Sat. Oct 23rd, 2021

Let Us Now Take A Stand For Nigeria Through The Law (Part 2) & Standard Bearer And Corrective Practice By Johnson O. Esezoobo Esq

Johnson O. Esezoobo Esq

Let Us Now Take A Stand For Nigeria Through The Law (Part 2) & Standard Bearer And Corrective Practice By Johnson O. Esezoobo Esq

This second part focuses on our unwholesome approach to legal practice by which we reduce ourselves to servants instead of masters of our clients. The emphasis is that a client, irrespective of his status, be he President or Governor, is only entitled to the courtesy, and respect of the lawyer. He is not, and should not be allowed to be, the lawyer, dictating the course. One of the reasons for delay in the Administration of justice in Nigeria, and our Courts are congested, is our approach to legal practice wherein we fail to exercise discretion, which will involve exercise of caution in the pursuit of a client’s cause.  

Another point of emphasis here is that legislative intervention is not, or not the sole, solution to delay in the Administration of justice in Nigeria, particularly that allegedly caused by lawyers, which has formed the fulcrum of a highly corrupt practice of collection of a penalty for late filing also falsely described as default fees. Whatever name it is called, it is a CORRUPT PRACTICE  allowed because the whole system is corrupt.

One commentator had lamented, …this is why lawyers are no longer respected. And in my initial reaction, I said the problem this time is not the lawyers but the Court. But with the benefit of the full details of the events, I dare say that only the apex Court can be exonerated from blame in this case. Every other person involved, including the lawyers, failed to live up to our responsibility under the Constitution, a situation that has opened the Nigerian legal system up to manipulations by the unscrupulous to advantage and to the peril of the nation.

Ordinarily, by our rules of Professional Conduct coupled with our duties as citizens, a lawyer is expected to be the standard bearer of the society. Thus, in conduct, character and attitude, he should stand out in order to be able to correct his client, irrespective of his status. That is what I pick from the lamentation.

Correctiveness should therefore, form part of the local content of any level of legal practice in Nigeria, particularly because of the predilection of Nigerians to doing wrong. Ironically, we have not distinguished ourselves to be able to correct others. Rather, we have become the very instruments used for the manipulations. That is why if actually we are concerned, we must now take a stand for our country Nigeria by using the law positively rather than negatively. The day we change our attitude and start doing it right, placing as noted earlier, national interest above personal interest that is the day Nigeria will get out of darkness into light.
If truly we are concerned let us start today with a conscious effort at distinguishing ourselves by reason of our unique placing in society living above the general selfishness that mars us as a people. And unless we do this, we will not be able to contribute positively to the socio-political development of the Country. We cannot be dealing the wrong way and craving legislative intervention for correction of the system in the course of which we usually create fresh problems.
Improper relationship dealingThe vice of selfishness is perpetrated though relationship dealing otherwise connection which aids other vices like corruption. Through this vice, attention is not paid to details that are needed to assist good governance, legislative or otherwise. So, absurdities get enacted into law in the process of engaging legislative intervention. This was the case with the famous Shagari (1979) 6-9 SC51. Here, the due process was jettisoned through legislative intervention to meet the expediency of the time; rule of the thumb.

Selfishness in our profession, the Bar and the Bench came to a high point of embarrassment sometime in 1998 when Government suddenly raised the retiring age of Justices of the Court of Appeal and Supreme Court to 70 years; just to satisfy a particular interest. I recall criticising it as unjustifiable and calling for a review to include all the Judges as I saw ‘no reason for the discriminatory process‘.
But curiously, the budget speech of that year got stung by the virus of *connection* when a clause suddenly appeared therein, raising the retiring age of ...the Chief Judge to 70 years, leaving out the other Judges. And the then Chief Judge of Lagos State was so comfortable with this absurdity that he came shamefully on TV to extol the inclusion of CJ only. But what was more curious was that Chief FRA Williams, SAN of blessed memory led a group of fourteen other Senior Advocates of Nigeria to press for enactment of the budget speech into law. I recall writing to quip if that was the best the fifteen SANs could offer the nation in that circumstance. And considering the struggle for democracy at the time, and the courage drawn from him, I became cold when I saw the name of Dr. Olisa Agbakoba SAN among the fifteen SANs. I want to believe that if it had mouth and could talk then, Nigeria, like Julius Caesar*, might have said *’Et tu Brute?’ (And you too, Olisa?). I strongly believe that had the issue been taken up by the National Bar Association (NBA) as a body, the situation would have been corrected.

Inconsistent and unethical practicesIn my last mail, following the passage of Chief Richard Akinjide, SAN, I asked: ‘What are we doing with our law?’. I will enjoin us to reflect and try an answer to this question in view of inconsistencies of our practice. For example, at restoration of democracy in May 1999, Salisu Buhari  Speaker, House of Representatives, was accused of certificate forgery. He went for FRA Williams SAN. And the best Baba could offer was to file action for libel against the newspapers that made the publication. And with his avowed legal sophistry, that crime would have been covered up for the culprit to sail through but for the determination of Femi Falana SAN, Counsel for the publisher. And the man who later pleaded guilty to the charge and apologised to Nigerians, would have run through his tenure, even get a second term, thereafter get to the Senate or become Governor, in the recycling that goes on in our democracy, ruling over us.

