Supreme Court In Kalejaiye V. NBA: An Exercise For Ethical Legal Practice And Justice Or For Technicality? By Anthony S. Aladekmo

Though it has never been spared by fastidious observers, the Nigerian anti-corruption war has generally remained on course since its inception with the passing of the Economic and Financial Crimes Commission (Establishment, etc) Act 2004 and the Corrupt Practices and Related Offences Act 2000.

It is not in doubt that all patriotic Nigerians are desirous of seeing the current anti-corruption crusade in the nation being sustained, total and all-pervading. Many lawyers even want the anti-graft net extended not just to the bench but to the bar so that their image will be purged before the court of public opinion. One of the cases wherein the stakeholders in the legal profession, especially the Nigerian Bar Association (NBA) and the Legal Practitioners’ Disciplinary Committee (LPDC), have in recent years memorably showed that they are for the anti-graft war was NBA v Kalejaiye (2016) 6 NWLR (Pt 1508) 393 LPDC. On behalf of Action Congress party, the law firm of M. A. Banire & Associates wrote a petition dated July 15, 2008 to the NBA, as a result of which the NBA filed a complaint at the Legal Practitioners’ Disciplinary Committee (LPDC). The complaint was that Mr. Kunle Kalejaiye, who was a Senior Advocate of Nigeria (SAN), while engaged as counsel in the conduct of the defence of an election petition before the Osun State Governorship and Legislative Houses Election Petition Tribunal, was involved in exchange of voice calls, multi-media services (MMS) and short messages services (SMS) with some members of the tribunal, especially its Chairman, Justice Thomas Naron, without informing the opposing counsel, allowing the opposing counsel to be present and, by so doing, creating the impression of seeking special personal favour from the Chairman of the Petitions Tribunal and, by so doing, failing to maintain the high standard of professional conduct expected of a legal practitioner by engaging in a conduct unbecoming of a legal practitioner, all contrary to Rules 1, 15, 30, 31, 32, 34, 36 and 55 of the Rules of Professional Conduct in the Legal Profession 2007. In its direction, the LPDC found him guilty and accordingly directed the Chief Registrar of the Supreme Court to strike his name off the roll of legal practitioners.

The decision was generally seen as a demonstration of the commitment of the legal profession to the anti-corruption war in the nation, that nobody is above the law and that the legal profession would not spare even any of its own who engages in corruption or professional misconduct. However, a setback hit the same Kalejaiye case on March 15, 2019 as the Supreme Court unanimously reversed the LPDC decision. In the leading judgment, Cletus Nweze, JSC, upheld Mr. Kalejaiye’s argument of being denied fair hearing in the course of the trial before the LPDC. Nweze, JSC, stated that some members of the LPDC panel, who did not partake in the trial and were not in a position to observe the demeanour of witnesses, partook in the writing of the judgment. The apex court accordingly set aside the LPDC decision. The apex court decision has been severely criticized by legal practitioners across the nation. As a matter of fact, the NBA National Executive Committee meeting, that held in Abuja on March 28, 2019, expressed concern over the judgment while discussing its grave implications. Such a cacophony of criticism of the judgment has partly provoked this short review of it.

In all honesty, it appears to me too that the Supreme Court decision in that case is uncalled-for, for a number of reasons. Firstly, the Supreme Court decision did not follow the doctrine of stare decisis, which is a sine qua non of our Anglo-Saxon jurisprudence. With due respect, I would submit that the Supreme Court has groundlessly trampled upon the doctrine. If stare decisis would be accorded its proper place in the case, the Supreme Court should have ordered a retrial by the LPDC, more so as that would have in no way occasioned double jeopardy. By the authority of a plethora of appellate decisions, including Chief of Air Staff v Iyen (2005) 6 NWLR (Pt 922) 496 and the recent Federal Republic of Nigeria v. Nasiru Yahaya (2019) LPELR-46379(SC), some of the situations where an appellate court may order a retrial by a trial court or tribunal (usually by a different judge) are if it overrules a no-case submission of a defendant, where there had been a possible miscarriage of justice during the trial and where the trial done earlier was null and void. It is contestable that any of such really occurred in the case under review. The worst or the best that the Supreme Court should have done was to order a retrial by a different panel of the LPDC. As it has been held in SDC Cam Ltd v Nagea & Co. Ltd (2003) 4 NWLR (Pt 881), sentiment is not recognized by our courts.

