Judicial Immunity: The Nigerian Perspective

ABSTRACT

The standard objective of judicial immunity has been significantly challenged in courts. Despite the efforts of the court to answer on different occasions on the subject, it’s quite unfortunate that the aggrieved constantly fail to appreciate the rationality of the court which is to their advantage.

It is against this framework, that this article attempts to resuscitate the spirit of judicial blessings on judicial immunity and categorically highlights on the condition that might limits judicial immunity when not effectively exercised.

 

INTRODUCTION

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Per Niki Tobi JCA (as he then was) highlighted in his sagacity concisely below;

“In the common law tradition, I refuse to think that the founders of the doctrine of judicial immunity really had in mind as their primary reason, the protection of the Judge qua adjudicator. Rather they had in mind the creation of a forum where the Judge can enjoy maximum independence in the performance of his judicial duties. I think all of us in the Judiciary should realize that original concept which is still the law”.

Legal doyens concur that defending judges from the repercussions of decisions they made in good faith and in accordance with recognized judicial integrity principles is necessary, but they also agree that such immunities needed to be better defined and conveyed to the public.

Jurists of different periods and in varying climes had reasoned on the concept of judicial immunity. While some contended that judicial immunity has never been an absolute phenomenal, others argued in opposition.

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However, this has become a bedrock and subject of debate in international forum where jurist categorically analyzed the abundance of statutes and authorities on the subject matter. Nevertheless, an enduring solution has not been proffered on the subject.

This article is to contribute to the eruditeness on judicial immunity, particularly with Nigeria in perspective, numerous judicial authorities and extant legal frame-works are thoroughly examined in substantiating the argument. Also, the effect of jurisdiction on the seemingly absoluteness of judicial immunity is treated with conclusion.

Keywords; Judiciary, Judicial-immunity, Jurisdiction, Constitution.

  • Conceptualizing the Term Judicial Immunity

According to Black Law Dictionary (8th edition), immunity is any exemption from a duty, liability, or service of process, especially such an exemption granted by public officer. Judicial immunity could be treated from two viewpoints which are: immunity under the common law and, immunity as provided by statutes.

The 1999 Constitution of the Federal Republic of Nigeria has not expressly availed the meaning of judicial immunity except for judicial power and judiciary as the third arm of government. Judicial immunity is an important common law principle that safeguards judicial independence.

As a significant protection, the courts have enthusiastically and passionately guided its application in the judicial process principally to the advantage of the judge qua adjudicator.

  • Examining English Cases on Judicial Immunity

It goes without saying that, Judges enjoy absolute judicial immunity from liability for judicial acts, no matter how erroneous the act or how evil the motive, unless the act is performed in the clear absence of all jurisdiction.

Irrefutably, it has long been recognized that in order to adequately facilitate the role of the judiciary in our society, judicial actors must feel free to exercise their discretion without being afraid of civil reprisal. See Stump v. Sparman, 432 U.S. 349,356-57,98 S.C. CT. 1099,55 I., ED.2D 331 (1978).

Stressing further, the rationale behind judicial immunity was appreciated and established in the celebrate English case of Scott v. Stansfield (1868) L.R. 3 ex. 200, at p.22, that while “the Judges immunity as to acts done or words spoken in their judicial capacity in a court of law is not conferred for the protection or benefit of the Judges, but basically for the assistance of the public, whose interests is the Judge’s assignment.

Therefore, the judge should be at liberty to exercise their functions with independence and without fear of consequences”. See;  Garnett v. Ferrnand (1827) 6 B and C 611 at 625.

However, De Smith in his book ‘Constitutional and Administrative Law, (1973)’ has expatiated this specifically at p.370:

“Judicial immunities from suit are conferred not for the benefit of judges but for the benefit of the administration of justice. The risk that a judge may abuse his privilege by making gratuitously defamatory remarks for reasons of personal rancour is considered to be less than the risk of his abstaining for reasons of prudence from condemning inequity in appropriate language.”

Furthermore, the English case of Sirros v. Moore (1974) 3 WLR 459 has stated with approval the position of the earlier court, on the nature of Judicial immunity of a judge, thus:

“The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes cannot be made the subject of civil proceedings against him. No matter that the Judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.

The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the courts.

That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear”.

On the strength of this case, judicial officers are subjected to reviews and discipline only where there is gross error in their conduct of administrating justice, asides that, nothing else limits their functionality.

In Bradley V. Brigham,13 WALL.335 (1872), the court also held that it is a general principle of the highest importance to the proper administration of justice, that a judicial officer, in exercising the authority vested in him, should be free to act upon his own convictions, without apprehension of personal consequences to himself.

This explicate that judicial officers are protected plainly to exercise their official duty without fear and to the whole ends of justice, it is however much of benefit to the general populace.

  • Examination of Nigeria Cases on Judicial Immunity

The decisions of the court proliferate in Nigeria on the subject and it has emulated the laid down principle of common law. In this article, a few these cases shall be examined briefly.

In Egbe v. Justice Adefarasin & Anor (1985) 1 NWLR (Pt.3) 549, the supreme court in her eruditely held inter alia;

(1) that a Judge of a superior court of record is not liable in tort for any judicial act performed by him within his jurisdiction even though he be malicious.

(2)that no action lies for acts done or words spoken by a Judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office;

(3) that the immunity granted at common law to the judge is based on public policy.

Undoubtedly, the brilliance in this case is a vital legacy etched in the sands of time by the apex court. It is noteworthy that in a circumstance where a judge is malicious in his judicial act or conduct, the judge would not in consequence, be liable for such.

Judges of the Federal Republic of Nigeria are adorned with a considerable level of immunity in the discharge of their duties.

