IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THURSDAY, THE 4TH DAY OF APRIL, 2024
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
PAUL AHMED BASSI JUSTICE, COURT OF APPEAL
APPEAL NO: CA/LAG/CV/902/2022
BETWEEN:
MOHAMMED ATIKU-ABUBAKAR --------------------- APPELLANT
AND
MISS UMMI FATIMA BOLORI ----------------------- RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
On 1st November, 2017, in the proceedings before K. B Ayeye, (Mrs.), the Chief Magistrate/Chairman, the Family Court of the Magistrate Court of Lagos State, Lagos Division, hereinafter called the ‘Family Court’ or the ‘Court of first instance’, counsel to the Respondent herein; the Applicant in the matter before the Family Court, objected to the appearance of the learned silk, Olasupo Sasore, SAN, in that proceedings, for the instant Appellant, who was the Respondent in the matter before the Family Court. The objection was premised on the provisions of Rules 3 and 6 of the Senior Advocates of Nigeria (Privileges and Functions) Rules, which was made pursuant to Sections 2(1) and 7(1) of the Legal Practitioners Act, 1975.
The Appellant joined issues with the Respondent in the said objection, insisting that the law entitles counsel to the Appellant the right of appearance in Court, by virtue of the provision of Section 9 of the Magistrate Court Law of Lagos State, 2009, which provides that-
“Nothwithstanding any custom or practice, all Legal Practitioners called to the Bar in Nigeria are entitled, regardless of conferment, title or rank, to appear in any Magistrate Court in the State…”
In a Ruling delivered on 10th January, 2018, the Family Court sustained the objection of the Respondent, holding that the learned silk, counsel for the Appellant, has no right of appearance before the Family Court and cannot therefore appear for the Appellant in the matter. See pages 126-129 of the Record of Appeal for the Ruling of the Family Court.
The Appellant, being aggrieved by the said decision, filed a Notice of Appeal on 19th March, 2018, at the Registry of the High Court of Lagos State, wherein he sought the review and setting aside of the said Ruling of the Family Court and setting down the matter for hearing by another Magistrate.
The appeal to the High Court was heard and determined by G. A Safari, J., of the Lagos Division, of the High Court of Lagos State, the lower Court. In a Ruling delivered on 28th April, 2022, as found at pages 485-493 of the Record of Appeal, the lower Court dismissed the appeal and affirmed the decision of the Family Court.
Still dissatisfied with the decision of the lower Court, the Appellant appealed to this Court vide a Notice of Appeal filed on 25th July, 2022, anchored on four (4) grounds of appeal.
The Appellant’s Brief of Argument dated and filed on 28th November, 2022, but deemed as properly filed on 15th January, 2024, settled by Oyinkansola Badejo-Okusanya Esq, had distilled therein three (3) issues for determination, thus;
The Respondent’s Brief of Argument, settled by Mark Anata was filed on 21st March, 2023, but deemed properly filed on 15th January, 2024, with a sole issue for determination, to wit;
“Did the lower court err in law when it held that a Senior Advocate of Nigeria has no right of appearance in a Chief Magistrate Court in Lagos State”
Appellant’s Reply Brief filed on 25th April, 2023, was deemed properly filed on 15th January, 2024.
Before reviewing the submissions of respective counsel for the parties, it is apt to do a synopsis of the facts leading to the suit that birthed the instant appeal. The parties were couples who got married under the Sharia’h law sometimes in 2007. The marriage hit the rock and was eventually dissolved in 2011. However, there were two (2) issues from the relationship; a boy and a girl, both aged 6 and 8 years respectively, who, at the time of the resulting litigation, were in the custody of the Appellant, albeit, by default.
The Respondent felt that the children were better kept in her custody so as to be able to give them motherly love that no other woman can give. When demands for the children to be returned to the Respondent were not heeded, an action was instituted in the trial Magistrate Court, the Family Court, wherein the Respondent sought for custody of the children as well as their maintenance by the Appellant, among other reliefs.
ARGUMENT
It was argued on behalf of the Appellant that, by its judgment, the lower Court has breached the Appellant’s constitutional right to fair hearing. Counsel for the Appellant, Ms. Oyinkansola Badejo-Okusanya, submitted that the Appellant was entitled to the choice of his counsel as same accords with the provision of section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) which guarantees the Appellant’s right to fair hearing, in support of which she cited and relied on the decisions in All Purpose Shelters Ltd. vs. Dennis (2022) 6 NWLR (Pt.1825) 181; Akuma vs. Ezikpe (2001) 8 NWLR (Pt.716) 547.
