[The Bench And The Bar] In The Face Of A Pandemic Of Questionable And/Or Contradictory Ex Parte Court Orders In Political Cases: Consequences And Implications

A Paper By Mr. JB Daudu SAN Delivered At The Highly Explosive SPIDEL E-Conference On Conflicting Court Orders.

INTRODUCTION

My Lord, the Keynote Speaker, the Hon. Justice Bode Rhodes-Vivour (Rtd) has dealt with the topic in or with his usual characteristic clarity and the issues arising therefrom cogently articulated. My mandate is to discuss this erudite dissertation with emphasis on the culpability of members of the Bar and to an extent the Bench in the procurement and grant of this genre of ‘black market orders’, which ultimately achieve nothing, other than obfuscate the democratic process and above all, ridicule  the legal profession. This is the topic that has been given to me and it includes, but is not limited to the prescribed professional and statutory measures available against both legal practitioners and perhaps judges who are found culpable for the indiscretions that has led to our topic for discussion, which are:

1. The arbitrary issuance of ex parte orders as if they are commodities available in open market for easy purchase.
2. Forum shopping for favourable judgments and in most instances obtained extra-territorially from jurisdictions other than those that the cause of action arose from, thereby eroding the court of any modicum of legal authority to grant same and;
3. Using the medium of indiscreet and indiscriminate ex parte orders to grant substantive reliefs at interim or interlocutory stages of a matter when such reliefs can only be granted when matters are concluded on merit.

The scope of this discourse includes not only in drawing attention to the deleterious effect of these identified vices attributable to the beneficiaries (a) the Political Class, (b) the procurers who are members of the Bar i.e., legal practitioners and (c) the facilitators who are the Judicial officers that grant the orders (High Court Judges) or those who uphold and approve at senior appellate levels, i.e. Court of Appeal and Supreme Court of the grant of these orders.

Because of the rampancy of these acts of misconduct and the brazenness attached to their execution, it is imperative that very clear language is employed to condemn this grave transgression of all that the law and Justice hold dear and precious. In addition, very stringent punishment of a deterrent nature ought to be agreed upon and scrupulously applied by the gatekeepers of the two branches of the legal profession, to wit; the National Judicial Council (NJC) for Judges and the Legal Practitioners Disciplinary Committee (LPDC) for legal practitioners without exception.

THE MAIN DISCUSSION

It is safe to proceed on the premise that the foregoing acts as described, not only pollute the justice and judicial system (streams of Justice) but are a danger to our democracy. Time will not allow us to thorough examine the negative implications of these vices, but it is undeniable that they cause incalculable harm to our democratic and judicial institutions. The best way of appreciating the conundrum or the dilemma these acts of misconduct places or puts counsel, court and the public (stakeholders) in, is to approach it from the legal axiom, ‘the lawyer as a minister in the temple of justice’.

WHAT IS THE TEMPLE OF JUSTICE?

The basic understanding of the axiom ‘Temple of Justice’ is that it is the hallowed sanctuary from which justice is dispensed.

WHO ARE THE BENEFICIARIES OF ‘JUSTICE’ IN THIS REGARD?

They are the people and government(s) of the Federal Republic of Nigeria and all who benefit from the legal system. This is because because ‘justice’ is a priceless and indeed holy commodity created by God Almighty for order and harmony to exist between humans beings and the rest of the world.

APPLYING THE MAXIM TO THE MATTER AT HAND

The principle that lawyers are ministers in the temple of justice is anchored on the ability of those who serve in the temple of justice to keep the house of justice pure and unpolluted. Indeed, the phrase is that both lawyers and judges are co-ministers in the temple of justice. Therefore, none of them can or ought to exhibit bad behaviour. Where a legal practitioner knowingly advises his client to seek ex parte order when he knows that the circumstances does not envisage, contemplate or support such an application, or when counsel engages in forum shopping by going to a court totally lacking in territorial or even subject matter jurisdiction or one with jurisdiction but ‘recruited’ to resolve a substantive dispute through ex parte order etc; these conduct and they are legion do not only pollute the system but also amount to a breach of the Rules of Professional Conduct for Legal Practitioners 2007. Rules 1, 15, 24, 30 and 34 of the RPC 2007 which are applicable to these variants of misconducts being provide thus:

Rule 1

1. ‘A lawyer shall uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.’

