Ethical Questions With Respect To The Alleged Legal Representation Of Accused Person By Muiz Banire SAN, AMCON Chairman

The PUNCH reports few days ago via a link https://punchng.com/alleged-n209m-fraud-buharis-appointee-defends-suspected-fraudster-in-court/ that Mr. Muiz Banire (SAN), has been actively representing a suspected fraudster in court while still serving as Chairman of the Asset Management Corporation of Nigeria. However, the publication is still available at http://www.barristerng.com/is-it-unethical-for-a-buhari-appointee-to-defend-a-person-accused-of-fraud-in-court/.

According to the report, the Economic and Financial Crimes Commission had on November 4, 2019 arraigned one Samusideen Sarumi, owner of 606 Autos Limited, 606 Music Limited and Splash Off Entertainment Limited, before Justice Chuka Obiozor of the Federal High Court sitting in Ikoyi, Lagos. The accused was arraigned on three counts bordering on felony to commit money laundering and money laundering to the tune of N209m.

The Executive Director, Centre for Anti-Corruption and Open Leadership, Debo Adeniran, was also reported in the above links to have said that Banire’s action was unethical and at variance with the mandate of AMCON which is to recover bad debt and prevent economic sabotage.

Adeniran said,

“I believe it is contradictory for him to do this especially since Banire is the chairman of AMCON board. He is supposed to recover debts and probe those causing debt to pile up especially debts incurred through fraudulent means.

“I believe despite the fact that it is a professional calling that a lawyer can defend anybody, there is a moral angle to it that you cannot appropriate and reprobate at the same time. If you are defending the masses, you cannot also defend those making the lives of the masses to be unbearable.

“I believe that Banire is a moral person and he is very decent and conscious of his public image and he will do the right thing.”

From the foregoing, Mr. Adeniran’s criticism is based on two premises:

1. Muiz Banire’s representation is unethical and
2. The representation is also immoral

In reaction, the learned silk says:

“It is ignorance on the part of the sponsors of the write up. Let someone educate them that only the court can pronounce someone guilty. Secondly, A legal practitioner is under obligation to defend anyone alleged to have committed crime except he chooses to opt out. Thirdly, educate them that I am not employee of government and can never be again in my life. I am just a part time chairman of the governing board that meets nine times a year. I earn no emoluments from the Agency. That a platform of this stature will feature this kind of write is worrisome. Even conventional media ran away from such sponsored useless write up.”

Ethical View of the Legal Representation

To see whether the representation by Mr. Muiz Banire is ethical or not, one has to make recourse to the provisions of the Rules of Professional Conduct (RPC), 2007. The section which seems relevant provides as follows:

8. —– (1) A lawyer, whilst a servant or in a salaried employment of any kind, shall not appear as advocate in a court or judicial tribunal for his employer except where the lawyer is employed as a legal officer in a Government department.

(2) A lawyer, whilst a servant or in a salaried employment, shall not prepare, sign, or frank pleadings, applications, instruments, agreements, contracts, deeds, letters, memoranda, reports, legal opinion or similar instruments or processes or file any such document for his employer.

(3) A director of a registered company shall not appear as an advocate in court or judicial tribunal for his company.

(4) A lawyer in full-time salaried employment may represent his employer as an officer or agent in cases where the employer is permitted by law to appear by an officer or agent, and in such cases, the lawyer shall not wear robes.

(5) An officer in the Armed Forces who is a lawyer may discharge any duties devolving on him as such officer and may appear at a court martial as long as he does so in his capacity as an officer and not as a lawyer

The above provision is obviously inapplicable to the instant case, Banire, SAN is representing a private individual, not his employer. However, paragraphs 1 and 2 of the 5th schedule of the constitution of the Federal Republic of Nigeria, 1999 which shall henceforth be referred to as the constitution and sections 5 and 6 of the Code of Conduct Bureau and tribunal (CCBT) Act appears relevant and applicable. Paragraphs 1 and 2 of the 5th schedule to the constitution which are in pari materia with the aforementioned sections of the CCBT Act provide as follows:

“1. A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.

