Frivolous suits are a recurrent clog in the wheel of justice. They not only waste the courts’ time and resources, but erode ethical standards. However, bold judges are now finding an antidote through hefty fines, writes ROBERT EGBE.
Two months ago, shortly before the inauguration of then President-elect Bola Tinubu, a Lagos-based lawyer Mr. Olalekan Ojo received a call from an unknown number.
“Can you take out an action against the Independent National Electoral Commission (INEC) and the Federal Government?” the caller asked.
When Ojo, a Senior Advocate of Nigeria (SAN), answered in the affirmative, the caller said someone else would get in touch with him from abroad.
Ojo told The Nation that the “someone”, called shortly after from the United Kingdom with an unacceptable request.
He said: “I received the call shortly and the caller said he wanted me to institute an action to stop the inauguration of the then President-elect, now President. I was not interested in how much he was going to pay me. I asked him ‘What is your locus standi (legal right)? What right do you have? What right do you want to protect?’
“I told him that I could not file such an action and that any lawyer that does, ought to be penalised for filing a frivolous action.”
Abuja lawyer draw court’s anger
While Ojo rejected the offer, another legal practitioner, Mr. Chuks Nwachukwu accepted a similar one.
As Ojo predicted, the lawyer got slammed with a hefty fine.
On June 6, 2023, the Federal High Court sitting in Abuja, wielded the big stick against Nwachukwu.
Describing his suit seeking to stop Tinubu’s inauguration on May 29 as frivolous, the court ordered Nwachukwu to pay a N20 million fine.
The lawyer filed the suit on behalf of five residents of the Federal Capital Territory (FCT) before Justice Inyang Ekwo.
He, among other things, asked the court to restrain the Chief Justice of Nigeria (CJN) Justice Olukayode Ariwoola or any other judicial officer, from inaugurating Tinubu as President, pending the resolution of all the legal issues surrounding the presidential election.
The plaintiffs behind the suit marked: FHC/ABJ/CS/578/2023, who identified themselves as “registered voters of the FCT, Abuja, excepting those exempting themselves”, were Anyaegbunam Okoye, David Adzer, Jeffery Ucheh, Osang Paul and Chibuike Nwachukwu.
They insisted that going by the provision of section 134(2) of the 1999 Constitution, as amended, “no candidate in the February 25 presidential election in the country may validly be declared elected President of the Federal Republic of Nigeria without that candidate obtaining at least 25 per cent of the votes cast in the FCT, Abuja.”
But the court dismissed the suit on the premise that the plaintiffs lacked the locus standi to institute the action.
Justice Ekwo held that the plaintiffs failed to disclose to the court that the issue they raised in the suit was already a subject matter pending before the Presidential Election Petition Court (PEPC).
He held that the high court lacked the requisite jurisdiction to handle the matter.
Nevertheless, Justice Ekwo held that upon a careful study of an affidavit that was attached in support of the suit, the court found that it was the lawyer that instigated the action against Tinubu.
“I can discern that the averments thereof are merely the voice of Esau and the hands of Jacob.
“It means that the said Chuks Nwachukwu of counsel for the plaintiffs instigated this suit and merely got the plaintiffs to stand in as parties while he handles the suit as a lawyer.
“This is unprofessional conduct on the part of the said Chucks Nwachukwu as counsel of the plaintiffs.
”On the whole, I find that this action is premised on recklessness, frivolity and complete lack of knowledge of the elementary principle of law as it relates to the Constitution and Electoral Act, 2022,” Justice Ekwo added.
Justice Ekwo ordered the lawyer to pay both the Attorney-General of the Federation (AGF), and the CJN, who were listed as 1st and 2nd defendants in the case, the sum of N10m each, as a punitive cost.
He held that until the N20m fine was paid by counsel for the plaintiffs, no further action should be taken in the matter, if the litigants intend to go on appeal.
N40m fine against ex-presidential candidate
10 days earlier on May 26, the Court of Appeal, Abuja division, imposed an even heftier fine on another lawyer ,Mr Ambrose Owuru, for the same reason.
A three-man panel of the court ordered Owuru, the presidential candidate of Hope Democratic Party (HDP) in the 2019 election, to pay a N40million fine for seeking to prevent Tinubu’s inauguration as President.
The appellate court, led by Justice Jamil Tukur, unanimously held that the appeal filed by Owuru and the Hope Democratic Party amounted to an abuse of the court processes.
Justice Tukur upheld the January 30 judgment of Justice Inyang Ekwo of the Federal High Court, Abuja, which earlier dismissed the case for being an abuse of court processes.