Rule 15

• ‘In his representation of a client, a lawyer may refuse to aid or participate in conduct that he believes to be unlawful even though there is some support for an argument that the conduct is legal.

• In his representation of his client, a lawyer shall –
• keep strictly within the law notwithstanding any contrary instruction by his client, and if the client insists on a breach of the law, the lawyer shall withdraw his service;
• use his best endeavours to restrain and prevent his client from committing misconduct or breach of the law with particular reference to judicial officers, witnesses and litigants and if the client persists in his action or conduct, the lawyer shall terminate their relations.

(3) In his representation of his client, a lawyer shall not –

(a) give service of advise to the client which he knows or ought reasonably to know is capable of causing disloyalty to, or breach of, the law, or bringing disrespect to the holder of a judicial office, or involving corruption of holders of any public office;

(b) file a suit, assert a position, conduct a defence, delay a trial, or take over action on behalf of his client when he knows or ought reasonably to know that such action would serve merely to harass or maliciously injure another;

(c) knowingly advance a claim or defence that is unwarranted under existing law, but he may advance such claim or defence if it can be supported by argument in good faith for an extension, modification, or reversal or existing law;

(d) fail or neglect to inform his client of the option of alternative dispute resolution mechanisms before resorting to or continuing litigation on behalf of his client.

(e) conceal or knowingly fail to disclose that which he is required by law to reveal.

(f) knowingly use perjured or false evidence.

(g) knowingly make a false statement of law or fact;

(h) participate in the creation or preservation of evidence when he knows or ought reasonably to know that the evidence is false;

(i) counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent; or

(j) knowingly engage in other illegal conduct or conduct contrary to an y of these rules.

(4) Where in the course of his representation of his client a lawyer receives clearly established information that the client has perpetrated a fraud upon a person or tribunal, he shall promptly call on his client to rectify it,, and if his client refuses or is unable to do so he shall reveal the fraud to the affected person or tribunal, except when the information is a privileged communication; and if the person who perpetrated the fraud is not his client, the lawyer shall promptly reveal the fraud to the tribunal.

(5) A lawyer shall not assert in argument his personal belief in the integrity of his client or of his witnesses or in the justice of his cause, but he may make a fair analysis of the evidence touching on those matters.’

Rule 24

• ‘It is the duty of a lawyer to accept any briefs 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.

• It is the duty of every lawyer on his own responsibility to decide what cases he will bring into Court for the Plaintiff and what cases he would contest in Court for the Defendant; and he is not absolved from bringing questionable action or arguing questionable advice on the ground that he is only following his client’s instructions

• A lawyer shall not conduct a civil case or make defence in a civil case when he knows or ought reasonably to know that it is intended merely to harass or to injure the opposite party or to work oppression or wrong.

• The lawyer shall be responsible for taking decisions in respect of incidental matters not affecting the merit of the case or operating to prejudice substantively the right of a client and he shall not be bound to do or refrain from doing anything contrary to his sense of honour or propriety simply because his client demands that he should do it.

• In matters not directly affecting the merit of the case or operating to prejudice the rights of the clients, the lawyer may, to the exclusion of his client, determine what accommodations to be granted to the opposing lawyer.

• For the purpose of this rule, the expression “incidental matters”” includes matters such as fixing time for trial for the opposing lawyer, and applying for or resisting adjournment, account being taken of the circumstances of the opposing lawyer.’

Rule 30

‘A lawyer is an officer of the court and, accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely; affect the administration of justice.’

