DUTIES OF A LEGAL PRACTITIONER TO THE COURT

DUTIES OF A LEGAL PRACTITIONER TO THE COURT Except from Chapter 6 “The Young Lawyer, Practice & Ethics’ By Ashu Hailshamy As a Legal Practitioner, Ethics compels you to conduct yourself properly before the court because before being a lawyer for your client, you are first and foremost a lawyer and officer of the court. You must bear in mind that, you owe a duty to the court to assist at all-times whether as instructed counsel or as Amicus Curiae. This is the reason you are considered an officer of the court,1 a disciple of Justice working in and for the temple of Justice. Section 36 of the Code of Conduct for Legal Practitioners of The Gambia provides that: (1) A Legal Practitioner is an officer of the court and shall endeavour at all times to assist the court in legal matters whether as instructed Counsel of as amicus curiae…” (2) A Legal Practitioner must never deceive the court but shall always endeavour to fulfill any undertaking (whether oral or written) he or she gives the court. The above provisions suggest that as Counsel, you owe a compelling duty, to treat the Court with utmost courtesy and respect. This duty includes respect to all persons with whom you have professional contact with such as Judges, colleagues, staff of Court and parties to litigation including witnesses, etc. You should not use this idea as an opportunity to solicit unmerited favour from the Court. Doing so, is unruly and thus constitutes an affront to his sacred oath. 2 If a lawyer seeks Justice from the Court, he must do so through appropriate means. He must possess the requisite knowledge and competence to argue his case. He should be able to use credible materials and expertise at his disposal and in the end, convince the court to find in favour of his client.3 In Abraham vs. Justun,4 Lord Denning MR expounded on the duty of counsel in the following words: It is counsel’s duty to take any point which he believes to be fairly arguable on behalf of his client. Counsel is not to usurp the province of the Judge. He is not to determine what shall be the effect of legal argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is if he knowingly takes a bad point and thereby deceives the court Section 55, Advocates Act, Kenya Revised Edition 2016 (2014) “Every advocate and every person otherwise entitled to act as an advocate shall be an officer of the Court and shall be subject to the jurisdiction thereof…” 1 2 3 4 Suggestions mine (ibid) (1963) ALL ER 402 In N.A. Williams Vs. Hope Rise Voluntary Society5, the court held that, where a party desires indulgence from the court, he must place before the Court sufficient materials that will be compelling, cogent and convincing before such indulgence can be granted in favour of such party. Even where a party feels he has argued his case to the best and deserves the prayers which he seeks, his personal opinion should have no direct bearing on the outcome of the court’s judgment, this is because a lawyer’s personal that he will win a case does not constitute judgment. It is trite law that, Judgments are delivered by the judge/magistrate, this has been the tradition in all legal systems and so shall it remain. At the end of every case, whatever the Judge or magistrate decides on the case/application stands and not lawyers personal believe. The Judge has the sole discretion to make when deciding which is done judicially and judiciously. See: Buahri Vs Obasanjo.6 Once the Judge has decided, counsel must accept the verdict of the Court by stating thus; ‘As the Court pleases,’ even if he is dissatisfied. Where counsel is aggrieved, the right place to express his dissatisfaction is the next higher court by filing an appeal. 7 The Lawyer must assist the Court to arrive at a just and fair conclusion. In trying to assist in this regard, be mindful of the fact that, respect for the Court is not directed at the person of the Judge but to the institution as a temple of justice. 8 This rule must be strictly observed, to maintain the dignity of the institution and to instill confidence in the judicial office and the Judiciary as a whole.9 No Lawyer is bigger than the Court, no matter the size or age of the person. So even if the Judge, or Magistrate, is just thirty (30) years old and counsel appearing before him is seventy years(70), counsel must show absolute respect and courtesy to him as such respect is directed to the institution and the office which the Presiding Judge represents. 10 In addition to showing respect to the Court, counsel should give prior notice to the Court where situations beyond his control will unavoidably cause him to be late or absent from the proceedings on that day. You cannot just sit conformably at home or engage in some other activities whereas you have a matter that is pending and set for hearing. Where counsel will be absent for any justifiable reason, official notice must be sent to the Registrar or Clerk of the Court, stating reasons for such absence. 11 Where counsel is sick or confronted by a force majeure, such could be a good excuse for his absence from Court. 