She contended that the refusal of the Family Court to hear counsel retained by the Appellant in the matter amounts to a denial of the Appellant’s right to counsel of his choice and by extension, his right to a fair hearing in the matter before the Family Court. She submitted that the trial Magistrate refused to hear the Appellant’s side of the matter against the backdrop of the twin pillars of natural justice and the consequent breach of the Appellant’s fundamental right to fair hearing. That it was the infraction of the Appellant’s right to a fair hearing by the Family Court that formed the basis of his appeal to the lower Court and to this Court as a result of the dismissal of his appeal by the lower Court.
It was further submitted on behalf of the Appellant that the lower Court erred when it held that the right to counsel of one’s choice is only guaranteed in criminal proceedings. It was argued, vide decisions in All Purpose Shelters Ltd vs. Dennis (supra) and Ndukauba vs. Kolomo & Anor (2005) LPELR-1976 (SC), that the right to fair hearing applies equally to civil causes alike. Citing the provision of section 45 of the Constitution, counsel submitted that the right to fair hearing admits of no exception, urging the Court to so hold and resolve the issue in favour of the Appellant.
It was contended that the lower Court erred when it found that the SAN Rules, made pursuant to the Legal Practitioners Act, 1975, governed the practice and procedure of the Magistrate’s Court of Lagos State. Citing the provisions of sections 4 and 6 (4) of the 1999 Constitution, as amended, and the decisions in A.G Lagos State vs. A.G Federation (2013) 16 NWLR (Pt.1380) 249; A.G Abia State vs. A.G Federation (2006) 16 NWLR (Pt.1005) 265 at 380-381, counsel submitted that it is only the Lagos State House of Assembly that can validly make laws to regulate the practice and procedure of the Magistrate Court of Lagos State. Counsel further cited Section 1 (1) and (3) of the 1999 Constitution, as amended, in submitting that rules made pursuant to the Legal Practitioners Act is inconsistent with the constitutional provision, urging the Court to hold that the Magistrate Court Law of Lagos State, 2009, regulates the Magistrate’s Court of Lagos State. The Court was urged to allow the appeal and set aside the decision of the lower Court.
In her response to the Appellant’s submission, counsel to the Respondent noted that the rank of SAN is conferred by the Legal Practitioners Privileges Committee (LPPC) to Applicants who merit the set criteria for the award as contained in Section 5 (7) of the Legal Practitioners Act. It was stated that the rank is awarded at the instance of the potential recipient’s application and is purely on privileged grounds. Learned counsel relied on Section 5 (7) of the LPA and Rules 2 (1); 3; 4 and 6 of the SAN (Privileges and Functions) Rules as well as the case of The Registered Trustees of ECWA Church vs. Ijesha (1999) 13 NWLR (Part 634) 383 Para C in submitting that the law is clear as to which Court a Senior Advocate of Nigeria can appear. It was contended that the judicial authority in issue remains the position of the law, having not been overruled. Counsel contended that the definition of Superior Courts excludes the Magistrate Court which sits as the Family Court.
With respect to the argument canvassed on the right of the Appellant to fair hearing in the Family Court, counsel for the Respondent stated that the learned silk for the Appellant cannot be briefed to appear in the Family Court, not being a Superior Court. The Respondent contended that the exclusion of the learned SAN from appearing in the Family Court does not negate the fair hearing of the Appellant.
On the submission of the Appellant that the SAN Rules of the LPA does not regulate the practice and procedure of the Magistrate’s Court of Lagos State, Respondent’s counsel restated that the limitation on the ability of the SAN to appear in the Magistrate Court has nothing to do with the scope or jurisdiction of the Magistrate’s Court or law that empowers them. It was argued that a Legal Practitioner who is fully aware of the Rules governing the conferment of the rank of a SAN cannot turn around to complain of the disability, citing the age-long maxim of volenti non fit injuria. Counsel likens the conferment of the rank of a SAN on any potential Legal Practitioner to that of a contractual relationship, wherein parties are expected to honour their bargain of the agreement, while relying for support of the assertion on the cases of Uwa & Anor vs. Akpobio & Anor (2014) LPELR-22311 (SC); Emuejerarowho vs. ECOBANK (2018) LPELR-45322 (CA). Respondent’s counsel submitted that the learned SAN; counsel for the Appellant in the Court of first instance, is bound by the dictates in the SAN Rules to which he voluntarily signed up. It was asserted that the rules of the Magistrate Court of Lagos State cannot confer the right of appearance on the learned silk in the circumstance of the case, concluding that the right of the Appellant to counsel of his choice is qualified in the instance, relying in support, the often-cited case of the Registered Trustees of ECWA Church vs. Ijesha (supra). The Court was urged to dismiss the appeal.
