By Sir, Nkem Okoro, Esq (Ll.M)

The three arms of the government of the Federal Republic of Nigeria are, subject to the provisions of the Constitution of the Federal Republic of Nigeria. In the case of CHIEF ADEBIYI OLAFISOYE v. FEDERAL REPUBLIC OF NIGERIA (2004) LPELR-2553(SC), the apex court had this to say:

As our Country is sovereign, so too our Constitution and this Court will always bow or kowtow to the sovereign nature of our Constitution, a sovereignty which gives rise to its supremacy over all laws of the land, including decisions by foreign Courts…”Per TOBI ,JSC (P. 87, paras. B-C)

Also, in the case of PROF. STEVE TORKUMA UGBA & ANOR v. GABRIEL TORWUA SUSWAM & ORS (2014) LPELR-22882(SC), the apex court further held as follows:

“Following from the foregoing therefore, the supremacy of the Constitution is obvious as being the only instrument which is imbued with absolute power to create and confer jurisdiction. It is the ultimate and can be compared to none. The Learner’s Dictionary Concise Edition defines the word supreme as thus: “the greatness of a quality or thing.”, Also in the famous words of Uwaifo, JSC in the case of A.G. Ondo State V. A.G. Federation (supra) at 418 – 419 his Lordship had this to say:- “It must be recognized that our Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the supreme law in which certain first principles of fundamental nature are established. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law.” Again the learned jurist Onnoghen, JSC did not also mince his words in the case of ANPP V. Goni (supra) when he said: “Jurisdiction is a creation of statute or the Constitution…it is not inherent in an appellate Court neither can it be conferred on a Court by order of Court.”Per OGUNBIYI ,JSC (Pp. 66-67, paras. C-A)

The apex court in Nigeria recently awarded a cost of N40,000,000.00 against Chief Mike Ozekhome, SAN, for what the court viewed as a frivolous appeal. This was not the first time the Supreme Court awarded such punitive costs against senior and eminent lawyers appearing before it. The court had, in February 2020, equally awarded such punitive cost against two very eminent lawyers in Nigeria in the person of Aare Afe Babalola SAN, and Wole Olanipekun, SAN.

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The award of punitive costs against lawyers and situations where lawyers are forced to withdraw pending appeals before the Supreme Court, with the threat of punitive sanctions, have continued to raise more questions than answers regarding the fairness and constitutionality of such awards by the apex court. This is bearing in mind that the Supreme Court is made up of humans and is capable of making mistakes.

Legal practice in Nigeria is highly regulated; hence, every infraction of the rules of professional conduct should be referred to the Legal Practitioner’s Disciplinary Committee, which, in exercise of its adjudicatory powers and disciplinary powers over a lawyer, gives such a lawyer an opportunity to defend himself, before making any adverse decision against the Lawyer, for which the Lawyer, will also have a right of appeal to the Supreme Court.

Every perceived breach of rules of professional conduct by Courts against a Lawyer ought to be referred to and dealt with in accordance with the Rules of Professional Conduct. Without prejudice to the powers of the court to punish for contempt infra curie, it is not fair for the Supreme Court to punish lawyers for representing their clients in court or force lawyers to withdraw appeals pending before the Supreme Court without hearing such appeals or giving lawyers, the opportunity to make representations before punishing them, bearing in mind, that lawyers are not parties before the Court.

Constitutional rights of litigants to litigate, and which in the course of briefing a Counsel is donated to the Counsel, must not be seen to be taken away by the Supreme Court, either by awarding monetary cost against lawyers or forcing lawyers to withdraw their appeals, which has been a recent reoccurring trend with the Supreme Court of Nigeria.

Punishing Lawyers for bringing the case of their clients to court and also forcing lawyers to withdraw cases legitimately brought to Court by the Supreme Court is with the due respect to the Supreme Court justices, not in accord with sections 6(6b) and 36(1) of the Constitution of the Federal Republic of Nigeria. In the case of Ladejobi v. Oguntayo (2004) 18 NWLR (pt. 904) p. 149 at 178, the Supreme Court had this to say;

I view with fear and apprehension any attempt by the Court to shut off someone who can show how he is affected by the dispute and decides to seek for a remedy and the Court with a wave of a hand gives a decision barring him from ready access to the counts on the ground that he has not disclosed sufficient interest to show his connection or what he stands to lose. It is desirable and in fact essential that a party should be given as much latitude as possible the opportunity to canvass his case where the Court would then sieve the wheat from the chaff. Let it not be said that a Plaintiff is chased out peremptorily from the temple of justice because the Court does not feel strongly satisfied that he has shown a strong connection and interest in the matter.” The above dictum is premised on the reasoning that the Court must do everything it legitimately can, to uphold a citizen’s right of access to the Court; save where there is a commanding or compelling reason not to do so. After all, that a person has approached the Court for the ventilation of his grievance, does not mean that he will or must ultimately succeed.”