5 (1982) 1 All NLR 1 at 6; Credit to Professional Conduct Lecture notes of The Gambia Law School batch 2016/2017 by Lecturer , Justice Mama Fatima Singhateh 66 SC.133/2003; Credit to Civil Procedure Lecture Notes of The Gambia Law School, Batch 2016/2017 by Lecturer, Justice Omar. M. Njie. 7 Credit to Justice Amina Saho-Ceesay, on this part; Advocacy Skills lecturer of The Gambia Law School, 2016/2017 Batch 8 (ibid) Credit to Justice Singhateh 9 Emphasis mine 10 (ibid) 11 (ibid) A good excuse could be, if counsel has two matters coming up at the same time in two different Courts. In this case, you must notify the registry of the court at least two hours that, you would not be able to make it to court and should pray for an adjournment of the matter to a later date.12It is courteous and out of respect for counsel to equally put the other side on notice. Nowadays, it is easier to communicate and transmit information through telephone calls, or Whatsapp messages. If you fail to give such notice, the Court on its motion or on the application of the other side can award costs against counsel for utter disrespect to the Court and the other party. The Judge has the right to interpret the counsel’s conduct as a sheer waste of the courts time. In Lagos State Development & Property Corporation (LSDPC) vs. Nigerian Land & Sea Foods Ltd13 it was held that: Where counsel is unable to attend the court, he should arrange for another counsel to hold his brief, its discourteous and impolite for a counsel to turn down an invitation of court to make an address on any issue…as an officer of the court, he must show utmost respect and not treat the court with levity The lawyer has been considered as an officer of the court who must never deceive or mislead the court and in like manner, shall never conceal any facts even those that are against this case. Counsel is supposed to make full and frank disclosures of all material facts to the court whilst seeking justice for his client. If in a criminal trial, the prosecution is aware of evidence or authorities that can help the defence in establishing the innocence of the defendant or capable of mitigating a sentence, the prosecuting counsel should not hesitate to disclose same. 14 Doing so is good practice and the ethics of the profession requires that, it should be done. Tobi JCA (as he then was) stated in General Oil Ltd vs. Oduntan15 that: Counsel qua advocates as ministers in the temple of justice owe both their clients and the courts a duty…a professional duty to assist the court in the course of their advocacy. They should make available to the court their prolific legal expertise so the much valuable time of the court could be saved in search of authorities. Where counsel fails to do his homework, the bulk of the work falls on the court and that kind of situation can affect the quality of the administration of justice 12 (ibid) (1992) Suit No: SC.98/89 14 (ibid) 15 (1990) 7 NWLR (pt 63) 423, p.673 13 The duty of counsel to the court was emphasized by Lord Denning MR in Rondel vs. Worsely.16 Brief Facts of the case of Rondel vs Worseley: The appellant had a violent altercation with a man called Manning who was the doorkeeper of a house in April 1959. In the process he bit off and severely damaged Manning’s ear. He was charged at the Central Criminal Court of West London for causing grievous bodily harm and also for assault occasioning actual bodily harm. He hired a Barrister - Worsley to defend him in the action. At the end of the trial, he was found guilty, convicted and sentenced to 18 months imprisonment. A few years after his release from jail, he initiated proceedings against the Worseley for professional negligence. According to him, counsel did not ask all the relevant questions he had instructed him to ask the witness during cross examination. He also argued that, counsel did not adduce all the necessary evidence before the Court. At the commencement of the suit, counsel/the respondent, made an application for the claim to be struck out for lack of a cause of action. The said application was granted and the claim struck out by the High Court. The claimant appealed against the decision of the High Court to the Court of Appeal in 1966 and the same was accordingly dismissed. However, in dismissing same, the learned legal guru Lord Denning M.R had cause to lay out the type of relationship which counsel has with the client viz a viz the court. He stated inter alia that: …Counsel has a duty to the court which is paramount. It is a mistake to suggest that he is the mouthpiece of his client to say what he wants or do what he directs. He is none of those things for he owes allegiance to a higher cause…the cause of truth and justice. He must disregard the most specific instructions of his client if they conflict with his duty to court. The code which requires a barrister to do all this is not a code of law but a code of honor. If he breaks it, he’s offending against the rules of profession and is subject to its discipline Dissatisfied with the decision of the Court of Appeal, the Appellant further appealed the case 17 to the House of Lords in 1967. The House of Lords Coram; Lord Morris, Lord Reid, Lord Pearce and Lord Pearson, upheld the decision of the lower court on the grounds of Public Policy. In delivering the judgment, Lord Reid adopted the assertions made by Lord Denning M.R in differentiating the duty which counsel owes to the court and that which he owes to his client. 