The Appellant, in response to the supposed new issue(s) raised in the Respondent’s Brief, filed a Reply Brief, contending therein that the Respondent drew wrong analogy of the rank of SAN being likened to that of a contract between the holder and the conferring body of the award, LPPC. She submitted that privity of contract never existed between the LPPC and the Appellant on one side and the LPPC and the Court of first instance on the other hand, citing the decisions in the following cases in support; NITEL Trustees Ltd & Anor vs. Syndicated Investment Holdings Ltd (2022) LPELR-58842 (SC) and Basinco Motors Ltd vs. Woermann-Line & Anor (2009) LPELR-756 (SC). Learned counsel further relied on section 8 of the LPA when submitting that the LPA cannot purport to extinguish a right conferred by the Constitution.
Above is the only argument that qualifies as a Reply Brief. The purpose of a Reply Brief is not to beef up an Appellant's position as contained in his Brief of Argument; rather, it is to respond to new issues raised and canvassed in the Respondent's Brief which were not touched or covered by the Appellant's main Brief of Argument. My noble Lords, I would restate for the umpteenth time, that a Reply Brief is not a repair kit to put right any lacuna or error or omission in the Appellant's Brief of Argument. See Adekunle & Anor vs. Governor of Lagos State (2020) LPELR-49587 (CA); Alhaji Salihu vs. Alhaji Abdul Wasiu (2016) LPELR-26062) (SC); A.B.C Transport vs. Omotoye (2019) LPELR-47829 (SC). To this end, I shall discountenance part of the Reply Brief through which counsel for the Appellant went to town to re-argue the legal positions earlier canvassed in the Appellant’s Brief.
RESOLUTION
Thereno mincing words that a right to fair hearing is the entitlement of every litigant who appears before a Court of law. The doctrine relates equally either to the Claimant or to the Defendant or to an accused person in a criminal trial.
The right to fair hearing implies that all the parties to an action before a Court must be given equal opportunity to present their case the best way they know, either in person or through their counsel. See: INEC vs. Musa (2003) LPELR-24927; Carnation Registrars Ltd v President NICN (2023) LPELR-60102(SC)
In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the Supreme Court, on the subject, pointedly restated the law thus;
Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 35 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See Okadigbe v. Chidi (2015) LPELR-24564 (SC) 1 @ 39 E - F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See Ariori Vs Elemo (1983) 1 St 81, Kotoye Vs C.B.N (1989) 1 NWLR (Pt. 98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23, Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678, Bamgboye vs University of llorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant's contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.
It is well settled that fair hearing must involve a hearing that is in compliance with the principles of natural justice and must involve a fair trial which consists of the whole hearing. The Apex Court in Ardo vs. INEC & Ors (2017) LPELR-41919 (SC), added that "the right to fair hearing does not stop with the parties, being present in Court, it is a right to be heard at every material stage of the proceedings."
See also Long-term Global Capital Ltd & Anor vs. Stanbic IBTC Bank Plc & Anor (2022) LPELR-59027 (SC).
Since a proven case of a breach of the right to a fair hearing would nullify any proceedings in its entirety, no matter how well same is conducted, such allegation must therefore be established with credible proof thereof, this is in view of the settled law that an expression of mere rhetoric or empty verbalism would not amount to a fair hearing or the breach of it rather, it is a fundamental right of a citizen guaranteed in Chapter IV of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended.
It is equally apt to note that a fair hearing or the lack of it cannot be construed outside the facts and circumstance of a case, with the burden on a party alleging the breach to show clearly that the said right was violated or breached. See: Gbadamosi vs. Dairo (2007) 3 NWLR (Pt.1021) 282 SC.
In the same vein, this court, in Philips Ade-Ojo vs. Peter Ojo & Anor. (2021) LPELR-56205(CA), at (Pg. 31 paras. B), held thus;
"The right to a fair hearing is a constitutionally guaranteed right, observance of which gives validity to any legal proceeding. Section 36 (1) of the Constitution of the Federal Republic of Nigeria which encapsulates the right to a fair hearing provides:
"In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality."
Fair hearing within the meaning of the above-quoted provisions means a trial conducted according to all the legal rules and procedures to ensure that justice is done to the parties."
In the case that led to the instant appeal, Appellant’s counsel contended that the family Court of first instance, by its disapproving of the right of appearance of the learned silk, O. Sasore, SAN, from representing the Appellant in the matter before that Court, breached his right to fair hearing as regards freedom to choose his counsel for the defence of the matter.
