Permanent Public Office Holding Bar On Pauline Tallen: Was The Court Right?
By Adeniji Kazeem, SAN
Background of the Case
On December 14, 2022, the NBA filed a lawsuit against Dame Pauline Tallen, reacting to her comments criticising a Federal High Court judgement as a “kangaroo judgement.” The NBA’s contention was that such comments were not only derogatory, but also undermined the authority and sanctity of the Judiciary. This lawsuit resulted in a High Court ruling on December 18, 2023, barring Dame Tallen from holding public office unless she retracts her statement and publicly apologises.
To properly analyse the subject of this piece, which refers to whether the court was right in its judgement to permanently bar Dame Pauline Tallen from holding a public office, certain questions must find their answers, some of which are:
- In what capacity was Dame Pauline Tallen sued?
- The Nature of Tallen’s Statement?
- Is the court a legal person (strictu sensu or figuratively) capable of being hurt by such remarks?
- The locus of the NBA to institute an action.
- The propriety and effect of the consequential order made by the court.
In What Capacity was Dame Pauline Tallen Sued?
In determining the capacity in which Dame Pauline Tallen was sued, it is important to mention briefly that, she was a Minister serving in the Government at the time the cause of action arose, and thus, the primary question is as to whether that made her a public officer within the context of Nigerian law. To fully appreciate the status of Dame Pauline Tallen as a public officer, it is pivotal to reference the legal framework that circumscribes the term ‘public officer’ in Nigeria. The Constitution of the Federal Republic of Nigeria, 1999, as amended, provides a broad definition of public officers, inclusive of individuals occupying official positions within the government, either by election or appointment. This definition aligns with the principles set forth in Stitch v AG Fed & Ors, where a Minister, akin to the role held by Dame Pauline Tallen as the Minister of Women Affairs and Social Development, is unequivocally deemed a public officer. This designation arises from the legislative mandate bestowed upon such individuals, to exercise public discretion impacting citizens. As a support to the assertion, the court in Obot v Aondoakaa held that the Constitution explicitly categorises the Attorney-General of the Federation as a public officer. By analogy, this categorisation extends to other ministerial positions, thereby encompassing Dame Pauline Tallen within its ambit.
Having laid the foundation for our analogy by clarifying the status of Dame Pauline Tallen, it is then incumbent on us to determine the legal nomenclature to be given to her remarks.
The Nature of Tallen’s Statement
Dame Pauline Tallen’s characterisation of the court’s judgement as a “kangaroo judgement”, stands at a complex intersection of defamation law and the principle of freedom of expression. Under Nigerian law, defamation involves a statement that unjustly harms the reputation of another. The pivotal legal framework can be understood through the lens of the case Sketch & Anor v Ajagbemokeferi (1989) LPELR-3207(SC), which established three tests for determining defamation: 1) exposure of a person to hatred, ridicule, or contempt; 2) causing a person to be shunned or avoided; and 3) having a tendency to injure a person in their office, profession, or trade.
Applying these principles, Tallen’s statement could be construed as defamatory if interpreted as such (as it was) to the court’s standing in the eyes of the public, thereby exposing it to ridicule or contempt. As courts are integral to the administration of justice, disparaging comments aimed at undermining their authority could potentially injure their reputation and integrity, fulfilling the third criterion of defamation as outlined in Sketch & Anor v Ajagbemokeferi (Supra).
However, assessing the defamatory nature of Tallen’s statement also necessitates considering the scope of freedom of expression. In Nigeria, this freedom is constitutionally protected, but not absolute, especially when it impinges upon the reputation and functioning of critical institutions like the Judiciary (see Section 45 of the Constitution). The balance between freedom of expression and protection against defamation is delicate; while individuals have the right to express dissent or criticism, this right does not extend to making unfounded and damaging allegations, especially against a judicial entity.
In the context of defamation law, the statement in question must meet the criteria of being false, published by a third party, and causing damage to the Plaintiff’s reputation. In Tallen’s case, her statement was publicly disseminated, and could be argued to have damaged the reputation of the court. Whether the statement is false or not would depend on a thorough legal analysis and the context in which it was made, which certainly is not the intent of this piece.
