Why NBA should sensitise Nigerians on lawyers’ role in criminal trials



For sometime now, the Nigerian legal practice has been in the public scrutiny following several developments ranging from allegation of bribery to obstruction of judicial processes by some lawyers, as well as the condemnation of some decisions of the apex court by lawyers who ought to protect the bench as ministers in the temple of justice. In this interview with BERTRAM NWANNEKANMA, a Lagos-based Senior Advocate of Nigeria and a known insolvency lawyer, Adekunle Ogunba, took a swipe at the situation with a call to the Nigerian Bar Association to rise up to challenge to rescue the situation.

Legal practice in recent times has been faced with several issues. What do you consider the greatest challenge of the practice in Nigeria now?

There are many challenges of legal practice in Nigeria. I think the greatest challenge is not even what you think. The greatest challenge is obsolete infrastructure and personnel, which cut across the colonial era and need serious upgrading. Our judges still write in long hands and are not well paid.  In this age and time, judges’ salaries are not being paid promptly, yet you still expect the judiciary to be above board. I think that if you look at it in terms of infrastructure and personnel, they need serious upgrading. Some of the courtrooms are mockery of what a courtroom should look like and what a judicial system should actually resemble. If you look at the courtrooms, the places are stuffy that lawyers cannot appropriately address the court. Then judges are working with enormous pressure. The atmosphere is not conducive for any decent legal process. That is the major challenge that is plaguing the system and the judges are not adequately remunerated and we expect them to be above board.

Judiciary, to many is under scrutiny going by the recent outburst by the President and EFCC’s boss. What is your take on it?
I don’t know the perspective of which they are looking at it. I think, it will even do a lot of damage to the prosecution (EFCC) itself, if there is no lawyer to defend whosoever they decide to prosecute. It adds a lot of credibility to it, if a lawyer is there to defend and then in spite of the defence, there is conviction. It even adds more value to it when the defence is led by a very senior lawyer. I think the attempt to paint the entire brush of impropriety on the lawyer might be misplaced, but it should be taken on case by case basis. I am not talking in the context of any particular case in question but a lawyer is expected to do his utmost best to defend his client to the best of his ability. Within that context, if anything he does within the courtroom in the course of that process is impeccable and also in the course of  that defence, he is entitled  to be paid,  which depends on what each party agreed on. So I don’t think it is right without any attempt to defend anybody or hold forth. So, if the scale of justice is to be held evenly, the lawyer must be there to provide unfettered access or unfettered professional services to anybody accused.

At what time or point can a lawyer be charged of obstruction of justice?

I know when you asked that question, you had a particular scenario in mind but the case is still subjudice now, it is yet to be decided. I don’t know the fact as to know what really happened, the undercurrent that has led to the current dispute between a very serious and respected member of the inner bar and the EFCC in particular. But I don’t think in the performance of his duty he is being excessively in defence, but I think it is a matter tabled before the court for its decision. So it is neither here or there,  the people in question  are yet presumed innocent  until proven guilty.  So if you say, somebody is obstructing the course of justice, then the case against whom you are defending must be judicially determined in the context that the person has been pronounced guilty, then you can now say the lawyer is obstructing justice.

But without prejudice to the issue in court in that particular context, I think that the EFCC in my own view overreacted, but let us see how the case will go.  But I don’t think leaving the accused persons to concentrate on the lawyer will do the system any good. But at any case within the current heat or controversy generated by the arrest or prosecution of the lawyer, we are no more hearing about the case that led to it. What is the EFCC really doing about that particular case?  I think leaving the case alone and concentrating on the case of the lawyer is diversionary. So I think the EFCC as it were, should focus on the big ball and the issue which is the overall prosecution to the overall interest of the society. It is even said in some quarters that the underlying case that led to the lawyer being charged is not even as it were, an economic crime in the real sense because no state’s fund was involved. But that is neither here or there. Like I said, concentrating on the lawyer in this particular time is diversionary until the main issue, the so-called people that are meant to be arrested are tried. What has happened to that case, we have left it and we are concentrating on the case of the lawyer which is too bad for the system why not attempting to justify or pre-empt whatever will happen at the end of the case. I think EFCC should concentrate more on the main issue.

What roles do you expect from the NBA on this issue?

I think the NBA need to come out of its shell as it were and sensitise the public on the role of a lawyer, what is expected of a lawyer. I know that the NBA president was involved in the bail process of the very senior lawyer that was involved but I think now, there is this misconception that once you are seen defending an accused person, then you are an accomplice to the crime, which is not so. The role of the lawyer is to be properly explained within the context of what is unfolding and the fact that the lawyer will be seen to be doing his job, he is to do the best he can to put procedural obstacles to the wheel of the prosecution and try to dig as many holes as possible  in their  case. So within that context, I enjoin the NBA General Secretary and the NBA Publicity Secretary to let the public know the role of the lawyer and certain experience of the lawyer when his client is charged in court. It follows the presumption of innocence of an accused person in a criminal charge. So all that the lawyer is expected to do is to ensure that all the available due processes are followed and that the right of his client to fair hearing  is not  in any way hampered  or impeded so that justice  can be seen as purely distilled. I think we hold it as a duty for the general public to appreciate the situation in which the lawyer practices.

What are the implications of criticising Supreme Court’s verdicts?

Criticising court verdicts has a very bad omen. No matter how you perceive the Supreme Court and the judgment, it remains the final court of the land. Within the context of the fact that even between a man and his wife, there shall be disagreement about issues. When you place it over the context of a country of over 100 million, there is no how a decision of a court, any court at all, not to talk of the Supreme Court will be acceptable to everybody within the society. Even issues that are determined by the Supreme Court, there are also contending parties, the appellant and the respondent, there is no way the Supreme Court or any court can give a decision in favour of the appellant and the respondent at the same time. So within that paradigm, there must always be a winner or a loser. I think, it is an attribute of a bad loser or officio bystander to go to the press to condemn the decision of the court, no matter how wrong he presumed  that decision to be.

By virtue of the constitution as it is today, that decision is a final decision not because as the Supreme Court has always said, it is final not because they are infallible, they are infallible not because they are final. So it is a decision that is final within the context of our jurisprudence as constitutionally enshrined. So for any person at all not to talk of a lawyer to go to the pages of the press to condemn the decision of Supreme Court, is actually contemptuous of the court. He ought to know better, in fact, there are opportunities for the court to review its decisions, I think it is a veritable tool to deploy by the lawyer but not to go to the press to try to malign that court and throw the court to disrepute.  Even among the Justices of the Supreme Court themselves, we have seen a situation, where they still held positions that are sharp in disagreement. I remember the case of Buhari vs Obasanjo in 2003 that Obasanjo won by a very slim margin of 4-3 justices. So within the context of the three justices that dissented, they expressed very strong opinion.

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