Executive Disobedience Of Court Orders: Why Attorneys-General Should Be Sanctioned By NBA

Executive disobedience of court orders in Nigeria has assumed a dangerous dimension with no end in sight. The instances of those disobedience to court orders are too numerous to be mentioned. However, just three would be mentioned.

Sambo Dasuki, former National Security Adviser (NSA), was the first ‘scapegoat’ of President Muhamadu Buhari’s anti-corruption campaign, having been arrested by the Department of State Services (DSS) in July 2015 – barely two months after the All Progressives Congress (APC) took over power – for allegedly embezzling the sum of $2.1 billion meant for the purchase of arms for the Armed Forces of Nigeria. He was granted bail six times by various courts, but the DSS had consistently refused to release him. The federal government gave reasons why it believes the former National Security Adviser, Sambo Dasuki, should not be granted bail. The Attorney-General, Abubakar Malami, said Mr Dasuki’s personal right can be violated for the larger public good. He accused Mr Dasuki of being responsible for more than 100, 000 deaths.

Ibraheem El-Zakzaky, leader of the Islamic Movement in Nigeria, also known as the Shi’ite Sect, and Zeenat, his wife, have had cause to take their cases courts but all their efforts yielded no result as they are still in detention up till date.

Just recently, the governor of Kano State in defiance of court order appointed new Emirs in Kano state. Quite unfortunate!

WHAT ATTORNEYS-GENERAL OUGHT TO DO

Attorney general is the chief law officer of a state or Federation and the legal adviser to the chief executive. The office is common in almost every country in which the legal system of England has taken root. In Nigeria the office is established pursuant to sections 150 and 195 .of the constitution of the Federal Republic of Nigeria, 1999 as amended.

The Attorney General is expected to know the law, enforce due process and advance the cause of justice. He is a technocrat, and that is why he must be a lawyer of not less than 10 years experience. Agreeably, a minister/Commissioner of the Government is basically a political appointee, exercising delegated authority as determined by his appointor – the President or Governor as the case may be. However, the Attorney General’s commitment should be strictly to the rule of law, he should not mix the law with politics, cherry-picking in the temple of justice, and politicizing the management of cases. We have enough anarchy in the country already; we do not need to extend the frontiers of anarchy by allowing government to break the law. The men of today should guard against setting dangerous precedents that could consume them and the country tomorrow. The rate at which institutions have been bastardized to pave way for recriminations and vengefulness is bound to bounce back negatively and our democracy will be worse for it.

Juxtaposing the foregoing with the realities on ground, the Attorneys-General have abdicated their duties, the Nigerian Bar Association should not keep quiet. NBA should rise in the defense of the profession, ethics and rule of law.

One of the Attorneys-General that disappointed NBA is Mr. Michael Aondoakaa (SAN) who served as AGF during Yar’adua’s tenure. Through his letters in 2008 and 2009, written in his capacity as the AGF, Aondoakaa was said to have urged the then President of the Court of Appeal and the then Chairman of the Independent National Electoral Commission, Prof. Maurice Iwu, respectively, not to obey the final judgment of the Court of Appeal on an election petition. The letters by Aondoakaa were said to have deprived the plaintiff, Emmanuel Obot, of being sworn into the House of Representatives following the 2007 general election despite the final judgment of the Court of Appeal ordering that he should be issued fresh certificate of return and be inaugurated. The plaintiff in suit number FHC/CA/CS/50/2009, dated May 5, 2009, sued Aondoakaa as the AGF and in his personal capacity. After hearing the matter Justice Adeniyi Ademola perpetually barred Aondoakaa from occupying or holding the office of the AGF and Minster of Justice and public offices in Nigeria. The judgment was affirmed by the Calabar Division of the Court of Appeal on September 3, 2015. The Court of Appeal, in the unanimous decision of its three-man panel, led by Justice Chioma Nwosu-Iheme, held that in his capacity as the AGF, Aondoaka “undermined and subverted the rule of law, the due administration of justice and the independence, authority and integrity of the judiciary.” Justice Oyewole, in his concurring judgment, described the facts leading to the appeal as “a sordid low in the administration of justice in this country.” “It is unthinkable that the occupier of the exalted office of Attorney General would subvert the ends of justice as was crudely done in this case by the appellant (Aondoakaa),” Justice Oyewole held while adding that “public office is sacred and an Attorney General should epitomise all that is good and noble in the legal profession.” Justice Oyewole added, “That office should never again be occupied by individuals of such poor quality as the appellant. “It is ironic that the appellant could approach the same temple he so brazenly desecrated for succour against the consequences of his appalling conduct.”