It must be stated unequivocally that the right of a litigant to fair hearing as enshrined in section 36 of the CFRN, 1999, entails the right to choose his counsel who, in his opinion, would best project his case, either in the prosecution of it or in the defence of same. This much has been judicially settled by a long line of decided authorities, mostly cited supra by counsel to the Appellant.
The Supreme Court stated the law succinctly that parties are entitled to counsel of their choice without interference neither from the Court nor any other party and that a party having exercised such right cannot be "gauged" or questioned for any reason, as it is only the client and none other person, not even the Court can enquire into his counsel’s authority once he has announced his appearance. See Awara Biokpomabo Festus vs. African Action Congress & Ors. (2020) 4 NWLR (Pt.1713) 105 SC and also the decision of this court in Daily Times vs. IGP & Ors. (2021) LPELR-54633 (CA).
However, a careful perusal of the case in the instant appeal reveals that the authorities relied on by the Appellant are worlds apart from his case. As stated earlier, the objection against the appearance of Mr. Sasore, the learned silk, as counsel for the Appellant in the Court of first instance, was raised by Gloria Ekpe, Esq., of counsel for the Respondent in that Court, and it is on record before this Court that the objection was premised on the provisions of Rules 3 & 6 of the Senior Advocate of Nigeria (Privileges and Functions) Rules, made pursuant to section 5 (7) of the Legal Practitioners Act, which disallow a holder of the Rank of the Senior Advocate of Nigeria from appearing in any Magistrate Court in Nigeria. See the record of proceedings of the Family Court of 1st November, 2017 at pages 124-125 of the Record of Appeal.
For ease of reference, I find the following provisions of the said SAN Rules relevant, and hereunder reproduce them, thus;
Rule 2
(1) A Senior Advocate of Nigeria shall not appear as counsel in any civil case before any superior Court of Record except with a junior or with another Senior Advocate of Nigeria
(2) Notwithstanding paragraph (1) of this rule, a Senior Advocate of Nigeria may appear with or without another counsel in any motion or other civil cause or matter in judge’s chambers or elsewhere not in the open court
Rule 3
"A Senior Advocate of Nigeria may appear as counsel in any criminal cause or matter before any court of Superior record with or without another counsel"
Rule 4
"A Senior Advocate of Nigeria shall not apply or issue originating process or any other process from or before a court in any cause or matter except in relation to those matters in which he is entitled to appear pursuant to rules 2 and 3 of these rules"
Rule 6
In these Rules, unless the context otherwise requires … "Superior Court of Record" means the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court or any other Court or Tribunal with powers not less than those of a High Court"
It is my respectful view, flowing from the combined construction of the foregoing provisions, that it is the contemplation of the drafters of the law that the rank of a Senior Advocate of Nigeria is to appear in any other Court or Tribunal with powers not less than those of a High Court, this is in addition to those listed in the preceding rules, to wit; the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court. This was the premise upon which the objection to the appearance of Mr Sasore, SAN, at the Court of first instance, was based, and consequently upheld by the Family Court. I cannot see what amounts to the denial of the right to a fair hearing of the Appellant in the whole of the scenario that played out in the Family Court.
The Appellant made a heavy weather on the denial of the right of audience on his counsel in the Family Court which he contended, breached his right to fair hearing in the matter. I had, earlier in the judgment, reflected on what the concept of the right to a fair hearing entail. However, it is my view that not all grievances of a litigant in the course of the proceedings in Court, would be an infringement to his right to fair hearing.
It is not uncommon; quite prevalent and fashionable it has become, for irate litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the Court of first instance or Court below. It is not enough for a party alleging such a breach to merely wave the banner of fair hearing and expect the Court to jump to attention thereon. The facts of his case must show that the said right was indeed violated. See: Adebayo vs. A.G Ogun State (2008) 7 NWLR (Pt.1085) 201. The facts of the instant case as stated earlier would not support the Appellant’s insinuation that his right was breached. It is my opinion that the right of appearance of counsel for the Appellant at the Family Court was rightly challenged and I am in agreement with its decision thereon. I was able to view the circumstances of the case of the parties from the proceedings of the Court of first instance dated 1st November, 2017, upon which my opinion is premised. The said record of proceedings, as found at pages 124-125 of the Record, is reproduced hereunder;
IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE LAGOS MAGISTERIAL DISTRICT
HOLDEN AT COURT 1, TINUBU
TODAY WEDNESDAY THE 1ST DAY OF NOVEMBER 2017
BEFORE HER HONOUR MRS. K.B. AYEYE-CM
SUIT NO: FCL/29/17
BETWEEN
MISS UNMI FATIMA BOLORI
AND
MR. MOHAMMED AMINU ATIKU ABUBAKAR
Parties present
Gloria Albert Ekpe, Esq. with N. E. Okoh Esq. for the Applicant.
