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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Daily Law Tips (Tip 661) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction: 

Bail is a fundamental human right of all persons in Nigeria. Every person in Nigeria is assumed to be innocent. Every suspect or defendant is entitled to police and court bail. Every offence is bailable in Nigeria, although the conditions for bail may vary depending on the nature of offence. So, there is a duty on courts, Judges and Magistrates to grant bail according to the conditions for bail. Well, it is not impossible to find courts that may grant bail carelessly, without observing the conditions for bail. Since for every action there is a reaction, the Supreme Court has in 2020 reiterated what must happen to such careless judges during service and even after retirement. This work reveals what according to the Supreme Court of Nigeria, are non-judicial/administrative consequences, that must befall Judges and Magistrates that are reckless with bail. 

Bail and the Bench:

There are basically two types of bail; Administrative Bail (popularly known as Police Bail, being bail granted by arresting officer/agency) and then Judicial Bail (being bail granted by courts). By the way, bail is a temporal freedom granted to a suspect/defendant with a guaranty that the suspect/defendant will appear later at an agreed time and place. While judges (the bench) are encouraged to ensure fair hearing (including bail), bail must be granted within the lines of law. Bail must not be allowed to be used as a tool for injustice, hence, the bench must not be reckless in granting bail. Hence, a good Judge or Magistrate in exercising his discretion to grant or refuse bail must be judicial and judicious. Click to read my earlier works on Bail in Nigeria. 

Where a Judge/Magistrate is careless in granting bail, the Supreme Court has clearly stated what must happen to the Judge/Magistrate during his service and even while in retirement. To capture the full colour and height of recklessness on the part of a judge in granting bail, I am  pushed to quote the long words of Justice OLUKAYODE ARIWOOLA of the Supreme Court of Nigeria in a recent judgment in the case of UGWU v. STATE (2020) LPELR-49375(SC). There is no better way to appreciate this issue. The quotation from the judgment of the apex court, clearly shows how a Judge sitting in Enugu State High Court was reckless in assessing and granting bail to a defendant suspected of murder. Below are the words of the erudite jurist. 

1. “However, before I conclude this judgment, I feel compelled to comment on the incident at the commencement of the proceedings before the trial Court of Enugu State. It is on record that the appellant and one other – as the 1st accused had been arraigned for trial, charged with conspiracy and murder. After their pleas were taken and each pleaded not guilty, the matter was adjourned for hearing. The then 1st accused later took an application to a vacation Judge in Enugu for his bail pending trial. The vacation Judge granted him bail on N250,000.00. He was reported to have jumped the bail and the surety readily paid the sum of N250,000.00, the bail money in lieu and he was never available to stand the trial. He is reported to remain at large. There is no doubt that granting or refusal of bail application is at the discretion of the Judge who is considering the application. Yet, there are a number of factors or criteria that must be taken into consideration by the Judge in granting or refusing bail pending trial. These include: (1) The nature of the offence and the punishment attached to it, if proved (2) the evidence available against the accused; (3) availability of the accused to stand trial (4) the likelihood of the accused committing another offence while on bail; (5) the likelihood of the accused interfering with the cause of justice; (6) the criminal antecedents of the accused person; (7) the likelihood of further charge being brought against the accused; (8) the probability of guilt; (9) detention for the protection of the accused; (10) the necessity to procure medical or social report pending final disposal of the case. Certainly these are some of the factors that may be taken into consideration and by no means exhaustive. See; Bamaiyi Vs. The State & Ors (2001) LPELR – 731 (8). I have no doubt in my mind that the said vacation Judge disregarded all the above factors to be considered. In this case, the offence charged included murder punishable with death sentence. The proof of evidence showed incriminating materials, recovered from the accused person’s house upon execution of search warrant on the house. With the available evidence, it baffles one to hear that the vacation Judge, not the Judge whose Court was to try the case, considered the bail and readily granted same. I believe that when the accused later jumped bail and he refused to make himself available for his trial, the Judge should have realized that he has to cover his face in shame for his failure to exercise his discretion on the bail application, both judicially and judiciously. Ordinarily, Judges should be above board as far as integrity and competence are concerned. It is rather unfortunate, to say the least, that a man who was alleged to be involved in the gruesome murder of the Chief Security Officer of the University and serial raping of the two grown up daughters of the deceased can be carelessly allowed to escape from justice. I shall say nothing more on this and let the conscience of the said Judge continue to deal with him either in his retirement or still in service. He is however not on trial.” Per, OLUKAYODE ARIWOOLA ,J.S.C ( Pp. 28-30, paras. B-E ) Judgement of the Supreme Court of Nigeria (on bail) in the case of UGWU v. STATE (2020) LPELR-49375(SC)

Conclusion: 

Judges and Magistrates are the keepers of the gate of justice. They are the few minds appointed for a price, to decide the affairs of men on the table of men. They cannot afford to be reckless and unprofessional in any thing, including bail and fair hearing. Click to read my works on fair hearing and justice. 

