Saturday, 31 May 2014

LEGAL PRACTITIONERS’ ACCOUNTS RULES OF 1962

LEGAL PRACTITIONERS’ ACCOUNTS RULES

Under section 15(1) of the Legal Practitioners Act 1962, the General Council of the Bar was empowered to make rules with respect to accounts and records for client’s moneys. This section was re-enacted by section 20, of the Legal Practitioners Act 1975.

Section 20 of the Act empowers the Bar Council to make rules in respect of the following –

(a) The opening and keeping by legal practitioners of accounts at banks for clients’ money;

(b) The keeping by legal practitioners of records containing particulars and information as to money received, held or paid by them for or on account of their clients;

(c) The opening and keeping by a legal practitioner who is sole trustee, or who is co-trustee only with one or more of his partners, clerks or servants, of an account at a bank for moneys of any trust of which he is the sole trustee or such a co-trustee as aforesaid;

(d) The keeping by such a practitioner as is mentioned in the last forgoing paragraph of records containing particulars and information as to moneys received, held or paid by him for, or on account of, any such trust as is so mentioned; and

(e) Empowering the Bar Council to take such action as it thinks necessary to enable it to ascertain whether the rules are being complied with.

It was due to the above rules, that the Bar Council made the Legal Practitioners’ Account Rules 1964.

The current rules under the Legal Practitioners’ Account Rules 1964 were made to safeguard the interests of clients by preventing a legal practitioner from dealing with clients’ money or trust money in a way he will intentionally or inadvertently deal with it improperly. And where there is a breach by a legal practitioner, it will constitute misconduct which may be used as a basis for disciplinary proceedings – rule 21(1) of the Legal Practitioners’ Account Rules.

Apart from Rules 21 and 22 which relates to the enforcement of the Rules, the Rules may be sub-divided into three parts viz:

1. Those which deal with the client account as regards to (i) payment into client’s account – Rules 3, 4, 5, 6 and 9; and (ii) withdrawals from a client account – Rules 7 and 8.

2. Those which deal with trust accounts as regards to (i) payments into a trust account – Rules 13, 14, 15, 16 and 19; and (ii) withdrawals from a trust account – Rules 21 and 22.

3. Those which deal with the books of account which are required to be kept by the legal practitioner – Rules 10, 11 and 20.

TYPES OF ACCOUNTS OR OBLIGATORY ACCOUNTS

The types of accounts we have are two namely:

1. Client Account; and

2. Trust Account.

CLIENT ACCOUNT

This is sub-divided into –

1. Payment into the client account;

2. Withdrawals from the client account; and

3. Special provisions as to client accounts with the bank.

It should be noted that two things are required to be kept by Legal Practitioners according to the Rules which are – Books of Accounts; and Separate Bank Accounts.

PAYMENT INTO THE CLIENT ACCOUNT

The general rule is that all clients’ money must, without delay, be paid into a clients’ account and must not be mixed with that of the legal practitioner’s nor should the client’s money be paid into the legal practitioner’s account – Rule 3 of Legal Practitioners’ Account Rules.

This means that a legal practitioner is expected to keep two separate accounts namely –

1. His personal account; and

2. His clients’ account which must be separate from his.

It should be noted that the above does not mean that every client should have a separate account rather there should be a general account strictly for all clients.

CLIENT’S MONEY

The definition of this can be seen in rule 2(1) of the Rules. It provides thus –

Rule 2(1) – In these Rules, unless the context otherwise requires:

Clients shall include any person on whose account a legal practitioner holds or receives client’s money.

Client’s money shall mean money held or received by a legal practitioner on account of a person for whom he is acting in relation to the holding or receipt of such money either as a legal practitioner or, in connection with his practice as a legal practitioner, as agent, bailee, stakeholder or in any other capacity; provided that the expression client’s money shall not include:

(a) Money held or received on account of the trustees of a trust of which the legal practitioner is a solicitor-trustee, or

(b) Money to which the only person entitled is the legal practitioner himself, or, in the case of a firm of legal practitioners, one or more of the partners in the firm.

EXCEPTION TO THE RULE OF CLIENT’S PRIVATE ACCOUNT

The exception to the general rule of a legal practitioner paying money into the client’s account is provided for under Rule 9 of the Rules. The rule provides thus –

Rule 9(1) – Notwithstanding the provisions of these Rules, a legal practitioner shall not be under obligation to pay into a client account, client’s money held or received by him:

(a) which is received by him in the from of cash and is without delay paid in cash in the ordinary course of business to the client or a third party; or

(b) which is received by him in the form of a cheque or draft which is endorsed over in the ordinary course of business to the client or a third party and is not passed by the legal practitioner through a bank account; or

(c) which he pays into a separate banking account opened or to be opened in the name of the client or of some person named by the client.

However, such transactions must be recorded in proper books of accounts kept by the practitioner even though they do not pass through the client’s bank account.

(2) – Notwithstanding the provisions of these Rules, a legal practitioner shall not pay into a client account client's money held or received by him:

(a) which the client for his own convenience by notification in writing requests the legal practitioner to withhold from such account; or

(b) which is received by him for or towards payment of a debt due to the legal practitioner from the client which debt the client has acknowledged in writing or in reimbursement of money expended by the legal practitioner on behalf of the client particulars of which have been notified in writing to the client; or

(c) which is paid to him expressly on account of costs incurred, in respect of which a bill of costs or other written intimation of the amount of the costs has been delivered, or as an agreed fee, or an account of an agreed fee, for business undertaken or to be undertaken.

It is obvious from the above provisions that in any of such cases, a legal practitioner needs not pay money into the client’s account.

NON-CLIENT MONEY TO BE PAID IN

This has to do with money paid into a client’s account other than that of the client. Rule 4 makes provision for this rule.

Rule 4 – There may be paid into a client account --

(a) trust money, that is, money which is held or received by the legal practitioner as a trustee;

(b) such money belonging to the legal practitioner as may be necessary for the purpose of opening or maintaining the account.

(d) a cheque or draft received by the legal practitioner, which includes client’s money or trust money that the legal practitioner is entitled to split but which he does not split.

Also, Rule 6 went further to state that “no money other than money which, a legal practitioner is required or permitted to pay into a client account shall be paid into a client account.

WITHDRAWALS FROM THE CLIENT ACCOUNT

The rule also provides for withdrawals from client’s account.

