Prevailing Cases of Lawyers' Liability in The Conduct of Cases a Case for Prefessional Indemnity
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Every profession has peculiar risks and liabilities attaching it. The legal profession and indeed the advocate is not exempt from the prescribed duty of care in his relationship with his clients. This has become so imperative in the face of globalized legal practice in the 21st century that the advocate may bear personal costs in the course of his duty. This article attempts to re-visit the controversy over liability of legal practitioners, particularly litigation lawyers in Nigeria. The common law, as well as the statutory rationale for lawyers' liability is highlighted. A critical analysis of award of costs by the courts on individual lawyers in most recent times is made. Evaluating the trend, it is argued that while a lawyer might be validly liable in the tort of negligence to his client for ‘crass carelessness', imposing prohibitive costs on advocates for daring to push novel or unpopular positions in court, without more, would not help the development of the rule of law in Nigeria. These class of cost orders if enforced religiously against counsel would have the negative effect of keeping victim-lawyers out of practice. In the light of the foregoing, a case is made for mandatory professional indemnity for litigation lawyers to cater for unfortunate costs and to ensure that a lawyer does not compromise his professional ethos for fear of intimidating cost liabilities
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Rules 14-15 of the Rules of Professional Conduct (RPC) 2007. See also, Abubakar v Yar'Adua [2008] 19 NWLR (Pt 1120) 1, 177.
Rules 30-38 of the RPC. See also, Federal Republic of Nigeria (FRN) v Abiola [1997] 2 NWLR (Pt 888) 444, 467.
Rules 26-29 of the RPC. See also, Re-Johnson [1887] 20 QBD 68.
As part of his duty to the state or society, no attorney has right in discharge of his professional duties to involve his client by his advice in the violation of the law. See Good-Enough v Spencer [1874] How. Pr. 347 (N.Y Sup. Ct.). See also, Hassan v Akintola [1993] 5 NWLR (Pt 294) 434. See generally, T. J. Rardin., ‘Advising a Client As To a Continuing Or Future Crime (2019) <https://scholarship.law.uwyo.edu>accessed 20 September 2023.
A lawyer has the right to earn his fees by representing a litigant in the court. See S. Udemezue., ‘An Appraisal of Professional Legal Ethics and Proper Conduct for Lawyers in Nigeria' Social Science Research Network (SSRN)Electronic Journal (2020) 55. See also, Section 2(1) and Legal Practitioners' Act (LPA) Cap L11 Laws of the Federation of Nigeria (LFN) 2004 for entitlement to practice law in Nigeria.
I. Abdullahi., ‘Ethics, Rules of Professional Conduct and Discipline of Lawyers in Nigeria. An overview' International Journal of Public Administration and Management Research (2017) 4(1) 4.
A lawyer is mandated not to pick and choose cases to handle for a client. See Rule 24(1) of the RPC 2007. This is known as the CAB RANK Rule. See A, Watson., ‘Origins and Development of the Cab Rank Rule for Barristers in England' Sheffield Hallam University Research Archive (2022) <https://shura.shu.ac.uk.>accessed 20 September 2023.
Abdullahi, (n 6).
Udemezue, (n 5).
Rules of Professional Conduct for Legal Practitioners (RPC) 2007.
Legal Practitioners Act CAP L11 LFN 2004.
O. Adewoye., The Legal Profession in Nigeria (1865-1962) (Longman 1977) 9.
T. O. Elias., The Nigerian Legal System (Routledge & Paul 1963) 39-45.
Some of these courts were established in the Southern Nigerian areas where the British conducted their various trades. These areas include Bonny, Opobo, Calabar, Warri and others. See J. C. Anene., Southern Nigeria in Transition 1885-1906 (Cambridge University Press 1966) 250-65.
A. O. Okoye., Law in Practice in Nigeria: Professional Responsibilities and Lawyering Skills (Snapp Press Limited 2011) 2. See also, J. O. Orojo., Professional Conduct of Legal Practitioners in Nigeria (Mafix Books Limited 2008) 10-11.
