By
Nwokocha Chidinma Grace
Lagos, Nigeria.
Laura paced up and down the well- furnished room that served as her office. She had just received a distress call from the British High Commission in Nigeria which threw her into a melancholy.
Laura Smith was one of the most prominent women in Nigeria and indeed West Africa. She owned one of the best law firms in the country and was doing very well in Legal practice before she was elevated to the bench and decided to relinquish the management of the firm to next most senior lawyer in the firm. Her law office has trained many successfully lawyers who have risen to enviable heights in the profession some of whom are revered judges and senior advocates of Nigeria. She was therefore what one would correctly call a successful woman. But Laura had one challenge and this was the source of all her worries –her immediate family.
Laura got married to Mr. Kingsley Smith about 25 years ago and the marriage is blessed with 2 Children –a boy and a girl. Laura’s husband was a medical doctor. They met in the UK on one of her numerous trips to the country, fell in love and got married years later. Because of her busy schedule and her desire to excel in her chosen profession, she was hardly ever at home. She seldom saw her husband and her children were at the mercy of the house help, Nancy. All looked perfect, until recently when she received the shocker of her life.
It was a beautiful morning, as she was just about to deliver judgment in a high profile case, she received a distress call from the British High Commission in Nigeria notifying her that her 22 years old son, Harold had just been caught at the Murtala Mohammed International Airport, Lagos trying to leave the country to go to Britain with substance suspected to be cannabis sativa. He was arrested alongside 2 others and taken to the Lagos State University Teaching Hospital, where he tested positive to the suspected drug.
On getting to the hospital, she was directed to the doctor in charge who told her that her son has been under constant supply of hard drugs. The doctor further told her that from what it looked he was not new to this kind of drug; he was in fact addicted and this has affected the left part of his brain.
“He would need to be kept under close surveillance” the doctor said to her. While they were yet speaking, 20 year old Harriet was rushed into the hospital. She had just fainted after losing so much blood. She was immediately revived but further examinations revealed that she had carried out an abortion which was unprofessionally done and her womb was ruptured in the process leading to huge loss of blood. After much probing, she confessed that she was introduced to pornography at the age of 5 by the house help and started having sex at the age of 8 with her father and brother. This was the seventh pregnancy she had aborted in the past 12 years.
Laura was drenched to the foot with her own tears. She rushed back to the office, packed up her things and left. Confronting her husband much later, he showed no remorse for his actions, made no effort to deny the allegations and instead blamed her busy schedule and the house help for his actions. Laura has remained at home for the past 11 months trying to clean up the mess she caused her family. She has neglected her duties as a judge and has failed to deliver many judgments within the constitutionally stipulated time and this has not only begun to cast aspersions on her competence but the efficiency of the judiciary.
And so on this fateful day, the day the story began she got to the office and met 2 notices on her desk. One, being a charge against her husband and son for child abuse and drug trafficking respectively and the other, a letter from the National Judicial Council intimating her of the intention to remove her as a judge for breach of the code of conduct for Judges and other judicial officers.
With her family slowly falling apart, her marriage on the verge of collapsing and she at the risk of losing her job and Children, Laura Smith is in a dilemma and requires your opinion on the following points of law:
Whether she as a judge can competently try her son and husband on the charges of Drug trafficking and child abuse before her court.
On the procedure for removal of a judge in Nigeria.
If peradventure she is removed as a judge, can she competently defend her son and husband as counsel before the court where she once presided as a judge?
Advise her
Comments
Going by the aforementioned fact stated above, I have to make use of Nemo judex in causa sua (or nemo judex in sua causa) is a Law principle that means, literally, "no-one should be a judge in his own cause." It is a principle of natural justice that no person can judge a case in which they have an interest.
The great significance of the doctrine of memo judex in causa sua In The Administration of Justice is something we cannot do without in natural justice.
The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing.
The doctrine is credited to Sir Edward Coke in the 17th century.
It is also found in The Moral Sayings of Publius Syrus, a Roman Slave (1856), by Darius Lyman, Jun., A. M.
See NJC vs Gunmi and Uma Nath Pandey & Ors vs State Of U.P.& Anr on 16 March, 2009. Ofodum, Chukwunonso Charles, ICON.
