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The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

The Good Old Days

It is obvious that, in Nigeria, the whole legal profession of today is certainly not like that of the good old days. Whether it is the Bar or the Bench, there has been a marked deterioration in both; things appear to be in disarray. Last week, I discussed the somewhat embarrassing controversies  surrounding the preparations for 2026 Nigerian Bar Association election into national offices. This week, it’s the behaviour of Lawyers and Judges. 

Abuse of Court Process

I had a conversation with a member of the National Judicial Council (NJC) a couple of years ago, towards the end of CJN Olukayode Ariwoola’s tenure, when forum shopping and conflicting court orders were in high fashion. I agree that it takes two to tango, that in the first place, it is the Lawyers who bring these faulty matters before the Judges, whether it is forum shopping or lack of jurisdiction, whatever type of fundamentally flawed matter that shouldn’t be brought for one reason or the other, and without the Lawyers initiating this abuse of court process, Judges who engage in  judicial rascality may not have the opportunity to make the mischief that they do. 

I raised the question of why erring Judges can only be brought before the NJC by way of petition, particularly if the case is a high- profile one in the public space. I suggested that the NJC should be able to issue a query to any Judge accused of judicial rascality in such circumstances, to come and explain themselves without having to wait for a petition that may not come, or may be aborted midway, as one of the complaints is that, sometimes, Complainants withdraw their petitions, mostly under pressure. In Obasanjo & Anor v Olugbode & Ors (2025) LPELR-81518 (SC) per Obande Festus Ogbuinya, JSC, the Supreme Court held inter alia that: “The term “abuse of court process” is an elusive concept, in the wide domain of litigation. It exhibits variegated forms, and is disobedient to one single definition….It connotes the proper and improper use of judicial process by a party in litigation, to interfere with due administration of justice. Generally, the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of the judicial process, to the irritation and annoyance of his adversary and the efficient and effective administration of justice”.

Justice Lifu and the Deregistration of Political Parties: Judicial Rascality 

Presently, the case that is trending, is that in which Federal High Court Judge, Peter Lifu J. in a case concerning the deregistration of certain political parties, went ahead to order that they be deregistered, despite a Court of Appeal order staying proceedings in the case pending the determination of the interlocutory appeal scheduled to be heard in October 2026. This failure to adhere to judicial hierarchy, has been described as judicial rascality. The Court of Appeal invoked the authority of Owoniyi v Aiyewunmi 2025 16 N.W.L.R. Part 2011 Page 237 per Habeeb Adewale Olumuyiwa Abiru, JSC, on the Supreme Court’s position on the defiance of superior orders/hierarchy, to describe Lifu J’s conduct as “the highest form of judicial impertinence”. Kindly, read a full discussion of this rascality in Dr Eyimofe Atake’s article on Page 6.

Another example of judicial rascality is the recent Court of Appeal ruling in the Neconde/Nestoil matter, where a decision on an ex-parte application was reportedly delivered in the absence of the record of proceedings from the trial court.

First Bank and General Hydrocarbon Limited: Counsel’s Rascality

But, Lawyers too, are not really sanctioned for bad behaviour in Nigeria. Again, like the NJC, the Legal Practitioners Disciplinary Committee (LPDC) depends on petitions. This doesn’t necessarily have to be the case, as there are still other ways to seek to enforce discipline at the Bar. In the UK (England and Wales) for example, Judges can refer Solicitors to the Solicitors Regulation Authority, and Barristers to the Bar Standards Board, for pursuing frivolous, vexatious or abusive claims, for disciplinary investigation. Obviously, where the Judges and Lawyers alike are jointly involved in the abuse of court process as is usually the case here, Judges referring Counsel for disciplinary action would be highly unlikely.

Recall the case of First Bank (FBN) and General Hydrocarbon Ltd (GHL) that I discussed in January 2025? This is a classic example Counsel’s rascality! After Allagoa J. had delivered judgement on 12/12/2024 in a matter involving both parties, restraining FBN from inter alia, obstructing or preventing any loan facilities or funding for the exploration or operation of OML 20 and from taking steps to enforce any security, receivables etc against GHL, pending the hearing and determination of the ongoing arbitration proceedings between GHL and FBN, instead of going on appeal, the same group of Senior Advocates representing FBN secretly went forum shopping for their gift during the Christmas vacation, and obtained an ex-parte interim order dated 30/12/24 from Allagoa J’s brother Judge of the same Federal High Court Division, Dipeolu J. freezing the accounts of GHL and others, contrary to Allagoa J’s earlier decision handed down based on arguments from both parties. See the case on Okafor & Ors v AG Anambra & Ors (1991) LPELR-2414 (SC) per Adolphus Karibi-Whyte, JSC on multiplicity of actions on the same subject-matter. 