Rule 7 – There may be drawn from a client account:

(a) in the case of a client’s money:

i. money properly required for a payment to or on behalf of the client;

ii. money properly required for or towards payment of a debt due to the legal practitioner from the client which the client has acknowledged in writing or any reimbursement of money expended by the legal practitioner on behalf of the client of which notification in writing has been given to the client;

iii. money withdrawn on the client's authority; and

iv. money properly required for or towards payment of the legal practitioner’s costs where a bill of costs or other written intimation of the amount of the costs incurred has been delivered to the client and the client has been notified in writing that money held for him will be applied towards or in satisfaction of such costs;

(b) in the case of trust money:

i. money properly required for a payment in the execution of the particular trust, and

ii. money to be transferred to a separate bank account kept solely for the money of the particular trust;

(c) such money, not being money to which either (a) or (b) above may have been paid into the account for the purpose of maintaining the account and also money in respect of a cheque entitled to split but which did not split rather paid into a client account; and

(d) money which may by mistake or accident have been paid into the account;

LIMIT OF WITHDRAWAL

The money so drawn shall not exceed the total of the money held for the time being in such account on account of such clients’ money or trust money.

METHOD OF WITHDRAWING

Where a legal practitioner wishes to withdraw money from a client’s account for or towards –

(i) payment of sum due to him in respect of a debt;

(ii) costs;

(iii) money paid into the account by mistake or accident; or

(iv) a cheque or draft received by the legal practitioner, which includes client’s money or trust money that the legal practitioner is entitled to split but which he does not split.

In any of the above circumstances, he must do so by either drawing a cheque in favour of himself or by a transfer to a banking account in his own name not being a client account. Thus, he cannot draw a cheque in favour of a creditor from a client’s account.

WITHDRAWAL WITH THE APPROVAL OF THE BAR COUNCIL

Rule 8(2) provides that no money other than money permitted by Rule 7 to be drawn from a client account without the authority of the Bar Council upon an application made to them by the legal practitioner specifically authorise in writing its withdrawal. That is, where a clients’ money has been in a clients’ account for a long period, the legal practitioner can obtain the consent of the Bar Council through writing.

SPECIAL PROVISIONS AS TO CLIENT ACCOUNTS WITH THE BANK

The Act makes special provisions in respect of clients account with the bank. This can be seen under in Section 20 of the Act.

Section 20 (1) – A bank at which a legal practitioner keeps an account for client’s money shall not, in respect of any liability of the practitioner to the bank which does not arise in connection with that account, have or obtain any recourse or right, whether by way of set-off, counter-claim, charge or otherwise, against moneys standing to the credit of that account.

(2) A bank shall not, in connection with any transaction in respect of an account of a legal practitioner kept for clients’ moneys with that or with any other bank (other than account kept by him as trustee for a specified beneficiary) incur any liability, or be under any obligation to make any inquiry or be deemed to have any knowledge or any right of any person to any money paid or credited to the account, which it would not incur or be deemed to have in the case of an account kept by a person entitled absolutely to all the money paid or credited to the account.

The reason for this section 20 is to ensure full protection for the client account and money against any irrelevant or unauthorized depletion.

TRUST ACCOUNT

This is sub-divided into –

1. payment into a trust bank account; and

2. withdrawals from a trust bank account.

PAYMENT INTO A TRUST BANK ACCOUNT

Rule 2(1)(b) defines “Trust Bank Account” to mean a current or deposit account in the title of which the word "trustee" or "executor" appears, kept at a bank in the name of the trustees of the trust.

The general rule is that all money held by the legal practitioner as a solicitor-trustee who holds or receives money other than money which is paid into a client account shall without delay pay such money into the trust bank account of the particular trust – Rule 13.

MEANING OF TRUST MONEY

Trust money is money held and received by a legal practitioner which is not client’s money but held in trust where the legal practitioner is a trustee whether or not he is solicitor-trustee of such trust – Rule 2(1)(b).

The general rule as stated above is that a legal practitioner shall pay all trust money into a trust bank account. The exception to this rule is that the legal practitioner is not obliged to pay into the account money held or received by him which is subject to a trust of which he is solicitor-trustee if it is received as cash and it is without delay paid in case in the execution of the trust to a third party, and is not passed by the legal practitioner to a bank account – Rule 19.

In addition to the money held by the legal practitioner as solicitor-trustee, Rule 14 makes further provision in which money may be paid into a trust bank account.

Rule 14 – There may be paid into a trust bank account:

(a) money subject to the particular trust;

(b) such money belonging to solicitor trustee or to a co-trustee of his as may be necessary for the purpose of opening or maintaining the account; or

Where a legal practitioner holds or receives a cheque or draft which includes money subject to a trust or trusts of which the solicitor is solicitor-trustee:

(a) he shall where practicable split such cheque or draft and, if he does so, shall deal with each part thereof as if he has received a separate cheque or draft in respect of that part; or

(b) if he does not split the cheque or draft, he may pay it into a client account – Rule 15.

No money, other than money which is required or permitted to pay into a trust bank account, shall be paid into a trust bank account by a legal practitioner – Rule 16.

WITHDRAWALS FROM A TRUST BANK ACCOUNT

The following may be withdrawn from a trust bank account –

(a) money properly required for a payment in the execution of the particular trust;

(b) money to be transferred to a client account;

(c) such money, not being money subject to the particular trust, as may have been paid into the account for the purpose of opening or maintaining the account; or

(d) money which may by mistake or accident have been paid into the account – Rule 17.

Apart from the above cases, no money to be drawn from a trust bank account shall be so drawn unless the legal practitioner makes an application to the Bar Council in writing seeking approval – Rule 18.

BOOKS OF ACCOUNT

The Rules provide for the keeping and maintaining of proper books of account to show all dealings by the legal practitioner with client’s money and other moneys which pass through the client account.

In addition to the above rule, it is required that a legal practitioner should keep ledger accounts in order to distinguish the different amounts kept in the client account in respect of each client. Rule 20 is more specific as to the reason why there is a need to distinguish books of account.

Rule 20(1) – Every solicitor-trustee shall at all times keep properly written up such books and accounts as may be necessary:

(a) to show separately all his dealings with money held, received or paid by him on account of each trust of which he is solicitor-trustee; or

(b) to distinguish the same from money held, received or paid by him on any other account.

OBJECTIVES FOR BOOKS OF ACCOUNTS

1. Books for clients’ money – The transactions involving clients’ money are recorded in –

(a) A clients’ cash book, or a clients’ column on the debit an credit sides of the office cash book; and

(b) A clients’ ledger book.

Both account books, that is, client’s cash book and clients’ ledger book are essential in order to comply with the rules.

2. Ledger for practitioner’s own money – Dealings with the legal practitioner’s own money should be recorded in the following books –

(a) Cash book which records the receipts and payments of the office;

(b) Petty cash book which is really a part of the cash book and is used for petty items of expenditure;

(d) Fees or costs delivered book which must contain a record of all bills of costs and of all written intimations delivered by the legal practitioner to his client.

Under the rules, the above is not strictly required but it is sufficient if such bills and intimations are kept in a file.

3. Trust money – Rule 20 provides that every solicitor-trustee shall at all times keep and maintain books and accounts as may be necessary showing separately all his dealings with money held, received or paid by him on account of each trust or to distinguish the same from money held, received or paid by him on any other account. This is also related to Rule 10(3).