O. Sasore, Esq. with O. Badejo Okusanya and M. B. Salihu Esq. and M. O. Enitan Esq. for the Respondent.
APPLICANT: I object to the appearance of the learned silk before this family court, my objection is premised on the Rules of S. A. of N. Privileges Rules 3 and 6, Part 207, S. 2 (1), S 7(1) of Legal Practitioner Act Where there is a conflict between an Act of National Assembly and State Laws, the National assembly law supersedes. We submit the learned silk cannot appear.
RESPONDENT: This is a family court, and the overriding interest of the children is paramount. The law entitles all to the right of appearance.
RULING: I stand down ruling on this application till (the) next date to allow me to make a considered ruling, and will proceed today under the general right of appearance of counsel as guaranteed by S. 9 of MCL 2009.
APPLICANT COUNSEL We have filed an amended originating motion dated 8 August, 2017 and it has been served on Respondent and the proof is before the court
INTERIM ORDER
I hereby make these interim custody order in respect of the subjects to wit
1. Ameera-8yrs and Aamir-7yrs Atiku Abubakar is hereby ordered to reside with their father - Aminu Atiku Abubakar in the interim Pending completion of the present school term
2. The International passports of the children is (are) ordered to be kept in the custody of Applicant at all times.
3. The Respondent is ordered to write a letter of introduction of Applicant to the principal of Greenwood House, Park-view, Ikoyi, instructing the principal and staff to allow the Applicant access to the children at all times
4. The Principal of Greenwood, Gilliers (Mr) is ordered to allow access of Applicant to the children anime she comes to the school.
5. The 2 children are to spend the 2017 Christmas holding with the Applicant
6. The Applicant is granted weekend access to the children as long as she stays in Lagos/comes to Lagos.
7. The Respondent will reimburse the Applicant the sum of N150,000.00 immediately.
8. The Respondent will pay (for) the flight ticket for the kids to and from Abuja in December.
9. The parties and counsel are restrained from making comments about court proceedings in the press in the interest of justice/children.
10. This order is in place till next adjourned date.
Case adjourned to 10th of January, 2018 for mention
K. B. AYEYE (MRS)
CHAIRMAN
ELIZABETH AKIN-ABIOLA TOKUNBO EKUKINAM
(ASSESSOR) (ASSESSOR)
The foregoing, being the proceedings of the family Court on the date the instant dispute arose.; the ruling on the objection raised therein was delivered on 10th January, 2018, as found at pages 126-129 of the Record. I reproduced an excerpt from the said ruling hereunder;
“The learned silk argued that ruling that, a legal practitioner, irrespective of rank or title, cannot appear before any court is a violation of S.36 of CFRN.
…
This is a Family Court, the objection to the appearance of the learned silk is in a civil matter. I do not see a conflict between the Legal Practitioners Act and SAN Rules with the provision of S. 36 (6)(c) of the 1999 Constitution as to constitute a violation of the right of the Respondent to be represented by a counsel of his choice. It is important to state here that the Court of Appeal had strenuously considered, construed and interpreted SAN Rules wherein it unanimously held that "A Senior Advocate of Nigeria (SAN) by virtue of being elevated to the position of a SAN is totally restricted from appearing in lower court” See the case of REGISTERED TRUSTEES OF E.C.W.A. V. LJESHA (1999) 13 LR (PT.635) 368. (Underlining for emphasis)
The learned Judge of the lower Court, upon the appeal to that Court, upheld the decision of the trial Family Court. The learned Judge, Safari, J., in his ruling dated 28th April, 2022, at pages 485- 493 of the Record, held thus:
“Based on the following findings and holding by this court, I therefore dismiss this appeal and uphold the decision of the learned Chief Magistrate K.B Ayeye delivered on the 10th January, 2018….. that a Senior Advocate of Nigeria has no right of audience before a Chief Magistrate Court being an inferior court pursuant to the provisions of the Senior Advocate of Nigeria (Privileges and Functions) Rules (which was) made pursuant to Legal Practitioners Act, 1975.”
I could not but agree with the learned Magistrate of the court of first instance, that the Appellant was on a weak wicket, while he was hanging onto the provision of section 36 (6)(c) of the 1999 Constitution, as amended. I find that the provision, in the circumstance of this case, would not inure to his advantage. I agree with the learned counsel for the Respondent that the said provision, simpliciter, relates to criminal proceedings.
The provision of said section 36 (6)(c) of 1999 Constitution says:
Every person who is charged with a criminal offence shall be entitled to defend himself in person or by a legal practitioner of his own choice.