O. Odeyinde., ‘The Legal Practitioners Professional Negligence in Nigeria: Evaluation of the General Liability and Immunity Afforded on Legal Practitioners in the Conduct of Their Clients' Case' Scholarly Journal of Advanced Legal Research (2021) 1(5)29. Section 76 of the Supreme Court Ordinance 1876 stated the qualification of a legal practitioner in Nigeria and fused both callings or professions of barrister and solicitor in one profession.
The evolution of the unique legal system in Nigeria owes its attraction to the report or recommendations of Unsworth Committee of 1959. See particularly, Unsworth Committee, The Report of the Committee on the Future of the Nigerian Legal Profession (1959) 5.
The Legal Education Act 1962 has been amended. It is now known as the Legal Education (Consolidation, etc) Act Cap L 10 LFN 2004.
See, M. Slabbert., ‘The Requirement of Being a ‘Fit and Proper Person for the Legal Profession' Potchestroom Electronic Law Journal (2011) 14(4) <https://www.ajol.info> accessed 20 September 2023.
See Section 24 (The Interpretation Section) of the LPA. See also, Section 2(1) of the LPA.
See Peter Obi v INEC & 6 Ors. [2007] 11 NWLR (Pt 1046) 565.
Odeyinde, (n 16) 37. See also, Chidoka v First City Finance Company Limited [2012] LPELR – 9343 (SC)
Brook v Montague [1606] 79 ER 77 KB 7. See also, T. L. Anenson., ‘Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers' Pepperdine Law Review (2004) 31(4) 915.
Minister v Lamb [1883] 11 QBD 588.
Ibid., 605.
Henderson v Broomhead [1859] 157 ER 964, 968 (Ex. Ch,)
Rondel v Worsley [1967] 1 QB 443 (HL). See also, the case of Saif Ali v Sydney Mitchell [1978] 3 All ER 1033 where the House of Lords held that a barrister's immunity is extended to his pre-trial works which were so intimately related to court proceedings.
In Hall v Simons [2000] 3 WLR 543, the House of Lords reviewed its decisions in Rondel v Worsley and Saif Ali v Mitchell. The law Lords overruled the two cases [earlier decisions] by a unanimous decision in so far as they conferred immunity on barristers from liability for negligence in civil cases
Section 9(3) of the LPA.
Bello Raji v X Legal Practitioner [1946] 18 NLR 74.
Ibid., 78.
Cocottopoulos v P.Z & Co Limited [1965] LLR 170.
See, (n 28).
Simons, (n 28) 191. It is obvious that the House of Lords felt that removal of immunity was necessary to preserve the confidence in the legal system at a time when lawyers were not careful with their briefs. It needs to be observed that the court's decision was more of preservation of the court's integrity than the legal profession itself.
Giannarelli v Wraith [1988] 81 ALR 416.
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.
Chamberlains v Lai [2006] NZSC 70.
Fodwoo v Law Chamber & Co [1965] GLR 363,374-375.
E. S. Nwauche, ‘The Need to Review the Immunity of Legal Practitioners for Negligence in Nigeria' Journal of Indian Law Institute (2022) 44(4)574.
See Section 17 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 which provides for equality of all persons before the law.
M. Oldham., ‘The Advocates' Common Law Immunity' Deakin Law Review (1996) 3 (1) 55-66.
O. C. Oko., ‘Lawyers' Professional Negligence in Nigeria' Nigerian Juridical Review (1991-1993) 5.
See, M. N. Adam., ‘Lawyers' Duty of Professional Confidence to Clients under the Nigerian Legal System: An Overview' Unilag Law Review (2017) 49-51. See also, Section 170 (1) of the Evidence Act 2011.
There are other situations where the law has conferred immunity on persons because of the office they occupy and duties attaching the office. See section 308 of the CFRN
Odeyinde, (n 16) 39.