4. Preservation of books and records of accounts – All books, accounts and records which are required to be kept by the Legal Practitioner’s Accounts Rules in respect of client’s money, trust money and his own (that is, the legal pratitioner’s) money, must be preserved for, at least, six years from the date of the last entry – Rules 10(5) and 20(2).

ENFORCEMENT OF THE RULES

Rule 21 has to do with inspection and enforcement of the rules.

In order to ensure compliance with the Rules, the Bar Council is empowered to order “an inspection of the accounts” of a legal practitioner. The Bar Council may do this by either –

1. On its own motion, that is, voluntarily; or

2. On a written statement or request by any branch of the Nigerian Bar Association; or

3. On a written complaint lodged with the Bar Council by a third party, provided that there is prima facie ground for complaint.

The procedure is to order the legal practitioner involved to produce his books and records of accounts for inspection and report by an accountant appointed by the Bar Council. Alternatively, it may require the legal practitioner to deliver a Certificate of Accountant in the form specified in the schedule to the rules. Despite the fact that an accountant will be appointed or nominated, it will be the Bar Council that will carry out the examination of the books.

SOURCES OF CLIENTS MONEY

The sources of clients’ money are varied but will include among others:

1. Conveyancing – This is a major source of clients’ money for most firms of legal practitioners.

2. Executorship and Trusts – This is trust money which may be paid into a client account, but if held in the capacity of Solicitor-trustee it should be paid into a trust bank account.

3. Investment Management – This is when some legal practitioners act as family advisers on investment;

4. Agency Work – This is a source through which some legal practitioners acts as agents for property and estate companies and insurance companies;

5. Fees on Account – This is a source through receipts in advance of professional work.

CASH BOOK

This is a ledger account, being nothing more than the cash and bank accounts taken out of the Ledger and bound separately for the sake of greater convenience.

When money is received, receipts are debited in the cash book and outgoings are credited. Particulars represent what one is spending money for. Any money received should be taken as capital. After that, one should sum up the total of the credit and debit and substract the total. Then you are to add the total to the lesser amount to balance it.

It should be noted that for ledger, it is the particular’s of the cash book that will be the heading of the ledger, that is, where there is capital, it will be cash. A ledger is the opposite of a cash book in that in a ledger, receipts will be put in the credit box while outgoings will be in the debit box.

The principles governing the entries into cash book is that receipts are debited while outgoings are credited while with the ledger, receipts are credited and outgoings are debited.

SAMPLE OF CASH BOOK

DATE	PARTICULARS	DR	CR
1-9-84	Capital	28,000
2-9-84	Rent		2,400
3-9-84	Office Furniture		1,500
3-9-84	Electric Typewriter		5,000
3-9-84	Stationeries		800
3-9-84	Practice Books		5,000
4-9-84	Current Account		1,000
5-9-84	Peugeot 505 Car		12,000
5-9-84	Insurance Premium		1,500
5-9-84	Imprest Account		3,000
30-9-84	Balance c/d	4,200
			.
30-9-84	Balance d/b	N32,200	N32,200

SAMPLE OF CASH BOOK ENTRIES

Cash Receipts
Date	From	Reference	Amount	Sales	Other	Comment
October			£
1	Monday	sales 1	172.50	172.50
1	D Smith	receipt r1		5,000.00	5,000.00	Loan
2	Tuesday	sales 2	319.00	319.00
3	Wednesday	sales 3	368.75	368.75
3	Insurers plc	letter 3/ 10	600.00		600.00	refund of premium
4	Thursday	sales 4	318.50	318.50
5	Friday	sales 5	399.00	399.00
6	Saturday	sales 6	523.60	523.60
	Total		7,701.35	2,101.35	5,600.00

Cash Payments
Date	Paid to	Reference	Amount
October			£
1	Landlords Ltd	1	4,000.00	3 months rent
2	Supplies & Co	2	1,750.00	goods purchased
2	W H Smith	3	35.00	stationery
3	Supplies & Co	4	600.00	goods purchased
5	PC Products	5	140.00	printer for PC
6	Acme Garage	6	25.00	petrol
	Total		6,550.00

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CONTEMPT BY COUNSEL

CONTEMPT BY COUNSEL

A contempt of court may be committed by a lawyer or any other person. Where it is lawyer, it is unethical of his duty and honour of the court, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. The respect is not for the sake of the judge, but for the maintenance of respect for and confidence in the judicial office.

Contempt of court was pointed out in Shamsadani v. King Emperor (1945) A. C 268 that:

“The purpose of the discipline enforced by the court in the case of contempt is then need to protect the dignity of the court of the judge and to prevent undue interference with the administration of justice, but not to bolster up the power and dignity of the judge as an individual. The importance of this is that of all the places where law and order must be maintained, it is the court…; the course of justice must not be deflected or interfered with. Those who strike at it at the very foundation of the society. To maintain law and order, judges have and must have power at once to deal with those who offend against it.”

On the other hand, the duty of a lawyer before the court often requires great courage and independence and these are virtues which if not properly handled can bring him into collision with the court. He must strive to perform his duties without being provocative or offensive to the court, remembering always that he is an officer of the court.

TYPES OF CONTEMPT

There are two types of contempt namely –

1. Criminal contempt; and

2. Civil contempt

CRIMINAL CONTEMPT:

Criminal contempt are acts done which obstruct or interfere with the administration of justice. It consists of words or acts which obstruct or tend to obstruct or interfere with the administration of justice. To call a judge a liar, or to allege he is partial – Vidyasagara V The Queen 1963 AC 589, after or during the course of judgement, "That is a most unjust remark" – Stafford County Judge 1888-57 LTQB 483, JORDAN 36 WR 289.

However, it is not every unjust remark that leads to contempt, as if one gives a fair and candid remark, it may not amount to contempt.

CIVIL CONTEMPT:

Civil contempt has to do with disobedience to the judgments, orders or other processes of court and involving a private injury – Obiekwe Aniweta v. The State FSA/E/47/78 delivered on 16/8/78; Awobukun v. Adeyemi (1968) NMLR 289 at 294, Afe Babalola v. Federal Electoral Commission & Chief Adegborioye: SUIT NO. AK/MA/77 OF 21/2/78 delivered by T.A. AGUDA CJ ONDO STATE.

ACTS OF CONTEMPT

It is not possible to particularize the acts which can or cannot constitute contempt of court - Agbachom v. The State (1970) 1 All NLR 69.

It is not every act of discourtesy to the court by counsel that amounts to contempt, nor does conduct which involve a breach by counsel of his duty to his clients necessarily amount to contempt – Izuora V. Queen 13 WACA 313.