This was again championed in the case of Secretary, Iwo Central Local Government v. Adio (2000) 8 NWLR (Pt. 667) 115 where the court restated the Latin maxim “de fide et officio judicis non recipitur quaestio, sed de scientia, sive sit error juris, sive facti,” – “the honesty and integrity of a Judge cannot be questioned, but his decision may be impugned for error, either of law or of fact”.

The wisdom behind the maxim is lucid. It echoes judicial immunity as indubitably predicated on public policy, due to the need to protect judges and judicial officers from malevolence on their capacity as Judges.

It is imperious that for a free and impartial administration of justice, the administrator must be uninfluenced by fear nor discomfited by hope.

  • The Legal Consequence of Lack of Jurisdiction

Jurisdiction is the boundary imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process, by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought. See A.G Lagos state v. Dosunmu (1989) 3 NWLR (PT. 111)552; N. E. P. A. v. Edegbero (2002) 18 NWLR (Pt. 798) 79.

Jurisdiction is conferred by the constitution or statue, on Courts and it is a threshold issue, a heartbeat of a case till the extent that once a court lacks jurisdiction to hear a matter and it proceeds to hear a matter, no matter how well handled, the entire proceedings would be a nullity.

This explains why it could be raised at the Supreme Court, Court of Appeal and High court at any time. See; Dangana v. Usman (2013)6 NWLR (PT. 302)692; Barclays Bank of Nigeria v. Central Bank of Nigeria (1976)6 SC 175.

In determining whether an act was outside judge’s jurisdiction for the purpose of judicial immunity, the focus is not on whether the judge’s specific act was proper or improper, but on whether the judge had the requisite jurisdiction to perform an act of that kind in the case. See the English case of Mireles v. Waco 502 U.S. 9, 112 S. CT. 286, 289, 116 L. ED. 2D 9 (1991).

The moment a court lacks jurisdiction to entertain or adjudicate a matter, it behooves on the adverse party to challenge the jurisdictional capability of the court through preliminary objection.

In a circumstance where the court failed strike out, or acknowledge its wrong of lacking jurisdiction, any decision reached thereof could be appealed against, the appeal court could up-turn the earlier ruling-decision. Per Tobi, J.C.A. (As he then was) in Onagoruwa v. I.G.P. 1991] 5 NWLR 593 at page 646, (supra) paras. F-H diligently educated us on this:

“A court of law can dismiss a matter when it has been heard on its merits and not when the matter had to abate on grounds of lack of jurisdiction.

Jurisdiction, as a matter of law, and not a matter of fact, could be regularized by a plaintiff in certain instances. It is not like the facts of a case which are constant like the sun rising from the West and setting in the East every day. And so, if a suit is dismissed on grounds of lack of jurisdiction, the plaintiff will have no opportunity to cure it, if it is legally possible so to do.

Let trial courts not dismiss suits on the ground that they do not have jurisdiction to entertain them. Let them merely strike out such suits. It is possible the plaintiff may like to have a second bite at the cherry if the law allows him to do so.”

 

Furthermore, judicial immunity and its relation to jurisdiction in determination of a case was elucidated in the case of Princess v. Governor of Ogun State & Ors (2018) LPELR-44986(CA) where it was held as follows:

“The overwhelming judicial position is that a Judge of Superior Court of record acting within jurisdiction in respect of the matter complained of, or were acting in excess of jurisdiction in respect of the matter complained of, cannot be sued for any act or order made by him so long as he believes himself to have the jurisdiction to do the act or make the order complained of.

Thus, so long as the judicial officer has the honest belief that he is acting within jurisdiction, though he may be mistaken, or even ignorant of the law, is not liable for an action arising therefrom.”

It is noteworthy that the moment there is exercise of judicial duty in line with the requisite jurisdiction of the court, there wouldn’t be any impediment to limit the judicial immunity and functions.

Just as judges are not liable for the decision made within the jurisdiction and ethics of their office, the temple of justice would not be liable when erroneous judgment is delivered, being that the court lacks juristic personality, it can neither sue nor be sued.

It is a well settled principle of law that only a juristic person can sue and be sued. This has unfettered acknowledgement in plethora of cases, See Carlen v. University of Jos [1994] 1 NWLR (PT. 323) 631.

  • Statutory and Regulatory Provisions on Judicial Immunity

In Egbe v. Adefarasin (1985) 1 NWLR (PT.3) 549 (supra), the courteill examining the provision of section 88(1) of the High Court Law of Lagos State, re-emphasized that judges are immune from all civil liability whatsoever for anything done in their judicial capacity.

Section 88(1) of the High Court Law of Lagos State which provides:

“No judge shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do or order to be done the act in question.”

The 1999 Constitution (As amended in 2011) provides for a procedure for dealing with or removing Judges whose conduct has fallen below the expected standard.

By, Part 1 Section 21(g) of the Constitution the National Judicial Council has the power as reproduced below to;

(g) appoint, dismiss and exercise disciplinary control over members and staff of the council

CONCLUSION

The commands of public policy are that judicial officials be given the latitude to make flexible and discretionary calls in the performance of their official duties. Judges are undoubtedly saddled with immunity for certain acts in carrying out their assignment. Common law and statutory immunities for actions outside of the judicial realm are inclusive.

It is only when they act outside the confine of their authority and official powers with evidently and factually malevolent purpose does liability steals in through the National judicial council.

 

About the Author 

Oladele Kehinde Emmanuel is an undergraduate student of law in  Ahmadu Bello University Zaria, Kaduna State Nigeria in Department Of Civil Law, Faculty of Law. He has volunteered and participated in several seminars, webinars, and debate competitions and can be reached via: E-Mail: [email protected].

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