Following last week’s alleged walk-out on the Code of Conduct Tribunal (CCT) by lawyers  to Senate President Bukola Saraki, Abubakar Magaji SAN and Ahmed Raji SAN, senior and junior lawyers in Nigeria have commended the tribunal chairman, Justice Danladi Umar for not suspending the trial until Saraki’s appeal before the Supreme Court is determined.

The Senate President had gone before the apex court to challenge the constitutionality of the charge which was preferred against him by the Federal Government, as well as the jurisdiction of the two-man tribunal to entertain same.

As a result of the judgment of the Court of Appeal on October 30 that gave the tribunal the nod to try Saraki, he approached the Supreme Court, asking it to set aside the said appeal court judgment.

Before the walk-out by Saraki’s lawyers, they informed the tribunal that their client had filed a motion for stay of  proceedings of the tribunal, at the apex court (marked SC/852/2015 and dated November 2).    Saraki’s lawyers maintained that all the parties in the matter had been served and the tribunal was duly notified about the pendency of the appeal at the Supreme Court via a letter addressed to its chairman, Justice Umar, on November 4.

Judicial comatose

Speaking with Vanguard Law & Human Rights on the issue, some lawyers, who described the walk-out by Saraki’s lawyers as one that can easily lead to judicial comatose in the nation’s courts, asserted that an appeal does not automatically operate as a stay of proceeding.  According to a labour lawyer, Femi Aborisade, an appeal does not automatically operate as a stay.

In his words: “But the Supreme Court has held, in Mohammed v. Olawumi (1993) 4 NWLR (Pt. 287) 254 at 277, paras H-A, and 278, para H, that the trial court ought not to continue hearing a matter where it is aware that an application for stay of proceedings pending before the appellate court.”

He noted that according to the Court: “Where there is an application before a higher Court for a stay of proceedings in the lower court, a decision by the lower court which will render the result of such application nugatory should be avoided. It will amount to a mere speculation for the trial court to come to the conclusion that an appeal or application before the higher court or appellate court will fail.

An appeal against a judgement or ruling is a complaint against the decision. The lower court should not by any means silence the complaint or force a party to abandon or renounce his right” (Mohammed v. Olawumi (supra), at pp.278-279, paras H-A).”

Explaining further, Aborisade pointed out that earlier in the Mohammed v. Olawumi (supra) Judgment, the Supreme Court had remarked that: “In this appeal from the passage quoted above, the Judge, from his ruling was aware of the application but deliberately chose to ignore the process.

This unfortunate attitude in disregarding the process of the Court of Appeal borders on judicial impertinence. It is an affront to the authority of the Court of Appeal. All the courts established under our Constitution derive their powers and authority from the Constitution. The hierarchy of courts shows the limits and powers of each court.            To defy the authority and power of a higher court appears to me undesirable and distasteful.

Negativeconnotations

Even without the ratio of the Vaswani’s case, the best and reasonable course of action was to have adjourned the matter before him pending the determination of the application before the Court of Appeal” (Mohammed v. Olawumi (supra), at pp.277-278, paras H-B).

On the walk-out by Saraki’s lawyers, he opined that the term, “walk out” has negative connotations. “It is not ordinarily ethical for lawyers to walk out of the court. That would be disrespectful to the court, which is not allowed. Lawyers are required to respect the court in order to enhance public confidence in the courts and the judicial system.

No lawyer whose means of livelihood depends on legal practice  would want to disrespect the court and undermine public confidence in the courts and the judicial system.”Be that as it may, it is not compulsory for lawyers to wait in the court after their matter has been called and heard.

In that context, lawyers can take a bow and leave unannounced. As far as Saraki’s lawyers are concerned, the NBA President has stated in media reports that Saraki’s lawyers had been asked in writing to explain the newspaper publications that they walked out of the CCT.

“According to the NBA President, the Saraki’s lawyers had explained that they sought and obtained the leave or permission of the CCT to withdraw from the suit on account of the insistence of the CCT to go ahead in spite of being aware that there is a pending appeal at the apex court and that they were so recorded in the records of the court and subsequently, they left the court.