Nevertheless the following acts or conduct have been held to constitute contempt of court –

1. Language or behavior which is outrageous or scandalous or deliberately insulting to the court;

2. Comments scandalizing the court;

3. Publication in a newspaper containing scurrilous personal attack on the judge with interference to his conduct in court in a judicial proceeding even when the proceeding has terminated is contempt under section 133(4) of Criminal Code; R v. Thomas Horatius Jackson 6 NLR 46-55, Obiekwe Aniweta v. The State (supra);

4. Frivolous allegations of partiality against a judge in a judicial proceeding; and

5. Private communication to a judge intended to influence him in performance of his judicial duties in respect of a matter pending before him – Awobokun v. Adeyemi (1968) NMLR 289.

Howver, a fair and civil criticism made against the court, may not amount to contempt – Okoduwa v. State (1988) 3 S.C.N.J. 110.

CLASSIFICATION OF CONTEMPT OF COURT

Contempt of court are classified into two viz: direct and indirect contempt of court.

DIRECT CONTEMPT OF COURT

This is contempt ex facie curiae (that is, in the face of the court) and may take the form of acts done or a speech made within the premises of the court which obstructs or interferes with the administration of justice.

In such instances, the judge against whom the contempt is committed may deal with it summarily by putting the contemnor (the person who is involved in the act) in the dock (it should be noted that it is not in the witness box), then he should be informed of the act of the contempt and asked why he should not be convicted for the contempt. On hearing his defence, the court may either discharge or convict him, which shall be a sentence of imprisonment or fine.

Thus, it is direct where it is committed in the immediate view and presence of the court (such as insulting language or acts of violence) or so near the presence of the court as to obstruct the due and orderly cause of proceedings.

INDIRECT CONTEMPT OF COURT

This is also termed constructive contempt of court. It arises from matters not accruing in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon him the duty of action of forbearance.

It is usually an act of spoken or published words done outside the court which are calculated to obstruct, or interfere with, the due administration of justice – Atake v. Attorney-General (1982) 11 SC 153; Awosanya v. Board of Customs (1975) 3 Sc 47.

Where the contempt of court is outside the court, it may be tried summarily where the facts are clear and virtually incontestable e.g. in a newspaper publication.

In all these cases of contempt outside the court, it is not desirable that a judge who is the subject of the attack should try the case. It should be tried by another court – Awobukun V. Toun Adeyemi (supra).

A lawyer should also endeavour by all honourable means to ensure that he does not find himself answering a charge of contempt, but is he has to do so, he should insist that the court should follow the right proper or right procedure.

In most cases of contempt outside the court, the proper or right procedure is to follow the normal processes of arrest, charge and prosecution – Boyo v. Attorney-General M. W State (1971) 1 All NLR 342; Oku v. The State (1970) 1 All NLR 60.

Thus, civil contempt is ex facie curiae as it is committed outside the face of the court, while criminal contempt can be in facie curie and ex facie curie as it can be committed within the court and outside the court.

PURPOSE

In Parashuram Detaram Shamdasani v. King Emperor (1945) AC 268. The court said thus:

"The purpose of the discipline enforced by the court in the case of contempt is the need to project the dignity of the court to the person of the Judge and to prevent undue interference with the administration of Justice but not to bolster up the power and dignity of the Judge as an individual. The importance of this is that of all the places where law and order is maintained, it is in the courts, the course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of the society. To maintain law and order judges have and must have power at once to deal with those who offend against it".

Thus, the main purpose is to prevent undue interference with the administration of justice. Rather, it is basically for there to be respect for the court, and to uphold the dignity of the judicial office.

PROCEDURE

In initiating proceedings of this nature, the guiding principle is that no person shall be punished for contempt of court which is a criminal offence unless the specific offence charged against him be distinctly stated and an opportunity of responding to the charge given to him – Obiekwe Aniweta v. The State (Supra).

Though, a court can deal summarily with cases of contempt in the face of the court and by the very judicial officer in whose presence the offence was committed .

However in such cases of contempt committed in the face of the court, the court has two options:

1. There may be cases where the offence should be dealt with summarily but such hearing must be conducted in accordance with the cardinal principles of fair hearing and the case must be one in which the facts surrounding the alleged contempt are so notorious as to be virtually incontestable.

2. In most cases, the proper procedure of apprehension or arrest, charge, prosecution etc., must be followed – Boyo v. The Attorney-General Of Mid-West State (1971) 1 All NLR 342; Oku v. The State (1970) 1 All NLR. 60; Maharaj v. Attorney-General Trinidad & Tobago (1977) 1 ALL NLR 411.

When a contempt is not committed in the face of the court, a judge who has been personally attacked should not as far as possible hear the case – Awobokun v. Adeyemi (SUPRA). This is based on the fact that no one shall be a judge in its own case.

If a trial court wishes to deal with a case of contempt in the face of the court summarily, he should put the accused not in the witness box but into the dock and ask him to show cause why he should not be compulsorily put into the witness box as that offends section 36(11) of the 1999 Constitution which reads "No person who is tried for a criminal offence shall be compelled to give evidence at the trial” – Deduwa v. The State (1975) 1 All NLR 1 - 17; Agbachom v. The State (1970) 1 All NLR 69.

Also, natural justice demands that before anyone is committed for contempt, he must be informed of the details of the contempt and must be given an opportunity to make an answer and defence – Re: Olu Onagoruwa FCA/E 117/79 delivered on 5/2/80.

PUNISHMENT FOR CONTEMPT OF COURT

A charge of contempt of court is a serious one and it is necessary not only for the protection of the courts of justice, but also for the preservation of justice and the administration of it. In this country, acts or conducts which tend to invade these concepts should be very sternly dealt with and in a good time as well – In Re Boyo (1970) 1 All NLR 116.

The court will pardon a contemnor whose conduct is unintentional and who purges his contempt by a sincere apology and credible explanation. Also, the court will pardon and discharge a contemnor if he acts unintentionally and from a mistaken belief or misconception of the laws thereby flouting a court's order – The State v. Hon. Justice A.A.M. Ekundayo & Anor KWS/I06/77 of 2/9/77.

Contempt committed under section 133 of the Criminal Code carries a maximum imprisonment of 3 (three) months – Okoma v. Udoh (2002) 1 NWLR (Pt.748) 438.

According to Halsbury's Laws of England, the punishment permissible by law in the case of civil contempt is 6 (six) months – Afe Babalola v. Federal Electoral Commission & Chief Adegborioye (supra).

A contemnor can be ordered to be kept in prison until he purges his contempt – Ikabala v. Ojosipe SUIT NO. LD/967/71 of 30/3/72 .

JURISDICTION OF COURT TO PUNISH FOR CONTEMPT:

The High court has inherent jurisdiction to punish criminal contempt summarily but the power should be exercised with the greatest caution – Awobokun v. Adeyemi (1968) NMLR 289.

The inherent power to impose fine and imprisonment for contempt is not retained for the personal aggrandisement of a judge or whoever mans the court. The power is created and maintained for the purpose of preserving the honour of the court – Obiekwe Aniweta v. The State (supra); Deduwa v. Okorodudu (1975) 2 SCP.37; section 133 of the Criminal Code.

