By HW Emmanuel J. Samaila, Esq
Sections 89 & 90 of the Kaduna State Penal Code 2017 (as amended) provide for two offences which arguably relate to actions of judicial officers in the course of discharging their duties. The Marginal Notes of the Sections are: Public Servant in Judicial Proceedings Acting Contrary to Law (s.89) and Wrongful Committal or Confinement by Public Servant (s.90) respectively.
Section 89 provides that:
Whoever, being a public servant knowing that he is likely to cause injury to any person or intending unlawfully to give any person an advantage, makes or pronounces in any stage of a judicial proceeding any report, order, judgment or decision which he knows to be contrary to law, shall be punished with imprisonment of not less than Two Years or with fine of not less than One Hundred Thousand Naira or both.
Similarly, section 90 provides:
Whoever, being a public servant authorised by law to commit persons for trial or to confinement or to keep persons in confinement, commits any person for trial or to confinement or keeps any person in confinement:
(a) knowing that he is acting contrary to Law; and
(b) knowing that he is likely to cause injury to any person or intending unlawfully to give any person an advantage;
shall be punished with imprisonment for a term which shall not be less than Five Years or with fine of not less than One Hundred Thousand Naira or both.
The mens rea common to both offences is that the public servant acted “contrary to law” while the actus reus is the fact that a person has been incarcerated at his order.
The Black’s Law Dictionary (8th ed.) defines the expression “contrary to law” as “Illegal; unlawful; conflicting with established law.” Will a decision given per incuriam not qualify as “conflicting with established law” to prove that an action is contrary to law?
A successfully established prima facie case shifts the burden of disproving this particular fact to the defendant and therein lies a booby trap.
If the public servant should admit that he acted contrary to law, he will be admitting guilt for the offence charged.
However, if he decides to plead “Not guilty”, will he not be exposing himself as someone who does not know the law? Of course, God forbid that a lawyer should know all the law as Lord Denning said. Be that as it may, the principle of ignorantia juris non excusat will apply.
However, will it not be unheard of that a public servant, especially a lawyer, will attempt to argue that he does not know the Law, especially if it is something elementary or an issue that given his number of years post-Call and or on the bench, he ought to know in order to occupy that office?
It is noteworthy that the immunity a Judge enjoys does not extend to acts done ultra vires or mala fide. See Section 15 of the Customary Courts Law 2001 (as amended). I believe that a similarly worded provision exists in other statutes establishing a Court.
A Judge’s surest bet, under the circumstance, is to avoid acting contrary to law and be circumspect in discharging his duties. This he may achieve with ease by seeking guidance from more experienced colleagues (when he is in doubt about how to proceed) before taking a course of action.
More importantly, he should continually update himself on the position of the law, especially in the area of his jurisdiction. This will enable him to be a master of the laws, procedures and precedents relevant to the discharge of his duties.
HW Emmanuel J. Samaila, Esq – Upper Customary Court, Kaduna State. Email: samailaemmanuelj@gmail.com