Rule 34

‘A lawyer shall not do anything or conduct himself in such a way, as to give the impression, or allow the impression to be created, that his act or conduct is calculated to gain, or has the appearance of gaining special personal consideration of favour from a Judge.’

DISCIPLINARY AND PENAL SANCTIONS AGAINST LAWYERS AND JUDGES FOR MISCONDUCT

THE LEGAL PRACTITIONER

Where there is a complaint based on any of the identified variants of misconduct above and other variants identified in the keynote speech, the Legal Practitioner is liable to be tried by his peers in the Legal Practitioner Disciplinary Committee (LPDC) It is emphasised that the venue for such disciplinary proceedings or action is the LPDC and not the Legal Practitioners Privileges Committee (LPPC) as the extant statute, the Legal Practitioners Act 1975 (as amended) exclusively vests the jurisdiction to discipline a lawyer for Professional misconduct on the LPDC and on no other body. Granted that the LPPC  can take away its preferment given in the form of the prestigious and exalted rank of a Senior Advocate of Nigeria (SAN) but if the withdrawal of the rank is hinged on professional misconduct traceable to the Rules of Professional Misconduct for Legal Practitioners then it is only the LPDC and no other body under the law that can make a finding or determination that a legal practitioner is liable for infamous conduct, professional misconduct however so called etc. It is only after the concerned legal practitioner has been found culpable that he can be sanctioned with either disbarment, suspension or admonition. After the LPDC has finished its work in the case of suspension or admonition as punishment for the affected legal practitioner, who is also a senior advocate and the LPPC is not satisfied in respect of that Senior Advocate of Nigeria that the punishment is compatible with the continuous wearing of the rank even after the period of suspension has been served, they (LPPC) may then meet to withdraw the rank, whether permanently or for a specified period of time. There is no concurrent or coordinate jurisdiction between the LPDC and the LPPC in respect of matters of professional misconduct by a legal practitioner. For the avoidance of doubt, only the LPDC and the Supreme Court through the office of the Chief Justice of Nigeria can exercise disciplinary powers over an erring legal practitioner accused of running afoul of the Rules of Professional Ethics for Legal Practitioners 2007. See sections 9-12 of the Legal Practitioners Act.

THE JUDICIAL OFFICER

On the part of the judge, the National Judicial Council is by the 1999 Constitution (as amended) empowered to investigate and punish him in accordance with the stipulations of the NJC regulations in force at the given time. It is the gravity of the misconduct or its frequency or its rampancy that will determine which sanction will be imposed. In an event that the misconduct involves allegations of bribery, the participants may also be subjected to criminal prosecution and punishment in a court of law. Also, a judge before whom a frivolous application is brought has the powers to cite counsel who filed such action/application for professional misconduct. Thankfully the bottleneck of subjecting petitions of misconducts against lawyers to the internal investigation process of the NBA has been removed by the new LPDC Rules. Therefore, any person who is aggrieved by the misconduct of counsel can without more file an application before the LPDC for immediate determination.

Another aspect of misconduct which requires further elucidation on is the question; what happens to the politician who is the catalyst of the misconduct of the illicit trafficking in ex parte orders by Judges and lawyers? How do we discourage the political class from interference with both the Bar and the Bench? The truth is that the politician is beyond or outside the professional disciplinary control/jurisdiction or regulation/mechanism of both the Bar and the Bench. Therefore, all that can be done apart from imposing very stiff punishment on the lawyer and the judge found wanting or making themselves available for political manipulation is to enter their names into a Roll of dishonour. This will serve as a deterrent such that when similar situation arises in the future, other lawyers and judges will be hesitant from burning their fingers. This assumes that the reputation and prestige enjoyed by lawyers and judges means a lot to individual legal practitioners and judges than whatever considerations the mean politician may provide to them. In other words, lawyers must be informed that once sanctioned for misconduct, the legal profession shuts its doors completely at/against the ‘offender’ starting from everyday legal practice to public office to the academia etc. However, the fact that we (disciplinary institutions of the legal profession) pay mere lip service to the issue of discipline is the reason offenders are emboldened to continue in their various acts of misconduct. Most offenders escape punishment essentially because they have support (godfathers and godmothers) in high places. This is how deeply infiltrated the judicial system has become by political elements. It is a sad development of which we must purge ourselves immediately.