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RULES OF INTERPRETATION AND CONSTRUCTION OF STATUTES AND DOCUMENTS, MAXIMS USED IN CONSTRUCTION

DRAFTING – RULES OF INTERPRETATION AND CONSTRUCTION OF STATUTES AND DOCUMENTS; MAXIMS USED IN CONSTRUCTION GOLDEN RULE

This is the principle that in construing written instruments, a court should adhere to the grammatical and ordinary sense of the words unless that adherence would lead to some manifest absurdity; especially in statutory construction, thus, it is the principle that if a statute’s literal meaning would lead to an absurd or unjust result, or even to an inconsistency within the statute itself, the statute should be interpreted in such a way that avoids such a result or inconsistency. Rupert Cross in “Statutory Interpretation” page 14 (1976) held thus: “The golden rule… allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in. The scope of the golden rule is debatable, particularly so far as the meaning of an ‘absurdity’ is concerned”. Thus, it is a basic principle which should always be followed – Grey v. Pearson (1857) 10 E. R. 1216; Mitchell v. Torrup (1766) Park 227; Bronik Motors v. Wema Bank (1983) L.S.C.L.R. 296; Lee v. Knapp (1967) 2 QBD 442. Onyewu v. K. S. M (2003) 10 NWLR (Pt 827) 40. LITERAL RULE This is also termed strict constructionism which is the doctrinal view of judicial construction holding that the judges should interpret a document of statute (especially one involving penal sanctions) according to its literal terms, without looking to other sources to ascertain the meaning – R. v. Commissioner of Income Tax (1888) 22 Q. B. S. 296; Bronik Motors v. Wema Bank (1983) L.S.C.L.R. 296; Awolowo v. Shagari (1979) 6-9 S.C. 51; Toriola v. Williams (1982) 7S. C. 27; R v. Bangaza (1960) 5 FSC 1; Ndoma Egba v. Chukwuogor (2004) FWLR (Pt. 217) 735; Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; Ojukwu v. Obasanjo (2004) FWLR (pt 222) 1666. MISCHIEF RULE In statutory construction, the doctrine that a statute should be interpreted by first identifying the problem (or ‘mischief’) that the statute was designed to remedy and then adopting a constitution that will suppress the problem the remedy – Heydon's case (1584) 3 C. Rep. 7a; Smith v. Hughes (1960) 1 W.L.R. 830; Savannah Bank v. Ajilo (1989) 1 NWLR (Pt 97) 305; Wilson v. Attorney-General, Bendel State (1985) 1 NWLR (Pt 4) 573; National Assembly v. President (2003) 9 NWLR (Pt 824) 104. EJUSDEM GENERIS This means ‘of the same kind or class’. A canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed – Campbell v. Board of Dental Examiners 53 Cal. App. 3d 283, 125 Cal. Rptr. 694, 696. Thus, the class first mentioned is to be taken as the most comprehensive and the general words as referring to matter ejusdem generis with such class – Tiumanns and Co. v. S. S. Knutsford Co. (1908) 2 K.B; (1908) A.C. 14, or ports if it was in the opinion of the master unsafe to do so "in consequence for war, disturbance or any other cause". The question arose whether a port inaccessible in the opinion of the master through ice was within the exception. It was held not to be so any other cause "must" be construed to apply to cause ejusdem generis or similar to "war" disturbance"; Jammal Steel Structure v. A. C. B. (1973) All NLR 823; F. R. N v. Ifegwu (2003) 15 NWLR (Pt 842) 113; Ojukwu v. Obasanjo (2004) FWLR (Pt 222) 1666. BENEFICIAL CONSTRUCTION In construing a statute, the words must not be so strained as to include cases plainly omitted from the natural meaning of the language. Accordingly, a statute requiring that public house must be dosed at certain hours on Sunday should not be" so construed as to extend it to Christmas Day – Forsdike v. Colquhoun (1883) 112 B.D.71; Savannah Bank v. Ajilo (supra). PURPOSIVE RULE OF INTERPRETATION This approach is developed from the use of the" Purpose clause" and commonly found in statutes. The purpose clause may help the reader interpret the statute in case of any uncertainty in the statute – PDP v. INEC (1999) 11 NWLR (Pt. 626) 200; Pepper (Inspector of taxes) v. Hart (1993) All ER 42; Omoijahe v. Umoru (1999) 8 NWLR (pt 614) 188. UT RES MAGI VALEAT QUAM PEREAT In circumstances where alternative constructions are equally open, that alternative which is consistent with the smooth working of the system is to be chosen which the statute purports to be regulating and that alternative is to be rejected which would introduce uncertainty, friction or confusion into the working of the system"; Shanon Realties Limited v. Villede St. Michael (1924) A.C. 185 per Lord Shaw at page 192 – 193. This is apparent in the construction of the constitution – Nafiu Rabiu v. The State. GENERALIBUS SPECIALIA DEROGANT/GENERALIA SPECIALIBUS NON DEROGANT This is one of the exceptions to the ejusdem generis rule. It means a word that has a general meaning cannot derogate from a specific provision meaning – Shroeder v. Major (1989) 2 NWLR (Pt. 101) 1; Attorney-General, Ondo State v. Attorney-General (Federation) (2002) 9 NWLR (Pt. 772) 222; M.V. Panormous Bay v. Olam (Nig) Ltd (2004) 5 NWLR (Pt 865) 1 EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS What is stated in statute expressly excludes that which is not stated in statute. Therefore one does not import into a statute that which it is not meant to govern. Attorney-General (Federation) v. Aideyan; Ogbuniya v. Okudo (1976) 6-9 SC 32; PDP v. INEC (Supra); Osahon v. FRN (2003) 16 NWLR (845) 89. LEX NON COGIT IMPOSSIBILIA This legal maxim means that the law should not command an impossibility – Ohuka v. State (1988) 1 NWLR (pt 72) 1 CONTRA PROFERENTUM This means against the offeror. It is the doctrine that, in interpreting documents, ambiguities are to be construed unfavourably. Thus, it is where a particular contract is construed strictly against the interest maker of the particular provision in that document and in favour of the other party. CONTEMPT OF COURT A contempt of court is an action or inaction amounting to an interference with or having a tendency to interfere with the administration of justice. Thus, it is any act which is calculated to embarrass, hinder, or obstruct court in administration of justice, or which is calculated to lessen its authority or its dignity. It is also any conduct which tends to bring into disrespect, scorn or disrepute the authority and administration of the law. Or which tends to interfere with and/or prejudice litigants and/or their witnesses in the course of litigation – Awobokun v. Toun Adeyemi (1968) NMLR 289. In Franklin O. Atake V. Attorney General (Federation) & Anor (1982) 11 SC 175. Idigbe, JSC stated thus: "It is indeed difficult to give exact definition of contempt of court and this is because it is so manifold in aspects but generally it may be described as any conduct which tend to bring into disrespect, scorn or disrepute the authority and administration of the law or which tends to interfere with and or prejudice litigants and/or their witnesses in the course of litigation." Also, in Theophilus Adetola Awobokun & Anor v. Toun Adeyemi (1968) NMLR 289. The Court defined contempt of court as follows: "The essence of contempt is action or inaction amounting to an interference with or obstruction or having a tendency to interfere with or obstruct due administration of justice." It should however be noted that it is committed by a person who does any act in willful contravention of its authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court’s authority as a party to a preceding therein willfully disobeys its lawful orders or fails to comply with an undertaking which he had given. Follow @wingrassnews

