Sequel to the recent publication of the above referenced article on the www.thenigerialawyer.com, by the writer of this paper, the writer of this paper had course to discuss with a learned friend in respect of the publication and the word ‘instigate’ as used in the Rule 47(1) of the Rules of Professional Conducts for Legal Practitioners, 2007- herein after referred to as the RPC, which is used as follows ‘A lawyer shall not forment, strife or instigate litigation and, except in the case of close relations or trust, he shall not, without being consulted, proffer advice or bring a law suit’ (underlining is the writer of this paper’s).
The writer of this paper had argued in his article referenced above to the submission that the fundamental rights matter is an exception to the Rule against instigating litigation under the Rule 47 of the RPC 2007, specifically Rule 47(1) of the RPC. The writer of this paper’s learned friend raised an argument in respect to the word ‘instigate’ as indicating a negative meaning such that to instigate litigation has a negative meaning and that rather, the word ‘encourage’ could have been used. This development made the writer of this paper to conduct further research on the word ‘instigate’ and to make a review on the article, hence this addendum.
First and foremost, the word ‘instigate’ is defined by the Oxford Advanced Learner’s Dictionary, International Student’s Edition, New Eighth Edition, at page 778, as ‘verb (formal) to make something start or happen, usually something official (synonym bring something about): The government has instigated a programme of economic reform. 2. To cause something bad to happen: They were accused of instigating racial violence’. Also, by the Black’s Law Dictionary with Pronunciations, Sixth Edition, Centennial Edition (1891-1991), at page 799, the word ‘instigation’ has been defined as ‘incitation; urging; solicitation. The act by which one incites another to do some crime or to commence a suit’. And by this same dictionary, the word ‘litigation’ has been defined as ‘A law suit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of enforcing a right or seeking a remedy. A judicial contest, a judicial contest, a judicial controversy, a suit at law’.
From the above definitions, the following observations and submissions are made by the writer of this paper as follows: (1) the word ‘instigate’ can be used to refer to good or bad act as used in the above examples; (2) when the word ‘instigate’ is used with the word ‘litigation’ as in the Rule 47(1) of the RPC, it does not refer to a bad act because, the word ‘litigation’ is a legal word and does not refer to a bad act. This is more so that the institution of ‘litigation’ as a means of settling dispute has a legal backing.
Furthermore, it had been argued in the referenced article that’… the RPC was made two years before the FREPR was made in 2009, so, it is submitted that the provisions in Rule 47(1) and the entire provisions of the Rule 47, RPC, can no more stand as a restrictive law when human rights matters are contemplated’. This submission is made to the effect that even where the RPC has restrained lawyers from ‘instigating litigation’, the FREPR has allowed and permitted lawyers to institute action for and on behalf of a prospective applicant to seek redress in court. For instance, by Rule 3 (e) to the Preamble of the FREPR which provides thus ‘The Court shall encourage and welcome public interest litigation in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following; i. Anyone acting in his own interest; ii. Anyone acting on behalf of another person; iii. Anyone acting as a member of, or in the interest of a group or class of persons; iv. Anyone acting in the public interest; and v. Association acting in the interest of its members or other individuals or groups’. Also see: section 46(1) of the Constitution.
For the purpose of clarity, instigating litigation as argued and submitted by the writer of this paper in the above referenced article, is in a way of encouraging the victims of violation of human rights to approach a court to seek redress where there is an allegation of violation of their human rights rather than dying in silence or dying out of the trauma of the violation and either committing suicide or seeking revenge by the means of jungle justice or unlawful retaliation.
Also, it is the trite position of law that fundamental rights matters are sui generis, as held by the Court in the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment). The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is humbly referred to (supra).
Also, the emphasis laid down by the Supreme Court of Nigeria in the case of A.C.N. V I.N.E.C.(2013)13 NWLR (pt. 1370) 161 SC, is very noteworthy where the Supreme Court held thus ‘Without law and its rules regulating the enforcement and enjoyment of rights under the law, chaos will reign supreme, with every man pursuing and enjoying his real or perceived rights without regard to the rights of others, and organised society may come to an end’. More so that the FREPR is made pursuant to the provision of the Constitution. See: the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was). In which case, such a provision has equal force of law as the Constitution itself.
Therefore, it is submitted that any law or Rules or legislation, such as the Rule 47(1) of the RPC, that runs contrary and or breaches the FREPR has run inconsistent with the provisions of the Constitution and shall subject to such inconsistency, be declared null and void. See: the provisions of section 1(1) and (3) of the Constitution. Also, the RPC being a subsidiary legislation made pursuant to the Legal Practitioners’ Act, 2004 (as amended). The Supreme Court of Nigeria has held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26 thus: ‘It has never been the case in our laws that the provisions of any ordinary statute would render nugatory the relevant provisions of the constitution. Therefore, if any law of the State including a subsidiary legislation… is inconsistent with the provision of the constitution, the provision of the constitution prevails and that State law is to the extent of inconsistency void’. Also see: Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475. Further see: the case of INEC v Musa (2003) 3 NWLR (pt. 806) 72 SC, page 157, at paras. D-G, (Ayoola, J.S.C).
Furthermore, human rights activists are their brothers’ keepers and that is why it becomes necessary that human rights lawyers/activists instigate litigation for and or on behalf of a victim of human rights violation in order to secure justice against an oppressor and or an unjust fellow, as many times, those victims do not have the required courage, confidence and finance to pursue such redress in court.
Therefore, it is the humble submission of the writer of this paper that fundamental rights matters are exceptions to the provisions of Rule 47 of the RPC (supra). To that extent, it is the submission of the writer of this paper that a lawyer is clothed by the Constitution and the FREPR to instigate litigation, encourage victims of human rights to seek redress in the appropriate courts against such alleged violation of any of their human rights etc. and in deserving situations, a human rights lawyer, advocate, activist or non-governmental organisation may stand in the position of an applicant to institute such an action in court even though, he is not the victim or the victim’s relative and even if he is not consulted and may seek victims either by using any means of communication.
Finally, the writer of this paper thereby submits that it is a wrong notion and a misconception of law to hold or submit that a lawyer who instigates or encourages a victim of violation of human rights to seek redress in court has committed a misconduct and has breached the provision of Rule 47 of the RPC, and is thereby subjected to disciplinary measures laid down by the Legal Practitioners Act, 2004 (as amended).