As an arbiter, a judge walks a tightrope. He stands between two or more litigants. He must be careful in whatever he says or does for him not to be accused of bias. What should a judge do when on the eve of delivering judgment on a case, he is accused of compromise, not by litigants before him, but by an online publication? Withdraw or continue with the case? ROBERT EGBE asks.
Justice Abdul Kafarati of the Federal High Court, Abuja, on March 22, withheld his judgment in a fundamental rights enforcement suit filed by Senate President, Dr Bukola Saraki.
The suit, instituted by Saraki over charges of false assets declaration before the Code of Conduct Tribunal (CCT), urged the court to, among others, quash the charges.
It also sought to restrain the tribunal, the Economic and Financial Crimes Commission (EFCC) and other respondents in the suit from further arresting or prosecuting him on the issue.
In announcing his decision to withdraw from the case, Justice Kafarati fingered reports by some on-line media, including Sahara Reporters and Naij.com, which he said created the impression that he had been financially compromised.
Justice Kafarati said: “The two publications made allegations against my person, alleging that I have been compromised with N2 billion.
“They also alleged that I am known in the legal cycle for being susceptible to corruption.
“What this has done is to put my integrity to question. I, however, regard the publishers as people of unsound mind. They know that what they said is not true. They just derive pleasure when they malign the integrity of a judicial officer.
“It is unfortunate that we don’t have the appropriate laws to take care of this. As it stands, I am caught between two devils – if the judgment goes in favour of Saraki now, they will say that I have been compromised; on the other hand, if it goes against him, they will say I have been intimidated.
‘’In the light of the allegation, I believe the right and appropriate thing to do is to disqualify myself and return the case-file to the Chief Judge for re-assignment to another Judge.”
After the judge’s decision, one of Saraki’s lawyers, Ajibola Oluyede, suggested that the EFCC was behind the reports.
Although he admitted that the judge took the right steps, Oluyede lamented that his client would be the one to suffer.
He added: “It is equally bad that the EFCC has gone to this level. We know that it is behind the publications.
“It is worrisome that this practice, of using the media, particularly Sahara reporters to malign judges into abdicating from matters is dangerous. It amounts to attacks on the rule of law and our democracy.
“There should be an investigation as to the source of the Sahara Reporters’ story and appropriate sanctions against culprits no matter how highly placed.
“On our part, we shall commence criminal contempt proceedings against the now known proprietors of Sahara Reporters and ensure they are deterred from this criminal use of their online medium.”
EFCC denies involvement
In a swift rebuttal the following day, the EFCC denied any involvement in the allegation against the judge.
In a publication on its website, the anti-graft agency said: “It has become necessary to state that the Economic and Financial Crimes Commission, EFCC had no hand in the report which is entirely the imagination of the authors.
“All allusions to the Commission’s investigation or documents in the said publication should be disregarded. At no time did the EFCC share intelligence or revealed the content of any dossier it may have on any judge for that matter with any media organisation either in Nigeria or abroad.”
Justice Kafarati’s case is not unique. On June 11, 2014, Justice Adebukola Banjoko was appointed to hear a case of corruption against a former chairman, House of Representatives Ad Hoc Committee on Fuel Subsidy, Farouk Lawan and its Secretary Boniface Emenalo.
Both men were charged by the EFCC with collecting $620,000 as bribe from oil magnate Femi Otedola.
But on November 18, 2014, barely five months after the case was assigned to her, Justice Banjoko surprised a packed courtroom when she announced that she was withdrawing from the trial and would no longer adjudicate the case.
Her reason: to stem an allegation that sought to impugn her integrity.
Earlier, Lawan, through his lawyer, Chief Mike Ozekhome (SAN), filed an application dated October 29, asking the judge to quit the case. Lawan also petitioned the FCT Chief Judge, accusing Justice Banjoko of likely bias based on an alleged close relationship between her and Otedola, a proposed witness and the accuser in the case.
“In my 17 years on the bench, six years as a magistrate and 11 years as a judge, I have never been confronted with a scandalous challenge of my integrity,” the judge said bitterly.
“In the prevailing circumstances, I do find it difficult to continue this case. This case is returned to the honourable Chief Judge for re-assignment,” Justice Banjoko ruled.
The case, now re-assigned, is being handled by a third judge.
What does the law require of judges?
The judges appear to have acted in compliance with the law. They are required to withdraw from any matter where their impartiality may be reasonably questioned.
The Code of Conduct for Judicial Officers lists several reasons for which a judge can be disqualified from a matter. Section C(1) of the law is particularly relevant in this case. It says:
A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to the instances where:
(a) he has personal bias or prejudice concerning a party or personal knowledge of facts in dispute;
(b) he served as a legal practitioner in the matter in controversy, or a legal practitioner with whom he previously practised law served during such association as a legal practitioner concerning the matter or the Judicial Officer or such legal practitioner has been a material witness in the matter;
(c) he knows that he individually or as a Judicial Officer or his spouse or child, has a financial or any other interest that could be substantially affected by the outcome of the proceeding;
(d) he or his spouse, or a person related to either of them or the spouse of such person;
(i) is a party to the proceedings, or an officer, director or trustee of a party;
(ii) is acting as a legal practitioner in the proceedings;
(iii) is known by the Judicial Officer to have an interest which could be substantially affected by the outcome of the proceedings.
