February 26, 2010
One of the problems inhibiting the rule of law and proper administration of justice in Nigeria today is the rise in the abuse of court process by lawyers and their clients even sometimes with the active connivance and participation of some unprincipled judges on the bench who are entrusted with very wide powers and who forget that those powers come with them the responsibility to be fair to all.
One of the problems inhibiting the rule of law and proper administration of justice in Nigeria today is the rise in the abuse of court process by lawyers and their clients even sometimes with the active connivance and participation of some unprincipled judges on the bench who are entrusted with very wide powers and who forget that those powers come with them the responsibility to be fair to all.
Because laws are sometimes very complex and often incapable of providing definitive interpretations, some lawyers capitalize on the limits of the rule of law and the weakness of the Nigerian legal system to abuse the court process.
The abuse of legal process occurs in many ways but in general it refers to abuse of right of action ; a situation when litigants and their attorneys convinced that their actions have no basis in law but for malicious purposes or motives file frivolous cases in Court. Cases in which notorious criminals with the help of their lawyers obtain Court immunity and injunctions restraining the police and other security agencies from investigating or prosecuting them, frivolous elections petitions and filing cases in courts that obviously lack personal and subject matter jurisdictions with the sole aim of using the initiation of the legal action to frustrate the wheel of justice, using the appeal process to delay justice and the pursuit of political calculation in the name of rule of law are very rampant in the Nigerian legal system.
According to Wikipedia, “Frivolous litigation is a legal claim or defense presented even though the party and the party's legal counsel had reason to know that the claim or defense had no merit. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law.” Unfortunately, the Nigerian legal system which should protect the legitimate rights of all is very ineffective to apply a counter measure aimed at checking these abuses which in most cases, waste the tax payers money, judicial resources and violates the rights of the innocent party defendants.
While several crooked politicians and corporate criminals have fallen victims to this charade called lawsuits, lawyers smile to their banks while the media have field days reporting courtroom drama. Many of the judges who do not want to be left behind in the macabre dance also use the opportunity presented by the abuse of legal process to jostle for media attention by engage themselves in unethical judicial activism that have negative consequences on the rule of law and democracy.
The rule of law and abuse of court process cannot co-exist symmetrically in the same legal system as both are geometrical contradictions in terms having different properties and relationships of points. According to the observation of Lord Goldsmith: The rule of law is not simply about rule by law; such a proposition would be satisfied whatever the law and however unfair, unjust or contrary to fundamental principles, provided only that it was applied to all. The rule of law comprehends some statement of values which are universal and ought to be respected as the basis of a free society”. However, while analyzing the negative effect of the doctrine of abuse of process on the rule of law in the Brooks case, Sir Roger Ormrod held inter alia that: It may be an abuse of process if “the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or on the balance of probability the defendant has been or will be prejudiced in the preparation or conduct of his defense”.
The abuse of court process in Nigeria has in most cases led to situations where judicial decisions are influenced by extraneous considerations such as political equations and relationships, economic factors and power structures. Hence, even the most brilliant legal analysts may not be able to predict the outcomes of any case no matter how well cut and dry it is thereby tinkering with the doctrine of predictability and fairness which the rule of law imposes. The presence of abuse of legal process in any legal system also makes the operation of the rule of law very vulnerable, subjective, permeable and outcomes largely biddable. Instead of being an integral part of the success of democracy, abuse of court process can easily turn the judiciary into an institutional constraint to democracy
One of the reasons why some Nigerian lawyers abuse the legal process by filling these frivolous lawsuits is because of the inadequacy information available to the general public on how to file grievances against erring lawyers, the compromising attitude of some judges and the lethargic attitude of the Legal Practitioners Disciplinary Committee who are entrusted with the duty of ensuring that the public is protected against attorneys clogging the courts with inappropriate or frivolous claims. Worse still, most of the lawyers involved in these practices are the Senior Advocates who are supposed to be the custodians of the best practices in the profession. Indeed, Nigerian Courts are too willing to consider frivolous Cases.
