An Adjournment For A More Senior Lawyer to Handle A Case Is A Professional Misconduct.

Daily Law Tips (Tip 662) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

INTRODUCTION: 

Litigation is not a hide and seek game. Parties on both sides of a case must be granted adequate facility (including, time) to prepare and present their cases. An adjournment is a break/postponement  in a litigation process and procedure, granted by a Judge/Magistrate to allow parties or the  court to do substantial justice. It is a fundamental human right, being a tool for fair hearing. However, unserious Judges, Magistrates, Lawyers and Litigants often employ adjournment to delay and frustrate justice. Adjournment is one of the factors that cause delay in determination of cases in Nigeria. One of the common reasons for adjournment is that, there is a more senior lawyer willing to conduct a case other than the lawyer appearing before the court. This work examines the propriety of this common reason in Nigerian jurisprudence.   

PRACTICE AND PROCEDURE: 

To better understand the this topic, there is need to assess client to lawyer relationship and then lawyer to court relationship. This is chronologically placed below. 

1. Any person in Nigeria is entitled to engage the services of any lawyer of his choice. Hence, a court can never dictate or force a lawyer on any litigant. To support this, is the Court of Appeal, that states; “… in the principle of fair hearing is the right of a party to engage a counsel of his choice.” Per ONYEKACHI AJA OTISI ,J.C.A ( Pp. 26-27, para. F) in the case of MOMAH v. MOMAH (2017) LPELR-42817(CA)
2. Where any person chooses a lawyer, he also has powers and rights to disengage the service of the law. He who hires a lawyer, can also fire the lawyer. Hear what the Supreme Court, says on this issue; “A litigant is free to engage counsel of his choice at any time and may equally terminate such engagement at any time.” Per KUTIGI ,J.S.C ( P. 14, paras. F-G ) in the case of ISIAKA & ORS v. OGUNDIMU & ORS (2006) LPELR-1552(SC)
3. Where any person chooses and engages the services of a lawyer, the person becomes a client to the lawyer. And the lawyer has a duty to represent the client diligently in any court or tribunal in Nigeria. On this issue, the Supreme Court of Nigeria has held that, “Counsel qua advocate as an expert of law has an unfettered right to advise his client on what line of action to take in the light of the applicable law. While there cannot be any argument on this right of counsel, the owner of this big power, he is expected to exercise it only in the light of the enabling law in the matter. He should take into serious consideration that the client, the novice in law, will have no choice than to rely wholly and fully on the position of the law as given to him by Counsel.” Per NIKI TOBI ,J.S.C ( P. 26, paras. C-E ) in the case of NEWSWATCH COMMUNICATIONS LTD v. ATTA (2006) LPELR-1986(SC)
4. A lawyer that represents a client binds the client. Hence, the submissions of a client’s lawyer is deemed to be the submissions of the client of the lawyer. Lawyers are advocates of their clients. No one goes to the courts (gates of justice) except through lawyers. However, note that in certain cases, a non-lawyer can represent himself in court without engaging the services of a lawyer. The Court of Appeal has this to say, “Undoubtedly, in any given criminal trial, as well as in complex civil proceedings (such as the extant case) the participation of a legal practitioner (lawyer), is very essential. This is absolutely so, because the participation of a lawyer is intrinsically connected to the litigant’s right to sufficiently prosecute or defend his case. I think, it was Lord Denning, MR, that fearless, conscientious and erudite Jurist of all time, who once aptly articulated the trite principle, to the effect that – It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or (even) wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday! A Magistrate says to a man: you can ask any questions you like; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task? See PETT v. GREY HOUND RACING ASSOCIATION (NO. 1) (1968) 2 ALL ER 545 @ 549, per Lord Denning MR. Indeed, it is axiomatic, that what actually makes the participation of a lawyer in a case so vital if not indispensible, is his expertise, which is predicated upon a vast knowledge of the law; his remarkable ability to apply that knowledge to given fact situations; to sift relevant admissible and often very complex evidence from what is relevant and inadmissible; and most significantly, his eloquence – skills in argumentation and power of persuasion. Indeed, it was Lord Simon, who had once cited (with approval) Dr. Johnson’s legendary observation in 5 BOSWELL’S LIFE OF JOHN (BIRBECK HILL Edition) 26, thus: As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to for his client all that his client might fairly do for himself if he could. See WAUGH VS. BRITISH RAILS BOARD (1979) 2 ALL E.R. 1169 @ 1176. See also Section 36(1) & (5) 1999 Constitution (Supra); Article 14(3)(d) of the International Covenant on Civil and Political Rights; Article 7(i)(c) of the African Charter on Human and Peoples Rights; Article 8(2)(d) of the American Convention on Human Rights; Article 6(3)(c) of the European Convention for the Protection of Human Rights and Fundamental Rights.” Per, IBRAHIM MOHAMMED MUSA SAULAWA ,J.C.A ( Pp. 40-41, paras. B-F) in the case of UZOWULU & ORS v. AKPOR & ORS (2014) LPELR-22190(CA).
5. The moment a lawyer steps into a court to represent a client (party), the lawyer is deemed to be properly engaged by the party. The lawyer is also assumed to be able and capable to handle the case, even if the lawyer is holding the brief of another lawyer. The apex court has reiterated this, in the following words, “The point is well taken and the authorities of MOSHESHE GENERAL MERCHANT LTD V. NIGERIA STEEL PRODUCTS LTD and ADEWUNMI V. PLASTEX (NIG) LTD are apposite that a Counsel has full control and authority of his client’s case once he takes up his client’s brief and announces his appearance in Court as Counsel for his client.” Per ALAGOA ,J.S.C ( Pp. 36-38, paras. C-E ) in the case of OGBORU & ANOR v. UDUAGHAN & ORS (2013) LPELR-20805(SC)
6. At this point, a court of law is not expected to allow a lawyer appear before it to seek for an adjournment (break) merely to allow a more senior or experienced lawyer to handle the case. After all, a lawyer is lawyer. The shameful practise of buying time and delaying justice under the disguise of wishing that a more senior lawyer to handle a case is unknown to law or practise.   The Court of Appeal has emphasised that, “Courts of law have said it several times that Counsel should refrain from attending Court merely to ask for adjournment to enable a more senior colleague to do the matter. It is not a fashion for younger Counsel to ask for adjournment on the ground that a more senior colleague would like to do the matter “personally.” Frankly, I do not know what this is all about.” Per MOHAMMED LADAN TSAMIYA ,J.C.A ( Pp. 32-35, para. E ) in the case of THE CITY WAITERS LTD v. ADIO (2014) LPELR-24329(CA).  “It is the law, (as has been submitted by learned Counsel for the Respondent), that any counsel who announces that he is holding brief for another counsel is presumed to be in possession of the facts and law regarding the case, and has the full authority of the counsel, whose brief he holds, to handle the case.” Per SANKEY ,J.C.A ( P. 13, paras. A-B) MOHAMMED & ANOR v. STATE (2015) LPELR-25694(CA)
7. Adjournments are left at the discretion of Judges and Magistrate. However, adjournments can only be given judiciously and judicially upon cogent and compelling reasons that the court believes will do Justice. Here are the words of the Court of Appeal; “…the trite fundamental principle guiding grant or refusal of adjournment is not merely borne out of the sheer number of previous adjournments. Indeed, it’s a settled principle, that – It is not the number of previous adjournments sought and granted that will necessarily influence the court’s discretion to grant or refuse an application for adjournment, rather, it is for a good cause as well as cogent and weighty ground or reason. See OLORI MOTORS & CO. LTD v. UBN LTD (Supra) @ 504 paragraphs D – E per Achike JCA (as he then was).” Per SAULAWA ,J.C.A ( P. 32, paras. B-C ) in the case of UZOWULU & ORS v. AKPOR & ORS (2014) LPELR-22190(CA)
8. A lawyer is an officer of the courts and owes duties to courts. By the Rules of Professional Conduct for Legal Practitioners, a lawyer “… shall not do any act or conduct himself in any manner that may obstruct, delay or adversely; affect the administration of justice.” and one of the duties of a lawyer to a court. Delaying justice by applying for an adjournment merely for a more senior lawyer to handle case is a professional misconduct and unknown to any law or practise in Nigeria. However, where there is cogent and compelling reason for a more senior lawyer to handle a case, no doubt a court will grant an adjournment. The Supreme Court has held that, “Similarly, in the case of FALOWU VS. BAMIGBE (1998) 6 SCNJ 42 AT 64 PARA 34, the Apex Court held thus:- “It seems to me necessary at this stage to stress that once counsel announces his appearance in Court, whether he is holding brief for another counsel or not, the Court takes it that he fully mandated and or authorized, to conduct the case on behalf of his principal or his client. If, however, he is not in the position for any reason to do so, it is his duty to apply for an adjournment, stating his reasons to the Court for the application where upon the Court, upon a consideration of such reasons shall decide whether or not the case should in the interest of justice, be adjourned, otherwise, the Court would proceed with the hearing of the cause or matter. In the absence of such an application, the Court is entitled to assumed that Counsel is fully instructed and/or mandated to get on with the case ….” Per SAULAWA ,J.C.A ( P. 32, paras. B-C ) in the case of UZOWULU & ORS v. AKPOR & ORS (2014) LPELR-22190(CA)

