Being paper delivered by Hon. Justice Abiodun A. Akinyemi (Judge of the High Court of Ogun State, Abeokuta) at the maiden edition of the Physical Distinguished Personality Lecture Series of the Faculty of Law, Redeemers University, Ede, Osun State on Tuesday, February 27, 2024.
“Sentiment commands no place in judicial deliberation for if it did, our task would be infinitely more difficult and less beneficial to society.” OBASEKI JSC, in EZEUGO V ONHANYERE (1975) 6-7 SC, 17 @ 184.
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I have heard of a book by the title: ‘HOW JUDGES THINK’ by Richard A Posner, a highly regarded former Judge of the United States Court of Appeals for the Seventh Circuit. The title excited my curiosity immediately I learnt of it. Unfortunately, I have not been able to lay my hands on it. However, the ever-increasing gap that exists between public perception of court judgments and the reasoning of the judges who give these judgments, especially in recent times with regard to post election cases in Nigeria, has also aroused my keen interest in the subject of judicial thinking.

Consequently, when I was approached to deliver this lecture and further given the privilege to pick a topic of my choice, it did not take me more than a few minutes to come up with the topic that we are discussing here today: HOW JUDGES THINK- (An Insight into Judicial Reasoning). Although I have not read his book, I give credit to Judge Posner for the title of this lecture.

What you will be hearing or reading, are mostly borne out of my own personal experiences and observations in the last twenty years as a trial judge of the high court. It may not be entirely representative of all judges, particularly appellate justices, but I have a strong feeling that a few colleagues will agree with some, if not most of my views. I have tried not to be too technical or theoretical in my approach to the subject. As a trial judge, I confess that these are the things that guide my thinking in deciding cases.

Disconnect Between Public Expectation and Judicial Reality
THE expressions of discontent by members of the public with court decisions transcend time and jurisdictions, though the attributable reasons may differ from place to place. In some places, including well advanced democracies, it is fueled by accusations of political, religious or even racial bias against judges. In others, particularly in less developed democracies, it is founded on allegations of external or extra-judicial interference, judicial corruption and incompetence of judicial officers. Even on occasions or in climes where no allegations of bias, corruption or incompetence are made, court judgments are still derided just because they are not in tandem with public opinion or popular expectation.

This was the case even with the great Lord Denning Master of the Rolls, whose judgments were on many occasions criticized not only by the public, but also his own peers, despite his acclaimed exceptional brilliance. On one occasion after he had discharged some Welsh students charged with contempt of court, one commentator irked by his decision called him ‘you lousy coward’. Another said to him ‘You ought to resign’. (Lord Denning, The Due Process of Law page 11). Ironically, some of the audacious decisions and legal principles propounded by him and for which he was lampooned, later became ‘locus classicus’.
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In our country in recent times especially in post-election matters, public commentators, (sadly, including some members of the legal profession), have lampooned judges (including eminent justices of the appellate courts), calling them all manner of derogatory names, because they found some of their decisions disagreeable.

Acting on the premise of information bandied in social media, but never proved before election tribunals and courts, public commentators accused judges of all manner of perceived compromises. While some of the condemnations were borne out of mischief, others were obviously as a result of ignorance – a lack of understanding of how the judicial process works. I recall an occasion many years ago. I had sentenced a defendant to some years of imprisonment for stealing, as prescribed by law. A few days later, my wife and I were returning from church on a Sunday when we switched on the car radio. A phone-in programme was going on and they were discussing the facts of a case that was interestingly sounding familiar to me. Alas, it was the case I had recently decided. Both the hosts and phone-in guests abused and called the trial judge (me) all kinds of names.

Their grouse was why should this lady who only stole a little less than N20M be sentenced to 7 years in prison when politicians who stole billions of Naira were either walking scot-free or getting ‘slap-on-the-wrist’ sanctions. One contributor said it must be that the lady had refused to bribe the judge. Another said he was sure the judge too must be a thief, so why should one thief punish another thief!

None of them bothered to raise the issue of what exact sanction the applicable law prescribed and whether the judge had acted outside the law or not. They were not even concerned about the fact that the defendant had abused her fiduciary position. All they were bothered about was that the judge was wicked and harsh and must have so acted because he was not bribed.