With respect to the duty of a lawyer who represents his client in Court, the Supreme Court has this to say, in the case of FESTUS L. ADEWUNMI v. PLASTEX NIGERIA LIMITED (1986) LPELR-164(SC)

“There is no doubt that a counsel is duty bound to present his clients’ case with utmost devotion. But such devotion must be coloured with professional discretion. In other words counsel must be the master in the conduct of his client’s case and should not be dictated to by his client as to how to conduct the case. It is in recognition of that authority of counsel that Rules 14(c) and 18(a) of the Rules of Professional Conduct in the Legal Profession, published as Government Notice No.69 in Federal Official Gazette No.5 of 18th January, 1980 which deal with how far a lawyer may go in supporting a client’s case and the right of the lawyer to control the incidents of the trial respectively provide as follows – “14(c) The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defence of the client’s rights and exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him, save by the rules of law legally applied. No fear of judicial disfavour or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to expect his lawyer to assert every such remedy or defence. It must however be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of a lawyer does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.” “18(a) The lawyer is to be judge of incidental matters not affecting the merits or operating to prejudice substantially the rights of his client; and client has no right to demand that his lawyer do or refrain from doing anything repugnant to his lawyers sense of honour or propriety. In matter not directly affecting the merits or operating to prejudice the right of the client his lawyer may, to the exclusion of his client determine the accommodation to be granted to opposing counsel.”
Per UWAIS ,JSC (Pp. 34-35, paras. A-C)

Lawyers in appearing before the courts, especially the Supreme Court, come to the Supreme Court in the hope that their matters will be heard and determined one way or the other by the Supreme Court, which is the apex court in the land. A situation where the lawyer is forced to withdraw his appeal for fear of sanction or sanctioned for bringing the appeal before the court should be reviewed and reversed with the greatest respect to the Justices of the Supreme Court.

Lawyers, as ministers in the temple of justice, ought to appear in the temple, with high reverence and solemnity, deserving of the temple of justice, but not in fear and trembling, as they know not the punishment that might be meted out against them, for exercising their constitutional rights, as minister in the temple.

In the case of RT. HON. ROTIMI CHIBUIKE AMAECHI v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) LPELR-446(SC) the Supreme Court held as follows:

“I wish to say that this Court (the Supreme Court) being the final Court of the land, is under a compelling duty to settle all issues arising from or appurtenant to any appeal before it. The judgments of this Court must not be final only in name, but must be seen to be really final in the sense that they have legal bite that makes the judgments truly conclusive. All issues that will make its judgments reasonable and conclusive must be clearly addressed by the Supreme Court.”

It would amount to abdication of the constitutional duties of the Supreme Court and a breach of the same Constitution for the Supreme Court to force Lawyers to withdraw appeals pending before them without hearing the appeals or awarding punitive costs against lawyers for insisting that their course be heard by the court. It is a saddening and worrying situation, which the Supreme Court has to urgently look into and ensure that justice is deservedly done to every case that comes before it, initiated by due process of law.

This is more so, given the fact that the Supreme Court now has the constitutional numbers to fulfil this sacrosanct and constitutional obligation of adjudication. This, however, should not be interpreted to mean that litigants and lawyers alike suffered the effect of the gap that existed due to the delayed appointment of Justices to fill up the gap created by either the retirement or death of some of the Supreme Court Justices.

We acknowledge the fact that the Supreme Court of Nigeria is the highest court in Nigeria, and therefore, its decisions are final. This is not in any way saying that the decisions of the Supreme Court are always correct. The Honourable Justices of the Supreme Court are human beings and, therefore, not infallible. They can make mistakes or commit errors at any time, like any other mortals. That is why the law allows for correcting errors in its judgment when called upon to do, for instance, under the slip rule or pencil rule. In other words, in deserved situations or circumstances, the Supreme Court, when invited, can revisit the judgment it delivered earlier or previously if such judgment is not in accord with desired justice by setting same aside, or varying same or even overruling such judgment. Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250.

The Supreme Court Rules, which provides for cost to be awarded against Lawyers who appear for clients, even when such lawyers are not parties before the court, is unconstitutional and ought to be invalidated to the extent of its inconsistency with section 36(1) of the Constitution.

Section 36 of the Constitution of the Federal Republic of Nigeria provides as follows:
(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law-
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.

A situation where the Supreme Court punishes a lawyer who appears for a client by awarding punitive costs against the lawyer without hearing the Lawyer, constitutes a breach of the lawyer’s right to fair hearing and cannot even be justified by the provisions of section 236 of the Constitution, which gives the Supreme Court powers to make rules, as every such rule made by the Court, are subject to sovereign and overriding provisions of the Constitution of the Federal Republic of Nigeria.

Rules of court are not laws and cannot be elevated to such by any stretch of the imagination. Neither Practice Directions nor rules of court can overrule statutory provisions. In other words, rules of court are not as sacrosanct as statutory provisions of law. [University of Lagos v. Aigoro (1984) 11 S.C. 152.

The practice of asking Lawyers to withdraw their appeals at the risk of being sanctioned by the Supreme Court is not in conformity with the provisions of sections 232(1) and 233(1) of the Constitution of the Federal Republic of Nigeria. Asking Lawyers to withdraw appeals filed legitimately before the Supreme Court without hearing the appeal is equally unconstitutional and does not accord with the previous decisions of the Supreme Court.

Ministers in the temple of justice must not be made to approach the temple with trepidation. Supreme Court should not be a place where Lawyers are punished but a place where justice is dispensed in accordance with the provisions of the Constitution.