LANRE ADEWOLE considers the impacts of the current efforts at sanitising the Bar and the Bench.
On Thursday, December 16th, 2021, the National Executive Committee (NEC) of the Nigerian Bar Association met in Abuja and endorsed the report of a three-man panel, instituted by the president of the lawyers’ body, Mr. Olumide Akpata, to investigate the alleged involvement of lawyers, who are mostly senior legal practitioners, in the saga of forum shopping in cases involving the Peoples Democratic Party (PDP) and the All Progressive Grand Alliance (APGA).
The alleged forum shopping by parties in the political crises, is believed to be responsible for the embarrassing conflicting court orders on the two major political events of the last few months, with the Bench and the Bar, deciding to punish their own; judges and lawyers, seen to be involved in the alleged misconduct of deliberately moving around courts of coordinate jurisdiction, to shop for favourable orders, after losing out in earlier cases, on the same subject matters.
The day before the NBA NEC meeting, the National Judicial Council (NJC) had sanctioned three of its own, recommended for punishment by the investigative panel put in place by the Council, being administratively-led by the well-applauded reformist, Gambo Ahmed Saleh, as the Executive Secretary.
Three judges, Okogbule Gbasam of Rivers High Court, Nusirat Umar of Kebbi High Court and Edem Ita Kooffreh of Cross River High Court, were hammered, as recommended by the probe panel, for misconducting themselves in cases filed over the leadership tussle that rocked the PDP, arising from attempts to sack then national chairman, Prince Uche Secondus.
The politics of the opposition party resonated badly in the justice sector, with courts of coordinate jurisdiction issuing orders and counter orders, and the Council was so scandalized that it had to break with the tradition of waiting for petitions, to decisively commence disciplinary procedure, starting with unprecedented invitation of six Chief Judges of the affected judicial divisions.
The Council’s cleansing efforts, were however noticeably limited to the PDP’s leadership legal tussle, raising questions as to why the similarly-embarrassing forum shopping, in cases involving APGA, did not feature in the final analysis of the scandal-ridden deployment of the discretionary power of the judges.
Nigerian Tribune, couldn’t obtain official reasons the Council limited itself to the PDP crisis, but a top source disclosed that the issue of forum shopping was too noticeable in the PDP case, unlike the dozens of court cases on the APGA leadership crisis, which almost crippled the November 6, 2021 Anambra governorship election, eventually won by Charles Soludo, the court-endorsed candidate of APGA.
It was also learnt that the absence of petitions from interested parties in the APGA leadership tussle on the alleged forum shopping didn’t make it easy for the Council to be properly seised of the facts of the matter, considering that unlike the PDP saga which began with the move to exit Secondus from Wadata Plaza, the APGA show has been running for years, with new court cases, piling on the old, when the Anambra election drew near.
“If petitions had been sent in, there would have been more information for the Council to work on” an inside source told Nigerian Tribune, adding that after listening to the summoned CJs of judicial division where the APGA cases are being heard, “there wasn’t much to focus on, on the matter.”
NBA eyeing the whole hog?
Unlike NJC, when NBA decided to go into the house-cleansing exercise over the errant behaviours of some members, it was for a complete business. A probe panel of three; Dr. Babatunde Ajibade SAN, Dr. Monday Ubani and Mr. Oluwaseun Abimbola SAN, and headed by Ajibade, who lost the NBA presidency to Akpata, returned indicting verdict for senior lawyers investigated over the PDP and APGA leadership crisis and recommended that disciplinary procedure be commenced against them. Though the report of the probe panel, is yet to be made public, The Jury learnt that about seven senior lawyers were indicted and referred to the Legal Practitioners Disciplinary Committee (LPDC), for disciplinary measures. A member of the panel, Dr. Ubani, would not be entreated to make identity disclosure on the indictees.
He however confirmed that NBA NEC considered and accepted the recommendations of the Ajibade panel, with President Akpata, referring the mentioned lawyers to LPDC for appropriate sanctions.
It could not be confirmed if any members of the Inner Bar (Senior Advocates) was indicted over the forum shopping saga.
A former President of the Bar, Joseph B. Daudu had argued that LPDC is the only fit and proper body to discipline all lawyers, including Senior Advocates, regardless of the posturing of the Legal Practitioners Privileges Committee (LPPC) which confers the rank on worthy legal practitioners.
According to him, “The long and short of the (argument) is that from its conception, the rank of SAN is a leadership position. It is conferred only on persons who have shown exemplary character as well as distinction in advocacy. Consequently it can only be taken away where another statutory body the Legal Practitioners Disciplinary Committee adjudges the person accused of infamous conduct or breach of any of the rules of professional conduct, guilty.
“LPDC, notwithstanding, its eminent membership cannot and is not equipped to deal with matters of discipline. Its present foray in looking at matters of the discipline of a lawyer under the guise of suspending a person of the rank of SAN is ultra vires, illegal, unconstitutional and, therefore, null and void.
“By way of illustration the Privileges Committee has never considered a petition alleging indiscipline made against prospective candidates for the conferment of SAN. It recognises its lack of powers to do so. What it does, is to forward such petitions to the Disciplinary Committee for actions.”
Going by Daudu’s argument, LPDC, which has been asked to determine the fate of the affected lawyers, would be deemed competent to handle all the disciplinary issues, including SANs’, provided any of them, is so recommended.
