By Abdulrasheed Ibrahim, LL. M, Notary Public
We seem to live in an age where the practice of law particularly litigation has become an instrument of frustration and oppression. Imagine as a lawyer you fought a legal battle on behalf of a Claimant with a very good case and judgment was eventually given in your favour after about ten years at the trial court but since we operate a judicial system that allows the defeated Defendant to appeal against such judgment, then there begins another journey to longevity through the appellate system, if the Defendant decides to exercise that right of appeal.
If the Defendant is in possession and occupation of the subject matter i.e. a property, then right of the successful party (the Claimant) to take over the property in question is suspended until the final determination of the appeal which may eventually end up at the Supreme Court, the apex court in the land. In a monetary judgment, one of the ways to checkmate the bad faith of the Appellant is the court ordering the payment of the judgment sum as a condition of appeal into the interest yielding account of the court. But what happens in a case whose subject matter is not money but an immovable property? Is it not high time the law is developed in this aspect of law? We have had instances where the real successful party did not live to benefit from the fruit of his or her judgment.
Law reports are replete with cases fought for decades at the instance of the unsuccessful party mainly to frustrate the successful party. The law is settled that the court will not make the practice of denying the successful party the fruit of his judgment. But what happens when an appeal is said to have been validly entered before the appellate court? The system we operate allows a party to file an appeal against a decision he is not satisfied with.
There are even situations where a defeated party want to accept the defeat and throws in the towel but some lawyers will insist on filing appeal not because they are very sure of the success of the appeal but to use such appeal to boost the number of cases to be submitted for the award of the Senior Advocates of Nigeria. I’ve heard a lawyer telling a his client who has just lost a case at the trial court that: “don’t worry we are going to hang the judgment at the appellate court” .
It is this kind of the indecent practice on the part of some lawyers even the senior ones that unnecessarily overburden our appellate court jurists and they have been lamenting seriously. EKO, JSC (retired) said this in the case of APC Vs. OBASEKI (2022) 2 NWLR (Pt. 1814) 273 at 310
“This appeal should never have been brought in the first place. It is completely frivolous, and a clear case of abuse of process. Learned Senior Advocates, being not only officers of the Court but supposedly noble and worthy knights in the temple of justice, should be more silky in administration of justice, particularly in election and pre-election disputes”
Volume of books can be produced from law reports to bring to together similar lamentations from our jurists on the bench. Our judicial system continues to accommodate this kind of practice without appropriate sanctions as it is being done in the United Kingdom where we borrowed the judicial system. A Professor of Law and Deputy Vice Chancellor, Administration at the Olabisi Onabanjo University, Ago Iwoye in Ogun State, Charles Adekoya recently said that many Nigerian lawyers cannot practice in the United Kingdom. In his Inaugural Lecture titled “Betrayal of the Poor in Accessing Justice in Nigeria: The Judas in our Midst”. According to the Learned Professor:
“Many of our colleagues could not practice in the UK as they would have had cost awarded against them or even lose their licences on ground of unethical or profession misconduct …Corruption and Unethical Practices have suffocated the administration of justice in Nigeria…Many justice seekers in Nigeria often quickly abandon their matters due to the harrowing and frustrating way Nigeria’s justice system works”.
Since we run a system in this part of the world where it is the desire of virtually every lawyer to become a Senior Advocate of Nigeria by wearing the silk gown, the attention must be seriously focus on the quality of the cases taking to the appellate courts and not the quantity. There is the need for sanctioning lawyers for filling frivolous cases at the trial and the appellate court.
Again, there is this practice of “dogs eat dogs” in the practice of law in this country which requires the urgent intervention of the Nigerian Bar Association (NBA) . There is no better way to illustrate this practice than by the experience of a particular lawyer as expressed recently on a lawyers’ platform as follows:
“I did legal documentation for a client who bought a property of N160 Million in Lagos. After the job was successfully completed and parties duly executed the DEED OF ASSIGNMENT, the client paid only One Million Naira into my account. Of course, I vigorously protested the payment of N1 Million to me for the job. I wrote the client and informed him in very clear terms that if he failed to pay me N7 Million more to take the payment to 5% of the cost of property , I would take him to court. A lawyer replied to my letter to tell me that the man had been generous enough to pay me N1 Million –because we did not have prior agreement of my professional fee for doing the legal documentation. The client himself told me that he already had four lawyers lined up to deal with me if I took him to court to recover the balance of my professional fee. That is the professional courtesy you receive from some of our colleagues. It may interest you to know that the man who finds it difficult to pay me fairly for doing the legal documentation, made a gift of N5 Million (Five Million Naira) to the seller’s Agent – not his own (buyer’s) Agent. Of course, we will certainly end up in court and the man will be happy to pay his team of lawyers to face me. The lawyers too will be happy to take his money to challenge why I should be paid so much ‘for merely preparing an ordinary DEED OF ASSIGNMENT’.I have served the client a formal Bill of Charge .It is just a matter of time before you enjoy the live show in court. See you in court.”