See, Order 25 Rule 14 of the FHC (Civil Procedure) Rules 2019; Order 56 Rule 13 of the High Court of FCT Abuja (Civil Procedure) rules 2018; Order 49 Rule 14 of the High Court of Lagos State (Civil Procedure) Rules 2012; Order 55 Rule 3 of the National Industrial Court (Civil Procedure) Rules 2017.
Orojo, (n 15) 204. See also, M. C. Ogwezzy., ‘The Legal Practitioners Act: A Code for Regulating the Conduct of Lawyers in Nigeria' AGORA International Journal of Juridical Sciences (2013) 3, 118. For procedure for discipline of Lawyers in Nigeria, see Abdullahi, (n 6) 13.
Abdullahi, Ibid.
The LPDC was established by Section 11 of the LPA as a Committee of the Body of Benchers and a quasi- administrative body whose proceedings are civil in nature, charged with the handling of alleged cases of professional misconduct against lawyers in Nigeria. See S. C. Udemezue., ‘Resolving Conundrums Regarding Legal Profession Regulation in Nigeria (Part 1) Social Science Research Network (2023) <https://papers.ssrn.com> accessed 20 September 2023.
See the eloquent cases of NBA v Eseyin [2015] 13 NWLR (Pt 1475) 197 (LPDC). The lawyer had collected money from his client for an appeal which he abandoned half-way at Ibadan without recourse to his client.
Honeywell v Ogunba, Anon, (2018) LPPC Withdraws SAN Rank From Senior Lawyer <https://www.punchng.com> accessed 20 September 2023. See also C. Unini., ‘Withdrawal of Rank of SAN By The LPPC: See A Petition Filed At The LPPC Against Mr Kunle Ogunba, SAN' TheNigerianLawyer (Lagos, 13 January 2016) <https://thenigerianlawyer.com> accessed 20 September 2023.
See NBA v Kalejaiye [2016] 6 NWLR (Pt 1508) 393 LPDC. See also, the case of Beluolisa Nwofor, A Senior Advocate of Nigeria (SAN) in A. Ade., ‘Lawyer Loses SAN Rank Over Ondo PDP Crises (2017) <https://www.punchng.com> accessed 20 September 2023. The LPPC was established by Section 5(3) of the LPA. It is the duty of the LPPC to ensure dignity of the rank of Senior Advocate of Nigeria. See Okoye, (n 15) 178.
Udemezue., (n 5) 30.
In the case of Orchad v South Eastern Electricity Board [1987] 1 All ER 95, the Honourable Lord Justice Dillion expressed the view, at pages 105-106, that it is not appropriate for a charge or lawsuit to be based only on interference without supporting evidence. It is acknowledged that defendants who intend to levy accusations against solicitors representing the plaintiff encounter challenges in obtaining evidence due to the constraints imposed by professional privilege regulations. However, same regulations pertaining to privilege also impede the solicitor's ability to justify their own actions in handling the matter. The rationale for privilege is situated within the realm of public policy. It is a necessary consequence of rules aimed at guaranteeing a litigant's ability to freely seek legal advice from their attorneys prior to their case being brought before the court. Consequently, a defendant may be barred from asserting a claim that the plaintiff's solicitor should personally bear the costs incurred.
This includes fair-hearing and entitlement to his choice counsel as provided by the constitution. See Section 6(6) b and 36 of the CFRN.
Saif Ali (n 27). Courts are naturally lax to hold counsel personally liable for cost save and except in cases of special atrocious or egregious conduct. See Barrister Dankofa Yusuf v FRN [2019] LLJR - SC; Re-Williams (No. 3) [2001] 12 NWLR (Pt 727) 349. In Barrister Yusuf Dankofa case, the Supreme Court in a lead judgment by Sidi Dauda Bage, JSC awarded cost of One Million Naira (N1,000,000.00) personally against counsel who also was the appellant.