GHL subsequently filed two motions on notice, praying the court to set aside the abusive ex-parte order of 30/12/24. In his ruling, citing the case of Polaris Bank Ltd v Bellview Airlines Ltd & Anor (2021) LPELR-56258 (CA) in support of his position, Dipeolu J. stated that FBN had failed to make full disclosure of Allagoa J’s earlier judgement in the course of moving their ex-parte application, thereby withholding material facts which would probably have resulted in the ex-parte order not being granted. What amounts to rascality, professional misconduct and abuse of court process, if not the actions of FBN’s Counsel regarding this matter?  If it was in the UK, Justice Dipeolu would have referred FBN’s Lawyers to the LPDC. GHL could also petition against FBN’s Counsel, for this abuse of court process. But, as suggested for the NJC, why can’t the LPDC query Lawyers and ask them to come and explain their actions, where their alleged wrongdoings are in the public space? 

What is clear is that, the present processes of discipline of Judges and Lawyers are not particularly effective, as they do not serve as a deterrent to misconduct. These institutional failures are compounded, when extra-judicial tactics enter the equation.

Prejudicial Extra-Judicial Comments: Ms Chimamanda Adichie’s Statement 

While the list of what constitutes abuse of court process isn’t exhaustive, it also covers situations where trial Lawyers make extra-judicial comments that may be prejudicial to the court proceedings, or may interfere with the fair trial of a case. Such behaviour is a breach of the ‘sub judice’ rule, that is, Section 33 of the Rules of Professional Conduct for Legal Practitioners 2023 (RPC). Usually, one finds that it is Lawyers who want to garner support from the unknowing public because their cases may be weak in law, that deploy such tactics to win sympathy. Nevertheless, it appears that Section 33 of the RPC only applies to Counsel who are trial Lawyers in a matter, and are prohibited from making prejudicial statements (fair comments are allowed by all), and don’t directly apply to litigants and others. Therefore, Counsel can decide not to discourage their clients from making statements that they as trial Lawyers are prohibited from making, as some type of tactic to win in the court of public opinion, at the very least, even if they can’t win in a court of law. See for instance the 2023 Presidential election petitions, and the parallel court of public opinion trials.

As unseemly as prejudicial extra-judicial statements of a litigant may be, I’m not sure if or where it falls when it comes to abuse of court process – maybe ‘contempt ex-facie curiae’? I suppose opposing Counsel can issue and file in court, a “Cease and Desist Notice” to demand that such litigant refrain from making categorical, inflammatory, prejudicial statements and stop acting as the Prosecutor, Judge and Jury in their own case, so that the Judge may be constrained to issue a gag order if necessary, as was done to Donald Trump during his  trial before he became President.

Recently, my attention was drawn by several people, to a statement allegedly issued by Ms Chimamanda Adichie which apparently made the rounds on social media, about the events surrounding the death of her son, Nkanu. She started by stating that losing a child is a parent’s worst nightmare. I agree with her entirely, on that point. Only God can bring comfort and healing, for such an indescribable loss. As a Parent, I empathise and sympathise deeply, that such an awful thing has happened. 

I was referred to Paragraph 15 of Ms Adichie’s statement particularly where she stated thus: “Not long after, an article appeared in the Nigerian press which any reasonable person would assume was orchestrated by Euracare, claiming our son had died of meningitis. It was a cheap and ugly strategy to deflect from the truth”. 

