Henry Duru
14 November 2009
On Monday, a Lagos High Court sitting in Ikeja dismissed the bail application filed by convicted former chairman of Nigerian Ports Authority (NPA), Chief Olabode George and five others.
The six applicants had prayed the court to grant them bail on certain grounds, including ill-health. George claimed he is suffering from high blood pressure and arthritis.
However, while refusing the application, Justice Olubunmi Oyewole said that George and his co-applicants did not convince the court on why they should be granted bail.
Though admitting that ailment constitutes a sufficient ground for granting bail after conviction, he insisted that the convicts did not lay before the court good evidence to prove the existence of the said ailment.
"As demonstrated in the submission of counsel, health could on its own constitute a compelling ground for bail pending appeal. For this to be so, there must be sufficient materials before the court. This evidence must be from an expert in the branch of medicine relating to the ailment the applicant is said to be suffering from.
"No such medical evidence was placed before the court by any of the applicants. Whether the evidence was indeed challenged by the prosecution is immaterial once the threshold prescribed is not met, the said ground of health cannot avail the applicants...
"In reality, therefore, based on the materials placed before me, I am unable to accede to the request of the six applicants to be granted bail pending the determination of their appeals.
"Applications failed and are consequently dismissed," Justice Oyewole said.
The above words of the judge may yet represent another case of reprimand against what some have described as lack of diligence in representation of clients by their legal practitioners.
Several cases of such berating of counsel by judges for shoddy and embarrassing outings have been witnessed in the country of recent.
Generally, the argument has been that a lawyer should always represent his client in line with the best standards obtainable in the profession and that this should include advising him wisely when his case appears hopeless or has a very slim chance of success.
Did George's and others' lawyers observe this primary rule in filing their application? According to Barrister Kennedy Kolawole, the bail application failed not because the prosecution was wonderful in its arguments but that "the defence's case was patently weak."
"Having read the judgment in full, I would confidently say that the prosecution was only arguing from the point of law while leaving out very salient points of fact, which would have further strongly shown why Bode (George) should remain in jail. The judge's ruling derived itself solely from the very weak arguments marshaled by the defence and not that the prosecution was convincing enough," he said.
Asked what the implication of such "very weak arguments" by the defence is for the ethics of the legal profession, he said "It would be very wrong to start castigating a learned colleague just because he lost a case. After all, cases are won and lost based on comparative strengths and weaknesses of arguments from both sides.
"I doubt whether there is any lawyer who has only been winning cases. You win today and you lose tomorrow and losing means you have presented a weak argument or at least an argument that is weaker than that of your opponent. So nobody has the monopoly of sound arguments and none is condemned to weak arguments.
"However, the basic thing in the profession is that you put in every diligence while representing your client. There is a contract between you and him and you should fulfill your own part, conscientiously. You have been paid and so you should get the job done well. And when you know you can't do the job, either as a result of your personal inadequacy or provisions of the law, you shouldn't because of money accept to do the impossible; that is the basic thing."
If as implied by Kolawole, that nobody should blame George's counsel for "merely losing a case", would the instances where judges have specifically accused lawyers of approaching the court with ridiculous cases also give room for such exoneration?
Admittedly, one of such instances was on Thursday, June 11, 2009, when the Supreme Court, while throwing out appeal of governorship candidate of the Peoples Democratic Party (PDP) in the April 2007 election in Anambra State, Dr. Andy Uba, asking it to reverse its earlier judgment that removed him as governor, took up its counsel for what it saw as abuse of the court process.
Chief Justice of Nigeria (CJN), Justice Idris Kutigi, who delivered the unanimous ruling of the court, lashed out at Uba who had shuttled from one court to another in the bid to realize his governorship ambition.
"What kind of country is this where Senior Advocates of Nigeria are used to mess up the judiciary? We will not allow this kind of practice. This is wrong. The appellant has been shuttling from one court to another on a matter that the Supreme Court had already delivered judgment on.
"If the Supreme Court makes a mistake, there are procedures of correcting the mistakes.
"I have carefully listened to the submissions and arguments canvassed by counsel to all the parties in this appeal and come to a conclusion that the appeal is a thorough abuse of the court process and I hereby dismiss it.
"It is trite law that there must be an end to litigation. The appeal is accordingly dismissed with N30, 000 cost awarded to each set of the respondents," Kutigi said.
The anger of the apex court is understandable, considering that it had earlier on January 29, 2008, dismissed similar application by the plaintiff wherein he had argued that the irregularity in the notice of appeal filed by Gov Peter Obi in 2007 when the matter went to the appeal court was a sufficient ground for the Supreme Court to revisit its judgment having arisen from the irregular appeal.
