The Supreme Court’s Award of Costs Against Lawyers: “Bad Measure, Pressed Down….!” By Adekunle E. Omobolaji

 

This article by Adekunle Omobolaji, focuses on a recent case in which Prof Mike Ozekhome, SAN appeared for the Applicant, bringing an application before the Supreme Court for enforcement of its judgement; examining the justification and possible consequences of slamming a Lawyer personally with heavy costs, on the dismissal of an application or matter that fails. In this case, Prof Ozekhome was ordered to pay N40 million costs

Introduction

“The first thing we do, let’s kill all the Lawyers.”- William Shakespeare’s Henry VI (Part 2, Act IV, Scene 2).

The Supreme Court’s award of costs against Prof Mike Ozekhome, SAN, on 4th December, 2023, following its ruling dismissing an application filed before it for the Enforcement of its own judgement delivered on 20th December, 2019, in Appeal No: SC/1384/2019: Ugwumba Uche Nwosu v Action Peoples Party & 3 Ors, has again brought to the fore, this sore issue of penalising Lawyers personally for doing their job.

Available records show at the Supreme Court, that the first motion was filed since early 2020, and that this was to be withdrawn and substituted with the motion filed 24th November, 2023, praying the Apex Court for consequential orders on its own judgement delivered in 2019. In its Ruling, the Apex Court was unable to persuade the Learned Silk to withdraw his application for lack of jurisdiction. It dismissed the application in limine, describing it as “strange, frivolous, baseless, unwarranted, vexatious and irritating, brought in bad faith, and calculated to demonise the Supreme Court”. If this were all, there would not have been any issues. But, why penalise the senior Lawyer, for insisting that the court had jurisdiction?

Facts

The facts of the matter as deduced from the proceedings which are in the public domain, are that the Appellant in Appeal No: SC/1384/2019: Ugwumba Uche Nwosu v Action People’s Party & 3 Ors, Mr Ugwumba Uche Nwosu, had sought and contested the Gubernatorial election of Imo State in 2019, having been nominated by two political parties (AA and APC), contrary to Section 37 of the Electoral Act, 2010 (as amended). The PDP won that election through its candidate, Emeka Ihedioha. This electoral infraction by Nwosu was challenged, and the Federal High Court on 19th August, 2019, disqualified him from contesting the Gubernatorial election. The legal consequence is that he never partook of the 9th March, 2019 election, as ex nihilo, nihil fit. Nwosu appealed and lost from the Federal High Court up to the Supreme Court. It said Nwosu could not benefit from his own illegality. It is this judgement Ozekhome wanted enforced.

The Role of Advocates in Nigeria

The Nigerian Advocate, like his counterparts worldwide, is an agent and minister in the temple of justice. He has been described as the “rapporteur of unceasing rights”.

He is prevented by the Cab-Rank Rule to “pick and choose” briefs or clients, as a matter of course. He is under a professional obligation to accept Any work in a field in which he professes himself competent to practice, at a court which he normally appears, except where conflicted. This rule is codified in the Rules of Professional Conduct (RPC), 2007 (as amended). Rule 24 (1) thereof provides: “It is the Duty of a lawyer to accept Any brief 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.” Rule 1 provides that: “A Lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner”.

The Lawyer is immune from liabilities which may arise, in the course of defending his clients. This is stated in the English case of Rondell v Worsley (1966) 3 All E.R 657. Lord Denning, M.R., illuminated thus, at page 665:

“There is, in my judgement, a sure ground on which to rest the immunity of a Barrister. At any rate, so far as concerns his conduct of a case in court. It is so that he may do his duty, fearlessly and independently as ought…. As an advocate he is minister of justice equally with the Judge. He has monopoly of audience in the higher courts. No one, save he, can address the Judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A Barrister cannot pick and choose his clients. He is bound to accept a brief, for any man who comes before the courts. No matter how great a rascal the man may be…No matter how undeserving or unpopular his cause. The Barrister must defend him to the end. He must accept the brief, and do all he reasonably can on behalf of the client…”.

Legal Justification for Applications to the Supreme Court for Enforcement of Its Judgements

It is not “rocket law” to know that enforcement is what gives court judgements their effectiveness. A law, rule or judgement without enforcement, is dead. At best, such law, rule or judgement will stand still, while the rest of society moves on (Parker v Parker [1953] 2 All E. R. 121). Admittedly, the 1999 Constitution (as amended), provides in Section 187(1): “The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons…”. “All authorities” here includes the Supreme Court.