Addressing the worries that the self-cleansing exercise might end up being one-winged, with only the Council taking care of business while NBA allows its indicted members to walk away free, Dr. Ubani said, “NBA NEC adopted our panel report. We recommended they (indicted lawyers) should face disciplinary measures and NEC had sent them to the disciplinary committee. They went forum shopping. We found out that they were aware of the pending cases, before they went to file similar cases in other courts of coordinate jurisdiction. We have to be careful with the way we conduct our practice. We have to be careful with politicians, because they can make you do unethical things.”
Symbolic gesture from NJC?
When NJC came out swinging against the three judges, freezing their promotion whenever they are due, with warning letter to boot, it came a little below expectations for some, who were expecting a smash, considering the national wailing that trailed the scandal and the vows by the Council and the NBA, to use indicted judges and lawyers, as scapegoats for others.
Findings by The Jury however, showed that the Council, arrived at the sanctions, by mainly playing within the rule book, governing the exercise. After decades of relying on the open-ended interpretations of Sections 158 and 160 of the 1999 Constitution which empower the Council to discipline its employees, NJC decided to carve out its disciplinary regulations in definite form, leading to the Judicial Discipline Regulations of 2014.
Before the 2014 booklet which laid out the process of discipline an errant judicial officer and the types of punishment to be served for different improper acts, the Council had relied solely on Section 160, in arriving at sanctions for judicial officers, indicted for misconduct. Backing the Council up, was sub-section 1 of Section 158 which allows for disciplinary control over its own.
But the 2014 edition of the JDR came with a lacuna; it compelled the Council’s investigative panels to make their reports available to judicial officers under probe, whether indicted or not, before tabled at the plenary.
As inconsequential as the provision appeared, it cost the Council two successive cases in court, instituted by judicial officers sanctioned for misconduct, because the word “shall” was used in the controversial provision and the requirement was not met in the course of sanctioning them.
Justice James Agbadu-Fishim of the National Industrial Court, dismissed by the Council in 2018, for gross misconduct, following a petition against him, by the Economic and Financial Crimes Commission, got the better of the Council in court, because the condition was not met in sanctioning him.
Compulsorily-retired in 2016 for misconduct, Justice Bassey Ebuta also successfully challenged the Council’s decision, because the “shall” insertion in the provision, mandated the investigative panel to show him the report indicting him, before the plenary of the Council, would make the final pronouncement.
Because the 2014 edition was causing the Council embarrassing overturn of sanctions by judges who are also its employees, the JDR underwent a review in 2017, with the current Regulations coming into effect on March 9, 2017.
In the revised rule, “shall” was replaced with “may”, freeing the Council from the obligation of making probe reports available to suspects, before final verdicts.
Again, while the Council under Regulation 25 still retains the power to dismiss or compulsorily retire errant judicial officers, it would have to be under extreme conditions of gross misconduct like established corrupt practices.
According to a Council source, “the (three) judges got the most suitable punishment for their offence, going by what the 2017 version, says.”
NJC hailed
What many saw as inadequate, is sufficiently symbolic for senior lawyers who spoke to The Jury.
Leading lawyer, Mr. Femi Falana, a Senior Advocate hailed the Council for laying a foundation.
“The NJC investigated the allegation of the issuance of conflicting court orders by courts of coordinate jurisdiction and brought indicted judges to justice. It is a good precedent. It is hoped that the sanctions will put an end to the practice of forum shopping for court orders. However, the NBA should proceed to sanction the lawyers who filed the spurious ex parte applications.
“The sanctions reminded me of the Roman poet, Decimus Junius Juvenalis who in one of his poems of satires asked, “Quis custodiet ipsos custodes? (who will guard the guards themselves?)
“What of the conflicting decisions of the appellate courts? For example, there are not less than six (6) conflicting decisions of the Court of Appeal on the validity of joint applicants in fundamental right cases. Even the Supreme Court has handed down a number of conflicting judgments in election matters. It is high time the law was made certain once again” he reasoned.
A former Publicity Secretary of NBA, Lagos branch, Emeka Nwadioke thumped up the Council, expecting it to cover the APGA end of the forum shopping.
The former member, NBA Criminal Justice Reform Committee said, “We are constrained to accord the NJC some good faith in the matter of its decision on the errant jurists. The council’s Investigation Committee reviewed relevant documents on the matter and perhaps drilled the judges by way of interrogations. The NJC in plenary effectively sat on appeal on the recommendations of the Investigation Committee.
“Judicial decisions are based on the weight of evidence. Accordingly, unless one has benefit of the entire proceedings relating to the investigation, it may be difficult to determine whether a heavier penalty would have been imposed on the under-fire jurists.
“To the extent that the punishment relates to the grant of conflicting ex-parte orders in matters with same parties and subject matter, it would seem appropriate. Save for dismissal or suspension, there is nothing more damning to a jurist than losing his seniority. In fact, the odium occasioned by the NJC decision is a huge deterrence, too. It is hoped that this will serve as a warning to potential defaulters, even as we eagerly await the decisions on the Anambra, Imo and Jigawa cases. No effort should be spared to sanitize the judiciary and justice system.”
For Ubani, who is involved in probing the Bar angle of the scandal, “it is not much about whether it was adequate or not. The most important is that NJC took steps to punish the misconduct of conflicting judgements, by stopping the promotion of the judges, even if it is just for one day. At least, it will send signal to other judges to desist from granting all manners of conflicting ruling, especially in political cases.
“Some use exparte orders to give opponents an advantage, because after granting it, other parties will be asked to go on appeal and the whole thing can keep dragging even when they know time is of essence in political cases.
“The most important thing is that justice is done. For me, the sanction is symbolic. It will let other judges know that their discretionary power can’t be abused, especially in political cases.
and then