See Danzey v Metropolitan Bank [1912] 28 TLR 327. In Berkely Administration v McClelland [1990] 2 QB 407, it was held that over-vigorous conduct of an action is different in nature from deliberate dishonesty in the prosecution of an action and does not attract taxation on a higher basis. Accordingly, a counsel may be compelled to bear personal cost of litigation where proceedings are not brought in client's genuine interest, or where such proceedings are vexatious, frivolous, fishy or brought solely for the lawyer's other collateral purposes.
Cart-Zeiss Stiftung v Raymer and Keller Limited (No. 2) [1965]1 All ER 300.
Wasted costs are litigation costs which must be paid personally by a lawyer where a judge considers that that lawyer has wasted another parties' or the lawyer's own client's costs. See the Senior Courts Act (SCA) 1981 (UK). See also, Ridehalgh v Horsefield [1994] Ch 205.
Ibid.
Rule 2.3(1)(e) of the Civil Procedure Rules (CPR) 1997 defined legal representative as a person who for the purpose of the Legal Services Act 2007 is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of the Act). The CPR was introduced by the Civil Procedure Act 1977 as rules applicable to the Court of Appeal, High Courts of Justice and County Courts in civil cases in England and Wales. See also, M. Clements., Presidential Guidance Note No. 1 of 2015: Wasted Costs and Unreasonable Costs (Crown Copyright 2015) 1 <https://www.judiciary.uk> accessed 20 September 2023.
R. Dunne., Wasted Costs (Association of Cost Lawyers [ACL] Conference 2019) 8.
R v Horsham District Council, ex parte Wenman [1994] 4 All ER 681. The decision of the Queen's Bench Division of the England and Wales High Court (EWHC) was delivered by Mr. Justice Brooke. J. Munby, QC appeared for the first respondent.
Munby, QC put out the subsequent ramifications: (i) Lawyers may potentially allow their professional judgment in providing advice to their clients, as well as their willingness to pursue a case, to be influenced by their own financial circumstances. This could result in a situation where legitimate claimants are discouraged from presenting their case to the court. Consequently, a divide may arise between plaintiffs and their legal advisors, leading to a reluctance to offer favorable advice due to concerns about personal accountability. There existed a genuine risk that the initiation or mere mention of such applications could potentially intimidate legal representatives who were representing clients receiving legal aid, resulting in these representatives being treated less favorably compared to clients who were privately paying, particularly in cases involving novel or contentious issues. See, (n 54).
Ibid. See, Ibbs v Holloway Brothers Limited [1952] 1 All ER 220 per Delvin, J.
Chief Afe Babalola is a foremost legal luminary and Senior Advocate of Nigeria.
Chief Wole Olanipekun is a Senior Advocate of Nigeria, former Chairman of the Nigerian Bar Association and immediate past chairman of the Body of Benchers in Nigeria.
Chief Afe Babalola (SAN) represented Mr. David Lyon Perewonrimi and his running mate, Mr. Biobarakuma Degi-Eremienyo while Chief Wole Olanipekun (SAN) represented the All Progressives Congress (APC). They brought an application for review of the apex court's judgment which overturned the applicant's victorty in Bayelsa state governorship election and gave judgment in favour of the Peoples' Democratic Party (PDP) and its flagbearers, Mr. Duoye Diri and his deputy, Mr. Lawrence Ewhrudjakpo on 13 February 2020.
F. Ogunbowale., ‘Cost Against Trial Lawyers: Setback for Rule of Law' <https://www.barristerng.com> accessed 20 September 2023.
Ibid.
The question of jurisdiction is a fundamental issue of law. The law determines jurisdiction of court and so, not even the Supreme, may assume jurisdiction in excess of the provisions of the statute. See Sections 230 to 236 of the CFRN for jurisdiction of the Supreme Court. See also, GTB v Toyed Nigeria Limited. [2016] LPFLR 418 (CA) See generally, M. A. Lateef., ‘Jurisdiction of Courts in Nigeria' in M. A. Lateef, Nigerian Legal System (Ibadan University Press 2019) 157-209.