Consequently, Justice Tukur dismissed the appeal and ordered Owuru to pay each of the respondents N10million cost.
The respondents in the suit were President Muhammadu Buhari, the Attorney-General of the Federation, INEC and Tinubu.
Owuru and HDP had, in the appeal, sought to be sworn in as Buhari’s successor.
He claimed, among others, that he won a referendum purportedly conducted within the period of the postponement of the 2019 presidential election.
He argued that by the victory he recorded in the 2019 referendum, no other person should occupy the office of the President until he serves out his tenure.
Owuru and the HDP raised similar issues in the petition they filed against the 2019 presidential election, which was dismissed by the Supreme Court for want of jurisdiction.
The election petition court, while dismissing Owuru’s petition in its August 22, 2019 judgment, held, among other things, that the issue of referendum raised in the petition did not form grounds to challenge the outcome of an election.
Keyamo
Similarly, the Federal High Court in Abuja on June 6 awarded a N10million fine against a former Minister of State for Labour and Productivity, Mr. Festus Keyamo for filing a frivolous suit against the Peoples Democratic Party (PDP) candidate in the last presidential election, Atiku Abubakar.
Keyamo, a SAN, had sought Atiku’s arrest and prosecution by anti-corruption agencies for alleged corruption.
The former minister, who served as a spokesperson for the presidential campaign organisation of the ruling All Progressives Congress (APC), filed the suit in the build-up to the 25 February election.
But the judge, Justice James Omotosho, dismissed the suit at the preliminary stage for being frivolous and awarded a total of N10 million against Keyamo.
The judge ordered Keyamo to pay N5 million to each of Atiku and the Independent Corrupt Practices and other related offences Commission (ICPC).
The court held that Keyamo’s letter to the Code of Conduct Bureau (CCB), Independent Corrupt Practices Commission (ICPC), and (2nd, 3rd and 4th defendants, respectively in the suit) in which he gave them an ultimatum of 72 hours to arrest, investigate and prosecute Atiku, was done in bad faith, as the agencies were not in any way his errand boys.
The judge queried if 72 hours were ever sufficient to investigate and commence the prosecution.
Therefore, the court ruled that the action of the plaintiff in rushing to file the suit was a move done in bad faith, more so coming from a lawyer of his standing.
The court also frowned at the unconscionable manner the plaintiff behaved as public institutions must be regarded and protected.
The judge commended the EFCC and ICPC for showing restraint and not allowing themselves to take orders from Keyamo (the plaintiff) as if they were his servants.
Keyamo has appealed the decision.
Hammer on the Bar’s finest
Not even the leading lights of the Bar have escaped the court’s wrath.
The Supreme Court on February 26, 2020, wielded the big stick on two of the Bar’s finest – Chief Afe Babalola (SAN) and Chief Wole Olanipekun (SAN) – following its dismissal of the All Progressives Congress (APC) and David Lyon’s bid for review of the Bayelsa State governorship election verdict.
The court, in a unanimous ruling, came down heavily on the legal giants, both counsel to the APC and David Lyon, after dismissing their application for a review of its verdict on the Bayelsa State governorship election.
The justices were so angry that they ordered the lawyers to pay N10 million each to each of the three respondents from their own pockets.
The seven-man panel led by Sylvester Ngwuta dismissed the two applications for lacking in merit.
Justice Amina Augie while delivering the ruling said the request to review the judgment was vexatious, frivolous, regrettable and a deliberate desecration of the judiciary.
“I cannot believe, and with tears in my eye, I say I cannot believe that in my lifetime, I will see very senior members of the Bar, bring applications of this nature to this court, which are aimed at desecrating the sanctity of this court, foul its well-known principle that the decision of this court is final and destroying the esteem in which this court is held.
“The result of the foregoing is that these applications are vexatious, they are frivolous and they amount to a gross abuse of the court process,” Justice Augie said.
Other members of the panel, including Ngwuta, Mary Odili, Olukayode Ariwoola, John Okoro, Kudirat Kekere-Ekun and Ejembi Eko agreed with the lead ruling.
Fines in non-political cases
The courts are not wielding the big stick in only political cases.
For instance, in March, the Lagos High Court sitting at Yaba ordered a lawyer, Mr. K. O. Bakare, to pay a N10 million fine for encouraging his client to file a suit that had already been decided at another Lagos High Court and the Court of Appeal.
Justice E. O. Ashade dismissed the suit and ordered Bakare to pay the N10m “personally” to the Defendants/Applicants.