Another display of disregard for Rule of Law in defense of disobedience to court order was when Attorney-General of the Federation, Abubakar Malami, said that Mr Dasuki’s personal right could be violated for the larger public good. He accused Mr Dasuki of being responsible for more than 100, 000 deaths. In defense of his boss’ defiance of court order, Malami SAN said:

“What I want you to know is that issues concerning law and order under Muhammadu Buhari are sacrosanct and obeying court order is compulsory,

“… Remember we are talking about a person who was instrumental to the deaths of over one hundred thousand people. Are you saying that the rights of one person is more important than that of 100,000 who lost their lives?

“Reports have shown that there was massive mismanagement of funds meant for military hardware which the military could not access and that led to the death of many, embezzlement of the fund and because of that many people have lost their lives. Obeying the court is not the issue per say. Are we going to take the issue of an individual more important than that of the people?

This to say the least is condemnable. It shows the bizarre level at which Attorneys-General in Nigeria can go in showing loyalty to the government in betrayal of the law and the legal profession. Disobedience to court order cannot be justified in any circumstance. Such defence should rather be made in appellate court.

WHAT NBA SHOULD DO

It is high time Nigeria Bar Association do something about the impunity of the Attorneys-General. Advising a governor to disobey court order or failure to advise him to obey is clearly not only a professional misconduct, but also an aberration. In ITEOGU v. THE LEGAL PRACTITIONERS DISCIPLINARY Committee (2009) LPELR-1559(SC) an infamous conduct is said to be  “…any conduct that constitutes an infraction of acceptable standard of behaviour or ethics of the legal profession, of any conduct which connotes conduct despicable and morally reprehensible as to bring the legal profession into disrepute if condoned or unpunished, will amount to misconduct.”

By section 12(1)(d) and 12(3)(d) of the NBA constitution, the NBA can invoke its disciplinary power against them. They should not be spared. In Chinwo v. Owhonda (2008) 3 NWLR (Pt. 1074) 341, pronouncement on the implication NBA was made by the Court of Appeal as follows:

“The appellant, while exercising his right, joined an honourable profession of formidable societal influence and relevance which of necessity has rules and regulations to guide his professional conduct and which along the line curtail some of his choices. The appellant was not compelled to take up the profession of law and its attendant compulsory membership of the Nigerian Bar Association. However, once he made the choice to study and practice law and thereby placing his name on the roll of honour of belonging to the profession, he stands bound by the internal rules and regulations of the Association… On lookers like us can only wish him good luck.”

Per Dongban-Mensem JCA.

The above pronouncement was quoted with approval in NYAKO v. ARDO & ORS (2013) LPELR-20848(CA)

On the importance and reason for disciplinary action, it was held in NIGERIAN BAR ASSOCIATION v. ODIRI, ESQ. & ANOR. (2007) LPELR-8210(CA), thus:

“In Okike v. Legal Practitioners Disciplinary Committee (2005) 15 NWLR (Pt. 949) 471. “Most professions, if not all, provide in-house machinery to suspend or expel from practice a professional who does not comply with professional standards. The Bar is no exception. The central means by which the Bar itself controls the conduct of Legal Practitioners and jealously guards its reputation for the maintenance of high professional standards is the application of disciplinary sanctions for infractions of its code of conduct.. .. The existence of Nigeria as a nation is a product of law, the Constitution, and this makes the Legal Profession a unique body whose internal discipline must not be taken for granted. That is why, ample provisions have been made in corpus juris for the training and controlling of members of the profession ….. the law recognizes prompt and effective disciplinary action against any erring legal practitioner in the case of infamous conduct in any professional respect.”