(iv) is to the Judicial Officers knowledge likely to be a material witness in the proceedings.
Lawyers weigh in
Chie Felix Fagbohungbe (SAN) said there was nothing wrong with a judge withdrawing in such circumstance.
He said: “If there are such allegations in the press that can make any of the parties feel uncomfortable with his decision, I think the proper thing for a judge is to withdraw. There is nothing wrong with that.”
As to whether the judge should bring the publication to the knowledge of the litigants so that they can decide whether or not they think allegations are strong enough to make him continue adjudicating over the matter or to withdraw, Fagbohungbe felt that was an option that could have been taken.
He said: “I agree that he could have done that, more so as it is not any of the parties that made the allegations, but if the publication is so damaging that it can prejudice his position then of course there is nothing wrong in him declining to read the judgment.
“I agree that the allegations may all be speculations, but all the same, a judge cannot go to press to defend himself. I think the best thing to do, is what he has done.
The Chairman of the Ogoja Branch of the NBA, Andrew Atsu, reasoned that Justice Kafarati stood the risk of being sanctioned by the National Judicial Council (NJC), if he had not declined to announce judgment.
He said: “I don’t know the evidence he was confronted with that made him to say that he was withdrawing. But issues of fraud are taken very seriously by judges, if he had not reacted, the National Judicial Council (NJC) must have been watching. They could have taken disciplinary action against him.
“So, one of the duties for you as a judge in the Temple of Justice is to make sure that the common man perceives that your judgment protects him at all times.
“As far as I’m concerned, that judge withdrawing is proper, no matter the stage of the litigation, even if it is just left to give judgment.”
A former Chairman of the NBA Ikeja Branch, Monday Ubani said there may or may not be a request from any of the parties asking the judge to disqualify himself, before he does so.
He added: “There are times an application can be brought for a judge to disqualify himself from handling a case that is before him and if you present any credible evidence to establish bias, a judge can withdraw from that matter and say he will not handle that matter based on so and so reason.
“Now in this particular case, what the judge is saying is that there is a publication of an online newspaper alleging that he has been compromised. And he doesn’t want anything that’ll soil his name.”
National President, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, said it is irrelevant whether the allegation of bias was not raised by any of the parties to the suit.
He said: “It is immaterial whether the allegation came from outside the parties. The court can withdraw suo moto, that is, on its own, without the prompting of any of the parties. What is always in issue in respect of withdrawals by judges from matters pending before them is the likelihood of bias, not even bias but the likelihood of bias.
“In the Second Republic, a matter came before the High Court of Oyo State in the Old Oyo State involving the then governor, Bola Ige, and the matter was assigned to Hon. Justice Ige, that is Bola Ige’s wife.
“She didn’t even wait to start hearing before withdrawing, she suo moto raised the likelihood of bias. She disqualified herself because she must have felt that even if she tried her best, justice would not have been seen to have been done in a matter in respect of which her husband is a party.’’
He added that the difference in the Saraki case is: “This matter has gone the whole hog up to judgment stage. In my view Justice Kafarati is right. Whatever else anyone says, the issue is, was there such a publication? If there was, then the manner and mode that it appeared, namely, that he had been compromised by as much as the amount mentioned; even if it was on the judgment day, he is right, in my view, to have suo moto withdrawn, even if the allegation was not made by any of the parties.”
What happens to the time and effort spent?
Ugwummadu, who is also the Legal Adviser of the Movement For the Liberation of Southern Sahara, argued that it is more important for justice to be done than to dwell on the amount of resources spent by all the all parties to a suit.
He said: “It is true that the litigants have spent so much on the matter; it is also true that the lawyers have spent so much time. Yet it is also true that the judge had painstakingly adjudicated over the matter up to that point of judgment, and he probably must have also written his judgment.
“But in compliance with the oath of judicial office that he took, he needn’t proceed with that judgment, more so when he saw the publication and which was direct, in his view, and categorical in their assertion.”
Ugwummadu also said judicial officers are free to contest the allegations against them in court.
He said: “Yes, it is true that judges don’t join issues with the public, but, in instances like this, one would advise that the judge can find a way to seek representation. Defamation is defamation; it is immaterial whether it is against a judge. A judge can engage a lawyer to contest the propriety of what you said against him, without coming on the pages of a newspaper to defend himself.
“If he goes ahead with the judgment, with such a damming publication against him, the public will lose confidence in the judiciary and that is worse than him refusing to deliver judgment.”