My authorities are:

1. Sections 30, 31, 32, 34, 35, 36, 230, 237, 249, 255, 260, 265, 318 and 319 of the Constitution of the Federal Republic of Nigeria 1999.
2. Sections 32, 161, 162, 163, 164, 165, 494 and 495 of the Administration of Criminal Justice Act 2015 and its equivalent in states across Nigeria.  
3. The judgment of the Supreme Court (on what must befall judges that are reckless with bail) in the case of UGWU v. STATE (2020) LPELR-49375(SC)
4. Judgment of the Supreme Court of Nigeria (on the nature and effect of Bail) in the case of SULEMAN & ANOR v. COP PLATEAU STATE (2008) LPELR-3126(SC)

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Daily Law Tips (Tip 660) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction: 

Military and paramilitary formations are very disciplined and often perceived as exclusive heaven for men. However, only few women are found in such sectors and without huge discrimination. This work reveals and condemns the unconstitutional and discriminatory practise that requests female officers to seek approval before marriage (work place discrimination).

Discrimination Hubs:

Discrimination is sometimes perpetuated even by the few ones appointed to keep nations safe and peaceful. In some military or paramilitary forces like police and others, female officers are not allowed to marry without the approval of their superiors or the management. However, the male officers are free to marry anytime without an approval or even notice of any person. This procedure or requirement on female officers are said to be taught in training schools, or contained in signals and orders of their formation, like the Regulation 124 of the Police Force and the section 8 of the Terms and Conditions of Service for National Drug Law Enforcement Agency (NDLEA). This type of discrimination is also present in other workplaces/employment relationships; private and public sector. 

Discrimination and the Constitution of Nigeria: 

Well, the greatest of all laws in Nigeria is the Constitution of the Federal Republic of Nigeria, 1999. The constitution is greater than any institution, arm of government, formation, force or organization as well as all orders, laws, regulations, manual, training, signals and directives in Nigeria and even outside Nigeria. And, anything, action or directive even law, that contradicts the constitution is self-destructive and nullified.

The great constitution of Nigeria, has declared men and women equal and expects them to be treated equally. No sex is greater than the other, not minding what religion and tradition may say. The constitution frowns at discrimination including discrimination on the sex of a person. Hence, it is the right of any Nigerian not to be discriminated against because of his/her sex. 

Hence, any order, signal or directive that requires only female officers to seek approval before marriage is discriminatory and as such is a violation of fundamental human rights of all concerned female officers. It is also contrary to the constitution of Nigeria and it is consequently null and void (dead on arrival). Nothing can rise against the constitution of Nigeria and stand. 

Remedies for Victims of Discrimination: 

The concerned female officers have fundamental human rights that must be respected and protected by all. Where any fundamental human right is violated, the victim can go to court to seek remedies, including huge financial compensation. It is advisable to engage the service of a legal practitioner of one’s choice. Also, the National Human Rights Commission (NHRC) or the Gender Advocacy and Women Resource Center (GAWRC) can be contacted. 

Attitude of Victims: 

Unfortunately, some female officers seem to be comfortable with discrimination. Some of them claim the discrimination is designed to protect female officers from bad husbands. It is a pity. It is obvious that protracted discrimination can affect the psychic of a victim to the extent the victim accepts and even trivializes his/her discrimination, including the protection and promotion of perpetrators and concealment of discrimination. At this point, there is huge need for free legal awareness among other things, because until people understand their rights, they cannot detect a violation or choose a reliable channel for remedy. Click to read my earlier works on women rights in Nigeria.

Conclusion & Recommendation: 

Discrimination in demand for approval for marriage is unconstitutional and illegal. Even though most concerned female officers may not be courageous to seek legal remedies, for fear of further discrimination, there is need for positive change. Concerned institutions/formations must be pressured to reverse their unconstitutional discriminatory practices. The legislators having oversight functions over such institutions, as well as the heads of such institutions are called out to take action! Say NO to discrimination at work! Click to read my earlier works on women rights in Nigeria.

My authorities are:

1. Sections 15(2) and 42 (1) of the Constitution of Federal Republic of Nigeria, 1999.

2. Articles 2 and 13 of  the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

3. Article 7 of the Convention of Elimination of All Forms of Discrimination Against Women (CEDAW).

4. The judgment of the Supreme Court of Nigeria in the case of LAFIA LOCAL GOVT v. EXECUTIVE GOVT NASARAWA STATE & ORS (2012) LPELR-20602(SC)

5. The judgment of the Supreme Court of Nigeria in the case of ANEKWE & ANOR v. NWEKE (2014) LPELR-22697(SC)

6. The judgment of the High Court in the case of WELA vs. Attorney-General of the Federation (Unreported) Suit No: FHC/IKJ/CS/M128/2010 of 30th April, 2012 Adah J. (as he then was). The judge in this case declared illegal and unconstitutional the said Regulation 124 on the ground that it was inconsistent with the provisions of section 42 of the Constitution of the Federal Republic of Nigeria and Article 2 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

7. “Let’s Have Gender Justice Now”, Femi Falana (Premium Times, 7 March 2013) <https://www.premiumtimesng.com/opinion/123609-lets-have-gender-justice-now-by-funmi-falana.html> accessed 23 September 2020.

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This publication is the writer’s view not a legal advice and does not create any form of relationship. You may reach the writer for more information.

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