Falana Asks Afe Babalola, Olanipekun To Challenge N60m Fine, Says Supreme Court Lacks Powers To Impose Such On Lawyers

A foremost constitutional lawyer and a human right activist, Femi Falana, SAN, has said that the Supreme court of Nigeria has no powers to award cost in a tune of n60m Naira against a lawyer for representing his clients and therefore IT’S Illegal for any Nigerian Court to award exorbitant cost against a lawyer.

The Supreme Court, on 26th Febuary, fined Chief Afe Babalola (SAN) and Chief Wole Olanipekun (SAN) N30 million each for agreeing to file an application for the review of the apex court’s judgment on Bayelsa election.

The learned silk disclosed this on Wednesday, 18th at a Memorial Lecture held by the Egbe Amofin, Lagos Branch in honour of late Pa, Tunji Gomez.

Falana in his statement he added that the court is only empowered give a fine of N50,000 and not more.

He said Contrary to the views credited to many lawyers, the Supreme Court was not requested to review its judgment in the case of PDP & 2 Ors. V. Biobara-Kuma Degi-Eremienyo & 3 Ors.

(Unreported Suit No: SC/1/2020) by Aare Afe Babalola and Chief Wole Olanipekun SAN. Both Applicants had prayed the apex court to set aside its judgment delivered on February 13, 2020 on the grounds that it was erroneously based on the belief that the Federal High Court had disqualified the governorship candidate of the APC whereas it only disqualified the deputy governorship candidate.

In dismissing both applications the Supreme Court said that its judgment “was final in the real sense of the word, final, and no force can get this court to shift from its decision.” Amina Augie JSC who read the leading judgment of the of the court accused the two senior counsel who filed the applications of “desecrating the sanctity of the court”.

As if that was not enough the apex court ordered both counsel to pay N60 millions costs to the 3 respondents.

“However, the application for the review of the judgment of the Supreme Court in the case of Senator Hope Uzodinma & Ors. V. Rt Hon. Emeka Ihediora & Ors. (Unreported Suit No: SC/140/2019) was dismissed in spite of its merit. Speaking for the Court, Kayode Ariwoola J.S.C said that “Certainly this court has no inherent power to grant what is being sought, it is beyond the powers of this Court. There is no Constitutional provisions for this court to review its own judgment. To say the least, this court has no competence and lacked power to sit on appeal in its own decision.

Finality of the Supreme Court is entrenched in the constitution and inherent power can only be invoked where there is law to do so. This court cannot under any guise alter any judgment under any inherent power, as doing so would bring the court into disrepute and ridicule.” Surprisingly, the applicant’s lawyers were not ordered to pay costs!

“But Cletus Nweze J.S.C was convinced that his learned brothers and sisters had erred in law. He pointed out that the Supreme Court could reverse itself in fulfilment of justice. His Lordship categorically asserted that: “This Court once set aside its own earlier judgment and therefore cannot use time frame to extinguish the right of any person.

This Court has powers to overrule itself and can revisit any decision not in accordance with justice”. In reviewing the judgment his Lordship said that without evidence of meeting other constitutional provisions, the court misled itself into declaring Uzodinma as governor of Imo State. Having found that the results computed by the court showed that the number of voters surpased the number of accredited voters the jurist concluded on a note of dire warning to the effect that: “This decision of the Supreme Court will continue to haunt our electoral jurisprudence for a long time to come”.
“I wish to submit, with profound respect, that the position of Nweze J.S.C on the inherent powers of the Supreme Court to review its decisions cannot be faulted. In fact, in the celebrated case of Adegoke Motors Ltd. v. Adesanya [1989] 13 NWLR (Pt.109) 250 at page 275, Justice Oputa had this to say:

“We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit error than to persevere in error.”

Speaking on the illegality of awarding cost to Lawyers Falana, said: “In line with the Rules of Procedure applicable in the Supreme Court the highest cost that can be awarded against a litigant is N50,000. But in the case of Ugba v Suswan (2012) WRN/SC.191/2012 the appellants’ lawyers were ordered to pay N1 million for filing an application for the review of the judgment of the Supreme Court. Since then the apex court has been awarding aggravated costs against lawyers for filing applications which are considered frivolous or vexatious by their lordships. Other courts have engaged in the award of prohibitive costs against counsel.

“ Apart from the Administration of Criminal Justice Act, 2015 which empowers a trial court to award costs against lawyers who delay the prosecution of pending criminal cases no other law or rule of procedure of any court in Nigeria has empowered any court to impose fines or award costs against counsel for performing their professional duties of filing suits on behalf of their clients.

‘Last year, two high courts ordered some public interest litigation lawyers to pay skyrocketing costs. In my criticism of the disturbing trend I said that : “In recent time, some High Court Judges have imposed fines ranging from N5 million to N10 million on concerned citizens whose cases were struck out for want of locus standi …Even in the award of costs litigants and their counsel are given fair hearing by judges.

“Why then are fines imposed on lawyers without allowing them to make any representation? Since access to court has been guaranteed by sections 6 and 36 of the 1999 Constitution and article 7 of the African Charter on Human and Peoples Rights Act it is illegal and unconstitutional to impose fines on aggrieved citizens who approach the courts to challenge the illegal official policies or unconstitutional legislations under the current democratic dispensation.”

“Not a few members of the legal profession have commended the Supreme Court for protecting its integrity by directing Aare Afe Babalola SAN and Chief Wole Olanipekun SAN to pay N30 million each to the respondents in the two separate applications which were dismissed for want of jurisdiction. The fines imposed on both senior Counsel reminds me of the abortive attempt by the defunct military junta to criminalise legal practice in the area of public interest litigation in Nigeria.

“It is therefore submitted, without any fear of contradiction, that the Supreme Court lacks the power either under the Supreme Court Act or Rules of Procedure to impose costs against lawyers for filing appeal or application on behalf of their clients. To that extent, the costs of N60 million imposed on both senior counsel in PDP & 2 Ors. V. Biobara-Kuma Degi-Eremienyo & 3 Ors. (supra) ought to be challenged either at the African Commission on Human and Peoples Rights Commission in Banjul, The Gambia or at the Community Court of Justice (Ecowas Court). It ought to be pointed out that the violation of community citizens by any national court can be challenged at the Ecowas Court.

“In Sam Sumana v. Republic of Sierra Leone (ECW/CCJ/APP/38/16) the Community Court found that the Supreme Court of Sierra Leone had ratified the purported removal of the Applicant as the Vice President of that country without affording him the opportunity to state his case. Consequently, the Ecowas Court upheld our submission and proceeded to quash the decision of the Supreme Court for breaching the human right of the applicant to fair hearing protected by aricle 7 of the African Charter on Human and Peoples Rights,” he noted.