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OF JUSTICE OKON ABANG AND THE ORDER THAT NWAFOR-ORIZU PRODUCE A CERTIFICATE OF MENTAL FITNESS BEFORE APPEARING BEFORE THE COURT: MATTERS ARISING

By Bizibrains Festus Okpeh

Background

It was reported that Hon. Justice Okon Abang of the Federal High Court, Federal Capital Territory, Abuja, in a bid to discipline Mr. Nwafor-Orizu, the learned senior counsel to the third defendant in the case of OKOROCHA VS. INEC & 2 ORS suit no. FHC/ABJ/CS/296/2019 ordered the latter not to appear before him, or any other court, unless he produces a certificate of mental fitness from a government psychiatric hospital. It is said that the court took exception to counsel’s sustained interference with court proceedings by insisting that he must be heard (even though he was not a counsel on record) against the advice of the court. In fact, according to the report, counsel almost hijacked proceedings when he insisted thus; “the court will not proceed until my motion is heard”. And the court in response to counsel’s persistent and willful disobedience of its order to sit down and allow proceedings to continue made the order thus; “On account of Nwafor-Orizu’s conduct, not being counsel on record, and displaying such conduct not worthy of a senior counsel, he shall not be allowed to appear as a counsel in this matter, or any other court, unless and until he furnishes the court with a medical report from a government psychiatric hospital certifying him to be mentally fit…He shall also sign an undertaking and serve on all counsel that he shall henceforth be of good conduct and until then, S.M Anichebe shall appear as counsel to the third defendant.” (underline mine for emphasis) (see the Vanguard news online, May 18, 2019).

Introduction

There is a general feeling, especially among legal minds, that the court belongs to the Judge(s). And subject to extant laws and rules of procedure and practice, he commands it howsoever he deems fit, and according to his temperament and haunches. Hence, the popular saying; “a lawyer must learn the court.” Whether or not this assertion is debatable, it is a paramount rule of law that “A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.” (see R. 1 Rules of Professional Conduct for Legal Practitioners, 2007, hereinafter referred to as “RPC”).

While this paper recognises the ultimate jurisdiction of the court to discipline a lawyer for disrespecting the court, arising from the instant case under consideration, it seeks to answer the following crux questions: (i) Can a court deny audience to, and to what extent is the power of a court to discipline a lawyer before it. (ii) Should the court have cited counsel for contempt instead? (iii) Should the court have referred to the Legal Practitioners Disciplinary Committee(LPDC)?

These questions shall be answered seriatim.

(i) Can A Court Deny Audience To, And To What Extent Is The Power Of A Court To Discipline A Lawyer Before It

It must be quickly noted that, subject to certain restrictions, it is the exclusive right of every lawyer to appear before all courts in Nigeria. And no court shall deny audience to any lawyer properly so called (see S. 8(1) Legal Practitioners Act, hereinafter referred to as “LPA”). This in all ways also ensures the provision of the Constitution to the effect that every defendant to a criminal  charge (and a fortiori, a party to a civil cause) can defend himself in person or by a legal practitioner of his own choice (see S.36(6)(c) of the Constitution). However, a lawyer maybe denied audience by the court under certain circumstances. These includes where he has not paid his annual practising fee for the relevant year (see S.8(2) LPA), obtained his annual practising certificate for the relevant year (see R.12 RPC), attained the required continued mandatory professional development programme (see R.13 RPC, this Rule is yet to be enforced), obtained his official stamp and seal approved by the NBA (see R.10 RPC), or not properly attired before the court (see R.36(a) RPC). From the foregoing, it can be seen that the conditions upon which a lawyer maybe denied audience by the court has either been laid down statutorily, or spelt out by or under rules made pursuant to enabling statutes. It necessarily follows that, while the court may deny audience to a lawyer in appropriate circumstances, it appears it may only do so to the extent that extant laws and/or rules allow.

Therefore, while not in any way downplaying the seriousness of counsel’s disrespect to the court, with respect, it is for the above reason that I find the order of the court, to wit, production of a certificate of mental fitness, too elastic and overstretched. Perhaps counsel did deserve his sanity to be questioned by the court, an invitation he willingly made by his unruly behaviour, I humbly think that the court went too far, outside the law (and precedents) to settle an act of disrespect by a lawyer for which the law has already provided what should be done in such a circumstance.

(ii) Should The Court Have Cited Counsel for Contempt Instead?