The court had, while striking out the suit, chided Uba for trying to play a hide and seek game with the court process by seeking to hinge his argument on irregularities he was since aware of and benefited from.
"Remarkably, the 5th respondent (Andy Uba) was aware of the irregularities while the proceedings were pending but he never complained. The court below was led into giving judgment in his favour and if the court did not avert its mind to it, it will be because it thought little of the non-compliance.
"The 5th respondent cannot now complain, having benefited from it. He cannot approbate and reprobate at the same time. The mistake of his counsel is his belief that he has a joker and can raise it at another stage. This is a wrong assumption. Litigation premised on this is wrong.
"As at the time it was filed, the records were all before the court. This court has given its final judgment on this matter and cannot revisit it. Under section 235 of the 1999 Constitution, this court has jurisdiction to interfere with the judgment of other courts. The argument that this appeal should be heard on its merit is an invitation to engage in a wild goose chase", Justice Aloysius Katsina-Alu who delivered the lead judgment said.
Also significant is the near drama that took place at the Supreme Court more recently as the court dismissed a contentious application by former Governor Celestine Omehia of Rivers State, seeking it to nullify its October 25, 2007 judgment, which installed Rotimi Amechi as the governor. The court described the application as lacking merit.
Justice Aloysius Katsina-Alu, who read the lead judgment, said its decision declaring Amaechi as governor was final, regardless of whether it was rightly or wrongly entered and that there was nothing anybody could do about it.
To buttress the futility in the counsel's effort, he said if anybody was aggrieved by the court's decision, the person should appeal to God as no other court on earth could entertain any appeal from the Supreme Court's judgment.
Before the judgment, lead counsel to Omehia, Mr. James Ezike, practically engaged the panel of justices in vehement argument over whether its "questionable" judgment of 2007 should be reversed. The apparently angered jurists had however, described his affront as being in contempt of the court before going ahead to berate him for aiming at achieving the impossible.
Significantly, the recurring trend of lawyers coming out to defend questionable cases in courts has become subject of public controversy of recent. Some have argued that lawyers who are guilty of this are only after monetary gain without any deference to professionalism.
But how really guilty are these learned gentlemen? What are the implications of their actions to the legal profession and judiciary in general?
Lagos lawyer, Prof. Itse Sagay (SAN) agreed that such legal practitioners are guilty of abuse of court process.
"Yes, it is indeed contrary to the ethics of the profession. It amounts to a serious error for lawyers to prefer money to abiding by the rules that guide proper conduct in the bar.
"To keep on going back to the Supreme Court after it has decided on an issue brings mockery on the judicial system. Lawyers who accept such briefs are bringing down the dignity of both the court and the bar," he said.
Similarly, another Lagos lawyer and member, National Executive Committee of the Nigerian Bar Association (NBA), Mr. Niyi Idowu, said no lawyer can claim ignorance of the ethical boundaries of the profession.
"Every lawyer should know when his action goes beyond the conducts acceptable in the profession. Once a court has given its decision, particularly the apex court, there is no need going back to ask it to reverse the decision.
"I agree with the Supreme Court that the case brought by Omehia is an abuse of court process," he argued.
Also contributing, chairman, NBA, Ikeja branch, Mr. Dave Ajetumobi, said such conducts by legal practitioners should not be encouraged. He regretted that such misconducts have become common among senior lawyers, a situation he described as intolerable.
He said, "Yes, it is a gross abuse of court process. Once the Supreme Court has given its judgment, the appeal lies only to the court of God. For one to try to bring the court to sit on appeal of its judgment amounts to professional misconduct. The appropriate disciplinary body of the bar should take note of these things and they should not be encouraged. Lawyers should not pay more attention to the money they will collect than to the ethical requirements of their profession.
"The worst thing there is that the people who do these things are senior lawyers who should know better. If it were junior lawyers, then one could excuse them. But for senior members of the bar to ridicule the judicial process is really not to be tolerated."
On what the bar could do to curtail the identified abuses, Ajetumobi said the ball lies in the court of the national body of the NBA.
"The best we can do at our own level (Ikeja branch) is to criticize professional misconducts and perhaps refrain from inviting such erring colleagues to our functions. But the disciplinary committee, which is under the control of the national body of the NBA, can penalize such behaviours.
Curiously, this national body is also being controlled by senior lawyers among whom we have these defaulters," he said.
To Sagay, the NBA could, through its internal disciplinary mechanism, call such erring members to order. He also observed that the courts themselves could also discourage such lawyers by taking them up on their misconducts as they (the courts) had done in the recent cases.
Similarly, Idowu said the legal body could appeal to its members to abide by the ethics of their profession. "I think we need to appeal to ourselves to play by the rule," he said.
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