Ms Adichie could certainly not have been referring to my article of January 20, 2026: “Baby Nkanu: Negligence or Meningitis?”, because firstly, she was the one who brought the sad death of her son to the public space, thereby making it a topical legal issue for discussion; secondly, as a Lawyer, I am trained to stick to the facts and evidence, not avoid them. Thirdly, nowhere in my article did I state that Meningitis was the cause of Nkanu’s death. Even the title of my aforementioned article is a question, not a statement of fact. What I did say was that Ms Adichie had in an earlier statement, mentioned that in anticipation of Nkanu’s evacuation to Johns Hopkins Hospital, USA (JH), they had requested for a Lumbar Puncture (LP) and an MRI. I said: “The request shows that Nkanu was in a serious condition, and JH suspected that he may have had Meningitis or some neurological symptoms, which is what LP diagnoses, with the MRI to provide detailed images of the brain and spinal cord to check a possible spread, if indeed, that was the case”. I also said: “And, to determine whether a Propofol overdose was indeed, the cause of Nkanu’s death, or what the cause of his death is, an Autopsy, that is, a postmortem examination upon his death would be required”.  This is self-explanatory.

Counsel to Ms Adichie was given a right of reply to my aforementioned article, and in my response to it, I concluded vehemently thus: “Finally, I restate the fact that I have only sought to examine the highlights of this unfortunate occurrence vis-à-vis the provisions of the law. I, in no way, attempt to apportion any blame, nor did I ever state that I know Nkanu’s cause of death. I simply asked pertinent questions”. I submit that my article was simply a statement of legal principles and an interrogation of issues, and I take exception, if anyone describes it as otherwise. 

In her recent statement recalling the events surrounding Nkanu’s death, Ms Adichie notably omitted reference to the fact that contrary to Section 48(1) of the Coroner’s System Law of Lagos State 2007, he was cremated before any autopsy could be performed, to determine the cause of his death. Would they have been able to carry out such cremation, if the unfortunate death had occurred in USA where they reside? I think not. That act of wilfully destroying his body in what qualifies as a Coroner’s case, is a serious offence that carries a 15 year imprisonment sentence upon conviction. 

It was therefore bizarre, to read in paragraph 19 of her statement that Euracare wasn’t approaching the Coroner’s Inquest scheduled for sometime in April, with the seriousness the process demands. This is a classic example of deflecting from the truth, gaslighting, transferring the blame, diverting attention from the fact that by virtue of Section 36(1) of the 1999 Constitution, all parties are entitled to a fair hearing, which, on the part of the hospitals involved in this case, particularly Euracare, must necessarily involve an autopsy, in order for them to defend themselves by attempting to disprove the allegation of negligence/administering an overdose. This fundamental right may have been breached by those who cremated Nkanu, and are also the Petitioners in the case. If an autopsy had been performed, Nkanu’s cause of death would have been definitively established, and this discourse may have been needless. 

Would any reasonable party sit and fold their arms in light of such serious allegations levelled against them, or seek to establish the fact that they may be unable to effectively challenge the allegations or have access to relevant information, because an autopsy cannot be performed? In Maikaba v Arto Pharmaceutical Chemist Ltd & Ors (2026) LPELR-83073(SC) per Tijjani Abubakar, JSC, the Supreme Court held: “This Court again, in Obasan v Abudu & Ors ((2023) LPELR-59944(SC)), emphasised that the right to fair hearing is so fundamental that its breach renders any proceeding, decision, or judgement null and void, irrespective of how well-conducted the proceedings might otherwise appear….a nullity ab initio, and cannot be salvaged”. 

Conclusion 

The persistent culture of forum shopping, judicial defiance of hierarchy, and unbridled extra-judicial commentary, demonstrated by the cases of Justice Lifu, the FBN/GHL saga, and the public discourse surrounding Baby Nkanu’s death, erodes public confidence in the administration of justice. When grieving litigants cremate a body in a clear Coroner’s case, thereby denying the hospital they accuse of negligence the autopsy essential to fair hearing, the rule of law itself is undermined. The attempt by the party levelling the accusations, to dismiss such a fundamental breach of a right that is critical in legal proceedings as a mere diversionary tactic, only compounds the injustice.

It is time for structural reform. The NJC and LPDC must move beyond a purely petition-driven regime, by incorporating ‘suo motu’ powers to query erring Judges and Lawyers in notorious, high-profile matters. Discipline that fails to deter, is no discipline at all. Only proactive accountability anchored in due process and professional integrity, can restore the Bar and Bench to the standards of the “good old days”, and rebuild the citizenry’s faith in the justice system.