Was it right for Timi the Law himself to have done that? This is a question for every one of us to ponder over. But let me say this: the generation before us did not bequeath to us an enviable standard of practice, summarised in ‘He who pays the Piper dictates the tune’. Thus, irrespective of the level of learning, status, even age as a Senior citizen, the lawyer will give himself to be driven by a client because he is paying him fees.
This level of practice is gladiatorial; turning lawyers to instruments of war in the hands of the clients; A practice that leaves us with no discretion to discuss peaceful settlement? This contradiction presents us as ‘Zombie’, (courtesy of that great musician, Fela Anikulapo Kuti) and it is difficult to reconcile. For example, in the celebrated case of Longe v FBN Plc, I know as a fact that late FRA Williams SAN, approached late Akinjide, SAN for amicable settlement. But the latter said he did not receive instructions to settle. Colleagues if we must take a stand for Nigeria, we must insist on and play as lawyers in all sense of the word .
Disadvantages of the ‘Piper’ principleThe evil of ‘He who pays the Piper dictates the tune’ can be illustrated by the experience in the case of Johnson O. Esezoobo v NPFMB & Anor just as in the Dr. Orji Uzor Kalu case in which Section 396(7) of ACJA is being discussed. Here the plaintiff was placed on indefinite suspension without pay for speaking against irregular appointment of a private businessman as CEO of the organisation thereby frustrating career aspirations of serving officers. Professor AB Kasunmu, SAN as defence Counsel, filed a defence to say that the plaintiff was suffering schizophrenia.
Significantly, the learned Professor, SAN taught me in the Law School in 1979/80. I wrote him to say, ‘Prof, this is not what you taught us… You can withdraw it, let us make peace and face the main suit. But he replied to say I am awaiting your writ’. So, I served him a writ in Johnson O Esezoobo v Prof. Kasunmu, SAN & Anor. Incidentally, when the *He’ that was paying the Piper and ‘dictating the tune’ could no longer finance the suit, having been relieved of his illegal appointment, he apologised to me and withdrew the offending stuff.
He had boasted at the beginning that he ‘was prepared to spend N1million to keep the case in Court‘ to keep me away. And at Management meeting, the man reportedly said, ‘If you want anything delayed, call the lawyer’. And Professor AB Kasunmu SAN executed the brief successfully and kept the matter in Court for eleven (11) years from 1990 to 2001.
However, following the apology of the ‘He’ that was ‘dictating the tune‘, I applied to the court to ‘withdraw the suit against 1st defendant, Professor AB Kasunmu, SAN, on condition that he should ‘go and sin no more’ but unconditionally against the second defendant’.

In an unusual encounter, I ran into the learned Professor, SAN in Court one of the days. And one of his juniors, Patrick Nsolo, said ‘Prof, look at Mr. Esezoobo‘. And the Prof. called me and said to me, ‘Mr. Esezoobo, I’m told you said I should go and sin no more’. ‘Yes sir‘, I answered. And he smiled and walked away. The question from this encounter is how do cure this kind of practice of keeping matters in Court through frivolous applications?
The eleven-year delay Esezoobo v Justice SahidThe significant point here as touching on the necessity for Section 396(7) of the ACJA is that delay in proceedings through frivolous applications as in the eleven year-delay in the Esezoobo case is made possible by indulgence by a Court. On the principle that the Judge controls the Court, and he is in charge of it, unless he allows it, no lawyer can hold down proceedings anyhow. For example, it is not difficult to know a frivolous process aimed at delaying due administration of justice. And strictly, filing a frivolous process touches on professional misconduct. Check out the Rules. But we get away with it in Nigeria and even glory in it. I recall the narrative of Honourable Justice Deji Balogun, who is also a son of a Judge at the NBA Ikeja Branch Seminar in March 2019. With great relish the learned Judge recounted how he held down for about two years a proceeding that was supposed to last for three months until Ladi Williams, SAN, Counsel on the other side, called him and said ‘Aburo, akiinja.., from history, the Balogun and Williams’ families don’t fight…. This certainly is not a thing to be proud of. That narrative was in respect of one case; consider the several other cases in which the learned Judge must have practiced such ungodly act with attendant injustice not only to some persons but to the nation. REPENTANCE is still available.

Back to the Esezoobo case, in the eleventh year, the game was up; certain events led me to write a petition to the Honourable Chief Judge complaining that the *trial Judge was colluding with the other party and Counsel… And the Chief Judge replied to say that …the learned Judge has undertaken to do the case from day to day up to judgment in two weeks but on condition that you (i.e. I) withdraw the petition’. But while Professor Kasunmu, SAN refused to cooperate, saying he could not rearrange (his) diary, the learned Judge failed to keep faith with his undertaking. So, I took out a writ in Johnson O Esezoobo v Honourable Justice A.R.A. Sahid. I protested against representation of the learned Judge by the Attorney General on the ground that the undertaking he made through CJ apart from being an admission that he was actually colluding with the other party, was not a judicial act of the State but was enforceable against him personally. The Attorney General dropped the process and the learned Judge engaged a private legal practitioner who represented him and filed objection to the suit on ground of judicial immunity. And the main issue was whether indeed, there was law of judicial immunity in Nigeria. Second issue was the scope of judicial immunity of a Judge in Nigeria, if any; whether in a situation such as where the Judge was colluding with the other party, he could still be officer of the State to enjoy judicial immunity. Adeyinka, J. held that a Judge is not an officer of the State. This case was to offer an opportunity to develop the law of judicial immunity in Nigeria. But by this time, I had been so wearied that I could not pursue the appeal I filed against the ruling.

The third, and final, part of this piece focuses on another aspect of the matter which help lubricate our thoughts on the necessity for the provision of Section 396(7) of ACJA. The whole driving force remains: if we want to take a stand for Nigeria, we must first change our attitude. We cannot make the desired difference in our decayed society unless we are different. 

Readers can reach Johnson O Esezoobo Esq on +234-803-320-0595