2. Without prejudice to the generality of the foregoing paragraph, a public officer shall not–

(a) Receive or be paid the emolument of any public office at the same time as he receives or is paid the emoluments of any other public office; or

(b) Except where he is not employed on full times basis, engage or participate in the management or running of any private business, profession or trade but nothing in this sub-paragraph shall prevent a public officer from engaging in farming.” (Underlined for emphasis)

The community construction of the provisions of paragraphs 1 and 2(b) of the 5th Schedule (supra) and sections 5 and 6 of the CCBT Act is that a lawyer in public service shall not engage in private practice except if he is not occupying the office on full-time basis.

The question now is can we say that Banire, SAN, the Chairman of the Asset Management Corporation of Nigeria is ipso facto a public officer? The learned silk said he is not an employee of the government as he doesn’t receive an emolument from them. Is this excuse solid enough to stand? Is emolument a determinant factor as to whether a person is an employee or not? Section 318 of the constitution defines the phrase “Public Service” to mean “the service of the Federation in any capacity in respect of the Government of the Federation…” and it includes (c) member of staff of any commission or authority established for the Federation by this Constitution or by any Act of the National Assembly and staff of any statutory corporation established by an Act of the National Assembly

Furthermore, paragraph 14 of part II, 5^th schedule to the constitution defines public servants to include “Chairman and members of the Boards or other governing bodies and staff of statutory corporations and of companies in which the Federal or State Governments or local governments councils.

AMCON is a body created by an Act of the National Assembly to be a key stabilizing and re-vitalizing tool aimed at reviving the financial system by efficiently resolving the non-performing loan assets of the banks in the Nigerian economy, during the global financial crisis. It is therefore our view that he is actually a public officer who ordinarily cannot do private practice, but because he is not occupying that office in full time basis, he can offer legal representation in court for private persons by reason of paragraph 2b of the 5th schedule to the 1999 constitution

Moral Side of the Issue

By virtue of Section 36(5) of the Nigerian Constitution 1999 (As amended), every person is presumed innocent and by section 36(6) thereof such an accused has the right to have a legal practitioner of his own choice. The section provides thus:

“Every person who is charged with a criminal offence shall be entitled to (c) Defend himself in person or by, legal practitioner of his own choice”

By the above provision, a lawyer may not be in a position to judge the guilt or otherwise of an accused person. Further to that, the ethics of the Legal Profession imposes a duty on a lawyer to accept any brief. The duty of counsel as provided under this rule is otherwise called the Cab Rank Rule. This name is derived from the belief that the legal profession is like a Cab Rank where the cab driver is compelled to take whichever passenger boards his vehicle once it is his turn on the rank, regardless of the race or pedigree of the passenger. For the avoidance of doubt, Section 24 of the Rules of professional Conduct (R.P.C) regulating Legal Practice provides as follows:

”It is the duty of a lawyer to accept ANY brief in the court in which he professes to practice provided the proper professional fee is offered unless there are special circumstances which justify his refusal”

The rule was added into our legislation based on the decision of Lord Denning in a the greatest proponents of legal ethics and advocacy, Lord Denning MR in the case of Rondel v. Worsley (1967) I QB 443 thus:

“No matter the basis of the complaints of the cause of your crime, no matter how unpopular is the cause of your crime, no matter how bad is the cause of your crime, the legal practitioner has a duty to take up the cause, if he’s properly briefed and provided that person represents his client within the bounds of law”

The above was cited with approval by the Court of Appeal in Free Ent (Nig) Ltd v G.T.O.S.A (1998) 1 NWLR (Pt. 532) Pg 1 @ 21-2 Paras. E – C, per Per Onalaja JCA

Exceptions to this rule, however, is that a lawyer may refuse to accept brief if special circumstances exist, this can be ; Religious Ground, Personal Interest, Conflict of Interest, If He’s going to be a witness in the case, Non-Payment of proper professional fee, If He is a party in the case or If he is not competent in such area.

We, therefore, hold the view that on the premise of moral angle, the learned silk was not in error in accepting the brief by reason of presumption of innocence and the Cab Rank Rule. We submit further that he did not in any way run foul of either the constitution or any other law/rule when he accepted the brief and defended the accused person. His action is justified by paragraph 2b of the 5th schedule to the 1999 Constitution, which is the Supreme Law of the land.

TheNigeriaLawyer Editorial