Secondly, the Supreme Court decision in the case fell below expectation because its position that the absence of some of the members of the LPDC during some of the sittings of the LPDC should have been viewed by the court as a mere irregularity that would not be fatal to the decision of the disciplinary body. Had not the Supreme Court itself held in Famuroti v Agbeke (1991) 5 NWLR (Pt 189) 1 SC at 14 that “it is not every error discovered on appeal that will automatically lead to the reversal of a judgment”? Had not it insisted in that case that “an error must be substantial before an mappeal is allowed”? What is more, in James v IGP (2005) 4 FWLR (Pt 281) 438, it was held that a party who consents to an irregular procedure, that is not unconstitutional or null, cannot be heard to complain later. In Tanarewa Limited v Arzai (2005) 5 NWLR (Pt 919) 593 at 603, it was similarly held that such a litigant would be barred by the doctrine of estoppel. In Omabuwa v Owhofatsho (2006) NWLR (Pt 972), it was held that court should not insist on strict compliance with rules of court where compliance or non-compliance will work injustice. What is more, it has even been held  in Zekeri v Alhassan (2002) 14 NWLR (Pt 786) that the court will not allow the excuse of fair hearing to abuse the court or irritate the other party.

Indeed, the court of justice has always been cognizant of the fact that it must sometimes not be slavish to procedure in as much as the procedure complained of has done no injury to any of the two limbs of natural justice or fair hearing, which are respectively nemo judex in causa sua and audi auteram partem. Note that justice is not meant to be done only for the defendant but also for the State or, in the instant case, for the integrity, reputation and credibility of the legal profession. And, as the Supreme Court itself had earlier held in many cases, including the recent In Re: Abdullahi (2018) 14 NWLR (Pt 1639) 272 SC and Ugba v Suswam (2014) 14 NWLR (Pt 1427) 264 SC at 340, the court should always do substantial justice rather than clinging to technicalities. After all, our court is not supposed to be just a court of law but also a court of justice. But where is the precedent to follow to do such substantial justice now that the Supreme Court in the case under review has apparently promoted technicality above substantial justice? What is the basis of this seeming vote-face in the instant case? To use the exact words of the Supreme Court in one of its once-upon-a-time cases, what has happened in this case appears to me to have been “a somersault” vis a vis its own precedents.

Thirdly, the Supreme Court decision in the case under review is also unsustainable because it is rather a setback to the anti-corruption war of the Federal Government and of the NBA through the LPDC. The decision was inconsistent with the erstwhile anti-corruption decisions of the Supreme Court from Attorney-General of Ondo State v. Attorney-General of the Federation & 35 Ors (2002) 9 NWLR (Pt. 772) 222 SC to Daudu v Federal Republic of Nigeria (2018) 10 NWLR (Pt 1626) 169 SC where it recently held that the burden lies on an accused person to explain the source of the properties that he acquired which are disproportionate to his known legitimate earnings.

Closely relating to the immediate foregoing point is the fact that the decision is capable of discouraging the ongoing multifaceted efforts to save the legal profession in Nigeria from increasing desecration of its professional ethics. The said efforts are being exerted by the NBA, LPDC and law lecturers. It is the sagacious conviction of such NBA stakeholders and law lecturers that the university faculties of law and the Nigerian Law School are probably the best or first place to inculcate lasting professional ethics and values in the aspiring and future lawyers. In this perspective, “Legal Ethics and Professional Responsibility—the Foundation of a Good Lawyer” was one of the subthemes of the 51^st Conference of the Nigerian Association of Law Teachers that held in Abuja in July 2018. Its leading discussant was the then President of the NBA, Mr. Abubakar Mahmud. But such noble efforts of the law teachers can only be fruitful ultimately only if the judiciary is on the same page with them. Those who are familiar with the case of Agbi & Anor v Ogbeh & Ors (2006) 11 NWLR (Pt 990) 663 SC (popularly called “Ibori’s ex-convict case” by the Nigerian media then) and its equivalent in the UK will understand the regard or disregard that legal practitioners accord professional ethics in Nigeria and in the United Kingdom and realize the need for us to be more stringent about the teaching and enforcement of professional ethics in Nigeria.

Now, a real problem has been created because, where there are two conflicting decisions of the Supreme Court, the latter prevails. Thus, the magistrates’ courts, High Courts and the Court of Appeal and other lower courts in the country will be tempted to follow this latter but unhelpful decision of the Supreme Court. Thankfully however, I can predict that a public interest case, where a party will allege that a lower trial judge missed one of the court sittings, will soon get to the Supreme Court. The appeal will provide an opportunity for the apex court to correct its nakedly erroneous judgment in the case under review. I hope that the apex court will at that time rekindle its own plethora of earlier cases where it had held that it is a sacred duty of the judiciary to exalt substantial justice and downplay technicality. The Supreme Court has got to warn itself and do the needful lest it should render our law uncertain, more so as we operate a legal system that cherishes the doctrine of stare decisis. We must remember the Latin legal maxim that says  that ubi jus incertum, ibi nullum (where the law is uncertain, there is no law). So, fiat justitia ruat caelum (let justice be done though heavens fall.)

God bless Nigeria!

Anthony S. Aladekmo is a law lecturer in the Ekiti State University, Ado Ekiti.