WITHER THE LAW IN BETWEEN ACTIVISM AND CONSERVATISM?

THE PROFESSOR’S PODIUM

By Ademola A. Adewale esq.

Generations of lawyers have been trained to believe in the conservative nature of the legal profession. Right from the very first lecture the would-be lawyer is taught to accept without question, the unique nature of the profession for which he is being groomed. He is made to realise that he is not like any other student on campus, not even the medical, engineering and certainly not like the liberal arts and or science students. That one of the features of the profession's unique nature is its conservatism and that the would-be lawyer will do well to avoid such pitfalls like excessive partying, socialising and involvement in sports, beauty pageants for the ladies and the great allure of students activism, if the student is to graduate at all, on schedule with his peers and with good grades.

Whatever remains undone by the law faculty in moulding the aspiring lawyer into shape is shortly perfected by the law school, though the general deportment of many of the new entrants to the Profession in recent times belie this assumption. Thus, by the time the former law student is enrolled as a Solicitor and Advocate of the Supreme Court, he is in addition to possessing the basic academic credentials sufficiently indoctrinated and inducted in the ethics and tradition of the honourable and learned legal profession. Formal dressings in public, both in and out of court, decorous mannerism and comportment, quaint even archaic expression and use of language as in wherefore, howsoever, thereat and thereupon, proceeded and estopped are the order of the day.

The process of acculturation is not complete upon the attainment of the enviable status of Solicitor and Advocate of the Supreme Court of Nigeria but continues all through Messrs Legal Practitioner's Professional Life.

Thus, the conservative nature of the legal profession has never been in doubt. If anything, it is further reinforced by the adherence to the strict rules of practice and procedure by the court through the stare decisis doctrine, canons of interpretations, legal maxims and the principles of equity, which ironically arose out of the desire to whittle down the rigidity of the law.

But as is usual in life, there appears on the horizon every now and then, a crusader, maverick and genius who charts a new path that debunks old ways of doing things and gives directions to generations yet unborn. In the legal profession, the English had Lord A. T. Denning, Master of the Rolls, the Americans, Oliver Wendell Holmes and Earl Warren and in Nigeria, we have had Justices Chike Idigbe, Kayode Eso and Chukwudifu Oputa and also at the Bar, the inimitable Chief Gani Fawehinmi S.A.N, S.A.M, and the late Alao-Aka Bashorun Esq.

The refreshingly different approach which these jurists have brought into the legal profession is called activism or more appropriately put, judicial activism. One oft-quoted saying that captures the essence of the activism under focus is the words of Lord Denning M. R. when he said; “what is the argument on the other side, that it has not been done before. I am not in the least impressed by that argument. If we are to sit down and do nothing simply because it has not been done before, then nothing will ever get done. That will be bad for law.”

This Anglo-American legal creation has its roots in such cases like the celebrated anti-Segregation case of Brown Vs. (Topeka) Board of Education which revolutionised the American civil rights movement. What would have happened if there had been no judicial activism on the American Bench in 1954 when the US Supreme Court gave that landmark decision of equal rights for citizens under the American constitution.

On the English side, the many apostles of Lord Denning are familiar with the long line of decisions eloquently testifying to the activist nature of this English sage and great jurist. The High trees case: Central London Trust Property Ltd Vs. High Trees Home Ltd (1947) L K. B. 130 on promissory estoppel, Macfoy Vs. U.A.C, on the impossibility of building something on nothing (1962 A. C. 152 at 160).

Trendtex Trading Corporation Vs. Central Bank of Nigeria (1977) QB 529, (at) 554 on the ever changing nature of International Law. Wiseman Vs. Wiseman (1953-56) P.D. 79 at 91 D.P.P. Vs. Smith (1961) AC 290

And a legion of other cases. Yet, another quotation from one of the above cases will readily testify to the seemingly maverick nature of judicial activism. In Trendtex Trading Corporation Vs. Central Bank of Nigeria (Supra) Lord Denning M. R said inter alia; “The bounds of sovereign immunity have greatly changed in the last 30 years. The changes have been recognised in many countries, and the courts of our country and of theirs have given effect to them without any legislation for the purpose".
“If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change and apply the change in our English law without waiting for the House of Lords to do it".

The words quoted above are a direct challenge to the settled principles of common law that judges declare the law not make law - Jus Decisis not Jus Dare. Nigeria has not been short of exponents of judicial activism and from the effort of such exponents both on the Bench and the Bar have arisen several cases which have greatly enriched the nation's jurisprudence.