At its heart, the issue of imposing sanctions against lawyers that file frivolous cases is one of protecting the public from the harmful effects of unnecessary litigation that tasks the taxpayers’ money. Basically, our legal procedure as it affects case management is flawed and at least some measure of responsibility for those flaws rests with attorneys that use the system to frustrate due process or to prevent others from reaping the fruit of their litigation. It is only when the bench begins to frown at this practice that the interest of the public can be better served and the profession can be put in high esteem. This becomes more compelling considering the fact that the clients are ill equipped to evaluate the skills and advise of competing attorneys and the cost of "sampling" attorneys is very high. Hence, they rely on the counsel of their attorneys.
In the United States, Federal Rule and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because a frivolous defense or claim wastes the courts and the other parties' time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned. In the words of Attorney Daniel B. Evans: “[W]hen a judge calls an argument "ridiculous" or "frivolous," it is absolutely the worst thing the judge could say. It means that the person arguing the position has absolutely no idea of what he is doing, and has completely wasted everyone's time. It doesn't mean that the case wasn't well argued, or that judge simply decided for the other side, it means that there was no other side. The argument was absolutely, positively, incompetent. The judge is not telling you that you were "wrong." The judge is telling you that you are out of your mind”.
Lawyers must stop being their own worst enemies when it comes to their public reputations and the public perception of their roles in the system. When the legal profession allows its standard to be lowered or its sense of professionalism to wither and when the courts become little more than theatre halls for bringing frivolous claims, the public will hold the Bar responsible for clogging the wheel of justice, democracy and rule of law. In this regard, lawyers must prevent our Courts from playing hosts to too many ridiculous or unjustified cases as we currently have. It is important to note that the success of democracy and the electoral reforms is also hinged on the effective dispensation of justice and rule of law.
However, the Courts must be sensitive to the need to remain open to all who seek in good faith to invoke the protection of law. A case that lacks merit is not always or often frivolous. Conversely, the Courts must not be obliged to suffer in silence, the filing of unsubstantiated, groundless and unacceptable arguments that present no colorable claims but designed only to delay, obstruct, or incapacitate the operations of the courts or any other governmental authority. The public holds lawyers in high esteem and their views are accorded similar regard. Therefore, it is unacceptable for lawyers to consider or think of their services as just another goods in the economy by rushing to the Courts regardless of how speculative their clients’ action may seem and how injurious such actions may be to the rule of law and effective dispensation of justice.
Because laws are sometimes very complex and often incapable of providing definitive interpretations, some lawyers capitalize on the limits of the rule of law and the weakness of the Nigerian legal system to abuse the court process.
The abuse of legal process occurs in many ways but in general it refers to abuse of right of action ; a situation when litigants and their attorneys convinced that their actions have no basis in law but for malicious purposes or motives file frivolous cases in Court. Cases in which notorious criminals with the help of their lawyers obtain Court immunity and injunctions restraining the police and other security agencies from investigating or prosecuting them, frivolous elections petitions and filing cases in courts that obviously lack personal and subject matter jurisdictions with the sole aim of using the initiation of the legal action to frustrate the wheel of justice, using the appeal process to delay justice and the pursuit of political calculation in the name of rule of law are very rampant in the Nigerian legal system.
According to Wikipedia, “Frivolous litigation is a legal claim or defense presented even though the party and the party's legal counsel had reason to know that the claim or defense had no merit. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law.” Unfortunately, the Nigerian legal system which should protect the legitimate rights of all is very ineffective to apply a counter measure aimed at checking these abuses which in most cases, waste the tax payers money, judicial resources and violates the rights of the innocent party defendants.
While several crooked politicians and corporate criminals have fallen victims to this charade called lawsuits, lawyers smile to their banks while the media have field days reporting courtroom drama. Many of the judges who do not want to be left behind in the macabre dance also use the opportunity presented by the abuse of legal process to jostle for media attention by engage themselves in unethical judicial activism that have negative consequences on the rule of law and democracy.