While not waiving aside all criticisms of court decisions as unfounded, I am of the firm view that a better understanding of the nature of the judicial process, especially regarding how judges think in arriving at their decisions, will be helpful in reducing the gap between public perception and the reality of judicial activity.
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The nature of a Judge’s duty
THE duty of a judge is to resolve disputes between contesting parties who bring their disputes before him for adjudication. In so doing, he is said to dispense justice. And in dispensing justice, he must act according to law. This is referred to by the expression ‘Justice according to law’. It requires that he be fair to all parties, treat them equally, give everyone a chance to be heard, and determine their rights based on the evidence presented by them, in accordance with the prescribed law. His objective is to discover the truth of the case as between the parties, for hiding somewhere between them, is the truth. It is for him to unravel it. However, his search for the truth must be confined to the physical evidence presented before him in court, not outside the court. Not being a Seer, Prophet, Psychic or Diviner, he cannot consult spirits or a crystal ball to discover who is lying and who is telling the truth. He is also not a magician who can simply wave his wand to conjure the truth.

The manifestation of his Priesthood in the Temple of Justice is limited to an evaluation of the legal processes filed by the parties, the admissible evidence presented by them in open court, the arguments and legal submissions of their respective counsel, and the relevant laws to the case. These are the only materials his ordination permits him to rely upon, in producing a ruling or judgment that determines the parties’ rights. The only other factors that are permitted to impact the case and influence his decision are his own learning, wisdom, conscience and integrity.

As an umpire, he must ensure neutrality, fairness, and balance between the parties. In the discharge of his duty, especially at the crucial stage of judgment writing, his mind will hear several ‘voices’ speaking. But he must not listen to all of them, if he must do justice according to law. The only voices he must listen to are the voices of the parties during testimony, their counsel speaking through their briefs of argument, fellow jurists, dead or alive, speaking through decided cases, the voice of the applicable law(s), and most importantly, the voice of conscience. His own conscience. He must firmly resist and reject other voices, lest they cause him to err.

The Judge’s Mindset
IN deciding cases, judges have a unique mindset different from non-judges.
The lawyer’s mindset is to win a case for his client at all cost and by any means. In theory and by training he is a minister in the temple of justice, but in reality, the only justice he seeks and pursues is judgment that favors his client. He is therefore an interested party, motivated by personal gain. The mindset of an academic lawyer is of the law not only as it is, but also as it ought to be, hence, he thinks beyond the narrow compass of a case – a forbidden foray for a judge.
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The mind of a public commentator is influenced primarily by what his audience wants to hear because he doesn’t want to lose them. So, even while sincerely commenting on a case, he is conscious of the need to retain his audience. In addition, he may not have read the judgment, basing his comments only on media reports and gossips. The ordinary folk or proverbial reasonable man’s mindset is a product of sentiments (tribal, religious and political), combined with social media misinformation.

On the other hand, the judge has no interest to foster in the case other than to see that justice is done. His thinking is therefore unaffected by considerations that are not altruistic. Being concerned only with the facts before him and the relevant law as it is, rather than as it ought to be, he leaves academic or hypothetical questions for academics to deal with. He has no audience to strive to retain, unlike the public commentator. When he thinks about the case, he thinks only within the context of the facts in evidence, rather than the facts in social media or the public space. His decision must not be whimsical or influenced by what he knows personally of the case outside the courtroom or by personal bias or sentiment. He appraises the case only as presented by the parties before him, and applies the law to it as it is, irrespective of the result.

Public approval or disapproval has no place in his thinking process for he is called to dispense justice according to law, and not according to public opinion. A judgment may attract public applause, yet be wrong in law. That is a bad judgment. On the other hand, a judgment may perfectly meet the justice of the case as presented before the court by the parties, satisfying all necessary legal requirements, yet meet with public disapproval. That is a good and sound judgment. While justice and public opinion may coincide, they don’t necessarily have to, for justice to be done. In every case, the judge is primarily called to do justice to the parties before him, not the public. If in doing justice to the parties, it rubs off positively on the rest of society, it is a good thing. And if not, it is still a good thing. Unless and except in public interest litigation where the society at large or a segment of it, has a direct interest in the cause. The mindset of a judge therefore, is to do justice to the parties based on the materials placed before him by them, evaluated and measured by and within the confines of the applicable laws.
TO BE CONTINUED.
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