Ordinarily, the concerned part of the decision of Lagos division
of the Court of Appeal in Elias v Ecobank (supra) ought not be of
immense interest to practicing lawyers but for the requirement of a
certain number of Court of Appeal judgments in an application for
the prestigious rank of Senior Advocate of Nigeria, which might
have prompted the learned senior lawyer to make such an audacious
application as would be seen later hereunder.
As it is my style, I will once again, lead my audience into the
facts of the case under this spotlight for the necessary
appreciation of the court’s ratio as to the names that ought to
appear in judgment of courts.
As borne by the judgment, during the pendency of Appeal Number:
CA/L/873/2013, Dr. Charles Mekwunye’s clients (the appellants)
demolished the property subject matter of the suit and when
delivering the judgment, although the name of the counsel who
adopted the appellants’ brief was not reflected in the end of the
judgment and in the judgment itself, Obaseki – Adejumo
JCA held thus:
“In his brief of argument, appellants’ counsel was silent on
the contemptuous conduct of the appellants by demolition of the
property. It is the duty of counsel to exhibit high level decorum
and candour and fairness to the court and to other lawyers …
counsel appearing before any court owes a bounden duty to be
diligent, treat, the court with respect, honesty and mutual
courtesy…”
Dissatisfied with the omission of their counsel’s name in the
judgment and the uncomplimentary remark of the presiding Justice,
the appellants filed an application at the same court, for an order
“reviewing and/or varying and/or annulling part of the judgement”
to show that Mr. E. Nwonu holding the brief of Dr. Charles Mekwunye
was in court and adopted the appellants’ brief and to “delete the
said remarks made by Obaseki – Adejumo, JCA against their counsel
to show that Dr. Charles Mekwunye appeared for them when judgement
was delivered.
In ruling on the application, Augie, JCA (now JSC) held
thus:
“Now the applicants are urging us to review and/or vary and/or
annul part of the judgment to reflect three things… The third which
is to vary the judgement to show that the said Dr. Charles Mekwunye
was in court when the judgment was delivered, is out of the
question because, as the respondent said, it is the names of
counsel who argued the appeal itself that are listed in the
judgment, not the name of counsel who merely appeared on the date
of judgment…..so the Constitution recognizes that delivery of a
judgment is a different process entirely from the writing of the
judgment, wherein the names of counsel who adopted the briefs of
argument at the appeal are listed.” (Emphasis mine)
From the foregoing decision which, to my knowledge, is yet to be
set aside by the Supreme Court, the prevalent practice in judgment
writing which lists the name of counsel present at judgment
delivery at the expense of counsel who conducted the case or
adopted the final address, ought to be relegated to the background
on the strength of this 2016 but extant position of the Court of
Appeal.
I however hope this decision doesn’t open a floodgate of
applications for the correction of judgments and rulings which have
omitted the names of counsel who argued the briefs or adopted the
final addresses at the respective courts.
Olumide Babalola writes from Lagos State.