The rule of law and abuse of court process cannot co-exist symmetrically in the same legal system as both are geometrical contradictions in terms having different properties and relationships of points. According to the observation of Lord Goldsmith: The rule of law is not simply about rule by law; such a proposition would be satisfied whatever the law and however unfair, unjust or contrary to fundamental principles, provided only that it was applied to all. The rule of law comprehends some statement of values which are universal and ought to be respected as the basis of a free society”. However, while analyzing the negative effect of the doctrine of abuse of process on the rule of law in the Brooks case, Sir Roger Ormrod held inter alia that: It may be an abuse of process if “the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or on the balance of probability the defendant has been or will be prejudiced in the preparation or conduct of his defense”.
The abuse of court process in Nigeria has in most cases led to situations where judicial decisions are influenced by extraneous considerations such as political equations and relationships, economic factors and power structures. Hence, even the most brilliant legal analysts may not be able to predict the outcomes of any case no matter how well cut and dry it is thereby tinkering with the doctrine of predictability and fairness which the rule of law imposes. The presence of abuse of legal process in any legal system also makes the operation of the rule of law very vulnerable, subjective, permeable and outcomes largely biddable. Instead of being an integral part of the success of democracy, abuse of court process can easily turn the judiciary into an institutional constraint to democracy
One of the reasons why some Nigerian lawyers abuse the legal process by filling these frivolous lawsuits is because of the inadequacy information available to the general public on how to file grievances against erring lawyers, the compromising attitude of some judges and the lethargic attitude of the Legal Practitioners Disciplinary Committee who are entrusted with the duty of ensuring that the public is protected against attorneys clogging the courts with inappropriate or frivolous claims. Worse still, most of the lawyers involved in these practices are the Senior Advocates who are supposed to be the custodians of the best practices in the profession. Indeed, Nigerian Courts are too willing to consider frivolous Cases.
At its heart, the issue of imposing sanctions against lawyers that file frivolous cases is one of protecting the public from the harmful effects of unnecessary litigation that tasks the taxpayers’ money. Basically, our legal procedure as it affects case management is flawed and at least some measure of responsibility for those flaws rests with attorneys that use the system to frustrate due process or to prevent others from reaping the fruit of their litigation. It is only when the bench begins to frown at this practice that the interest of the public can be better served and the profession can be put in high esteem. This becomes more compelling considering the fact that the clients are ill equipped to evaluate the skills and advise of competing attorneys and the cost of "sampling" attorneys is very high. Hence, they rely on the counsel of their attorneys.
In the United States, Federal Rule and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because a frivolous defense or claim wastes the courts and the other parties' time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned. In the words of Attorney Daniel B. Evans: “[W]hen a judge calls an argument "ridiculous" or "frivolous," it is absolutely the worst thing the judge could say. It means that the person arguing the position has absolutely no idea of what he is doing, and has completely wasted everyone's time. It doesn't mean that the case wasn't well argued, or that judge simply decided for the other side, it means that there was no other side. The argument was absolutely, positively, incompetent. The judge is not telling you that you were "wrong." The judge is telling you that you are out of your mind”.
Lawyers must stop being their own worst enemies when it comes to their public reputations and the public perception of their roles in the system. When the legal profession allows its standard to be lowered or its sense of professionalism to wither and when the courts become little more than theatre halls for bringing frivolous claims, the public will hold the Bar responsible for clogging the wheel of justice, democracy and rule of law. In this regard, lawyers must prevent our Courts from playing hosts to too many ridiculous or unjustified cases as we currently have. It is important to note that the success of democracy and the electoral reforms is also hinged on the effective dispensation of justice and rule of law.
However, the Courts must be sensitive to the need to remain open to all who seek in good faith to invoke the protection of law. A case that lacks merit is not always or often frivolous. Conversely, the Courts must not be obliged to suffer in silence, the filing of unsubstantiated, groundless and unacceptable arguments that present no colorable claims but designed only to delay, obstruct, or incapacitate the operations of the courts or any other governmental authority. The public holds lawyers in high esteem and their views are accorded similar regard. Therefore, it is unacceptable for lawyers to consider or think of their services as just another goods in the economy by rushing to the Courts regardless of how speculative their clients’ action may seem and how injurious such actions may be to the rule of law and effective dispensation of justice.
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