COST AGAINST TRIAL.LAWYERS: SETBACK FOR RULE OF LAW
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.
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BEFORE YOU PUBLISH THAT ‘DISCLAIMER’, KNOW THE POSITION OF THE LAW
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
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.
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