Are Lawyers Not Interested In Litigation Being Justified? Abdulrasheed Ibrahim

I used to wonder when some lawyers complained of not having interest in litigation or courtroom practice. I kept wondering what they were talking about. Why must a person who studied very hard to qualify as a lawyer and was subsequently called to the Nigerian Bar expressed disgust for litigation or the courtroom practice? Is it not part of the lawyers’ trainings to defend clients in court when the situations arise? Although in one of my previous articles titled: IS THERE CONSIPRACY TO CHASE LAWYERS OUT OF BUSINESS? I quoted Dr. Omoniyi Adewoye in his book titled: THE LEGAL PROFESSION IN NIGERIA (1865-1962) published in 1977 as follows: “Law is a versatile profession. The lawyer may be a judge, a teacher of law in a university, a company director or secretary to the company, a civil servant and an office holder in any other capacity, a solicitor preparing documents or entering into negotiations on behalf of his clients. The most popular thing he can do in Nigeria is, of course, advocacy-appearing in wig and gown before the English-type court of law to defend a client in a civil suit or on a criminal charge brought against him, or, in other circumstances, to press the client’s right at law” This “most popular thing he (lawyer) can do in Nigeria” to borrow from the words of the learned Doctor is becoming something else which one may say is responsible for the position taken by those who have expressed disgust for the courtroom practice. What many lawyers experience in court or have gone through have made many to bid farewell to the courtroom practice even those who have earned the silks. Some lawyers have confessed that they only remain in practice today because they are yet to get something else, as fat briefs are not easy to come by. The most popular of Dr. Adewoye’s options still remain relevant today because those others options are not easy to come by. From my own personal experience, I can say those lawyers who have expressed disgust for litigation or lack of interest in the courtroom practice are truly be justified .What will be your feeling having woke up on several occasions before the cock-crow to prepare for court particularly outside the jurisdiction of your practice only to get to the court and you are told the court will not be sitting or your case will not go on because the presiding judge has a meeting to attend? Let me share an experience that pains me to the bone with you. Sometime in January 2016, a client who was fed up of the marriage with his wife and wanted to avoid the common incident of “wife kills husband or husband kills wife” instructed me to file a Divorce Petition for him. According to him he preferred the matter to be file in Ogun State as he wanted the proceedings to be concluded within a very short time as Lagos Court being the busiest. Towards end of that month, we eventually filed the matter at one of the Judicial Divisions in Ogun State. The Respondent was served with all the necessary court processes but chosen not to file anything in response to the petition. Sometime the Respondent made herself available in court. The matter was heard as undefended and the court ordered us to file the Petitioner’s Final Address which should not be more than two pages. We complied and served the Respondent. Subsequently, adopting the Petitioner’s Final address before the court then became an uphill task as we were being given date after date to come for the adoption by the Registrar of the court who while the court was sitting would come to me that we have been asked to take another date that the matter would not go on. At a stage the Respondent came with a lawyer who said he had just been briefed by the Respondent to defend her. I did not object to my learned friend’s application to court to file necessary processes. Respondent’s counsel eventually filed their Answer to the Petition as well as Cross Petition to which we again filed our Reply and Answer to the Cross-Petition. Therefore the stage was set for the re-trial as defended suit and a trial date was fixed. For about three or four appearances by the parties and we, their counsel, the trial was not conducted at the instance of the court as while the court was in session and our matter not called, one of the Registrars would just walk up we the counsel respectively to inform us that our matter would not go on and that we should agree on a date. On one of these occasions, I had to stand up and apology to the court for interrupting the proceedings to bring to the attention of the court to what the Registrar usually told us whenever we came for the matter as he also did that same day, so as to get the confirmation from the court. The reaction of the presiding judge was not friendly at all and said what further confirmation did I want. We took the date given to us by the Registrar and the parties and their counsel left the court. Sometime in month of May this year, the parties and their counsel were again before the court and as usual the Registrar again came to us while the court was sitting that the matter would not go on and gave us a date in the September to come back for trial. On the said date, the Petitioner and I on our way to court were trapped in a traffic when the counsel to the Respondent called me that he was already in court but our matter was not listed in on the course list. That when he asked the Registrar who asked for the Suit Number, he told him that the matter came up the previous week and was stuck out. I shocked on hearing this. My learned friend told me, he was about leaving the court and I told him we would get back to him later and hung up. When I got to the court with my client the court was still sitting and we proceeded to a nearly business centre to do a letter applying for the certified true copy of the ruling striking out the matter. After the court had risen, I approached the Registrar on the fate of our matter only to be told by him that he gave us a date for the previous week and not that day and that the matter had been struck out. I told him he was the one that gave us (both counsel) that very day and our clients (parties) were aware of that but he insisted he gave us the previous week. My question to him was that, was it possible for both counsel to have gotten the date wrong? I submitted my application to him for the CTC of the ruling but on reading the application, he rejected it that he would but process it because I have stated the very obvious in the application. He insisted I must remove the paragraph that indicted him in the application. Then there ensued cold war between me and the Registrar which led to the intervention of some lawyers and my client. I later left the place and asked my client to process the application. My