That is not to say that the affected politicians are not punishable. They may be damnified in punitive costs by an appellate court that swiftly reverses the injustice arising from the unlawfully obtained order or where the politician/party to the proceedings is also a political office holder in the legislature or executive arm of Government, he may be taken before the Code of Conduct Tribunal for perversion of the course of justice or any other appropriate offence in the circumstances.

Another factor which encourages this kind of professional or judicial  misconduct from the Bar and lower superior courts is the mixed signals received from appellate courts in similar circumstances. Examples abound but let us take a look at the recent development in pre-election cases wherein legal practitioners approached willing judges outside the territorial jurisdiction of the cause of action to obtain or procure ex parte orders otherwise known as ‘black-market orders’ which in most cases resolve substantive issues in the absence of Defendants. This type of misconduct and the participants have been roundly condemned by all stakeholders including the Hon. CJN. One would have thought that now that such issue is on the front burner all lawyers and courts will avoid similar situations or actions. However, in yet another recent development (The VAT dispute between RVSG and FIRS) an appeal emanating from the decision of the FHC sitting in Port-Harcourt found its way from Port-Harcourt to the Abuja Judicial Division of the Court of Appeal, notwithstanding the fact that there is a division of the CA in Port-Harcourt. If a High Court hears a matter and delivers judgment, the law is that save in exceptional cases (wherein reasons must be given), that, only an appellate court which oversees the jurisdiction of that High Court shall hear the appeal. The act of transporting appeals across Nigeria to Abuja is tantamount to forum shopping and amounts to an assault to the confidence reposed on the judiciary.

The apex court i.e., the Supreme Court must also like Caesar’s wife Calpurnia be above board. Its decisions and other judicial actions or steps must be devoid of multiple interpretations and unpredictability. The ability to predict the position of the Supreme Court lies in the courts resoluteness to stand firm on the side of the principles of stare decisis. Non adherence to the principles of judicial precedent by the Supreme Court has led to unfortunately the emerging pattern of conflicting decisions on the same point or issue by the Court in different cases. Examples abound but the scope of this discourse will not allow the expatiation of this irregularity. Now these features of preferential treatment, inherent in cases where precedent is not followed are signposts of breaches of the rules of judicial accountability, a strong barometer in the measurement of the independence and impartiality of the courts.

CONCLUSION

The type of justice that proceeds from the temple of justice, ought to be justice that is not only clearly done but one that is seen to be manifestly done. The perception of corruption in or by the judiciary is worse than the act of corruption itself. Hence, while the CA may have good reasons to hear appeals before certain panels and certain divisions of the court, it must be conscious of the fact that it is a territorial court itself and must not believe that justice can only be served in a location other than where the case was not only first heard but should be heard on appeal. Forum shopping in both trial and appellate matters questions the motives of superior courts and can influence lower courts to follow suit as precedent or even bad practice. This is why it has been stated earlier in this discourse that appellate courts should not send mixed signals to lower courts as those mixed signals become the prelude to corruption at the lower bench. Furthermore, when trying to remove a mischief, anything closely associated with the mischief must be avoided by those on who judicial accountability lies. Therefore, if appellate courts practice forum shopping, it will be difficult if not impossible to punish lower court judges for similar infractions. There would be no moral or ethical basis to pontificate to and berate the lower courts. The profession must look inwards and advise itself appropriately. Thank you all.

Joseph B Daudu SAN

Past President Nigerian Bar Association 2010-2012

13^th September 2021