I am of the view that the aim of the constitutional provision cited above, is to confer a right on an accused person, in criminal proceedings, to have a legal representative of his own choice, and to protect him from having someone foisted on him by the prosecutor, Government, or another person. See: Awolowo vs. Sarki & Anor (1966) LPELR-25290(SC). And, also in a few cases, an outright interference from the adverse party in the case who meddles in the choice of the Applicant in respect of hiring and changing counsel as decided in the cases cited supra by the Appellant.
In the instant case, I am unable to see where, in the actual sense, Rules 2, 3 and 4 of the SAN’s rules, which I had earlier reproduced in this judgment, conflict with the constitutional provision in section 36 (6)(c) to amount to a breach of the Appellant’s fundamental right to fair hearing.
It is my considered view that the Appellant, in the matter before the Family Court, freely made his choice of counsel unhindered but his counsel was unsuitable under the Statute and was so found by the learned Magistrate. I am sufficiently persuaded by the opinion of the Family Court that the legal representative chosen, by a party who relies on the provision of section 36 (6) (c) of the 1999 Constitution, as amended, must not be under a disability of any kind. The Supreme Court in Awolowo vs. Sarki & Anor, supra, stated that;
…. Section 21(5)(c) of the Constitution (which is in pari materia with Section 36 (6) (c) of the 1999 Constitution) cannot be read in isolation, and this apparently was what counsel for the plaintiff has done. The right granted by this Section is qualified by various considerations which we need not go into here. Various reasons may curtail the choice of counsel, for example, the counsel of the accused's choice may be under lawful detention or lawfully confined and the like”.
I find that the right of the Appellant to choose his counsel is undoubtedly qualified, in this instance case by the restriction from appearance in inferior courts, placed on holders of the prestigious rank of Senior Advocate of Nigeria, the category Mr. Sasore belongs. See Rules 2, 3, 4 & 6 of the SAN Rules and the case of Registered Trustees of ECWA Church v Ijesha (supra).
Further still, the Appellant failed to show where precisely, he had his right curtailed. The manner of the Applicant’s right in contest in this case, must be in relation to the circumstance of the case before the trial Court.
From the record of proceedings of the Family Court, dated 1st November, 2017 and reproduced hereinbefore, it is apparent that the matter between the parties herein, involved, inter alia, custody of the two children of their dissolved marriage. The children at the time were aged 6 and 8 years old, at such tender ages, the Appellant’s attention, in my view, ought to be the protection of the interest and rights of the children, which include but not limited to who takes their custody as they were still pupils in a private school in Lekki, Lagos State. However, as of today, more than seven years later, the Appellant is still preoccupied with who his counsel should be or should not to be. I hold the view that the conduct of the Appellant smacks of a misplaced priority, where distorted emphasis was embarked upon, leaving gravely the best interest of the children, which ought to be his primary consideration in the circumstances of this nature. See section 1 of the Child Rights Act; Omogiate vs. Omogiate (2021) LPELR-56018 (CA).
For the Appellant to relinquish the crux of the germane issue for a mere frivolity shadow-chasing venture, or in proving status of ability to parade counsel of high caliber, is a disservice to the innocent children who are inured with rights under the Child Rights Act, amongst others.
It is also apt to note that on the date under focus, counsel who led the appeal to the lower Court and in the instant appeal, Ms. Oyinkansola Badejo-Okusanya, together with two other Legal Practitioners, appeared with the learned silk, whose interest or status, has now being made/elevated to subjugate the primary consideration of the action in Court, which remains the best interests of the children of the marriage. One would expect a fine and eloquent Practitioner like Ms. Badejo-Okusanya, who the Appellant found fit to undertake the appeals even at higher Courts, to be as well good and capable of leading the defence of the Appellant in the matter at the Court of first instance, the Family Court, more so, learned counsel was in attendance in that Court on the said date. See the record of proceedings of 1st November, 2017 as reproduced earlier.
The Supreme Court noted that litigants with bad cases, in most of the times, make recourse to the constitutional provision of fair hearing in order to hoodwink the adverse parties and even the Court. This is with a view to derail the wheel of justice and mislead the Court away from the live issue in the litigation.
The Apex Court in Okeke v. Uwaechina (2022) LPELR-57291 (SC) restated the settled law, on such litigants, thus;
… they make the defence in most inappropriate cases because they have nothing to canvass in their favour. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional provision available to a party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional alone because it is not available to them just for the asking." Per AUGIE, JSC (Pp. 26-27)
Lastly on this issue, the Apex Court laid the matter of incessant complaint of breach of fair hearing by litigants to rest in its decision in Orugbo vs. Una (2002) LPELR-2778(SC), where per Niki Tobi, JSC (of blessed memory), postulated:
Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.