What actually brought above this narrative and revelation was an Uganda lawyer’s reply to another lawyer’s “letter of demand and intention to sue” which went viral. This prompted a controversial discussion on why African lawyers are not protecting the interest of the colleagues when it comes to the issue of recovery of the professional fees from runaway clients? A lawyer in his own intervention said “If truly a lawyer rendered legal services for which his client benefited, why another lawyer should now stand as obstacle to the payment /recovery of the legal fee? If defaulting client runs to another lawyer, is that lawyer not expected to advise the client to pay? But no, they won’t do that .They will collect the brief and stand against the smooth recovery of the legal fee. That is bad. In Nigeria, it’s very prevalent, even in Kaduna here. It’s a very bad practice and this is one of the bizarre attitudes of lawyers that NBA at National and braches should tackle”. On whether clients should be allowed to take lawyers for granted, the response of another lawyer was very straight forward:
“Some so-called clients take lawyers for granted ably supported by other lawyers. It is very disheartening to say the least. Rule 29(1) a & b Rules of Professional Conduct 2007 clearly spells out what a new lawyer who is briefed to take over case from the former must do. We are and must be guided by rules as lawyers and not be seen flouting the rules. I see urgent need to address these unfortunate happening in the midst of learned gentlemen.”
While some lawyers have argued that the dispute between a lawyer and his client must first be well understood before any intervention as denying the right of a client to be entitled to representation of lawyers when he is dragged to the court by another lawyer would amount to the breach of his constitutional right. I think everything is still bothered on good conscience and decent practice as there are lawyers that usually develop cold feet when it comes telling their clients the plain truth for the unnecessary fear of the unknown that if they tell their clients to pay their former lawyers, how will the new clients pay their own fees? In reality, the negative economic impact in the country is biting hard on majority of Nigerians including lawyers and that has made many to lose their conscience and resort to indecent practice of law in the name of the struggle for survival courtesy of bad governance in the country. Whatever the situation, lawyers must not be seen engaging in unethical practice.
Many things have gone wrong in the legal profession and judicial system today that require serious reforms to checkmate the attitudes that have made the practice of law particularly litigation very frustrating in the attainment of justice. The provisions of law that allow gluttonous litigants and their lawyers to prosecute cases to eternity must be discouraged. There is the need for reform that disallows all cases from getting to the Supreme Court which till date still being faced with cases that have been on for decades and still awaiting the final determination by the court. Any political party in power must be stopped from using the National Assembly unnecessarily to amend the constitution to suit its whim and caprice as done during the reign of the People Democratic Party when the Supreme Court despite the overwhelming workload on its was further shouldered with the jurisdiction of taking appeals from the Court of Appeal on the Gubernatorial elections unlike what it used to be. As in the other developed countries like the United States of America, the Supreme Court must strictly be concerned with taking constitutional matters which are recondite in nature.The Supreme Court of Nigeria must be stopped from being the jack of all trades. Many Justices of the Supreme Court have made this position known particular when retiring from the apex court having gone through the system and knew what they have been through. For instance ABOKI, JSC (retired) when bowing out of the court reinstated the position as done by other jurists before him that :
“I would also like to use this occasion to call on the National Assembly to consider amending the Constitution and other extant laws, to reduce the number of appeals coming to the Supreme Court; particularly in Election related matters. In this regard it is my considered view that only appeals relating to the Presidential Election should come to the Supreme Court. Others should end at the Court of Appeal .This call is of utmost importance, in order to lessen the heavy burden of the Justices of the Court. Also, the Apex Court is inundated with frivolous, vexatious and needless appeals, mainly filed by Counsels seeking to meet the requirements for conferment of the rank of Senior Advocates of Nigeria. I therefore call on the Hon. Chief Justice of Nigeria, and the Legal Practitioners’ Privileges Committee to review the requirements for the conferment of the rank of SAN to the extent that it will reduce this unnecessary pressure on the Court. There is need for us to note that the Supreme Court of Nigeria is a policy court, which should only deal with matters of complex legal nature, and so it should be.”
Since law is meant to be the tools for social change and engineering for orderliness in any decent society, everything must to be done to prevent the law from being used as an instrument of frustration and oppression. Any society that allows its judicial system to be compromised where people with genuine cause and grievance quickly abandon their matters due to the harrowing and frustrating way its justice system work, such society will not developed. Continued maintenance of a judicial system that allows unsuccessful litigants and their lawyers to take the successful litigants for granted on the false pretence of exercise their constitutional right of appeal without adequate security and sanctioning of their lawyers discovered to have exploited the system to their advantage as being done in the United Kingdom will only make that society to be retrogressive. This is more the reason why a serious and urgent law reform is required in our judicial system.
NOTE: Anyone is at liberty to disagree with my above submissions as I will surely appreciate a balanced, fair and objective rebuttal.
08055476823, 08164683735:
abdulrasheedibrahim362@gmail.com
30th December 2022
