Esezoobo O. Johnson Esq
Let Us Now Take A Stand For Nigeria Through The Law By Esezoobo O. Johnson Esq
Since the Supreme Court delivered judgment on Friday 8, May 2020 in the case involving former Governor of Abia State, Dr. Orji Uzor Kalu, the legal community has been thrown into some form of hysteria with comments which, either way show general aversion to corruption, save that our problem is how to tackle the vice.
If this is true, then the problem is simple; solution lies in ‘reconciling ourselves in the practice of our profession with our responsibility as citizens of Nigeria’. We cannot be practicing anyhow, even against the rules of the profession, as we currently do, as if we have no stake in the country. We obviously have a stake in the country called Nigeria and cannot afford to play as mercenaries. Unless we acknowledge this and allow it to weigh on our activities, particularly in dealing with State affairs, we cannot solve the problem. No, not that way.
Firstly, a short remark on tenor of the judgmentBy the judgment, the Apex court annulled the provision of Section 396(7) of the Administration of Criminal Justice Act (ACJA) consequentially set aside the judgment of the lower court and ordered a retrial of the accused persons. Reason, that in permitting the Judge who had been elevated to the Court of Appeal to come back to conclude the trial, the provision violated some Sections of the Constitution.
The apex Court couldn’t be more correct in its conclusion particularly in view of its earlier decision in ‘Ogbunyiya v Okudo (1979) 6-9 SC 32’. The judicial pronouncement in that case is a ‘source of law’ which the Apex Court must take judicial notice of and the legislature cannot lightly out-legislate but must accord recognition by way of ‘codification’, unless it has first been found, by the Court itself, to be repugnant and against public good or good conscience.
Secondly, the Section says, ‘Notwithstanding the provision of any other law to the contrary…’,
This implying that irrespective of any provision under the Constitution or any other law, including ‘judicial pronouncement of the Court’, the Section would prevail. Moreover, the word ‘Notwithstanding’ is not consonant with the language of a parliament under a democracy that espouses ‘Supremacy of Constitution’ that obtains in Nigeria. Rather, it is a language of the military, freely used in the dark times of the Country to express military superiority, not only over the Constitution, but also over the people. And on the principles of law in ‘AG Bendel State v AGF (1981) 10 SC 1’, it would have amounted to endorsing the superiority (sovereignty) of the legislature to rule in favour of that provision.
The contradiction would have been accepting legislative prodigality akin to that of the military particularly also having regard to the decision in ‘Savannah Bank v Pan Atlantic Shipping..(1987)…’ that ”Law is a deliberation of the three arms of Government…’ And of course, the Court has the final say in the process of the ‘deliberation’. Thus, to hold otherwise than the Court did would have been a complete divergation from the Nigerian jurisprudence as fully explained in ‘AG Bendel State v AGF (Supra)’.
But for the absurdity, we lawyers have created through our practice, by which the Executive has become dominant in the scheme of governance, the notion of ‘Supremacy of the Constitution’ does not admit of superiority of any of the arms of Government. This is instructive from ‘Military Governor of Lagos State v Ojukwu (1986) 2 SC..’ and ‘Osadebay v AG, Bendel State (1991)2NWLR (Pt. 169)…’
Thirdly; What is taking a stand for Nigeria Permit me to illustrate this with some personal experiences. A few years back, I was chatting with one of our colleagues, ‘Terry’, at Ikeja High Court premises when a friend called me to see him in the office in one of the FG’s Corporations. I met him. He said they had a brief to firm out and his boss, the Legal Adviser asked him to introduce somebody. He took me to the boss who said they had just been served a process from the Federal High Court Abuja and they would like me to represent them in the case and I would be paid… And I said ‘No, it’s not done that way. Let me look at the file, give you my bill and you ask for a discount’. If it was a SAN, you would not do that, push a bill ahead like that. My friend and his boss looked at each other and the lady said, ‘Sir, can you put it in writing to us like that?’ I concurred. And they explained why they made the request thus: ‘We don’t know how the SANs are engaged. We only see files from the MD with instructions, L/A, treat and put away and the fees are paid. No input from us…’. Perhaps, I should not talk further on this because our President is still in the dock where the NBA is being ruled from.
In1993, a very close relation of mine and mentor got appointed Chairman of Okpilla Cement Company. He invited me to be Legal Adviser of the company. I asked ‘What happens to the person on the seat?’ I may have been fully qualified for the post, but certainly not better than the person there. My only advantage was that my man was chairman. And so, I ‘can displace the person there regardless of the attendant ill feeling and disaffection. I insisted I would not displace someone or undermine another person’s authority; instead, give me some briefs. The lady Legal Adviser subsequently called me on phone to say they had two briefs for me; somebody had died them in Lagos and another matter. She personally brought the files to me in Lagos and said to me when she heard someone was coming as Legal Adviser, she got worried. But she was surprised to hear again that the person was no more coming. I told her our parents taught us some values one of which is ensure what you are doing is fair and just.
