By Hameed Ajibola Jimoh Esq.

There has been a clause since time seemingly immemorial that ‘the law is an ass’. This in a way is saying of the application of the law that is contrary to common sense or in another words, “the law is an ass – an idiot”. This paper is of the view that a court of law (being the last hope of the common man) has greater roles in ensuring that the law which binds the common man and of course the citizenry must uphold justice and equity at all times.

Historically, according to my research on https://www.phrases.org.uk/meanings/the-law-is-an-ass.html, the clause has the following historical background thus

‘This proverbial expression is of English origin and the ass being referred to here is the English colloquial name for a donkey, not the American ‘ass’, which we will leave behind us at this point. Donkeys have a, somewhat unjustified, reputation for obstinance and stupidity that has given us the adjective ‘asinine’. It is the stupidly rigid application of the law that this phrase calls into question.

It is easy to find reference works and websites that attribute the phrase to Charles Dickens, who put it into print in Oliver Twist, 1838. When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “…the law supposes that your wife acts under your direction”, replies:

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass – a idiot”.

In fact, ‘the law is an ass’ is from a play published by the English dramatist George Chapman in 1654 – Revenge for Honour:

Ere he shall lose an eye for such a trifle… For doing deeds of nature! I’m ashamed. The law is such an ass.

‘Published by’ doesn’t necessarily mean ‘written by’. In 1653, Chapman’s play was registered, as The Parricide, or, Revenge for Honor, to fellow playwright Henry Glapthorne. Some scholars contend that the play was the work of neither gentlemen and was written around 1620.

Whoever the author was, we can be sure it wasn’t Charles Dickens. However, it was Dickens who brought the phrase to the general public. Oliver Twist was an enormous success when it was first published as a serial and has become one of the world’s best selling novels.’.

Also, according to my research on https://www.goodreads.com/quotes/22816-it-was-all-mrs-bumble-she-would-do-it-urged,, Charles Dickens > Quotes > Quotable Quote, the clause was quoted as follows

“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.

That is no excuse,” returned Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”

If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.” ― Charles Dickens, Oliver Twist.

Furthermore, according to a research on https://dictionary.cambridge.org/dictionary/english/law-is-an-ass the clause was explained as follows

‘The legal system or a particular law is wrong or not good enough, and should be changed:

If that is against the law, then the law is an ass.’

From the above meanings of the words ‘the law is an ass’ as depicted and publicized in the well celebrated literature ‘Oliver Twist’, it is such a situation where the application of the law as it is would likely result in absurdity or in other words when the interest of justice is concerned, strict application of such law enacted to a particular circumstance would result in miscarriage of justice or where the application of the law in strictness would lead to unimaginable injustice when such matters or cases are brought before a court of law to decide. I am of the respectful view and recommendation that the court of law in any of such instances or circumstances, whether civil or criminal cases, msut utilize its discretion where it has to ensure that the interest of justice or the justice in the case prevails. Even where the court (ably symbolized by the Honourable the Presiding trial judge or the appellate court) is not conferred with discretion, the court having considered the interest of justice in a case, should consider devising judicial activism in order to arrive at that which is just, fair and or reasonable in the circumstance, rather than strictly applying the law as it is which according to the judgment or reasoning of the court, is likely to lead to miscarriage of justice. This is a rudimentary or primary role that I view that a court of law should be concerned with. Laws are made by man and man enforces the same law. So, there should be a certain risk bearing in the application and enforcement of the law. Law enforcement agencies that are to enforce the law too should consider justice in the enforcement of the law, else, an ordinary man in the society should not seek self-help or jungle justice as substitute for justice! The fear which I have is that ‘if the common man should see law as ‘an ass’ or ‘unconscionable’ or ‘idiot’ i.e. lacking mental reasoning just as it was depicted in the above quoted words extracted from the literature ‘Oliver Twist’, then, that common man in the society would likely avoid the court of law and also bypass the law and make his own law (without considering whether his act and or omission is lawful or unlawful or rational or irrational)’.

Section 6 (1), (2) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-, has conferred judicial roles (and discretion) on the court of law as follows

‘6.—(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution for a State.

(6) The judicial powers vested in accordance with the foregoing provisions of this section—

(a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law ;

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person ;

(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Consitution ; and

(d) shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.’.