In essence, while Tallen’s freedom of expression allows her to criticise the court’s decisions, labelling the judgement of the court as a “kangaroo judgement” on the surface of it potentially crosses into the realm of defamation, by possibly failing the tests established in Sketch & Anor v Ajagbemokeferi (Supra).
It then becomes essential to determine if a court is a legal person, in the strict or figurative sense of being capable of being hurt or defamed.
Is the Court a Legal Person (strictu sensu or figuratively) capable of being hurt by such remarks?
Determining whether a court of law can be considered a legal person capable of being defamed, is a nuanced legal question that varies across jurisdictions. Generally, courts, as institutions, are not regarded as legal persons in the same way individuals or corporations are. However, this does not mean they are beyond the reach of legal protections, including those related to reputation and integrity.
In many legal systems, courts themselves cannot be Plaintiffs in defamation cases, because they are not considered “persons” in the legal sense. However, individual Judges or officers of the court can be subjects of defamation, if statements are made against them personally. The reputation and integrity of the judicial system are typically protected by other legal mechanisms, such as laws against contempt of court, which safeguard the authority and functioning of the judicial system.
For instance, in the UK, the case of Derbyshire County Council v Times Newspapers Ltd (1993) established that government entities, including local authorities, cannot sue for defamation because it would be an infringement on free speech, a principle likely applicable to courts as well. This ruling emphasises the importance of open criticism and discussion of public institutions, as a facet of a democratic society. Likewise, in the United States, while individual Judges can sue for defamation, courts, as institutions, are generally not seen as having the standing to do so. The emphasis is on protecting the individual reputations of judicial officers, rather than the court as an entity.
In Nigeria, while the courts themselves may not be seen as legal persons who can be defamed, there are provisions for protecting the dignity of the court, such as the offence of contempt of court. Criticising a court’s decision is permissible within the bounds of free speech, but making unfounded allegations that undermine the court’s integrity, may be seen as contemptuous in cases where the Defendant is a party to a matter before it, and in other cases, it may be seen simply as defamatory.
Pointedly, while courts are typically not considered legal persons that can be directly defamed, legal systems have established mechanisms to protect their integrity and authority, mainly through contempt of court laws and regulations governing the conduct of legal practitioners and public officers. These provisions ensure that while constructive criticism of court decisions is allowed, actions or statements that undermine the judiciary’s authority or impugn its integrity are not permissible.
As it is the pattern of this piece, it therefore depends on this piece to determine if the NBA has locus to institute the action on behalf of the court against Dame Pauline Tallen.
The Locus of the NBA to Institute an Action
The Legal Practitioners Act serves as a crucial statutory framework, within which the conduct of legal practitioners in Nigeria is governed. This Act lays the foundation for disciplinary actions against Lawyers who fail to uphold the ethical standards of the profession. The NBA, through its disciplinary committees, wields the power granted by this Act to enforce these standards, ensuring that the legal profession maintains its integrity and public trust.
The role of the NBA in maintaining ethical standards within the legal profession, is further supported by Nigerian case law. Significant precedents, such as the ruling in UBari v National Assembly (2015), have recognised and reinforced the NBA’s authority in disciplining its members, even in matters related to public statements. This case law solidifies the NBA’s position as a guardian of legal and judicial integrity, enabling it to take the necessary actions to uphold these values.
Moreover, the NBA’s initiation of legal action can be viewed through the prism of public interest litigation. Nigerian courts have increasingly acknowledged the role of legal bodies and non-governmental organisations in pursuing lawsuits that protect the public interest. This is particularly pertinent, in cases that involve the rule of law and the integrity of judicial processes. Such actions by the NBA demonstrate its commitment to not only serving its members, but also to advocating for the broader public good, especially in matters that concern the administration of justice and legal standards.
Hence, the NBA’s recent action against Dame Pauline Tallen can be seen as a form of judicial review. In this capacity, the NBA seeks to enforce legal and ethical standards within the Judiciary and among public officials. This approach is in line with the NBA’s overarching role in promoting the rule of law, and ensuring that public officers adhere to the highest standards of ethical conduct. By doing so, the NBA plays a crucial role in reinforcing the rule of law and maintaining the sanctity of judicial processes in Nigeria.
The Propriety and Effect of the Consequential Order Made by the Court
One of the decisions of the court, among other reliefs, is “an injunction restraining Dame Pauline Tallen from holding any public office in Nigeria, unless she purges herself of the ignoble conduct by publishing a personally signed apology letter to Nigerians and the Judiciary”.