When I visited the factory once to see the chairman, the MD received me like a King, why? Chairman’s brother… But when I visited again about a year after, the same MD received me casually. Why? Chairman had gone. Fees due from the briefs given me were not paid. Indeed, I had to go to Court for recovery. It was this Legal Adviser I had earlier refused to displace in 1993 that followed up enforcement of the judgment from table to table and personally brought the cheque to me in Lagos in 2003. That money came handy for the roofing of my house.
Yet in another case, the Corporation sent some staff abroad for training. A percentage of the estacode due to them was given to them with a promise that on their return, they would be paid the balance. On their return, all the staff were laid off because they dared asked for payment of the balance. They were laid off without regard to the training they had just acquired for the enhancement of the corporation. Some were subsequently recalled when they accepted half of the balance. But my client insisted on full payment and retained our services to follow up.
Having unsuccessfully pursued amicable settlement, we went to court in 1995, got judgment in 2003.The new lawyer who came in to pursue appeal said to me he wrote a legal opinion advising that the the corporation had no case but the MD said he should ‘just file papers for him to serve his term’, And we were in the Court of Appeal for over ‘twelve years’ before the judgment could eventually be enforced in 2018.
Now, what level of responsibility does such an MD put into governance? And what level of discipline does such a lawyer who is retained to ‘just file papers’ to work oppression and injustice bring into the business of law, and by that, to bear in society?
Further more, whose interest is such an MD, and the lawyer, serving? Still, in one other case, a Lebanese wanted a lawyer to do an urgent matter for him. He told his legal Adviser to get a lawyer who would introduce him to the Judge. Told by his Legal Adviser that it was difficult to get a lawyer to do so, the man insisted that ‘There is no Nigerian before whom you dangle N1 million that will not fall to it’. We went for the meeting and after explaining the problem, he said he had set aside ‘N1 million’ for the first part of the brief, which was to be introduced to Judge at ‘his house’. We said we could only file processes with an ‘affidavit of urgency’ for the CJ to assign it for hearing speedily, but taking a client to a Judge’s house cannot be explained. But a lady lawyer took the brief and got it fixed through one SAN. The said lady lawyer said to me, ‘This is my practice, solicitor’s work. I don’t go to Court’.
One thing that transcends the four instances above is the ‘lawyer’s personal interest’ . Thus, taking a stand for Nigeria subordinating ‘Personal Interest’ to ‘National Interest’. If you practice at the level of the four examples above, you are not practicing with integrity. Each example has something that is not neat and honourable about it. The second example promotes nepotism and favouritism. It promotes discontent and disaffection not consonant with the ‘preamble to the constitution’. By the third example, you are improperly using the Court against its utilitarian purpose. The fourth is clear practice of corruption.
Ordinarily, Nigeria as a Country should be the common client of every lawyer such that he should subject his ‘personal interest, to thyme ‘interest of the State’. Therefore, in executing any brief by or for the State, lawyer should ensure he does not compromise the ideals of the Constitution including ‘Discipline, Integrity, Social Justice and Patriotism. And for this purpose, a lawyer should draw a line between a State brief and one actually meant to serve the ‘personal interest’ of certain officers of State which unwittingly opens them up to being used for circumventing the Constitution and operating a ‘breach Government’ in effect.
In this regard, many members of the inner Bar, the Senior Advocates of Nigeria have led the President and State Governors to become ‘Emperors’, even under a democracy, in what is worse than what we had under Babangida and late Abacha.
They do this directly by advising these principal State officers behind the scene and outside the Executive Council or indirectly by such a public statement as credited to Chief OCJ Okocha (SAN), a former President of the NBA, in approval of Governor Nyeson Wike’s demolition of a citizen’s property without order of Court.
There is this unhealthy coincidence by which when persons aggrieved in such circumstances actually go to court, the brief to defend the action gets to them. But be it stressed that such a brief is not a State brief but one to satisfy the personal interest and ego of the Governor. On the authority of Hon. S.L. Akintola v Sir Aderemi Adesoji (1962) All N L R 440, coupled with our Rules of Professional Conduct, it is not only ‘unethical’ but ‘unpatriotic’ for any lawyer irrespective of his status to advise the Executive at any level of Government in Nigeria outside the normal organ(s) established for that purpose. Any lawyer who does that is not standing up for Nigeria but is rising up against her.
It is not unlikely that the controversial provision of Section 396(7) of ACJA crept into our law through such unethical and unpatriotic practice. Details of this will be discussed in the second part of this piece.
Johnson O. Esezoobo can be reached via 0803 320 0595