judge: “to hear courteously; to answer wisely; to consider soberly; and to decide impartially.” The reality is that in practice, there is no formula or science to achieving these ends.

In an article titled “The Art of Being A Judge”, Leo R. Yankwich noted that judges administer justice judicially, i.e., not according to some abstract ideas of right and justice, but according to the rules laid down by society in its Code of Laws which it gives its sanctions and that the function of the judge which is primarily adjudication is not a mechanical craft, but the exercise of a creative art, whether we call it legislative or not, which requires great ability and objectivity. In Rochin v. California, 342 U.S. 165 at 171-72 (1951), Justice Frankfurter of the United States Supreme Court commented that:

“To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that one’s own views are incontestable and alert tolerance toward views not shared. But these are precisely the pre-suppositions of our judicial process. They are precisely the qualities society has a right to expect from those entrusted with . . . judicial power.”

Judicial decision-making is described as a complex process influenced by competing values, precedents, societal needs, and philosophical concepts. Judges often face tensions between adhering to precedent and achieving just outcomes. While some judges develop a judicial philosophy over time, their decisions are shaped by experience and the specific circumstances of each case. Differences in judicial outlook, interpretation methods, and approaches to precedent are common, reflecting the diversity of the judiciary. In this book, “The Act of Judging in Nigeria – A Matter of Interpretation and Judicial Discretion”, the author focuses attention to the judicial approach to judging with particular emphasis on Nigeria, drawing on her experiences as a Magistrate-Judge and from her interactions with different personalities in the Nigerian Judiciary.

The book consists of seven chapters and each chapter is prefaced with an introduction telling the reader what to expect from the chapter. Chapter One, Historical Perspective of Judging in Nigeria, gives a historical background of the Nigerian Legal System, highlighting the sources of the Nigeria Law and how the interplay of these different sources has impacted on and shaped the approach to judging in Nigeria. The author also talked about the role that judicial norms and the procedural structure of the Nigerian court system play in the act of judging. In Chapter Two, International Law and Judging in Nigeria, the author considered the different sources of international law applicable in Nigeria and how they have affected, positively and negatively, the act of judging in Nigeria and also the backward impact the act of judging in Nigeria has had on the development of international law.

Chapter Three, Judicial Interpretation in Nigeria, discussed the legal framework for interpreting statutes in Nigeria and the rules of interpretation of statutes adopted by the Courts in dealing with statutory provisions. The author suggested the addition of her socio-judicial rule (SJR) as one of the aids to interpretation of statutes. By the SJR rule, the author proposes that statute be interpreted from a societal and judicial perspective in determining the intention of the drafters as legislations are products of social and societal needs, interests or protests, and also of judicial interventions, as per case law. The author is of the view that the court should interpret statutes on the basis of public interest and to take into consideration the relevant constant changes in society in doing so.

Chapter Four is on Judicial Discretion in Nigeria and therein, the author defined judicial discretion and highlighted the five basic principles, deducible from case law, that judges consider or should consider in the exercise of their discretion to enable them arrive at a just determination of a matter. The five principles are that discretion must be equitable and fair, that discretion must be bona fide, that discretion must not be arbitrary or illegal, that discretion must be confined to the facts and circumstances of the case and that discretion must be “judicially and judiciously” exercised. The author also considered the constraints on exercise of discretion, the significance of discretion and the impact of technology on the exercise of discretion. In Chapter Five, Judicial Precedents/Stare Decisis, the author laid out the hierarchy of the Nigerian Courts and discussed how the doctrine of judicial precedents plays out amongst the different tiers of Court. The author considered the impact of the doctrine on the Nigerian Legal System and the challenges it poses to the act of judging and suggested how judges should meander through the challenges.

In Chapter Six, The Impact of Judging in Nigeria, the author emphasized the connection between the Court and the Society and noted that Judges and the law are the connecting cords between courts and society and that while law is designed for social compliance and maintaining order in society, judges are responsible for administering justice by interpreting the law and maintaining social order. In Chapter Seven, the author concluded the book by doing a recap of the discussions in the earlier chapters and emphasised the proposition that judges should approach judging from a socio-judicial point of view as this is the only way to connect the law and courts to society, build public confidence and balance the rule of law with social interests.

These concluding views of the author align with the understanding that while Law originates from societal relationships and aims to regulate and control activities for the common good, judges represent the community in adjudicating disputes and interpreting societal values and standards and they reflect the community’s moral outrage in sentencing and assessing credibility based on shared norms. While judges must remain impartial and unaffected by transient public opinion or political campaigns, they are expected to uphold enduring values and principles. Judging is a way of life rooted in truth, values, and connection to society, making judges a manifestation of the people. In the words of Aharon Barak, President of the Supreme Court of Israel, in his treatise, “The Judge in a Democracy (2006)” at page 112;

“judging is not merely a job but a way of life; … it is a way of life that includes an impartial and objective search for truth. It is … not an attempt to please everyone but a firm insistence on values and principles; not surrender to or compromise with interest groups but an insistence on upholding the law; not making decisions according to temporary whims but progressing consistently on the basis of deeply held beliefs and fundamental values .... There should be no wall between the judge and the society in which the judge operates. The judge is part of the people.”