2. The court she was presiding over wasn't expressly stated. However from the surrounding scenarios especially the fact that a charge for drug trafficking was brought to her court shows that she is a Federal high court judge. For a Federal high court judge to be removed, the National Judicial Council has to recommend the removal to the president of the Federal Republic of Nigeria. It is the President that removes after receiving such recommendation from the National Judicial Council and it does not need confirmation of the legislature, since she is not the chief judge see Section 292 of the 1999 Constitution of the Federal Republic of Nigeria(as amended) and Elelu Habeeb's case.
3.In accordance with Rule 6 of the Rules of professional conduct 2007 she cannot competently defend her son and husband in the court she once presided over. As the rule prohibits her from appearing in a matter she once handled or before any court or tribunal at that.
A judicial officer who has ceased to hold office in Nigeria is barred from inter alia, practising as an advocate/Legal practitioner in any court of Law in Nigeria.. S292(2) CFRN, Rule 6 RPC.
There are two exceptions to the above rule however, which are
1. Practising as a solicitor though not expressly stated is by deductive approximation, excluded.
2. The provisions do not bar one from representing oneself in a case for or against oneself. Ateke v Afejuku.
The provisions of Rule 6(3) appear to create a loophole by using the word "Retired judicial officers" and this has made some to think that the bar may not extend to "Removed judicial officers" Obiokoye on this, has argued that the rule applies to both retired and removed judicial officers. This argument may hold good because the intendment of the draftsman must have been to bar a "former judicial officer" from practising as an advocate, how he left office not withstanding.
To my mind however, the reason the provisions of Rule 6(3) may in the first instance appear to create that loophole is if it is read in isolation from Section 292(2). A critical understudy of the subsection would reveal that a judicial officer is barred from practising in any court in Nigeria once he ceases to be a judicial officer for any reason(hence whether removed, retired voluntarily or compulsorily)
In the light of the above, Laura Smith if removed from office, cannot appear for the two persons standing trial in any Court in Nigeria whether or not she had acted on the merits of the case when in office. The closeness of the accused/defendants to her is immaterial. The exception in Ateke's case is limited to actions for and against oneself.
But if we may stretch the argument a little further; do you think that the recommendation of the Federal Judicial Service Commission would be necessary in the removal of a Judge not initiated by the commission?
The case of Elelu-Habeeb v. AG Fed. Seems to support the view that in removing a Judge the only stakeholders are the NJC, Governor and in the event that it is the chief Judge then the House of Assembly or Senate as the case may be.
Here is a brief excerpt of the case as per Mahmud Mohammed JSC:
"It is quite plain from the provisions of paragraph 21 sub-paragraph (c) and (d) of the Third Schedule to the CFRN 1999, that the NJC is the body that; had been assigned the duty and responsibility of recommending to the Governors of the States of the Federation suitable persons for appointments to the offices of Chief judge of the States and other judicial officers in the States. In addition to its role in the appointment of Chief Judges of the States and other judicial officers, the same NJC is also empowered under sub-paragraph (d) of paragraph 21 to recommend to the Governors of the States, the removal from office of the Chief judges of the States and other judicial officer of the State, and also to exercise disciplinary control over such Chief Judges of the States and other judicial officers of the States. Therefore, from these very clear provisions of the constitution which are very far from being ambiguous, the Governors of the States and the Houses of Assembly of the States cannot exercise disciplinary control touching the removal of Chief Judges of States or other judicial officers in the States.
Going back to section 271 (1) of the 1999 Constitution, it is also glaringly clear that the NJC has been given a role to play in the appointment of Chief Judges of the States where the section states:
"271 (1) The appointment of a person to the office of a Chief Judge of a State shall be made by the Governor of the state on the recommendation of the NJC subject to the confirmation of the appointment b}' the House of Assembly of the State.
It can be seen here again, although the Governor of a state has been vested with the power to appoint the chief judge of his own state, that power is not absolute as the Governor has to share the power with the NJC in recommending suitable persons and the State House of Assembly in confirming the appointment. It is in the spirit of the Constitution in ensuring checks and balances between the three arms of government that the role of the Governor in appointing and exercising disciplinary control over the chief judge of his state is subjected to the participation of the NJC and the House of Assembly of the state in the exercise to ensure transparency and observance of the rule of law..."