Supreme Court judge, Justice Helen Ogunwumiju, has challenged law lecturers on the need to do more to improve the quality of judgments through constructive criticisms.
Ogunwumiju gave this advice while delivering a lecture organised by the Faculty of Law, University of Lagos (UNILAG), in honour of academic staff members who got new appointments or rose to new positions recently.
According to her, legal academics are well placed to offer useful suggestions for reforms through academic papers, legal opinions and other critical interventions.
Given that academic writings contain information, arguments and opinions relevant to decision-making, Ogunwumiju noted that a large volume of academic writing should be especially directed at judges suggesting and sometimes criticising decided cases.
On whether judges should take judicial notice of legal research findings, Ogunwumiju said the nature of law “is transformational. The work of lawyers in the Ivory Tower, which is based on research, can assist judges in gaining awareness of the underlying reasons why some decisions must be made and offer useful suggestions for reform.
“No principled approach to decision-making can ignore the contributions of academics, who had over time analysed and done research on the subject matter.
“Academic papers can persuade us out of our set positions. After all, the law is a living thing and must be expanded to fit in with the times.
“What I find useful is an academic commentary which assembles and rationalises judicial decisions in a given field of law, draws out the general principles that these judicial decisions imply, criticises the judicial decisions and suggests different approaches were necessary to that particular area of law.”
“There is a vast difference between legal opinion and legal analysis. The judge may agree with the legal analysis of a legal problem, but not necessarily agree with the opinion of the academic to resolve judicial conflict. In the end, judges decide the live issues in controversy between persons with conflicting interests.
“We need the academics who have no reason to be in favour of or against a decision and who are not worried about the repercussions of expressing their full reviews to speak up to energise the system.
“When judgments are good, they are supposed to commend the judges, and when judgments are per incuriam, they are supposed to criticise the judges.
“The academics should compare the judgments with the antecedents, precedents, the common law position, the current statutory innovations around the world and come up with a conclusion as to whether the judgment is reasonable, whether the position of the law needs to be changed, and suggest directions for change. No legal position is set in stone. Law must be stable, but not stand still.
“Just like other social service providers, judges must be receptive to fair comments and fair criticism. We are ready to learn from law journals. In other jurisdictions, there are the Cambridge Law Review and the Harvard Law Review, which are highly respected law journals.
“I don’t see why a UNILAG Quarterly Law Review journal is not in existence, and if it is, why it is not a respected and powerful tool of assessment and review of judgments of our superior courts.
“The opinions in the reviews can be cited as persuasive authorities to entrench or shift some positions, particularly at the Supreme Court, which is a policy court. Academic lawyers have more time and resources to do deeper research and avail us of their work.
“There is no reason why 10 or 15 of my judgments on substantial issues of law should not have been analysed by academics to know what type of justice I will be.
She stated that none of the justices of the Supreme Court-appointed last year spent less than 10 years at the Court of Appeal.
The academic community should have been able to say: ‘Ogunwumiju is likely to be a conservative or a liberal justice of the Supreme Court’.
“The review of past work of justices considered for appointment should be the academic contribution to move the justice system forward, instead of going on the morning show to criticise us.
“This also can help the National Judicial Council (NJC) make an objective assessment of our work with a view to knowing who is worthy of elevation.”
In his remarks, the Vice-Chancellor, Prof Oluwatoyin Ogundipe, represented by the Deputy Vice-Chancellor (Management Services) Prof Lucian Chukwu, hailed the faculty for making the university proud.
“The Faculty of Law has always been known for excellence,” he said. “This is a call to action. The university will support the faculty in its bid to grow from excellence to distinction.”
Speaking at the occasion, Vice President Yemi Osinbajo (SAN), represented by Deputy Chief of Staff to the President, Mr Ade Ipaye, who also taught law at the university, chaired the event
Ipaye said: “I feel great joy that the faculty retains its pride of place among peers in Africa, produces the best and attracts the best. I am thrilled that some former colleagues are now at the apex of their careers.” Eminent law teacher, Prof. Taiwo Osipitan (SAN), who has been teaching at the faculty for over 20 years, noted that some judges do not welcome criticism.
He praised Ogunwumiju for her “large heart” and promised that academics will continue to do their bit in the development of the profession.