The approach adopted by the author in discussing the various legal issues in the book makes for easy understanding and comprehension. The language used is simple, the discussions in the book flow, they are consistent and they are comprehensive, and did not leave out any essential detail. The book is an immense resource material for Judges, lawyers, lecturers and students of Law and it is a good contribution to the legal jurisprudence and materials on the act of judging. I congratulate the author for her resourcefulness in putting the work together. The book is a “must have” and a good addition to the library of everyone.

HONORABLE JUSTICE HABEEB ADEWALE OLUMUYIWA ABIRU JUSTICE, SUPREME COURT OF NIGERIA

Acknowledgments

All thanks to the Chief Justice of the Universe, who gave me the idea, the grace, and the zeal to begin this research and complete it. I thank God for the wisdom and grace to complete this book amidst several obstacles. My connections to all the wonderful persons below, who supported me with their ideas, perspectives, jurisprudence, skills and time at various stages, were purely divine.

He brought lovey people like Dr. Shawn Marsh, Honorable Justice Adewale Habeeb Abiru, JCA, (as he then was). Judge James Garbolino, and Dr. Johnson Makoba—all members of my masters’ degree thesis committee—whose constructive comments helped transform my thesis into this book. I also appreciate Dr. Elizabeth Francis and Dr. Malcolm Feeley for their guidance through the courses that they taught during my master in judicial studies program. Dr. Feeley’s constructive comments gave me more insight into researching and writing this book and challenged me for phase two.

Writing is hard work, but writing a good book or paper that others cite is even harder. Therefore, I specially acknowledge and appreciate all the authors I have cited in this book; their work inspired me to share my own thoughts confidently, knowing I had the support of other writers and researchers.

I am especially grateful to Distinguished Professor Taiwo Osipitan, SAN for sending me his articles, presentations and expert opinions on various areas of law, some of which are not yet published. I also appreciate Hon. Justice Benedict Kanyip, my professor from college, and mentor, whose courage to create precedent has established many judgments and articles that align with my socio-judicial reasoning, philosophy, and theory. I also thank Chief Magistrate Eme Uguru, Esq., for the research platform he shared to enable my easy access to caselaw, as well as Hon. Justice Taiwo Taiwo for his valuable professional contributions to this book. I also appreciate Adebayo Akinlade, Esq., Chidi Agbo, Esq., and Henry Nkamuke, Esq., for statutory updates and helping with caselaw research. I sincerely appreciate Professor Festus Emiri, SAN, who took the time to read through my manuscript and commended my unique approach and original research. I am glad that my work inspired him. I am also grateful to Professor Chioma Agomo, Professor Emmanuel Emenyonu for their reviews and comments. I am grateful to Chief Justice Bryan Sykes, Former Chief Justice Babatunde Desmond Edwards,CoRSL, Justice Santiago Otamendi, and several others for their support through this process. All the speakers at my Courts & Society Webinar Series from the first to tenth editions are also thank-worthy as their diverse experiences and valuable contributions were reflected in this writing. Thank you all for volunteering your time to share your knowledge.

This book was originally six chapters, but after a presentation as a guest lecturer in a political science class at State University of New York(SUNY) Oneonta in 2020, I was inspired to expand and include that presentation into this work. Therefore I acknowledge Dr. Brent Heindl and his former students, on whose behest, I prepared that teaching, which conveniently created chapter two of this book. Some questions and comments from them inspired me to write from a global perspective, considering non-Nigerian readers.

Moreover, to the Court of Appeal, and Supreme Court justices who prefer to remain unnamed but supported me with caselaw, practice patterns, and updated (unpublished) information on the modus operandi of their various court systems: I am deeply indebted. Some of the information I gathered from these senior/head judges—often undocumented—reflects practices that have thrived in their courts over the years. These judges granted informant interviews that helped me in getting information on their best practices, which I could not get in any book or document. Non-judges who read my manuscript were enlightened by their contributions. I am especially grateful to retired Honorable Justice Amina Adamu Augie, my mentor and friend, for her unwavering emotional, mental, and intellectual support throughout this process. I deeply appreciate the effort of these judges who, despite returning from hectic hours on the bench, took the time to answer my questions during lunch or dinner. Also mention-worthy is Chief Magistrate Ayo Odugbesan, Rtd., for her experiential contribution to chapter one. Your commitment to advancing judicial jurisprudence has enriched this book. Today, the world will benefit from insights into essential judicial practices and procedures because of your generous contributions. Thank you, my lords and my ladies!