It used to be the law that a public servant was just as helpless as his private counterpart from dismissal from work until Justice Chike Idigbe of the Supreme Court thought otherwise in Shitta-Bey Vs. Federal Public Service Commission (1981) 1-SC 40 and inspired a judicial revolution that was to be followed in several cases like Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt. 9) 559, Federal Civil Service Commission vs. Laoye (1989) 2 NWLR(pt 106) 652 wherein Oputa JSC and Esq JSC followed the trail blazed by Idigbe JSC.
Similar fears of helplessness were earlier entertained in Higher Institution disciplinary cases where it was believed that just like in England a student owed his stay on campus completely at the pleasure of the school's visitors and authorities in the manner of the English cases of Thompson vs. University of London (1864) 33 LJCH 625, Thorne vs. University of London (1966) 2 QB 327 and the earlier Nigerian case of Akintemi vs. Onwumechili (1985) 1 NWLR (Pt) 68.

But all these fears were completely debunked by activist lawyer Chief Gani Fawehinmi SAN and an equally activist Supreme Court at the expense of a Conservative Chief F.R.A. Williams SAN and his equally conservative client, Garba vs. University of Maiduguri (1986) 1 NWLR (Pt 18) 550

Remedies were manufactured to meet the situation, even when none existed in Bello vs. AG Oyo (1986) 5 NWLR (pt 45) 828.

In the same vein, the strict provisions of the law were not allowed to defeat a man's right to chares in compensation by his equally guilty and even more unscrupulous partners in Oil field supply centre vs. Johnson (1987) 2 NWLR (part 58)'625.

Neither was a Counsel's error of interpretation of a law allowed to prejudice the hearing of his client's case on merit. Nneji vs. Chukwu (1988) 3 NWLR (Pt 81). While the fact of a defendant filing his defence on the very day of the Plaintiffs motion for judgment was not such a grievous 'sin' as to allow the Plaintiff unhindered passage to judgment. UTC vs. Pamotei (1989) 2 NWLR (pt 103) 244.

These decisions and others with their high activists flavour were products of the golden era of the Supreme Court when several activists justices including those already mentioned sat in the hallowed chambers of the Supreme Court.

Happily, the rank of activists in the apex Court is not closed as several of the recent causes celebrated bear the tell tale signs of judicial activism, although the ethics of the profession makes it improper for me to mention serving justices - yet another sign of conservatism.


However, there are growing concerns that unbridled activism might at the end of the day be counter-productive. In one celebrated case the Nations electoral body which amongst thing performs the administrative duty of screening eligible candidates for election was held incapable of doing so.
The practical question to ask is, in a general election with several scores of candidates, is the INEC to go to court to seek court's clearance for each of the several candidates against whose candidature there might be queries? Can our court system cope with such a situation? Action Congress vs. INEC (2007) 6S.C. (Pt. II)

In yet another case, the court held that the president and his vice could after being sworn in changed parties and belong to different political parties. If I and the Editor-in Chief of the SQUIB, were to contest and win election as Governor and Deputy Governor in Lagos State on the platform of the SQUIB party and soon after inauguration I now change party to the Professor's party, which party's programme are we to perform to the good people of Lagos State, the Squib's or the Professor's? Your guess is as good as mine! A.G- Federation Vs. Abubakar (2007) 4 S.C. (Pt II) 2
Incidentally, it is not only in Nigeria that unbridled activism is viewed with suspicion. An American scholar had this to say about "Judicial Activism".

"If to resolve the dispute the court must create a new rule or modify an old rule. That is law creation. Judges defending themselves from accusation of judicial activism sometimes say they do not make law, they only apply it. It is true that in our system judges are not supposed to and generally do not make new law with the same freedom the legislatures can and do, they are in, in Oliver Wendell Holmes phrase, "confined from molar to molecular motions." Contrast this with our own Supreme Court "it is the duty of the judex to expound what the law is' and we should loyally follow the doctrine of Stare decisis. Our problems as judges should and must not be to consider what social and political problems do today require, that is to confuse the task of a judge with the task of a legislator".

"In my humble view, he (the judex) is far better employed if he puts himself to much simpler task of deciding what the law is" Dapialong vs. Dariye (2007) 4 S.C. (Pt III) 118 at 216/217.

The above of course puts beyond doubt the conservative nature of our courts and by extension the legal and judicial systems. Yes, our judicial system is too far rooted in conservatism to be overtaken by the periodic interventions of legal and judicial activists. Nevertheless, there will always be those extra- ordinary and situations that demand the unorthodox approach of the activists in our midst for effective solution, but such occasions will remain the exception rather than the rule.

Above all however, the legal profession will continue to thrive on conservatism and judicial restraint, which have served the Profession well through the ages.