In the interest of justice

By Bola Bolawole

One question which has always agitated my mind was answered last Monday, 15th April, 2024  by retired Justice Andrew Alaba Omolaye-Ajileye in a keynote address he delivered at the 2024 Law Week of the Nigerian Bar Association, Warri Branch, whose theme was “Emerging trends in legal practice and administration of justice: Challenges and prospects.” Justice Omolaye-Ajileye’s paper was titled “Tomorrow’s legal profession today: Today’s legal profession tomorrow”

I have always wondered if two sets of referees pursuing the same goal(s) can act in the same manner and still achieve the same result. The first is an official refereeing a football match and the second is a judge adjudicating in a matter between litigants. What is expected of both is impartiality, fairness, thoroughness, and even-handedness so that one side is not given undue advantage and unmerited edge over the other. So that, in the course of maintaining an even keel, the cause of justice can be served.

Now, a football referee that (repeatedly or in strategic moments) makes decisions that favour one team against another is said to have stepped into the field or ring. He is deemed to be biased and the cause of justice cannot in that way be served. But can a judge afford to maintain similar aloofness and neutrality in all instances and still serve the cause of justice?

In my 39 years in the journalism profession, I have seen cases lost not because the litigant did not have a good case but because of poor handling by counsel; sometimes deliberately so contrived for varying reasons. Uncountable number of cases get dismissed or get lost (and won) for lack of diligent prosecution; again, sometimes deliberately and in some others because of incompetence or carelessness of the prosecution or counsel.

In that instance, the innocent may suffer and the cause of justice may not have been served. Should a judge step into the ring in certain situations to avert the miscarriage of justice?  Oftentimes, we hear judges lambast counsel and bemoan the miscarriage of justice for lack of brilliance or diligent prosecution of cases. In that situation, can a judge step into the ring?

There was a time in this country when some of its brightest judges like Kayode Esho, Akinola Aguda, and Chukwudifu Oputa were not only described as philosopher-judges but also were well respected for what some have called their judicial activism. Yes, judges interpret the law but in interpreting laws, cerebral and conscious judges also make laws! Some even make statements.

Judges, when they are in their court, especially when reading their judgments, enjoy immunity, like the members of the Legislature when those ones, too, are in their hallowed chamber. Judges and the lawyers appearing before them are referred to as officers in the temple of justice, meaning that their primary obligation, even when lawyers represent opposing sides or views, is that justice is served, and not miscarried.

As such, even counsel not directly involved in a matter can chip in something as “amicus curiae,” that is, an impartial adviser to a court of law in a particular case or matter. This being so, are there instances that allow or, better still, is it incumbent on the judicial umpire to step into the ring to ensure that justice is not miscarried? Or should he or she simply maintain aloofness and rely only on the evidence brought before him or her to make a ruling?

Nowhere does this intrigue me more than in election matters and other cases that are as controversial or that have attracted a lot of public discourse and controversy. Judges, too, are members of the society. They read newspapers. They listen to the radio. They watch television. They may also be active on social media. They may or may not visit pubs and listen to gossip but they have friends and family members. Therefore, they must be aware, if I may so put it, of the merits and demerits of some of the cases coming before them before the arrival of such cases. Should they discountenance such information and only limit themselves to the evidence presented before them?

Omolaye-Ajileye provided what I consider to be an answer when he said, “I want to comment on a change of culture we can bring about in the way justice is administered. Administration of justice must shift from the orthodox adversarial approach to more collaboration between lawyers, parties and the court with the focus being an earnest effort to isolate the real issues in a dispute from a maze of ill-digested causes of action and defences.

“The judge’s role must be transformed from the traditional umpire role to that of active case manager. By this, I mean we must introduce in our Rule of Court situations where judges must take an active part – together with learned counsel – in identifying at an early stage of the proceedings what is the real dispute between the parties and, working together with the parties, charting a course that will result in the adjudication of the dispute as speedily as possible and at minimum costs. That is now the system of judicial case management that is taking hold in many jurisdictions across the world. We must move with the world in this regard.

“The days of over-pleading, raising as many issues that you can muster in the hope that one might just stick, should be something of the past. Courts should decide only the real disputes between the parties. In that way, the court’s time is saved and judges can dispose of more cases. Litigation should be limited to what is truly in dispute between the parties and not to obfuscate and terrorize the other side”

That is the answer I have been searching for! If the main objective is to serve the cause of justice at minimal costs and in record time, this is the way to go. I have watched such a system in operation in other climes and it is fun to watch, is not elaborate, is not long-drawn, adversarial and costly as the system we operate here.

Besides, the new system advocated by Omolaye-Ajileye will remove tension, enmity and bitterness amongst litigants. Our people have a saying, based on the adversarial system of administration of justice that we operate at the moment, that people who drag each other to court do not return from there to still be friends. We must change that narrative because it poisons the good health of our society.

Justice Omolaye-Ajileye may not have known or meant it; but he, like the Kayode Eshos, Akinola Agudas and Chukwudifu Oputas before him, is also seen by many as a fearless but even-handed judicial activist and icon. The judgments he delivered while on the Bench of the Kogi State judiciary testify to that. When he was retiring on 15 February, 2023, the outcry was much, as leading members of the Bar and others made a case that he be promoted to the higher Bench, which he eminently deserved, so that the Judiciary might still retain his services for an additional five years at the least. His pioneering work on the emerging field of electronic evidence stands him out as a leading authority in that field.

In the paper he delivered at Warri, the retired judge advocated what he described as “paradigm shift” in the practice of law and the administration of justice in the country “in order to secure tomorrow’s legal profession today”. He said: “The advocacy here is that our conservatism should not make us resist change. We live in a changing world. It is a great momentous and exciting time. Change is happening around us in ways that we had not imagined just a few years ago. All aspects of human endeavour are changing. The legal sector – to be precise, the practice of law and the administration of justice – is not spared. We must be amenable to change. As lawyers and judges, we must constantly adapt and innovate or be prepared to be pushed aside and become irrelevant.”

He advocated that lawyers and judges must imbibe technology because “we are in the middle of a technological revolution of a great magnitude, scale, scope, and complexity…To maintain relevance and remain competitive in any industry, profession or endeavour, one needs to understand the impact of emerging technologies on the future. Indeed, we need to go beyond the acquisition of knowledge. We must be prepared to integrate modern innovations strategically in our work to increase efficiency and productivity and improve our paradigms.”

Chief Consultant, Forensic Electronic and Digital Law Consultancy, Omolaye-Ajileye is also a visiting professor at the National Open University of Nigeria. To corroborate what he said, I recall here a personal experience of how technology can make hitherto indispensable hands redundant and surplus to requirement: When I was editor of PUNCH newspapers, the advent of computers displaced compugraphic machines and cut-and-paste artists had to be sent for training to plan pages on computer. Ironically, one of our best cut-and-past artists, much sought-after by everyone, could not cope with the new technology and had to be sent away!

Those who have ears, let them hear what Omolaye-Ajileye is saying to the Bar and Bench!

Bolawole is a former Editor of PUNCH newspapers and public affairs analyst on radio and television.