Furthermore, on the exercise of ‘judicial discretion’, the appellate courts have at various times, defined and expressed their judicial reasonings on what amounts to same as follows:

In the case of ‘GEBI V. DAHIRU & ORS (2011) LPELR-9234(CA) held:
“It ought to be reiterated for the avoidance of doubt, that the very fundamental essence of the proper exercise of judicial discretion is rooted in the belief that it be exercised in accordance with well established rules of law practice, fairness and justice and not in accordance with whimsical opinion, humour parochial, or sentimental disposition. Thus, strict compliance with well established rules of law, reason and forensic logic are undoubtedly veritable handmaids for proper exercise of a judicial discretion for the unique purpose of attainment of justice to the parties before the court. See OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1993) 7 NWLR (pt. 270) 462; ANPP V. REC, AKWA IBOM STATE at 512 – 513 paragraph G-C per Saulawa, JCA.” Per SAULAWA, J.C.A. (P. 42, paras. C-F).;

ADAMU SULEMAN & ANOR. V. COMMISSIONER OF POLICE, PLATEAU STATE (2008) LPELR-3126(SC)
“A judicial officer saddled with the responsibility of exercising a discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.” Per Akintan JSC.;

ANPP v. R.E.C., Akwa Ibom State (2008) 8 NWLR (Pt.1090) 453 at 512-513, paras. G-C, 516, paras. D-H: (CA)
“The very essence of the proper exercise of judicial discretion is deeply rooted in the belief that it be exercised in accordance with well laid down rules of law, practice, reason, fairness and justice, and not in accordance with whimsical opinion, humour or sentimental disposition. Compliance with well laid down rules, reason and forensic logic are veritable handmaids for proper exercise of a judicial discretion for the sole purpose of attainment of justice to the parties.;

AJUWA & ANOR V. SPDC NIG. LTD. (2011) LPELR-8243(SC)
”I have searched for the meaning of the word ”Judicial discretion” in black’s Law Dictionary 8th Edition, edited by Bryan Garner at page 409, the word or phrase was defined as follows;- “The Exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a courts power to act or not to act when a litigant is not entitled to demand the act as a matter of right”. Then in the New International Comprehensive Dictionary of the English Language – Encyclopedia Edition at page 365, the word “discretion” was defined as – “the act or the liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without willfulness or favour”. Both dictionaries referred to the word – “Circumstances” which means the facts or peculiar nature of the case which a Judge exercising its discretion would consider. Thus whichever way the appellants may put it, an appeal against the exercise of discretion by the lower court must involve the consideration of the ‘circumstances’ in order to determine whether discretion, was judiciously exercised. Thus this appeal cannot therefore be said to involve the question of law alone, it must of necessity involve the consideration of the facts placed before the lower court. It is in this regard that I agree with my lord Karibe-Whyte in Metal Construction (W. A) Ltd V. Milliore (1990) 1 NWLR (pt. 126) 299 at 314, when he held as follows:- It is never the less a question of fact with the exercise of discretion. In Grifths V. J. P. Harrison Watford Ltd (1963) AC 1 lord Denning expressed it succinctly thus reasonable people on the same facts may reasonably come to different conclusion and often do juries. So do Judges. And are they not reasonable men”. It has therefore been recognised that these more or less discretion questions of impression or opinion in respect of which reasonable men may arrive at discrepant conclusions on the same evidence are questions of facts.” Per MUNTAKA-COOMASSIE, J.S.C (Pp. 51-52, paras. D-G).;

ALCATEL KABELMETAL NIGERIA PLC ORS v. OJUGBELE (2002) LPELR-5240(CA)
“The attitude of appellate court to exercise of judicial discretion was stated in Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 749 CA and held:- “25. The law is that except upon grounds of law an appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. But if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant considerations, order may be reversed [Saffieddine v. COP (1965) 1 All NLR 54; Enekebe v. Enekebe (1964) 1 All NLR 102; Awani v. Erejuwa II (1976) 11 SC 307; Odusote v. Odusote (1971) 1 All NLR (Pt.1) 219 referred to.] (24) It is well settled that if judicial discretion is exercised bona fide by a lower court uninfluenced by irrelevant considerations and not arbitrary or illegal, the general rule is that an appellate court will not ordinarily interfere. The discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 referred to.” Confirmed by the Supreme Court in Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) 320 SC. Fasanya v. Adekoya (2000) 15 NWLR (Pt.689) 22 CA; Techno Mech. (Nig.) Ltd. v. Ogunbayo (2000) 1NWLR (Pt.639) 150 CA. ” Per ONALAJA, J.C.A. (Pp. 36-37, Paras G-F).

Finally, what this paper humbly recommends are that: Judicial responsibilities or roles which a court of law must perform in the interest of justice, when the law seems or is likely to become ‘an ass’ are:

To make law humanly adaptable whenever the court is called upon to interpret the law (this ‘law’ referred to here is not the normal law making but judicial activism which portrays the interest of justice in a particular circumstance);
To utilize its judicial activism in the interest of justice at all times;
The judicial discretion must be used for ensuring that justice prevails and for public good and or benefits;
The law should (through judicial discretion) be prevented from being portrayed continuously as ‘an ass’.

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