I find that this cardinal principle is inapplicable to the facts of the instant case, as no breach could be seen of the Appellant’s right to fair hearing. Also inapplicable to the Appellant’s case is the set of judicial authorities cited and relied upon by counsel for the Appellant, though good law but were cited out of context. This aspect of the issue is hereby resolved against the Appellant.
Concerning the reliance by the lower Court on the decision of this Court in The Registered Trustees of ECWA Church v. Ijesha, supra, the Appellant contended that the decision in that case cannot be applied to the instant case because the facts and circumstances are far dissimilar, therefore making the doctrine of stare decisis inapplicable in the circumstance. Counsel argued that Judicial precedent and stare decisis must be applied in the context of the features of each case, citing in support the cases of Adetoun Oladeji (Nig) Ltd vs. N.B Plc (2007) 5 NWLR (Pt.1027) 415; Oduneye v. F.R.N (2014) 13 NWLR (Pt.1425) 545 at pg. 581and Ardo v. Nyako (2014) 10 NWLR (Pt.1416) 591 at 626 para E-G.
Counsel stated that where key similarities in the facts and circumstances are lacking, the subordinate Court ought not apply the doctrine of stare decisis on the strength of the case of A-G Lagos State vs. Eko Hotels Ltd. (2018) 7 NWLR (Part 1619) 518. Counsel noted that whilst the case in the Registered Trustees of ECWA Church v. Ijesha, supra, originated at the Upper Area Court, Ilorin, governed by the Area Court Law of Kwara State, the instant appeal originated from the Magistrate Court of Lagos State, established pursuant to Section 2 of the Magistrates Court Law of Lagos State, 2009. The Appellant maintained that the provision of section 9 of the Magistrate Court Law of Lagos State set the instant case apart from the case under review. Counsel insisted that the use of the word “notwithstanding” in the said section of the law, mean the exclusion of any other impinging factor that may be contained in the law or in any other legislation, relying on Obi v. INEC & Ors (2007) LPELR-24347(SC); NDIC v. Okem Ltd. & Anor (2004) 10 NWLR (Part 880) 107; GTB Plc v. Obosi Microfinance Bank Ltd (2022) 4 NWLR (Part 1821) 455. Reliance was further placed on the cases of Idris v. Agumagu (2015) 13 NWLR (Part 1477) 441; Nwabueze v. The People of Lagos State (2018) 11 NWLR (Part 1630) 201, to further submit that the earlier case cannot be applied as binding authority on the latter.
The Respondent gave a brief rundown of the case of ECWA Church vs. Ijesha, supra, and cited provisions of Rules 2, 3, 4 and 6 of the Senior Advocates (Privileges and Functions) Rules and submitted that the Rules clearly indicate Courts in which a Senior Advocate of Nigeria can appear in Nigeria, counsel maintained that a Senior Advocate of Nigeria (SAN) cannot apply for or issue legal or judicial processes in a Court other than those superior Courts before which he is permitted to appear. It was submitted that the learned SAN, Mr. Sasore, cannot issue processes in the Family Court, being an inferior Court before which he cannot appear. It was further asserted that the Senior Advocate of Nigeria (Privileges and Functions) Rules which excludes a SAN from appearing before an inferior Court is a clear qualification to section 36 (6) (c) of the Constitution and the exclusion would not negate the fair hearing enshrined in the Constitution.
RESOLUTION
In the case of The Registered Trustees of the ECWA Church vs. Ijesha, supra, this Court held that a Senior Advocate of Nigeria has no right of audience in the Upper Area Court, being an inferior Court, the decision was arrived at by the combined construction of Rules 2, 3, 4 & 6 of the Senior Advocate of Nigeria (Privileges and Functions) Rules made pursuant to section 5 (7) of its enabling law, the Legal Practitioners Act.
After a careful perusal of the submission made by the parties in this appeal vis-à-vis the decision of the Family Court and its affirmation by the lower court, I failed to see what makes the instant case dissimilar to the case in The Registered Trustees of the ECWA Church vs. Ijesha (supra).