Tuesday, 20 May 2014

LAWYER’S DUTY TO THE LEGAL PROFESSION

LAWYER’S DUTY TO THE LEGAL PROFESSION

DUTY NOT TO INSTIGATE LITIGATION

Under Rule 49, a lawyer should abstain from instigation litigation, and shall not proffer advice or bring a law suit without being consulted. He should also abstain from searching Land Registry; seeking for claimants in a cause of action; or aiding someone to find accident victims with a view of getting employed or representing someone in litigation.

DUTY AGAINST ADVERTISEMENT AND PUBLICITY

Under Rule 46, a lawyer shall not accept employment from Radio and Television programmes to advise on inquiries in respect of their individual rights.

He also shall not advertise his services in any newspaper or publication, neither should he publicise himself to the press or any periodical as a lawyer except in a legal periodical.

He should abstain from distributing his card indiscriminately as a form of advertisement. His signboard should also be moderate without neon lights or unnecessary designs.

THE IMPACT OF CORRUPTION, UNETHICAL BEHAVIOUR, AND INJUSTICE GENERALLY IN THE SOCIETY

The history of corruption is as old as the world, because ancient civilizations have traces of widespread ‘illegality and corruption’. Thus, Lipset and Lenz 2000 note that "corruption has been ubiquitous in complex societies from ancient Egypt, Israel, Rome, and Greece down to the present." Corruption is also believed to be endemic in modern governments and it is not peculiar to any continent, region, or ethnic group. This does not, however, mean that the incidence and magnitude of corrupt activities are the same in every society. Some countries are obviously more corrupt; yet others have better plans in managing corrupt activities. Obviously, Nigeria is not one of those countries with a better handle on corruption, despite its unending corruption commissions and all the noise made by every administration on the efforts to transform the nation into a corruption-free society.

Thus, corruption in its ordinary meaning connotes dishonest or fraudulent conduct, typically involving bribery, attributable to persons who are in positions of authority or in a position to influence those in authority. It has also been defined as the abuse of public office for private gain.

Nevertheless, the forms of corrupt activities prevalent in Nigeria include –

1. Political corruption;

2. Bureaucratic corruption;

3. Electoral corruption;

4. Embezzlement; and

5. Bribery.

Political corruption, which takes place at the highest levels of political authority, is a ‘corruption of greed.’ It affects the manner in which decisions are made, manipulates and distorts political institutions and rules of procedure. Bureaucratic corruption, which occurs ‘in the public administration" or ‘the implementation end of politics,’ is the ‘low level’ and ‘street level’ corruption. This is the type of corruption the citizens encounter daily at places like the hospitals, schools, local licensing offices, encounters with the police, taxing offices, etc. It is ‘petty’ -‘corruption of need’ - that occurs when one obtains a business from the public sector through inappropriate procedure. However, electoral corruption includes purchase of votes, promises of office or special favors, coercion, intimidation and interference with freedom of election. And corruption in the offices involves sales of legislative votes, administrative, or judicial decision, or governmental appointment. Embezzlement has to do with theft of public resources by public officials; and bribery deals with persuading to act improperly by a gift of money, etc.

If one may ask, who is to blame for the prevalence of corrupt activities in the society? Is it the common person or those in power? No matter who the culprits are, convention dictates that to effectively tackle a problem one should first and foremost determine and understand the cause(s) – why it happens, before one could effectively manage the effect(s) – what happens as a result. Similarly, to effectively control corruption in Nigeria it is pertinent to understand the cause(s) before looking for ways to stop it.

The lukewarm attitude of the officers charged with enforcing the laws (judges, police and other public officials) lead to corrupt behavior. They often let the culprits off hook when they are ‘settled.’ What is currently happening in the trial of Chief Omisore and others implicated in the murder of Chief Bola Ige (the Ige’s family has been frustrated out of the case) and the recent Senator Wabara episode are cases in point. Because money exchanged hand witnesses were allowed to modify their initial testimonies, and Mr. Imo (in the case of Wabara) has been bought over. However, If these cases are not resolved (killers of Bola Ige to be found and prosecuted) it may lead to another criminal behavior, because one criminal behavior leads to another. Corruption has taught the society a wrong lesson that it does not pay to be honest, hardworking and law-abiding. Through corrupt means many political office holders have acquired wealth and properties in and outside Nigeria; and they often display the ill-gotten wealth without the society blinking.

In its apparent effort to tackle corruption in the society, the nation has, in addition to the above panels, tried the Judicial Commissions, the Code of Conduct Bureau, and Public Complaints Commission without success. And the civilian administration of Chief Olusegun Obasanjo constituted the Economic and Financial Crime Commission (EFCC) to fight money laundering; the Independent National Electoral Commission (INEC) for elections-related corruption; and the Independent Corrupt Practices Commission (ICPC), which seems to have power only over the corrupt poor. To win the war on corruption, Obasanjo’s slogan of ‘no sacred cows’ should be put into practice by prosecuting all the known corrupt political ‘heavy weights’ in the society, because they contribute to making the nation’s laws inoperable. Thus, corruption, which is currently a high-profile issue, has created a dangerous mixture of celebrity and corruption in the society. Thus, Nigeria’s corruption laws are like a cob web that it is too weak for the ‘big’ politicians committing grand thefts, but strong enough to catch the poor and powerless involved in petty thefts.

One would re-call that Chief Obasanjo made a ‘financial deal’ with the family of Late General Sani Abacha who looted the nation. But he fired Mr. Vincent Azie (the acting Auditor-General) whose audit report indicted the executive, legislative and judiciary branch (among other agencies) for ‘improper accounting practices.’ See the Daily Independent of Jan 13, 2003 and Feb 26, 2003 and Ugwuanyi, in Vanguard of Feb 21, 2003. The Abacha deal and the Azie’s case show that Chief Obasanjo never had the will to fight corruption in Nigeria.