The judge noted that “More worrisome in this present suit is that Mr. K. O. Bakare was/is the learned Counsel to the 2nd Defendant/Appellant in the Suit No. LD/3820/99 – Gafari Yusuf Fadiya & Ors v. Kolawole Oloyede & 1or, Appeal No. CA/L/419/2016 and Appeal No. SC/CV/576/2020, respectively.
“Learned Counsel to the Claimant is, therefore, mostly to be blamed for the filing of this instant suit. It is a failed strategy or tactic of the learned Counsel…
“If the strategy adopted by the Counsel works, he takes full credit. And if the strategy fails, he must also take full blame for responsibility with equanimity.
“Learned Counsel must at all times adhere to what is well within the law and should desist from ill-advising a party by giving him a false hope as clearly seen in this suit,
“In the result, this Court is of the considered view that the application dated 2/6/2020 but filed on 8/6/2022 succeeds, accordingly, it is hereby granted as prayed. This suit is hereby dismissed.
“From the records of this court as assessed in the instant suit, a punitive cost must be awarded against the Claimant but payable by the learned counsel to the claimant personally in the circumstance of this suit.
“Consequently, I award the Cost of N10 million against the Claimant/Respondent in favour of the Defendants/Applicant and to be paid personally by Mr. K. O. Bakare, learned Counsel to the Claimant/Respondent.”
Are hefty fines the way to go?
Mr. Ojo believes so.
The SAN said: “It is extremely commendable because lawyers, who are presumed to be learned, ought to be able to distinguish frivolous and vexatious cases from genuine cases. Where a lawyer is shown to have instituted any frivolous, vexatious and groundless action, such a lawyer must be made to pay a heavy cost, because in most cases the lawyer knows.”
Why lawyers file frivolous actions
Ojo narrowed the problem to three issues.
He said: “Some do it because of the money they want to collect from those clients. Some do it out of reprehensible ignorance. Some do it because – you know most of those cases are political cases – so, they want their names to be heard, regardless of the frivolity of the action.”
Like Justice Ashade noted when he fined Mr. Bakare N10m, Ojo said it was the lawyer’s duty to properly advise his client of the frivolity of the suit.
“The law is that lawyers should advise their clients against filing frivolous cases. So, when lawyers throw caution to the wind, the courts should continue to award heavy costs against them,” he said.
Ojo added that in addition to the award of cost – in appropriate cases – “such lawyers ought to be referred to the disciplinary committee of the Nigerian Bar Association (NBA) for necessary disciplinary action.
“It is a commendable thing, particularly where such cases are manifestly frivolous.
“How can a lawyer file a suit to say “stop inauguration?” That is recklessness of the highest order; it is a demonstration of professional irresponsibility. So, I’m not surprised that costs have been awarded, the courts should award more so as to teach them a lesson.”
Borderline cases
However, the lawyer noted that hefty fines would be inappropriate where the position of the law on the subject matter of the suit is uncertain. He described such suits as borderline cases.
Ojo said: “There could be borderline cases, cases where you may not be too sure. In borderline cases, the courts would take a lenient view and they may not award costs. They are borderline in the sense that the position of the law is not reasonably certain. Like we used to say at the Law School ‘God forbid that a lawyer should know all the law.’ So, there are cases where we can have pardonable ignorance of the lawyer. In such cases, costs ought not to be awarded.
“But is there a lawyer in Nigeria who can claim pardonable ignorance of the fact that you cannot go to court to stop an inauguration? After an election has been held, all complaints should go to the election petitions tribunal. Is there a lawyer that will say he does not know that?
“Is there a lawyer that would say he does not know the category of persons that can present election petitions? So, where such cases go to court, it is either a case of unpardonable ignorance or utter ethical recklessness on the part of the lawyer and such lawyer should be sanctioned.”
Advantages of hefty fines
Lagos-based lawyer, Benedicta Oko Lawrence agreed that hefty fines are necessary, but with a caveat.
Mrs. Lawrence said: “If the fine imposed is to discourage lawyers from filing frivolous suits or applications, it is a welcome development but if it is for witch hunting it is a no-no.
“My reason is that in my over 15 years of experience as a lawyer, I have seen situations where lawyers on the opposing sides (mostly defendant’s lawyers) file frivolous applications in a pending suit just to cause delay.
“I have also seen situations where lawyers file frivolous cases in court for as long as the client is ready to pay their professional fees.”
She identified several other benefits of fines.
She said a costs award partially compensates the successful litigant, deters frivolous actions and defences, encourages both parties to deliver reasonable offers to settle, and discourages improper or unnecessary steps in the litigation.
“In short, costs orders reward reasonable behaviour in bringing and conducting litigation, and penalize unreasonable behaviour,” Lawrence added.