The Supreme Court can surely enforce its own judgements. See Stanbic IBTC Bank Plc v L.G. C. Ltd (2020) 2 NWLR (Pt. 1707), pp. 17-18, paras. D-C. The rationale behind this power was graphically painted by Oputa, JSC, in Adegoke Motors Ltd v Adesanya & Anor (1989) 3 NWLR (Pt. 109) 250 at 274, 275, thus:

“We are final, not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth. … This court has the power to overrule itself (and had done so in the past), for it gladly accepts that it is far better to admit an error than to persevere in error…where therefore, it appears to learned counsel that any decision of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such decision be overruled”.

From available records in the public domain, the application by Ozekhome, was merely for enforcement; not even for overruling, or review, which is guaranteed under the 1999 Constitution. Surely, the Constitution is supreme.

The impatience displayed by the Supreme Court to hear the application on its merit, and its insistence that the Lawyer should withdraw it peremptorily, was curious! The presiding Justice kept saying “Our hands are full…you bring these types of cases to burden us”, etc. Obviously their Lordships’ hands are “full”. Were they also “tied”! The Apex Court appeared not to have cared to understand the kernel of the application, due to its impatience about its crowded docket. Dismissal and award of humongous costs against the Applicant’s Lawyer, is untenable and baseless. The Supreme Court had recently in 2020, slammed N60 million (N30 million each), on both Chief Afe Babalola, SAN and Chief Wole Olanipekun, SAN, for daring to make applications for review to it. Supreme Costs, indeed!

Appropriateness of the Supreme Court’s Orders on Payment of Costs Against Lawyers

The special calling of an Advocate or Lawyer should entitle him to some inalienable privileges, as he navigates the tortuous labyrinth in search of justice. The Lawyer has a right to argue cases in court, without fear of reprimands or reprisals. One is not oblivious of Rule 24(2) of RPC which provides: “It is the duty of every Lawyer on his own responsibility to decide what cases he would bring into court for the Plaintiffs and what cases he would contest in court for the Defendant; and he is not absolved from bringing questionable action or arguing questionable defences or giving questionable advice on the ground that he is only following his client’s instructions.” Let us analyse this provision in the light of two posers, anon.

One, what is the measure for determining the extent of the phrase, “bringing questionable action or arguing questionable defences or giving questionable advice”? The law is clear on the cases and applications that should be brought before the Supreme Court. They include application for review, correction of slips, and enforcement. The Supreme Court has a duty to hear a Lawyer out, and determine each case on its merits.

Chiefs Babalola, Olanikpekun, Ozekhome, and indeed, other victims, acted within the law in bringing their applications. Can a Lawyer determine a case ahead in future, when he genuinely believes in his research? I think not. Was there more to that? Was this why the Ihedioha application was allowed to stay in the court’s docket for nearly four years, having been filed since 9th July, 2020, with a refiled copy dated 23rd November, 2023, and filed 24th November, 2023? The Counsel said in open court, that there were a total of eight letters written to the former Chief Justice of Nigeria and the present one, to set the matter down for hearing. This never happened until 5th December, 2023, when it finally came up. Yet, the Supreme Court used this delay which was not caused by the Applicant, as part of its anger.

Two, is the Supreme Court right in dismissing applications with such humongous costs against Applicants’ Lawyers? I think not. Such needless costs, leave a sour taste. Rule 55 of the RPC provides that any breach of the Rules shall amount to professional misconduct, punishable by the Legal Practitioners Disciplinary Committee. This means that the Supreme Court, or any court, is to report any Lawyer to the LPDC, in line with the Rules and the Legal Practitioners Act for appropriate disciplinary action, if it genuinely believes such a Lawyer crossed the red light. This new punitive stance will definitely affect Lawyers’ research, scholarship and advocacy. It will frighten Lawyers, from forcefully presenting their clients’ cases. It will narrow access to justice. This is absolutely unjustifiable. Courts of law do not exist for high-handed punishments; but, for even-handed justice. Lawyers and Judges are both Ministers in the Temple of Justice. The one without the other, is nothing. To quote Chinua Achebe, “Let the kite perch, and let the eagle too – if the one says no to the other, let his wing break”.

May things never completely fall apart in the Judiciary and in Nigeria!

Adekunle E. Omobolaji