There is no gainsaying that no lawyer, whatever his rank, is permitted to disrespect the court in anyway, however minute. It is thus a breach of the ethics of the Bar and a professional misconduct for a lawyer to act disrespectfully or discourteously, especially before the court. Hence, “If a lawyer acts in contravention of any of e rules in these Rules (the RPC) or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975.” (see R.55(1) RPC).  Thus, “When in the court room, a lawyer shall conduct himself with decency and decorum, and observe the customs, conduct and code of behaviour and custom of practice at the bar with respect to appearance, dress, manners and courtesy.” (see R.36(b) RPC).  In the same vein, a lawyer shall “not engage in undignified or discourteous conduct which is degrading to a Court or tribunal.” (see R.36(e) RPC).

Again, it is possible for the same act of disrespect to the court, constituting a breach of the code of ethics of the Bar and a professional misconduct to also be sufficient enough to amount to contempt. While I do not intend to go into the philosophies and arguments regarding contempt of court, briefly stated, interrupting court proceedings is regarded a criminal contempt, and disobedience of court order a civil contempt. Both of which must be proved beyond reasonable doubt. The question is, should the court have cited counsel for contempt? There is no doubt in my mind that counsel’s insubordination interfered with, or interrupted court proceedings to the extent that the court had to go for a five minute recess. While this line of reasoning may sound harsh, perhaps it would have been much more in compliance with the law, if counsel were docked and invited to show cause why he should not be cited for contempt, and if found culpable, punished in accordance with the law, than resolving the issue in a manner more or less unknown to our law, as the court has done. I do not suppose that any such punishment would include production of certificate of mental fitness by the offending lawyer, the punishment for contempt being a term of imprisonment (which varies depending on the type of contempt) and/or an apology by the contemnor to purge himself of the contempt.

(iii) Should The Court Have Referred To The LPDC?

It has been held by the Supreme Court that where a lawyer disrespects the court, the act of disrespect “being sufficiently related to the pursuit of the profession, (and) is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence,” then, prima facie, he is said to be guilty of infamous conduct in a professional respect (see Re Idowu (1971)1 ANLR 128 at 132; NBA v. Alabi (2006)14 NWLR (pt.1000)841 at 857; S.12(1)(b) LPA).

In the case under consideration, I could only imagine how the Bar (and even the gallery) would have felt as they watched their brother’s stubborn attempt to bring the proceedings of the court to a standstill. In my mind I harbour no doubt that counsel’s act was sufficient enough to have attracted a referral to the appropriate authority (which may still be possible) for disciplinary measures. Were (should) this (be) done, counsel would eventually be invited by the LPDC to defend himself. And disciplinary proceedings would then run its course. And if found culpable, counsel may be derobed, or suspended from practice for a specified period, or admonished (see S.13 (2) LPA).

Again, even in this instance, though some of the punishments may have the effect of denying audience to the offending lawyer, it does not include the evaluation of the mental fitness of the offending lawyer, which the condition for production of certificate of mental fitness seeks to attain. More so, only the Supreme Court and the CJN (to the extent of suspension only) have original jurisdiction to so discipline an offending lawyer. (see S.13(1) LPA and S.13(3) LPA respectively).

Conclusion

For all it is worth, the conclusion of the matter is this; “A lawyer shall always treat the Court with respect, dignity and honour.” (see R.31(1) RPC). The RPC sets the standard to which every lawyer must accede to ensure discipline in the legal profession. And it is also part of the duties of the court, I think, to help police lawyers to see to the attainment of this cherished standard. Some of the ways the court can do this is to be quick to call out offending lawyers, admonish, caution, warn or reprimand them, report them to the LPDC for appropriate disciplinary action,  or deny them audience before the court, until they comply with or satisfy the law/rules in any particular instance.

However, in doing this, the court should be seen to comply with extant laws and rules. It is understandable that the court may want to shame an offending lawyer. Still, in my humble opinion, this should be done in accordance with the law. Of course, it was Oliver Wendell Holmes who wrote to the effect that it is for the courts to make law. To quote the erudite legal realist;  “…The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by the law.” (Pragmatism, 1907). Yet, it will make for a better legal regime, I also humbly think, for the courts to always prophesy as though they are possessed (or anointed) with the spirit of the law.

Bizibrains, also known as Festus Ikechukwu Okpeh is a Barrister and Solicitor of the Supreme Court of Nigeria and specialises in general legal practice.. You can reach him on bizibrains@gmail.com

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