I also thank my publishers for taking the chance to accept this unique book, which some believed was not worth the effort. I especially thank Anja Lee for her consistent support, encouragement, and patience. I appreciate the production team behind the scene that helped Anja to get the work done smoothly. I also wish to thank my invisible team, the peer reviewers, for their detailed and comprehensive critiques, which helped shape this finished work.

I further acknowledge the spouses of these dedicated judges like my mother, Gbegbeto Niki Tobi, who sacrificed a lot behind the scenes to support judges like my late father to research and write outstanding society-changing judgments. THANK YOU!

Last but certainly not least, I am thankful for my loving family’s support, especially my mother who constantly prays for me, my Jewel—Edyn—and my Trophy—Ethan—my supportive children who for the most part were well behaved and allowed me to write. You are the bestest!

A special posthumous thank you to my late father, whose act and art of judging I observed closely with keen interest. I thank him for answering all my questions, taking the time to mentor me and explain judging in such a way that it arouse and inspired my keen interest to research about it.

Thank you all for being part of my journey. God bless you all.

Praise for the Book

“Ari Niki-Tobi provides fresh and thoughtful perspectives on an ageless subject, the jurisprudence of judging. Rigid adherence to judicial precedents or a more activist socially conscious approach? Her conclusions are well worth reading.”

—Professor Yemi Osinbajo, SAN, GCON

Former vice President of The Federal Republic of Nigeria

“Ari Niki-Tobi, who authored this book, is a woman with extensive knowledge of Nigerian Courts and judicial systems, and this is manifested in the seven chapters of what I call a must-read Court Manual. With an inviting title - The Act of Judging in Nigeria: A Matter of Interpretation and Judicial Discretion, the book captures ideologies conceptualized into sections that narrate the history and modus operandi of judging in Nigeria while comparing Nigerian and American case laws, coupled with legal principles that connect Courts to society. The introduction of the author’s unique socio-judicial approach is a novel contribution to judicial jurisprudence that reinforces the argument of Courts as agents of social change, and I have no doubts whatsoever that every Judge (Nigerian or not) would find this Book/Court Manual instructive.”

—Hon. Justice Amina Adamu Augie, CFR, JSC (Rtd.)

Retired Justice of the Supreme Court of Nigeria

“Springing from an unprecedented access to the inner recesses of judicial decision-making, The Act of Judging in Nigeria steps on thorough grounding in time-honoured judicial rules and principles to propound a bold approach to a core art of judging and interpretation– the Socio-Judicial Approach (SJA). While contextualised in the Nigerian setting, the issues thrown up by the book are of universal relevance and bound to reignite old debates on judicial activism and, perhaps, extend the jurisprudential dimensions of the debate. Is SJA a mere rehash of an existing theory or a new approach that democratises judicial decision-making, taking it beyond calls on specific questions of fact to enabling ‘We the People” determine what the law is? Does SJA represent a timely appreciation of the demands of the times or an unwarranted expansion of the mandate of judges? May SJA effectively usurp the lawmaking role of elected legislators in favour of appointed judges or rather ensure the actualisation of the elected lawmakers’ goals?

The author does not avoid ruffling judicial feathers too. The proposed SJA is not rooted in superficiality but boldly admits and embraces an expansion of judicial discretion, even at the expense of adherence to judicial precedence. How may that play out in the hierarchical judicial setting? The profundity of this work destines its nuances and imports to dissection and discernment in law faculties and schools but also commends itself to serious introspections and deliberations in judges’ chambers and conferences of all rungs. Yet the simplicity of its diction and delivery aptly makes it amenable to comprehension by public commentators in this judicialised polity.

Well-grounded in the classic, conventional common law theories but openly challenging their frontiers and redefining the underlying commonality, there is no ignoring The Act of Judging in Nigeria.”

—Hon. Justice Kashim Zannah

President, Commonwealth Judicial Education Institute (CJEI).

Chief Judge of Borno State, Nigeria

“The book ‘The Act of Judging in Nigeria’ is a must-read for aspiring as well as current Judges in Africa. It covers a lot that will guide and direct Judges as they set out in this sacred duty of judging. The fresh and unique Principles outlined are of universal application - a great treatise on how to effectively, judiciously, and independently dispense justice. I will recommend it for those undergoing induction courses to being judges in Sierra Leone and Africa as a whole. It covers, inter alia the knowledge and substance of effective judging, judicial discretion, and the impact of judging on society. This in my opinion covers the universality of the principles of judging...”