By Francis Ogunbowale
On Wednesday 26th of February 2022, the apex court awarded costs of N30 Million each against Chief Afe Babalola and Chief Wole Olanipekun, following an application they brought for review of its judgment which overturned the APC victory in the Bayelsa governorship election, delivered on the 13th of February 2020, in favour of the People’s Democratic Party (PDP), its gubernatorial candidate, Duoye Diri and his deputy, Lawrence Ewhrudjakpo.
Those who believe that the supreme court’s action was justified agreed that the application brought by the two very senior lawyers constitutes an abuse of court process and would better be discouraged by awarding punitive cost of that colossal amount against them.
But a deep thought will reveal that One, the measure by the supreme court, with respect, may have been too harsh; Two, it may plummet into a very dangerous precedent if it is followed hook line and sinker by the lower courts; Three, it may perilously overstretch the abuse of court process principle which the supreme court sets out to expound and defeat the good course of justice.
However, granted that the case which the two lawyers brought before the supreme court constitutes an abuse of court process, one wonders One, whether any punitive costs ought to be awarded personally against them; Two, or whether the extremely high amount of N30 Million each ought to be awarded against them; Three, or whether there is no other way the supreme court could have reprimanded or disapproved abuse of court process; Four, whether this may not cause avoidable panic to trial lawyers and Five, whether it may not inhibit access to justice, the rule of law and public interest litigation and development.
In the case of Chief Afe Babalola (SAN) who represented David Lyon Perewonrimi and his running mate Biobarakuma Degi-Eremienyo and Chief Wole Olanipekun (SAN) who represented the All Progressive Congress (APC), the sin of the two respected legal luminaries, according to the apex court, is that their application was an invitation to the court to sit on its own appeal and therefore vexatious, frivolous and constituted a gross abuse of court process.
With respect, costs should not have been awarded against the two lawyers for doing what has not been done before, otherwise, the law will stand still while the rest of the world will move on. It is generally believed that if in the opinion of the supreme court the application should not have been brought, due to the circumstances of the moment, a mere reprimand by way of obiter or reference to the Legal Practitioners Disciplinary Council (LPDC) for appropriate sanction, should have been sufficient.
However, this does not mean that such application will not fly when the supreme court is faced with a different circumstance in the future. With respect, the cost of N30 Million awarded against each of the lawyers is extra ordinarily punitive and if executed can make them to become bankrupt and prevent them from continuing the good work they are doing for the development of law, the legal profession and the country at large. Not only this, it is capable of causing needless panic to trial lawyers and inhibit unfettered access to justice, the rule of law and public interest litigation. It can also become counter-productive and defeat the good course of justice, when the lower courts, including the magistrate and the customary courts, begin to follow it.
Barely four months after the supreme court judgment, the Federal High Court in Abuja, on Monday 5th of June 2023 did not only award the sum of N10 Million against Festus Keyamu (SAN), it ordered that 10% per annum should be paid on the amount annually until the cost is liquidated. Keyamu had filed a public interest litigation before the court, for an order to compel the Economic and Financial Crime Commission (EFCC), the ICPC and the Code of Conduct Bureau (CCB), to probe the PDP presidential candidate, Alhaji Atiku Abubakar for the likelihood of contravening Section 18(2) of the Money Laundering (Prohibition and Prohibition) Act, 2022, Section 96(1) of the Penal Code and the Electoral Act and if found culpable to declare him not fit to contest the 2023 Presidential election.
The view of the court that the lawyer failed to show to court how he was affected by the action of the PDP presidential candidate, to compel a duty which is within the discretionary power of a government agency, is an abuse of court process, with respect, should not have warranted punitive cost of N10 Million and not only this, with additional 10% interest until final liquidation, if not for the precedent of the earlier supreme court judgment against two respected legal icon, Chief Afe Babalola and Chief Wole Olanipekun.
The supreme court precedent was again stretched, on the 6th of June 2023, by another Federal High Court in Abuja which slammed another lawyer, Chucks Nwachukwu Esq, with a punitive cost of N20 Million to be paid personally by him and not only this, before any further step is taken in the matter. Chucks Nwachukwu in Suit No. FHC/ABJ/CS/578/2023, had filed an action on behalf of five Federal Capital Territory (FCT) residents to stop the inauguration of Bola Ahmed Tinubu, the President - Elect and his Vice, Alh. Kashim Shetima, slated for 29th of May 2023. The constitutional issue raised in the application was that the duo did not have the mandatory 25% of the total votes cast at the FCT, in line with the Electoral Act.
It is hope that this precedent will not discourage or kill public interest litigation (PIL). PIL is an action that is aimed at knocking down oppressive barriers to justice. It is a struggle that enhances human dignity and empower citizens to enforce their inalienable rights. It serves as a means of helping the helpless to pursue and get redress for human rights violations. It provides an avenue to stimulate social change and subject institutions to greater accountability. The only way to achieve all of these is if the lawyer feels safe and secure from any form of punitive cost and there is unfettered access to court.
The aggravated costs of N10 Million or N20 Million or N30 Million or any amount whatsoever, against litigation lawyers, the addition of 10 % interest and an order of cost to be paid before further legal steps is taken in a matter, are not only extra ordinarily punitive, they are capable of sending out lawyers completely out of legal practice and shut out citizens from the court, which is generally agreed to be the last hope of the common man.
A lawyer is an agent of the litigant. He should not be penalized for championing the course of justice. He should also not be crucified because of the procedure he adopts to advance the case of his client. He should not be personally liable for the outcome of the case he presented to court on behalf of the litigant. A lawyer is bound to prepare, manage, prosecute or defend a court action. His main duty is to present the case of the litigant and espouse his instruction within the limit of the law and his experience. He is bound to carry out the instruction of the litigant except such instruction is criminal, illegal or is forbidden by law.
In any democracy, a right without free access to court to seek justice is meaningless. It is on this note that the unfolding attitude of the court to award costs against litigation lawyers should be thoroughly discussed at the various conferences of the Nigerian Bar Association going on nationwide and at the various Bar and Bench fora. There is need for the court to devise another means of rebuking lawyers who are perceived to have filed frivolous actions. There should be guidelines to determine which action is frivolous, vexatious and an abuse of court process, in the light of current happenings. There should also be a review of the legal framework of locus standi. The concept of locus standi should not be static, it should be expanded to accommodate the dynamics of the legal system and the litigation process.
Although award of cost is at the discretion of the court, the discretion must be exercised judicially and judiciously. An award of a punitive cost against lawyers cannot promote justice and access to the court. A lawyer is a light to the citizens, nothing should be done to reduce him and his work.
Francis Ogunbowa, a legal practitioner and rights activist.
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