16 (1666) 3 ALL ER 657 17 Rondel vs. Worsley (1967) 3 ALL ER.993, p. 998 Lord Reid stated as follows:18 …Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful which he thinks will help his client’s case. But as an officer of the court concerned in the administration of justice, counsel has an overriding duty to the court to the standards of his profession and to the public which may and often does lead to a conflict with his client’s wishes or with what his client thinks is personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession. He must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting, he may well incur the displeasure or worse of his client so that, if the case is lost, his client would or might seek legal redress if that were open to him In Giannarelli vs. Wraith19, the court per Mason C.J, held that: The duty to the court is paramount and must be performed even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success but also to the speedy and efficient administration of justice…The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case Even when counsel is in the face of a provocative judge, he must continue to show respect and courtesy to the court.20 Section 43 of code of conduct for professional conduct,21 provides that: Where a Judge persists in insulting or rudely obstructing a Legal Practitioner during proceedings, the Legal Practitioner shall not respond in like manner, but he or she shall leave the court room in a dignified manner and deliver a report to the Chief Justice or utilize any available judicial complaints mechanism 18 (ibid) 13th October (1988) Supreme Court of Melbourne, 165 CLR 543, 556-7 20 (ibid) Emphasis from Justice Mama Fatima Singhateh 21 Legal Practitioners Code of Conduct of The Gambia, 2011 19 Justice Singhateh threw more light on Section 4322 regarding counsel’s conduct in face with a provocative Judge as follows: where a legal practitioner is faced with a provocative Judge, he or she must remain calm and in court until the Judge rises or his case has been adjourned and then he can leave the court in a dignified manner and take any necessary action thereafter…as an officer of the court, it would be most unbecoming, immature and unprofessional for a legal practitioner to walk out of the court whilst the proceedings are still going on even if in face of a provocative judge…Such will amount to professional misconduct No lawyer should walk out of the Judge whilst proceedings are ongoing no matter how uncomfortable you are. This is because, such, is a threshold moment where you are expected to showcase the highest level of professionalism in maintaining the dignity of the Court by not responding to the Judge in like manner23. Tobi JSC condemned the act of walking out of court by saying that ‘counsel has no right whatsoever to walk out or from the Court just like that, as this is certainly rude and unprofessional conduct unbecoming of a legal practitioner and that no party has the right to hold the court of law to ransom.’24 Walking out of the Court should be regarded as contempt.25 This requirement to treat the court with respect emanates from the position of counsel in court i.e. officer of the court as well as the overriding duty which he owes to the court. Section 37 of the Code of Conduct for Legal Practitioners of The Gambia26 provides that: The duty of a Legal Practitioner owes to the court shall always override his or her client’s interest…It is the duty of a Legal Practitioner to reject the inclusion in his or her pleadings of any allegation or fraud or other criminal or defamatory matter, unless he or she has before him or her prima facie evidence supporting such allegation…Although a Legal Practitioner has the duty to fearlessly defend his or her client’s interest, he or she should never allow personal feelings to affect his or her duty to treat the court, counsel on the other side and the witnesses with courtesy and respect Lord Reid re-echoed the overriding duty of counsel to the court in Rondel vs. Worseley (supra) that: …as Officer of the court concerned with the administration of justice, counsel has an overriding duty to the court to the standards of his profession…Counsel must not mislead the court, must not withhold authorities or documents which may tell against his client but which the law or standards of his profession require him to produce. 22 (ibid) Emphasis mine 24 (ibid) 25 Contempt per Black’s Law Dictionary is; a conduct that defies the authority or dignity of a court because such conduct interferes with the administration of justice and it is punishable usually by fine or imprisonment. 26 (ibid) 2011 23 Counsel must respect the decision of the court even where the Court, for example, admits evidence that was illegally obtained. If counsel feels dissatisfied, it is not for him to demonstrate his anger at the Judge. The appropriate thing to do is to appeal. 27 The issue of admitting illegally obtained evidence has been an issue of conflict by Legal Scholars and Practitioners. The question has always been; whether the court should admit illegally obtained evidence or not? The Court has to admit into evidence, any fact irrespective of the source provided that the same is relevant to the fact in issue and will aid at arriving at a just conclusion. 28 It will be a dangerous precedent for a Court of law to reject evidence which would have aided the administration of justice process.29 Where the Court has ruled that particular evidence is admissible, counsel should obey the order and not continue to dwell on the technicalities involved in admitting same. It is trite that, the Courts should avoid technicalities from interfering in the way of Justice. 30 Lord Goddard held in the case of Kuruma vs. The Crown 31 that: The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained What if the admissibility of a piece of evidence vis a vis is contrary to public policy, or it is privileged? Here, though relevance is of the essence, the courts may exclude such evidence.32 Ashu Hailshamy ESQ. (LL.B Hons, B.L Hons) Barrister & Solicitor of The Supreme Court of The Gambia Institute for Human Rights and Development in Africa (IHRDA) 949 Brusubi Layout, AU Coastal Highway P.O. Box 1896, Banjul, The Gambia Email: [email protected] 27 Emphasis mine. (ibid) 31 (1955) A.C 197 at 203, (1955) 1 ALL ER 26, at 239 (P.C) 29