A Senior Advocate of Nigeria and rights advocate, Femi Falana, SAN had in a post earlier published by Law & Society Magazine said no law empowers the Supreme Court to award costs against lawyers.
Prof. R.A.C.E Achara: As usual, the learned silk (Femi Falana) is very logical and persuasive. But I would respectfully call attention to a different line of reasoning applicable to the matter. And, this will not rely on the most recent instance or the reporting which suggests, rather, that the motion moved in that instance was filed in late November of 2023 for a principal relief triggered in 2019.
The Supreme Court (and, indeed, any superior court of record in Nigeria) has an inherent disciplinary jurisdiction to protect its processes and proceedings: and, from this, to sanction its ministers including counsel through costs (both under section 6(6)(a) of the 1999 Constitution as well as by the implication of case law from all over the common law jurisdictions, including decisions of the Nigerian Supreme Court).
The trouble is not with the Supreme Court ‘s capacity, but with the scale and process for its deployment of that undeniable and age-old competence.
Nota bene:
This power does not properly fall within the undoubted statutory jurisdiction, which the Supreme Court has to try and to sanction a legal practitioner for an independent charge of professional misconduct under the Legal Practitioners Act.
The jurisdiction under that statute permits specific sanctions none of which, even by a tortured stretch, can cover costs to be awarded to or against any of the parties in an independent suit of which that legal practitioner is not a party.
In a word, the Supreme Court jurisdiction to award costs against counsel is disciplinary and inherent, not currently statutory under the Legal Practitioners’ Act (LPA).
Prof. Anselm Chidi Odinkalu: Compelling as this sounds, I fear it raises even more troubling issues, not with whether or not the Supreme Court has an inherent power, but with this characterisation.
1st, costs are not meant to be disciplinary, are they? We have punitive damages alright but do we have punitive costs?
2nd, if costs are now meant to compete with the professional discipline process, where do we draw the line?
3rd, if the objective of the imposition of costs is “disciplinary”, then wld it not violate the constitutional requirement of due process to impose these by means of summary process without affording the people being disciplined a hearing on the charges that necessitate their being disciplined or is it the proposition that the Supreme Court is above the Constitution?
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4th, I fear also that this could risk conflating the powers of contempt (in the face of the court) with the issue of costs, enabling the court to proceed to the latter as a substitute for but without the safeguards that attend the former.
I do not agree with Mr. Falana but I find this explanation even more troubling.
Prof. R.A.C.E Achara: The concerns are well taken but slightly overlook a major premise at the start of my earlier submission.
One major crutch of the submission is that the power exists, but that the method, process and even reasonability of its deployment, can be debated in particular instances.
The first functional paragraph indicated an attempt at dealing with the general issue without confining oneself to the most recent instance (for which I’d had occasion to discuss a few days ago).
The problems of conflation of costs with contempt; and or of punitive damages with similar such costs in terrorem, do not seem to arise at this time except in the context of the unarticulated predicate question of whether or not we agree that the Supreme Court (and, indeed, any superior court of record) has an inherent jurisdiction and power (thus necessarily outside statute) to award costs (against a party)?
If we accept that foundational premise, we can then move on to the extent and process by which the court is empowered to award a given type or specie within this overarching genus. And, particularly, whether it can in exercise of this inherent disciplinary jurisdiction as it analogically displayed in Mohammed v. Olawunmi, extend it to counsel who acted for the party. No?
Prof. Anselm Chidi Odinkalu: If we return to the predicate point, Falana is asking for textual bases. That is not necessary if the argument is that a court has inherent powers.
I do agree that a question is: what is the scope of the inherent powers of the Supreme Court and how at large can it be?
However, as usual with Common Law method, we avoid the elephant in the room by resort to text & avoidance of sub-text.
My fear is that a Supreme Court that has bled authority needlessly and recklessly is trying to over-compensate with arbitrary coercion for what a credible Court would easily have seen off with modest assertion of balanced judicial displeasure. That, I fear, is the real issue.
Prof. R.A.C.E Achara: …And that is the crux of my initial critique (some days ago) of the ostensible caprice in severity and agency regarding the Supreme Court costs in the that particular case!
The concern then as here has been not whether the Supreme Court had been judicious in that instance but with whether that respected judex had competence…
If, as seems undisputed, the court has (without need for textual specification) the inherent jurisdiction to award costs against the party at fault (and on a discretionary sliding scale from a pittance up to a total indemnification of the wronged parties for all their costs including fees to their counsel and logistics that could cover air tickets and hotel expenses and taxis), if the court notifies the lawyer on the other side that peculiar circumstances of the case dictate a disciplinary shift of the burden; and offers them an opportunity to show why that (full or mitigated burden should remain with the lay party), does the law preclude the SC from exercising that inherent disciplinary jurisdiction in an appropriate case?
If we step back from the facts of the latest instance of this imposition, it seems to me that the answer becomes less involved…
From the abbreviated report, it was, in the circumstances, a frivolous motion; and, in my respectful submission, abusive of the processes of the court.
My worry is on the growing penchant of the respected SC to not only impose excessive costs, but to place the weight on counsel.
The problem with this often transcends the particular lawyer involved, but subverts the entire judicial system by creating a general chilling effect both for malicious as well as merely mistaken advocates.
Any capricious power is dangerous.
The constitution frowns more on this sort of in terrorem power where it is assumed by a final court and in circumstances where opportunity has not been shown of the charge and an opportunity to the mulcted lawyer to offer a defence, one way or another, to it.
Even for the litigant, the severity, even if not the sanction, ought to conform to some verifiable standards of scale and logic.
We must never descend to a position where justice in our courts can’t easily be distinguished from local vigilante justice.
The knee-jerk vigilante reaction to petty theft is death by wheel tyre incineration; however, the justice we expect in a normal court of law may find guilt but nevertheless constrains its sentencing against graduated guidelines imposed by our civilized notions for the rule of law.
Prof. Anselm Chidi Odinkalu: “….the respected Supreme Court”?
Prof. R.A.C.E Achara: Our protocols for institutional courtesy have their uses…
Prof. Anselm Chidi Odinkalu:: These “protocols for institutional courtesy” are actually underwritten by an implicit bargain: the public offers its respect in return for the judges behaving honorably. That is why they are addressed as “Honorable Justice….”
Those who voluntarily repudiate the obligations cannot expect to receive the courtesy. Indeed, a public that continues to afford the courtesy long after the obligations have been repudiated affords respectability to its own liquidation.
Prof. R.A.C.E Achara: That’s one way to look at it. But then, again, there is yet another way to address ‘most any problem. As Tuco (?) of The Good, The Bad and The Ugly would say: ‘… some are going through the door (but) some others are going through the window!’
So long as victims avoid the trap of fighting themselves over tactics, the oppressors can’t keep winning on strategy over the ruins of their continually divided but otherwise superior opponents.
One flank may choose verbal frontal siege; godspeed to them. Another might see guerrilla courtesy as more efficient or their forte: more grease to them all; so long as all eyes are on the same ball!