See People's Democratic Party (PDP) & Ors v Degi-eremienyo & Ors [2020] LLJR (SC). Lead judgment was delivered by Ejembi Eko, JSC.
See. B. Ikusika., ‘The Finality of the Supreme Court: The Bayelsa Election Decision Saga and its Imminent Considerations' Social Science Research Network (2020) <https://papers.ssrn.com> accessed 20 September 2023. On the finality of the Supreme Court, Oputa, JSC (also known as the Socrates of the Supreme Court) held in Adegoke Motors Limited v Adesanya [1989] 13 NWLR (Pt 109) 250, 275A as follows, ‘We are final not because we are infallible rather we are infallible because we are final'.
Parker v Parker [1953] All ER 121.
Adegoke Motors Limited,(n 73).
The judgment was delivered in Suit No: FHC/ABJ/CS/84/2023, Festus Keyamo v Atiku Abubakar (Unreported, Judgment delivered by Justice James Omotosho at the Federal High Court sitting in Abuja on 5 June 2023). See A. Olayiwola., ‘Keyamo to Appeal as Court Awards Atiku, ICPC N10M in Frivolous' Lawsuit', Punch (Lagos, 5 June 2023) Frontpage <https://www.punchng.com> accessed 20 September 2023.
See Section 18(2) of the Money Laundering (Prohibition) Act 2022; Section 96(1) of the Penal Code, LFN 2004.
See also, F. Ugwu., ‘2023 Poll: Court Fines Keyamo N10M For Filing Frivolous Suit Against Atiku', Daily Post (Lagos, 5 June 2023) 1 <https://www.dailypost.ng> accessed 20 September 2023.
Suit No: FHC/ABJ/CS/578/2023, Okoye & 4 Ors v Attorney General of the Federation & Ors (Unreported, Judgment was delivered by Justice Inyang Ekwo of the Federal High Court, Abuja division on 6 June 2023). See also, S. Ejike., ‘Again Court Slams N20 M Fine on Lawyer for Filing Suit Against Tinubu' Nigerian Tribune (Ibadan, 6 June 2023) <https://tribuneonlineng.com> accessed 20 September 2023.
Bola A. Tinubu and Kashim Shettima are the President and Vice-President of Nigeria (respectively) sworn in on 29 May 2023.
The question of 25% vote cast in FCT as one of the requirement for a candidate to be declare winner of Presidential election has been determined in CA/PEPC/03/2023, Obi v INEC & 3 Ors in a lead judgment delivered by Tsammani, JCA on 6 September 2023. This decision has however been challenged on appeal to the Supreme court. See A. Folorunsho-Francis and S. Odebiyi., ‘Tinubu's Victory: Atiku, Obi File 86-Ground Appeals at S'Court' Punch (Lagos, 20 September 2023) 1 <https://punchng.com> accessed 20 September 2023.
Suit No: FHC/ABJ/CS/657/2023: Praise Ilemona Isaiah & 2 Ors v President of Nigeria & 6 Ors.(Unreported, Judgment delivered by the Honourable Justice James Omotosho of the Federal High COURT sitting at Abuja on 26 May 2023). See also, Agency Report ‘Swearing-in: Court Orders Applicants, Lawyer to Pay Tinubu N17 M Over Frivolous Suit' Premium Times (Lagos, 26 May 2023) 1| <https://www.premiumtimesng.com> accessed 20 September 2023.
Chief Ambrose Albert Owuru is a Politician, a British trained constitutional lawyer called to the Nigerian Bar in 1982. See F. Oyeyemi., ‘Ex HBP Presidential Candidate, Owuru Sues Buhari, Asks Court to Declare Villa Vacant' Daily Post (Lagos, 17 June 2021) 1.
Suit No: CA/CV/259/2023, Chief Ambrose Albert Owuru & Anor. v President Muhammadu Buhari & 3 Ors.(Unreported, Lead Judgment Read By Jamil Tukur, JCA of the Court of Appeal, Abuja Division on 25 May 2023).