If the account by the Saraki’s lawyers as related by the NBA President is true, the Saraki lawyers cannot be said to have done anything wrong. If their account is a falsification of what transpired and that they actually “walked out” that would be unethical. Until a formal complaint is raised against them to prove that they “walked out” rather than properly taking the leave of the court to withdraw, they cannot be rightly accused to have committed any wrong,” he added.

A senior lawyer, Chief Morah Ekwunoh, on his part, said mere filing of Appeal does not operate as automatic   stay of proceedings. He stated: “Strictly and generally speaking, under the  Rules relating to proceedings in  our courts, mere filing of Appeal, without more, does not operate as automatic stay of proceedings.

Stay ofproceedings

However, when  an Appellant satisfies the lower court of his not only having appealed, but has transmitted records to that effect to the appellate court, the lower court, upon proper application before it, is expected to stay proceedings pending hearing and determination of the appeal.

“This is so done in order for the lower court not to over-reach the appellate court and  render nugatory its  eventual decisions , or, by so doing, foist on the said appellate court complete fait-accompli, full of  hopelessness and frustration, thus leaving its judgments, rulings and consequential  orders as empty and hollow shells.”In the case of criminal proceedings, as in Saraki’s case, the situation and reason are made no different by express provisions prohibiting stay of proceedings on the alter of mere appeals, as enshrined and encapsulated in section 305(1) of the Administration of Criminal Justice Act,2015.”

However,  Ekwunoh noted that this does not warrant massive walk-out or boycott, as allegedly done by Saraki’s lawyers. “Walk-out does not only denigrate the Tribunal and the institution it represents, but serves as bad examples to young and upcoming lawyers.

The walk-out or boycott of Tribunal  by lawyers to Saraki, upon receipt of unfavourable ruling denying their quest for stay of proceedings, is, to say the least, an embarrassment to, and of stinking contempt of the Tribunal, for which it  can, there and then, try and commit them, for contempt in facia curia (in the face of court), as done by, among numerous others, Justice M O Atake to his former classmate and colleague at the Bar, Mr G M Boyo.

After all said and done, in a case, one side must win, while the other side must lose; and one side must not win or lose all the time. This is the beauty, consolation or, if you may add, paradox of legal practice,” he averred. Another lawyer, Abdulqudus Mumuney, argued that a Notice of Appeal only serves as a mere notice to the Respondent and the lower court that the Appellant is desirous of challenging a decision (usually in favour of the Respondent) at the superior court.

He stressed that, “the law is long settled that a Notice of Appeal does not automatically stay the proceedings of a court whose decision is being challenged at a superior court. In order for a lower court to stay proceedings before it on the grounds that a party is challenging its decision at a superior court, such party (Appellant) must file an application for stay of proceedings before such lower court.

The lower court would consider the application and only stay proceedings if the court finds the application meritorious. There are settled conditions that must be fulfilled for the lower court to grant such application. “However, there are certain instances where a lower court would cease to hear a matter before it after a Notice of Appeal has been filed.

One of such instance is where the Record of Appeal has been compiled and transmitted from the lower court to the superior court. In this circumstance, it is said that Appeal has been entered.” On the issue of the attitude of Saraki’s counsel staging a walk out on the CCT, he said, “Our courts have repeatedly pronounced on the need for legal practitioners to maintain high standard in practice.

In EMMANUEL OKAFOR & ORS V. AUGUSTINE NWEKE & ORS (2007)  All FWLR Pt 368 P. 1016 @ 1027 Par. C-D, His Lordship, Onnoghen JSC while delivering the lead ruling commented on the need for legal practitioners to maintain high standard in practice. His Lordship stated thus: ‘Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples.

We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.’ In  my view, the action of Saraki’s Counsel highly unprofessional and reprehensible.

Aligning her position with other lawyers, Precious Eriamiatoe, asserted that an appeal does not serve as a stay of proceedings.

“An appeal does not serve as a stay of proceedings. According to the new Administration of Criminal Justice Act of  2015, section 306 provides “An application for stay of proceedings in respect of a criminal matter before the court shall not be entertained. In essence, proceeding at a lower  court  will continue not withstanding a pending appeal before a superior court,” Eriamiatoe stated.

The lawyer also described the alleged walk-out by Saraki’s lawyers as contemptuous, saying “If indeed there was a walk out on the tribunal by Saraki’s lawyers, such an act is contemptuous and amounts to professional misconduct for which they could face disciplinary measures.”