By Chief Aikhunegbe Anthony Malik, SAN

Every human being that walks the surface of the earth carries in him (generically) an inherent desire for a slice of justice in virtually all situations respecting his [employed in a generic sense] interests. This, perhaps, explains the introduction, over time, of the adjectival legal concepts of neutrality and impartiality by the ancient fathers of law in litigious dispute resolution procedure in the quest for justice.

At its inception, litigation, unarguably one of the most universally acceptable dispute mechanisms, was conceived purely as a veritable means of doing justice to all parties, including not only the disputing parties, but also to the society whose social solidarity risks breaking point at every injustice done to a party. Hence, the society through its laws and conventions developed a system of order and codes in the pursuit of the noble search for justice whenever a dispute is brought to the relevant platform, particularly the courts and tribunals, for resolution. For emphasis, litigation is not a ping pong game. It is not a circus or a rollercoaster, with no end in sight. There must be and there ought to be an end to it. The end is usually the ends of justice (no pun intended).

Regrettably, this noble search for justice, through the aforementioned procedures of codes and conventions, has now been turned into a game of wits by no less the very professionals saddled and entrusted with the responsibility of ministering to the procedures and conventions. A scenario where litigants are foisted with the unenviable melodrama of filing processes in a never-ending ‘duel’ leaves a sour taste in the mouth of Lady Justice herself. It soon taints all participants with uncertainty and miasma of hazy view of who is impartial and who is not, leading to avoidable accusations and counter-accusations that justice may have been sold down the river.

Time, it is said, is the gauge by which the efficiency of litigation in justice delivery is measured. When litigation is unnecessarily allowed to outlive a certain duration, it invariably wears away parties’ right by a nub of time.

Beyond the practice of unending litigation, an even more abhorrent trait that has grown rapidly in our jurisprudence is the increasing laissez faire attitude to neutrality. A ready example is our electoral jurisprudence, which wrongly, in my view, permits political parties and their candidates to engage in an unholy alliance with INEC in court and vice versa. At first glance, it may seem innocuous and non-problematic, but a closer scrutiny by a discerning mind would readily reveal the obvious and repulsive flaw in such approach to electoral justice.

When, at the Tribunal or Court, political parties and INEC, through their respective counsel, align with each other or one another in presenting their cases, the constitutional ‘neutrality’ or ‘independence’ of the electoral umpire is called to serious question. Indeed, there is a reason the wise men who drafted our Constitution [let us set aside whatever misgivings we may have about the document for a moment] lists INEC in the 3rd Schedule which itself embodies elaborate provisions relating to and providing for the independence and neutrality of the electoral body.

This unwholesome practice has gone on for far too long, but the time for a paradigm shift is now. We need to recalibrate and realize that the practice violates constitutional provisions, which inveterately make and consecrate INEC as an independent and neutral body. It is vital that all persons of interest understand that INEC’s constitutionally imposed neutrality beyond merely being an umpire at the political turf. It also contemplates a scenario when it appears as a statutory party in the court arena. What is critical in both situations is the need to appreciate that the fight or tussle involves political parties and their candidates, whereas INEC is expected to be its own squad, independent and unbending in its stance for the truth.

Perhaps my argument may be better explained by a different scenario. In a matter where a judgment sum or other res is expected to be held in lien by an independent third party pending the final judgment of the court; to what extent can the said party claim to be an independent third party where he decides to align with one of the litigants in the suit by filing a claim or process that is on all fours with that of the other party? Would any lawyer worth his onions truly be comfortable with that state of affairs? This is the similitude of most of the processes and actions taken by a good number of INEC counsel in election petition proceedings. Nothing justifies the prevailing practice whereby INEC counsel align with or engage in unholy cahoots with counsel to political parties and their candidates at the tribunal or court.

I have been involved in the practice of election petitions for over two unbroken decades. This is long enough a period for me to know and be able to speak about what goes on or go down at the tribunal and courts. To express it mildly, what is on offer, in terms of professional conduct, by most of our colleagues who prosecute INEC’s briefs, sorely beggars belief! It is no wonder that their Lordships of the Supreme Court in INEC v. Yusuf (2020) 4 NWLR (Pt. 1714) 374 expressed surprise that INEC put up itself as the appellant even though it “ought to be a neutral party in this contest.” The court deprecated the actions of the electoral body in that case as being in the similitude of a paid piper desperate to dictate the tone. See also INEC vs. Jime & Ors. LPELR-48305 (CA).

As practitioners of the profession of law, we must desist from deliberate acts and actions calculated at violating these neutrality clauses. The time to elevate our fidelity to the law and obligation to the attainment of justice as well as to a just and egalitarian society over the duty we owe our politician-clients is now.

Additionally, senior members of the profession, on whom the rank and dignity of the rank of Senior Advocate of Nigeria have been conferred, should and ought to be conscious at all times, but more particularly when prosecuting or defending election related matters, of the sacred Oath they took upon being granted the liberty to sit and practice at the Inner Bar of our courts, i.e., to faithfully serve the interest of Nigeria by supporting and upholding the Constitution. Our conduct, in and out of court, must promote and not degrade or abuse this Oath.

Let me conclude with an appeal to the Bench that in sitting to adjudicate on all such matters in contemplation here, the need for it to exercise in full swing the mastery of its proceedings is imperative. This is so, not just as a bounden duty foisted on it by the law, but also as a means to curb the excesses of influential members of the bar who flaunt their privileged position as an antics to intimidate the Bench.

May God bless the legal profession and bless the Federal Republic of Nigeria.