The argument of the Appellant, on this subject, was premised predominantly on the existence of the Magistrate Court Law of Lagos State, 2009 whose section 9 provides that;
"Notwithstanding any custom or practice, all Legal Practitioners called to the Bar in Nigeria are entitled, regardless of conferment, title or rank, to appear in any Magistrate court in the State"
It was the Appellant’s contention that the Lagos State law ought to regulate the practice and procedures of the Magistrate Courts in Lagos State, which includes the Court of first instance. I think that counsel to the Appellant missed the mark. There is no dispute that the practice and procedures of the trial Family Court, together with other Magistrate Courts in Lagos State, will still be regulated by their enabling law; the Magistrate Court Law of Lagos State, 2009. It is my considered view that the SAN’s Rules, the relevant part of which were reproduced in the preceding portion of this judgment, were made to regulate the conduct of the practice of the holders of the prestigious rank of Senior Advocate of Nigeria, and the holders are bound by same.
I am aware that the rank is bestowed on deserving practitioners mainly on privileged grounds, whose status entitles them to some privileges and prestige. I cannot see or imagine holders of such privileged ranks turning around to bemoan obligations attached thereto. See: Attorney-General of Rivers State vs. Attorney-General of Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31; Chanchangi Airlines (Nig.) Ltd vs. AP Plc (2015) 4 NWLR (Pt.1449) 256.
I find it apt to reproduce some statutory provisions in relation to this subject. The SAN Rules, were made pursuant to Section 5 (7) of the Legal Practitioners Act, which provides that:
The legal practitioner's privileges committee may with the approval of the body of benchers, make rules as to the privileges to be accorded to a Senior Advocate of Nigeria, as to the functions of a legal practitioner, which are not to be performed by a Senior Advocate of Nigeria, as to the mode of appearance before courts by a Senior Advocate of Nigeria and generally, but without prejudice to the foregoing, for ensuring the dignity of the rank of Senior Advocate of Nigeria.
Juxtaposing the foregoing provision with that of the Magistrate Court of Lagos State, which provides in section 9 thus:
Notwithstanding any custom of practice, all legal practitioners called to the Bar in Nigeria are entitled, regardless of conferment, title or rank, to appear in any Magistrate court in the state,
one would come to the safe conclusion that the Legal Practitioners Privilege's Committee is so empowered to make rules for the Senior Advocates of Nigeria, in order to ensure the continuous dignity of the prestigious rank.
It appears clearly enough that this provision of the LPA recognizes the legality of the SAN’s Rules and I cannot see anything unconstitutional in the provision of rules 2 (1), 3, and 4 together with rule 6 of the SAN Rules which regulates the mode of appearance before Courts by a Senior Advocate of Nigeria and for ensuring the dignity of the prestigious rank of Senior Advocate of Nigeria.
In view of this, I find the submission of the Appellant unsupportable. It is clear even from the face of it that the rules only regulate the mode of appearance of the Senior Advocates of Nigeria in Courts nationwide. It is therefore clear that the law as stated by this Court in the case of Registered Trustees of ECWA Church vs. Ijesha, supra, remains the correct position to which the lower Court and the Court of first instance are bound to follow under the doctrine of stare decisis. See Adesokan & Ors vs. Adetunji & Ors (1994) LPELR-129 (SC)
I find therefore that the lower Court rightly relied on the decision in the case of the Registered Trustees of ECWA Church vs. Ijesha, supra, which remains the correct position of the law. This issue is resolved in favour of the Respondent against the Appellant.
Having found as in the foregoing, the question of whether the Act of the National Assembly can validly regulate the practice and procedures in the Magistrate Court of Lagos State does not arise. This court has found that the rules made pursuant to the LPA were designed to regulate the mode of appearance in Court and the manner and hierarchy of the Court in which the holders of the rank of the Senior Advocate of Nigeria can appear, in order to preserve the dignity of the rank of the Senior Advocate of Nigeria. The question of law raised herein, in my opinion, was aimed at pulling a wool over the eyes of the Court as it set to achieve no target, but mere rhetoric and academic. I hereby discountenance the submission thereon. The position of the Court has been sufficiently glaring on moot issue like the instant one. This Court, in Akuma vs. Ezikpe, supra, cited by the Appellant, stated thus;
Every appeal must be for the purpose of righting a wrong done to the appellant by the decisions appealed from. The Courts must discourage and have often discouraged appeals designed only to answer academic questions that do not in any way advance the appellant's cause. Even if this appeal is resolved in the appellant's favour no practical advantage will be gained by him in the case between the respondent ….
The instant appeal, to say the least, is frivolous to the extreme. The Appellant had abdicated his role as a parent to the children of the marriage in issue and was on the pursuit of mere otiose issue.
I find the instant appeal bereft of merit and I dismiss it. The decision of the lower Court is accordingly affirmed.
Parties shall bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Oyinkansola Badejo-Okusanya with Tomiwa Sanni for the Appellant.
Nnamdi Anoka for the Respondent.