client (the Petitioner) eventually obtained the CTC of the ruling and this is what the Learned Judge states: “Parties absent . No legal representation on either side Court: Both Counsel were in court when this case was adjourned till today for hearing. In the absence of parties and their counsel without any explanation to the court, this case is struck out. No application to re-list this case shall be entertained by this court. The petitioner is at liberty to re-file the case if he wishes to pursue it.” I was over-shocked when I read this ruling brought to me by my client. This was a divorce case we filed in January 2016 and ended up in September 2018 this way. In my years of practice, I have never seen this kind of ruling where a court is saying it struck out a case that is not determined on merit and that the court will not entertain an application to re-list but that the petitioner is at liberty to go and re-file. Any lawyer that has carefully followed this narration above will agree with me that the ruling itself is questionable. Why none of the parties or their counsel in court on the day the matter was struck out, if the matter was actually fixed for that day? If both counsel were in court when the case was adjourned for hearing as stated by the learned judge in the ruling, was it justifiable to strike it out the way it was struck out prior to the day it was actually fixed for particularly when it was clear that the Petitioner had been diligent in coming to the court? The fact of the matter was that the very day that the matter was said by the learned judge to have been adjourned for hearing and that the counsel were in court; the matter was not called in the open court and adjourned. The Registrar only approached both counsel to the parties and said the matter would not go on and gave us another date. If a judge is not interested in hearing a particular matter, will it be fair and just for such judge to strike out the matter and rule that he would not entertain any application to re-list the matter that was not determine on merit but that the claimant or petitioner should go and re-file the case if he wishes to pursue his claims? If I were a judge and am not interested in handling a particular case , the best I would do is to send it back to the Chief Judge, Head Judge or Administrative Judge for re-assignment to another judge. What makes the striking out of our case very painful was that for about 32 months that we were on the case, we woke up very early in the morning to travel all the way from Lagos State to Ogun State any day the matter was to come up in court all with the belief that the case will be concluded within a very short period. Despite all the ups and downs we ended up being awarded with the other side of justice. This is not without a lesson as Yoruba proverb will say that: “Ohu ti e wa losi Sokoto o wani sokoto” which may be translated as “what you are going for in Sokoto is right inside your trousers” In reality, is this kind of experience not sufficient to make one losses interest in the courtroom practice? All we need to do is to continue to appeal to those judicial officers who are making courtroom practice discouraging for change of attitude. Incessant refusal to sit or hear cases by judicial officers without justification or previous notices to counsel appearing before the court are among the attitudes that need to be done away with. If I were a judge and I know that I would not be sitting on a particular day ,I would direct my Court Registrar to get across to all lawyers already scheduled for that day through either phone call or text message that they should not bother to come and new date given to them. There are judges who have adopted this system and they must be commended for it. It will be very unfair on the part of a judge to counsel allowing them to run to the court only to be told that their cases will not go on or the court will not be sitting, the judge having known that he would not sit and will not attend to some cases. As I said earlier, if a judge is not interested in hearing a particular case, he must not hesitate to make this known earlier to the parties. This is one of things that made the good judges of those days very unique. It was written in the book LEGAL LUMINARIES about the late Hon. Justice J.I.C. Taylor, the first Chief Justice of Lagos State that : “Justice Taylor was such a wonderful judge that a case once came up before him wherein the name of the plaintiff was Taylor ( his namesake) and Justice Taylor asked the plaintiff when the parties were before him whether he knew him and plaintiff’s answer was in negative. Justice Taylor said he would not handle the case but would transfer it to another judge which he actually did.” Our judicial officers must always bear in mind that whenever they are sitting on cases, the attention of everyone in court is focus them to see how reasonably the justice is being dispensed. Lord Denning, the late great eminent English Jurist in his “The Road to Justice” rightly put it thus when he said that : “Justice has no place in darkness and secrecy. When a judge sits on a case, he himself is on trial”. REMARKABLE PRONOUNCEMENT ON DUTY OF JUDGE TO LAW “It is the duty of the judex to expound what the law is and we should loyally follow the doctrine of stare decisis. Our problems as judges should and must not be to consider what social and political problems do today require, that is to confuse the task of a judge with the task of a legislator. More often than not, the law, as passed by the legislators, has produced a result which does not accord with the requirements of today. Let that defective law be put right by legislators but we must not expect the judex, in addition to all his other problems, to act as Lord Mansfield did, and decide what the law ought to be. In my humble view, he (the judex) is far better employed if he puts himself to the much simpler task of deciding what the law is.” Per ADEREMI , JSC in Dapianlong Vs. Dariye (2007) 4 SC (Pt. 111) Pgs. 216-217 Paras 35-40, 5 THE SETTLED PRINCIPLE OF LAW On effect of failure to judicially exercise court discretion“It is well established principle of law that all judicial discretion must be exercised according to common sense and according to justice and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal court to have it reviewed.” See J.A. Odutola Vs. Inspector Kayode (1994) 2 SCNJ 21; NDABA (NIG) LTD Vs. ORABKWE (2003) FWLR (Pt. 171) Pg. 1712 Para F For more Settled Principles of Law and Remarkable Pronouncements from our Supreme Court Jurists from 1956-2016, obtain or order for your copies of LAW PRACTICE KIT and LEGAL LUMINARIES. Call or text 08055476823, 08164683735 or email:rasheedibraheem68@yahoo.com. Your library is incomplete without these books.]]>