The statement:
‘an injunction restraining Dame Pauline Tallen from holding any public office in Nigeria’
is what is often referred to as a consequential order.
The concept of consequential orders by a court is a fundamental aspect of judicial power, and is crucial in ensuring that judgements are effective and serve justice. Consequential orders are remedies or directions issued by a court, that arise naturally and logically from the rights and obligations determined in a judgement. These orders are essential for giving practical effect to the court’s decisions, and ensuring that justice is not merely symbolic but effective and enforceable. In Nigeria, the power of the courts to issue consequential orders is rooted in the Constitution, as well as various statutory provisions.
The 1999 Constitution of the Federal Republic of Nigeria grants the Judiciary the power to decide cases and controversies. Specifically, Section 251(1) empowers the Federal High Court to adjudicate matters connected with or pertaining to any act of the Federal Government. This constitutional mandate, inherently includes the power to issue orders necessary to enforce its judgements.
The scope of consequential orders must be directly related to, and flow from the main judgement. As established in Dahiru v Ahmed & Ors (2013) and Stitch v AG Fed & Ors, a court is authorised to issue orders that give full effect to its judgements. However, these orders must not be extraneous to the matters decided in the case. The principle of ‘dominus litus’, as noted in Gabdo v Usman, affirms that a Judge is in full control of their court, and can make necessary orders if they do not lead to a miscarriage of justice.
However, one must note that the principle of proportionality is crucial in issuing consequential orders. A court must ensure that such orders are not excessively punitive, or beyond the scope of the legal framework. This principle is particularly relevant in cases where the court imposes restrictions or penalties, as in the case involving Dame Pauline Tallen. In Amaechi v INEC, it was emphasised that courts have a duty to ensure justice is served. However, this duty must be balanced with the need to respect the separation of powers and the limits of judicial authority.
The Nigerian Judiciary is no stranger to issuing consequential orders that have implications, like that which was given in Tallen’s case. One case that rings a bell is the case of Obot v Aondoakaa, where the erstwhile Minister of Justice and AGF was permanently barred from holding public office, based on damaging ‘advisories’ he issued to litigants of a particular matter. Extensively, consequential orders have been utilised in various contexts, from electoral disputes to administrative actions. In each scenario, the courts have endeavoured to tailor their orders to the specific circumstances of the case, ensuring that justice is not only pronounced, but effectively implemented.
In the context of public office and the conduct of public officers, the courts have often had to grapple with the appropriate extent of their orders. While the courts are empowered to enforce ethical and legal standards, they must also respect the constitutional and statutory requirements and limits on disqualification from office. Applying this statement to the decision of the court in Tallen’s case, it may seem that there is a disconnect between the consequential order for permanent bar should the former Minister fail to tender apologies in two national dailies, on her statement, which appears to be one made by an average judicial critic. Tallen’s defamatory statement had no connection to her acting in her official capacity as Minister when compared to Mr Aondoakaa, who had used his office at AGF to downplay the integrity of the court system. Tallen simply made the statement as a political actor, and nowhere within the Code of Conduct for Public Officers, is a derogatory statement of a court’s judgement sufficient grounds for disqualification from public office.
This may be a classic case of judicial overreach.
There is no doubt that the court has inherent powers to assert its moral and constitutional burden to reprimand unscrupulous conduct, as it did in Governor, Ekiti State v Olubunmi (2017); however, such orders must be made within the bounds of constitutionality, without giving off the stench of having personal vendetta against political litigants.
Conclusion
The attitude of the Judiciary on an average day is to withstand all sorts of missiles in the form of criticism, opinions, and publications, to mention a few; hence, it, by principle and custom, rarely speaks out on issues nor defends itself. However, the power of courts to make consequential orders is a vital tool in the administration of justice. It ensures that court judgements are not merely theoretical declarations, but have practical impact. This power must be exercised with caution, respecting the principles of proportionality, due process, and the constitutional limits of judicial authority. The Nigerian Judiciary, through various case laws, has demonstrated an understanding of the delicate balance required in exercising this power, ensuring that justice is both effective and fair.
Adeniji Kazeem, SAN, Attorney-General and Commissioner for Justice, Lagos State (2015-2019)