Therefore, Port Harcourt Branch of the Nigerian Bar Association, deserves commendation because in 2015 it suspended the Rivers State Attorney General and Commissioner of Justice, Mr. Worgu Boms and declared him a persona-non-grata over the lingering judicial crisis in the state. According to the NBA, the actions and declarations of the state Attorney-General was detrimental to the welfare and survival of lawyers in the state. Though it was done without notifying the National body, at least it showed courage and an attempt to enthrone discipline in the profession.

Okwamkpan said parts of the resolutions at the meeting were, “That the Rivers State Attorney-General and Commissioner for Justice, Worgu Boms, is hereby declared a persona-non-grata.

“That Rivers State Attorney-General and Commissioner for Justice, Worgu Boms, is hereby suspended from all the activities of the NBA, Port Harcourt branch, for the time being.

“He was suspended for his gross insensitivity to the plight of lawyers in the state following the closure of courts since June 9, 2014. He was also suspended from the NBA for his actions and declarations, which are detrimental and impacted negatively on the welfare of lawyers in Rivers State.

“He was suspended for his questionable role in the closure and continued closure of the courts in the state. We see that his role in the continued closure of the court is questionable.

“We feel that as an attorney general, he has not lived up to the expectations of that office and he did not do what was expected of him as a stakeholder in the justice sector, that is why the courts have remained shut”.

Sanctions by the NBA will serve as deterrence to other Attorneys-General. NBA should be in the forefront of enthroning discipline. NBA is a voluntary association and no one was compelled to be a member of NBA. To borrow from Dongban-Mensem JCA in Chinwo v. Owhonda (supra), once one makes a choice to study and practice law and thereby places his name on the roll of honour of belonging to the profession, he stands bound by the constitution of the Association which makes it mandatory to observe the Rules of Professional conduct. Disobedience to court orders under the watch of Attorneys-General diminish public respect in the legal profession or bring the profession into disrepute

Just recently, OJIGHO v. NBA & ANOR (2019) LPELR-46895(SC) Per BAGE, J.S.C.  advised as follows:

“We need a sharp depart from infamy in the legal profession. All Judges are first and foremost lawyers. Thus, the bench and the legal profession must continue in internal regulation and/or self-cleansing. This, in my view is to save the legal profession and invariably the entire structure with which justice is administered in this country. The justice mechanism essentially includes all legal practitioners, and by direct implications all those who practice as solicitors, transaction advisors or as in-house Counsel and law academics. They all belong to the category of ‘Legal Practitioners’. This is because their avoidable professional indiscretion, misconduct, imprudence or lack of probity in written agreements, transaction or advisory and other forms of professional engagements may, and have often formed basis of or cause of action in several suits and appeals.”

Lastly in N.B.A. v. Akintokun (2006) 13 NWLR (Pt.996) pg. 167, Per ibrahim, J.C.A. quoted with approval the lamentation of the Apex Court, as per Ademola, CJN in Legal Practitioners Ordinance (Cap. 101) v. Mciver Edewor (1968) All NLR 224 at P. 229 as follows:

“We have often said in matters of this nature that certain standards must be kept if the legal profession is to continue to command the respect of members of the public it so much serves. Mr. Peters, learned Senior State Counsel who appeared before us for the committee, has said that the reputation of the profession is at stake. We are ourselves alive to the fact that standards are falling and to save the profession we must set our faces against dishonesty and INDISCIPLINE by legal practitioners.”

TheNigeriaLawyer Editorial