To ameliorate the scourge of corruption, Nigeria must hold politician accountable for their actions, and have effective judiciary and law enforcement to monitor the financial statements of foreign and local corporations. Also, Vanguard, May 27, 2003 reported that Halliburton, a US Oilfield Service firm admitted that it gave a bribe of $2.4 million to Nigerian tax officials through a Nigerian company (KBP Engineering Construction Company) to avoid paying taxes of $5 million. Therefore, the society must restructure and fortify the institutional ‘checks and balances among the country’s major social forces and the separation of powers within the government.’

Therefore, to effectively control corruption in Nigeria, adherence to ‘ethical standards’ in decision-making must be the foundation of the nation’s policy on corruption. The nation’s public officials are not worried about the ethical implications of their corrupt behaviors. However, armed with ethics and virtue, the nation should reduce personal gains from corrupt behavior by instituting "effective sanctions" for corrupt behavior. The World Values Surveys of 1990-1993, which has good information on attitudes and values, shows a relationship between values and corruption (World Values Study Group, 1994). Therefore, preaching the gospel of virtue alone (as is often the case with the leaders of Nigeria) is not enough to fight corruption. And Nigeria may not win the war on corruption without increasing its "economic pie" through good economic policies and increase in productivity. And the press (including electronic media) has an important role to play by exposing those involved in corruption, though, the lack of Freedom Of Information (F. O. I) Bill is a big obstacle.

To control administrative corruption, the society should not grant too much powers to officers, such as customs and immigration and the poorly paid police officers that issue business licenses, goods clearance documents and international passports. As well-stated in 1887 by Lord Acton, "Power tends to corrupt; absolute power corrupts absolutely." Nevertheless, lack of adequate rewards for good skills and honest efforts are among the reasons for the upsurge of corruption in the society. For that, adequately rewarding workers for their services could go along way to controlling corruption in the society. Nigeria needs all necessary weapons to combat corruption; the society should demand that politics, which is now less a matter of issues, should be issues-based.

ASPECTS OF THE LEGAL SYSTEM THAT ARE TROUBLING AS TO THEIR UNETHICAL OR CORRUPT NATURE AND UNJUST RESULTS, AND HOW THEY ENCOURAGE OR PRESSURE LAWYERS TO BEHAVE IN CORRUPT OR UNETHICAL WAYS

Preservation of the integrity of the judicial system is a sine qua non of its effectiveness, and this can be tarnished by the corruption of its functionaries no matter how lowly. The whole structure becomes infected resulting in loss of confidence and trust in the persons responsible for safeguarding the rights of a state’s citizens.

Members of any judiciary by virtue of their eminence are expected to be pillars of rectitude in their communities, and above reproach. They are expected to provide solutions to problems and redress for violation of rights. They are expected to be objective in assessing evidence and determining guilt or innocence.

Often times in some jurisdictions the failure of governments to ensure the independence of the judiciary by according to it adequate and reasonable financial resources leads to corruption within the court system. If judges and support staff are inadequately paid or remunerated for their services they will inevitably become vulnerable to external pressures and corruption.

In 1985 the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary which was later unanimously endorsed by the General Assembly of the United Nations. One of the Principles is to this effect:

“It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions”.

The whole issue of the independence of the judiciary has been debated and discussed repeatedly at different forums. One wonders whether any judiciary can ever be totally independent having regard to the fact that its whole existence requires some dependence on the legislative and executive branches of government. The judiciary cannot stand in isolation, it needs to be funded by the government, and some postulate that this compromises its independence and violates the doctrine of separation of powers. This is a notion to which I do not subscribe since of necessity every state must provide for the establishment of a court system which must be adequately staffed and funded. To request and expect adequate financing in no way compromises the independence or integrity of those who work within the judicial system. The compromise results when little or grossly inadequate financial resources are allocated to the administration of justice in a government’s budget, and the judiciary is relegated to the position of a mendicant in order to keep the court system on an even keel.

The symbiotic relationship between the executive and the judiciary was fully ventilated in the Report of the American Bar Association Commission on Separation of Powers and Judicial Independence, where it was stated that the success of any cooperative and constructive relationship ultimately depends upon meaningful communication. The Executive must appreciate that the Judiciary is usually in a better position to determine the most efficient and effective means of administering the courts, and must remain attentive to the Judiciary’s needs and concerns. By that same token, the Executive is in a better position than the Judiciary to decide upon fiscal priorities, and it is a duty on the Judiciary to be sensitive to those priorities when communicating its own needs and concerns.

A balancing act of competing priorities for finance is always performed in developing countries with scarce financial resources. This result in the administration of justice being placed at the bottom of the scale when cash-strapped governments have to decide whether a school or hospital should be erected rather than a new court building or whether the emoluments of the judiciary should be increased.

The inevitable result of persistent failure to address the needs of a state’s judiciary is that the scourge of corruption rears its ugly head. Judicial officers may be tempted to devise ways and means to augment their limited earnings. This also spreads to an underpaid and overworked support staff within the court system. These lowly persons can influence adversely the public’s perception of a judicial administration which strives valiantly to uphold standards of fair play and principles of impartiality.

In the judicial systems of most developing countries the support staff which comprises clerks, typists, marshals and bailiffs is drawn from the traditional public service with fixed salary scales which are invariably low and hence attract persons with minimum qualifications. In most instances the wages earned can barely meet their living expenses. They are, however, expected to conform to high moral standards of behaviour befitting an institution charged with the responsibility of preserving the law and dispensing justice. They are expected to be scrupulously honest and fair in their interactions with the public, but are exposed on a daily basis to temptations and requests from parties to litigation in the courts to alter and remove files and documents or misrepresent facts or try to influence judges with whom they work.

The problem of corruption within the court system has gained momentum in proportion to the growth of the drug trafficking and narcotics trade. As law enforcement personnel seek new ways of prosecuting drug offenders these wily fiends devise methods to infiltrate the court system by targeting the persons who work within it, particularly those at the lower levels who are the most vulnerable and easy prey to temptation having regard to their fragile financial situations.

One may posit the view that all support staff in the court system should be adequately trained not only in the procedures to be followed in the performance of their duties, but also in the ethics and moral norms of behaviour which they are expected to uphold. This is a laudable and commendable objective, but is it easily achieved by personnel whose earnings are minimal? The temptation to transgress may be too great to resist. The answer to this may not be easy for poor developing countries, but efforts must be made and methods devised to increase the emoluments of the support staff in the court system. Failure to do so and do so effectively will result in an infection of the system with a virus of no mean proportion with justice being sold to the highest bidder, not to mention loss of confidence by the public in the ability of judges to effect justice fairly and without favour.

SUGGESTIONS TO MAKE THE SYSTEM MORE ETHICAL AND JUST

Having identified the problem, one may ask quite naturally what can be done to eradicate corruption. For a judicial system to function effectively, justice must not only be done but be seen to be done. Public perception is very important, and those who administer the court system must be perceived to be acting firmly and resolutely in eradicating any form of corruption. Several initiatives can be taken to maintain public confidence and restore it if it is perceived to be lost. One such initiative mentioned earlier was increasing the emoluments of the support staff. Before proceeding to discuss other initiatives it will be wise to make reference to the Limassol Conclusions.