CONCLUSION: 

Law practise is a serious business. A lawyer must be professional and prepared for any case/brief he undertakes. Where a lawyer must seek for an adjournment, he must have genuine, cogent and compelling reasons, to avoid professional misconduct. Wishing to have a more senior lawyer to handles a case can be flimsy and an attempt to frustrate the administration of justice. On the part of a client, a client must be serious to prosecute and fund any matter he engages a lawyer to handle. A lawyer must never use adjournment as a tool for fraud or delay of justice and must never allow his client to lead him into such nonsense, after all a lawyer is not a servant of his client. Adjournment must be employed to do only good and justice at all times. Click to read my works on fair hearing and justice in Nigeria. 

My authorities are:

1. Section 36 of the Constitution of the Federal Republic of Nigeria. 
2. Rules 14 to 25 and Rules 30 to 38 of RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007 
3. The judgment of the Supreme Court in the case of (Effect of lawyers authority to conduct case of his client) in the case of ELIKE v. NWAKWOALA & ORS (1984) LPELR-1118(SC).
4. The judgment of the Supreme Court in the case of OGBORU & ANOR v. UDUAGHAN & ORS (2013) LPELR-20805(SC)
5. The judgment of the Supreme Court in the case of NEWSWATCH COMMUNICATIONS LTD v. ATTA (2006) LPELR-1986(SC)
6. The judgment of the Supreme Court in the case of ISIAKA & ORS v. OGUNDIMU & ORS (2006) LPELR-1552(SC)
7. The judgment of the Court of Appeal in the case of UZOWULU & ORS v. AKPOR & ORS (2014) LPELR-22190(CA)
8. The judgment of the Court of Appeal in the case of MOHAMMED & ANOR v. STATE (2015) LPELR-25694(CA)
9. The judgment of the Court of Appeal in the case of THE CITY WAITERS LTD v. ADIO (2014) LPELR-24329(CA)
10. The judgment of the Court of Appeal in the case of MOMAH v. MOMAH (2017) LPELR-42817(CA)

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