Role of SANs in the Administration of Justice – Fidelis Oditah QC, SAN

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Prof. Fidelis Oditah-SAN

To my mind a senior advocate of Nigeria has five principal roles in the administration of
justice.

The first is to assist the court to achieve the objectives of civil and criminal litigation, which is a just disposal of the case based on the law and the evidence. This duty transcends all other duties. A senior advocate must assist the court to resolve disputes before it through effective presentation rather than soaring rhetoric, waspish oratory or recourse to delay tactics and dilatory manoeuvres. Effective court room presentation requires the senior advocate to show mastery of the facts of the case and sound knowledge of the substantive, procedural and evidence laws. He must naturally promote and protect fearlessly and by all proper and lawful means his client’s best interests. However, to champion the cause of his clients fearlessly is one thing; to mislead or deceive the court of opponents is quite another.

Two aspects of this role deserve special mention. The first is the duty of candour. The second is the duty not to impede or frustrate the progress of a civil or criminal hearing or trial. Regarding the first aspect, integrity is everything. A senior advocate has a duty not to mislead, conceal or create a false impression to the court, or other counsel and other parties in the litigation. He should not fabricate evidence or doctor the record or alter a document. As regards the second, a senior advocate must not knowingly or negligently impede the smooth progress of civil or criminal litigation, or create deliberate delay so as to prevent the trial of a civil or criminal matter as such conduct erodes public confidence in the administration of justice.

A cynic might say that the problem in Nigeria is not access to justice, but exit from justice. Justice administration is often seen as an interminable process. Justice delayed is justice denied. A senior advocate should not knowingly or negligently take steps calculated solely to impede and frustrate proceedings, for example, by claiming not to be available on dates suggested for a hearing, by filing unnecessary interlocutory applications and appeals, by seeking to arrest a ruling or judgment, and by sundry other ill-conceived manoeuvres.

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The second role of the senior advocate in the administration of justice is to provide
leadership in and out of court. He must be an exemplar of good behaviour at all times. This
requires that the senior advocate be courteous to the court and other advocates (both junior and senior), be modest, honourable and economical and show sound judgment. The senior advocate should be a voice of reason and moderation and cross examine witnesses with respect and restraint but effectively. He should not be a peacock strutting around the
courtroom. As Chief Justice Onnoghen observed during the swearing-in of SANs in 2017, the senior advocate must never abuse his position nor regard his rank as a weapon of intimidation or a licence for rudeness or arrogance.

Third, as role models, senior advocates must mentor and groom younger members of the profession directly through mentorship schemes and indirectly through the example he
provides. We know that many junior members of our profession look upon senior advocates
as role models. They learn largely by imitation. They want to behave the way they see the
seniors behave. If, as senior advocates, we are courteous, polite and measured in our approach to the practice of law, the juniors would imbibe these qualities and model their own practice after ours. If we show rudeness, gratuitous aggression and brashness or disrespect to the court or our colleagues or other court users, the juniors imbibe our wrong approach and build their practices on our bad examples. It behoves us as the leading lights of the legal profession to show excellence in our professional and personal lives and the highest professional and ethical standards at all times, so that through our example the younger members of our profession may learn, be moulded and guided.

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Fourth, Vice President Osinbajo SAN admonished us in 2017 that, as senior advocates and
the elites of our profession, we owe a duty to ensure not just the survival of our profession,
but that it continues to thrive and flourish.2 We do so by defining the common purpose, by
articulating what is acceptable and what is not and by developing effective regulation to
ensure that transgressions are punished. The Brits perfected the act of self preservation and through the lawyers maintained the ubiquity of English law. Today, London is the world’s leading centre for the resolution of international commercial disputes, whether by litigation or arbitration. In over 75% of the cases in the commercial courts neither party is a British person. As the Lord Chancellor said in March 2018 during the investiture of new QCs: “The title of Queen’s Counsel is a mark of excellence, not just in this country but around the world, where it plays an important role in supporting the attractiveness of English and Welsh legal services more broadly.” We want to be able to say this of our senior advocates but as most of you would agree with me, there is little evidence that the title of SAN plays any role in supporting the attractiveness of Nigeria as a centre for the resolution of commercial disputes.

Fifth, the senior advocates should provide a pool from which judges of superior courts in
Nigeria can and should be appointed. In the UK, over 99% of judges of superior courts are
appointed from the ranks of QC. In the last 3 years, two members of my chambers have been appointed as judges, one to the commercial court and the other to the Chancery Division. There is something to be said for the appointment of leading advocates to the bench. Not only are they masters of substantive and procedural law and evidence, they are hard workers who have achieved the highest level of eminence as practitioners. They are very familiar with most issues coming before them. Many they would have had occasion to deal with as advocates providing referral services to solicitors. The quality and robustness shines through their judgments. Over 70% of reported litigation in England are decisions of first instance judges. The deep and talented pool of QCs provides a very valuable and dependable source for the appointment of high quality judges and reinforces the pre-eminence and attractiveness of both English law and England as a venue for the resolution of commercial disputes as you have excellent advocates making submissions to equally excellent, first rate judges.

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The above is just an excerpt from the paper On the role of the SANs in the administration of justice and nation building – lecture paper by Fidelis Oditah QC, SAN.

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