LIMASSOL CONCLUSIONS

From 25-27 June 2002, Commonwealth Judicial Officers comprising Judges, Heads of Judiciary and Magistrates throughout the Commonwealth met in Limassol, Cyprus, at a Colloquium on Combating Corruption Within the Judiciary.

The Colloquium welcomed the commitment of the Commonwealth Heads of Government to the Framework for Commonwealth Principles on Promoting Good Governance and Combating Corruption and their intention to develop national strategies to promote good governance and eliminate corruption. The Limassol Conclusions can be regarded as one of the initiatives spearheaded by the Commonwealth Secretariat to eliminate corruption in one area where it ought not to be allowed to flourish, namely the Judiciary.

After extensive discussion in working groups on papers presented during the Colloquium by distinguished jurists, variety of recommendations appropriately called the Limassol Conclusions were adopted. These conclusions are wide-ranging and multi-dimensional covering –

1. Guidelines on judicial ethics,

2. Anti-corruption programmes,

3. Strategies at eliminating corrupt practices within the judiciary,

4. Recruiting persons of integrity and competence.

With regard to judicial ethics, formulation and adoption of a code was recommended to the judicial systems throughout the Commonwealth. However, such a code should not be confined to judges or magistrates only, but should be formulated for all support staff and personnel employed within the judicial system. Training programmes were also recommended, and again these should be organised for the support staff as well. Such persons must be sensitised to the realisation that they are an integral part of the court system, and misconduct on their part reflects adversely on the entire administration of justice.

The recommendations embraced members of the legal profession as well, with a suggestion that anti-corruption programmes for members of the Bar be promoted. This is very timely and necessary since in some jurisdictions support staff are particularly vulnerable to unscrupulous lawyers who dangle financial carrots and inducements before economically-deprived court employees in order to ensure their clients’ acquittal or determination of cases in their favour.

With regard to the underpaid support staff one working group at Limassol recommended that such persons should be appointed to positions in the judicial system by the same body or commission which is responsible for appointing judicial officers in countries where such a commission exists. This commission should be independent and constitutionally established and protected. Judicial appointments should not be placed in the hands of the Executive or Head of Government which will clearly compromise the integrity of the judiciary. Similarly, persons at lower levels in the judicial system need to be insulated from governmental pressure, and be paid salaries and emoluments commensurate with the positions they hold.

The Colloquium recognised that transparency assists in combating corruption, and suggested that judicial officers and court staff be encouraged to foster greater public awareness of the court’s operations, role and function. For too long the court has been regarded as a mysterious organisation too complex for ordinary minds to comprehend, with its sombre attire, legal jargon and age-old traditions. Appearing before an austere personage dressed in peculiar black robes and looking down from on high can be a terrifying experience for the average person. Those who are responsible for the administration of justice need to make courts more user-friendly while at the same time preserving some of the traditions and certainly its dignity.

LATIMER HOUSE GUIDELINES

These Guidelines were formally endorsed by the Commonwealth Heads of Government in 2003 at Abuja, Nigeria, and were principles on good practice governing relations between the Executive, Parliament and the Judiciary in the promotion of good government, the rule of law and human rights. The sections relevant here are Preserving Judicial Independence, Judicial Ethics, and Judicial Accountability.

In the section on Preserving Judicial Independence, the responsibility of providing sufficient and sustainable funding to enable the judiciary to perform its functions to the highest standards rests on the government. Such funds once voted for the judiciary by the Legislature should be protected from alienation and misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary. Further it was stated that appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the Judiciary, and as a matter of principle judicial salaries and benefits should be set by an independent body and their value maintained.

The Judiciary’s independence is severely compromised if it has to depend on the Executive for increases in its emoluments whenever the Executive sees it fit to grant an increase. This should be placed in the hands of a non-partisan body to review and recommend increases whenever necessary taking into account relevant factors. As mentioned earlier in reference to the Limassol Conclusions, the Guidelines in relation to Judicial Ethics stipulate that a code of conduct should be developed and adopted by each judiciary as a means of ensuring the accountability of judges, and was in fact the basis for the recommendation in the Limassol Conclusions. Legitimate public criticism of judicial performance as a means of ensuring accountability was stressed in the Guidelines under this head.

The Colloquium at Limassol agreed that Judicial Accountability was important if the judiciary is to develop competence and remain impartial and independent, and it was imperative that a mechanism be devised for dealing with complaints against judges. It urged that such mechanism must be transparent in order to command public respect and acceptance. However, The Latimer House Guidelines suggests that discipline of judges should be conducted by the Chief Judge and should not include public admonition. The thinking which informs this view is to avoid public humiliation and embarrassment thereby bringing the entire judiciary into disrepute.

Another aspect of accountability which forms part of the Limassol Conclusions is the relationship between the judiciary and the court staff to which was alluded earlier. The view was expressed that there should be a greater degree of judicial awareness of the work of the court staff, and liaison with the said staff should be encouraged in order to ensure the smooth operation of the judicial system.

In most jurisdictions members of the judiciary are totally unaware of the functions which support staff perform except for those working in close collaboration with the judge. Members of the judiciary need to climb down from their ivory towers and take an interest in what goes on around them. They need to be familiar with all aspects of the work of the courts and the persons who operate within the system. Every cog, no matter how small, is important if the wheels of justice are to turn smoothly. A greater degree of interaction is required in order to inspire confidence and trust between the judiciary and its support staff. If a level of trust is developed this may lead inevitably to some degree of loyalty to the system, and perhaps reduce temptation which eventually leads to corruption of the entire judicial process.

The need for judicial codes of ethics cannot be over-emphasised as they may indicate what is regarded as acceptable conduct. Sadly, one cannot always assume that everyone who aspires to or holds judicial office is aware of the components of correct judicial behaviour. Codes of ethics hopefully will point would-be aspirants in the right direction.

Finally, the keys to effectively managing corruption in any society are honesty and integrity, effective leadership and governance, transparency and accountability, because corrupt leaders cannot wage effective war against corruption.

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LAWYER’S DUTY TO STATE

LAWYER’S DUTY TO STATE

DUTY TO UPHOLD THE LAW

Lawyers are an integral part of the administration of justice in our legal system. They must at all times act within the law and uphold the law when engaging in their occupation.

A lawyer is said to be a law officer, therefore, he should abstain from acts which will mislead the State or go against the State. His duty to the State is superior than the one owed to his client. Thus, he should assist the State in arriving at what his just and fair. A lawyer could also be said to be a justice of peace so in his duty to the State, he should uphold the law always at all occasions.

A lawyer in his duty to the State should also report anyone, even if the person appears to be a co-lawyer who is breaching a law.

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