Commissioner of Police v Ighoriohwunu Aghogho (Unreported Case No: FHC/92C/2022, Ruling Delivered by Okon Efreti Abang, Judge of the Federal High Court sitting in Warri [Justice of the Court of Appeal effective 20 September 2023] on 23 July 2022). Ugochukwu G. Egirim, Esq led a team of counsel who appeared in the matter for defendant/applicant while S. B. Irabor appeared for the police. The defendant is still in detention over a year after without bail.
Holding charge has been severally declared illegal by the courts. It is a criminal charge filed to keep the accused in prison while waiting for a proper charge to be brought before a court of competent jurisdiction. See Enwere v Commissioner of Police [1993] 6 NWLR (Pt 299) 333; Olawoye v Commissioner of Police Per Abdullahi, JCA [2006] 2 NWLR (Pt 965) 427, 442-43; Shagari v Commissioner of Police [2007] 5 NWLR (Pt 1027) 275, 298 by Sanusi, JCA. See also, E. A. Okojie and L. E. Enakemere., ‘The Legal Status of Holding Charge as A Detention Mechanism Under the Nigerian Criminal Justice System' East African Journal of Peace and Human Rights (2014) 20(1)168-183.
PIL provides a platform to stimulate social change and hold institutions to greater accountability. It is a means of assisting the helpless and suppressed to pursue and get redress for human rights violations and brazen disregard for the article of faith. The Nigerian Bar Association Session on Public Interest and Development Law (SPIDEL) currently headed by Mr. John Aikpokpo-Martins is doing a great deal in this respect.
W. Nnaemeka., ‘Lawyers Differ Over Courts' N58 Million Fines Against Legal Practitioners Challenging Tinubu's Inauguration' THE WHISTLER (Lagos, 28 May 2023) 1.
Professional Indemnity Insurance is also known as errors and omissions (E & O) in the United States of America. See P. Chadak, ‘Analysis of Professional Indemnity Insurance in India' 2020 <https://www.latestlaws.com> accessed 20 September 2023.
See T. Osinowo., ‘A Case for Professional Indemnity in Legal Practice' This Day Newspaper (Lagos, 23 September 2014) 5.
Professional indemnity insurance provides necessary financial protection for professionals in such a precarious situation which may attract liabilities in tort or personal costs. See, Anon ‘Why you need indemnity insurance cover as a professional' Business Day (Lagos, 16 November 2016) <https://businessday.ng> accessed 20 September 2023.
Anon, ‘Professional Indemnity Insurance Overview' 2019 <https://www.lawsociety.org.uk> accessed 20 September 2023. See also, Osinowo, (n 90).
International Bar Association (IBA), International Principles on Professional Indemnity Insurance for Legal Profession (Adopted 3 November 2022 by the IBA) 8.
See, The IBA'S Response to Ukraine, New Report Published: IBA International Principles on Professional Indemnity Insurance for Legal Profession, 14 March 2023 <https://www.ibanet.org> accessed 20 September 2023.
S. M. Safiyanu., ‘Liability of Legal Practitioners in Nigeria. The True Position of the Law' International Journal of Social Sciences (2020) 4(18)112.
National Bank of Kenya Limited v E. Muriu Kamau [2009] eKLR. See also, S. K. Kivuva, ‘Addressing Professional Negligence in Intellectual Property Rights Bar in Kenya' (A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Master of Laws (LL.M) of the University of Nairobi, 30 September 2015) 40-49.
See, Professional Indemnity Insurance: The Law Society of New South Wales (NSW) <https://www.lawsociety.com>. The state of NSW bothers Queensland to the north and Victoria to the south on the east coast of Australia.
Rule 26 of the RPC 2007. This duty outlasts the lawyer's employment and extends to all the lawyer's employees who were involved in any way during the conduct of a client's case.
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