Lawyers insist Tompolo has a right to appeal court decision

(Nigeria) Lawyers to ex-militant leader, Government Ekpemupolo (alias Tompolo), Mr Tayo Otetibo, SAN and Ebun-Olu Adegborowa, have dismissed media report, casting aspersion on their persons, insisting that Tompolo has a right to appeal the verdict of the court, if he is dissatisfied with them.

It will be recalled that the Economic and Financial Crimes Commission, EFCC, had filed a charge against Tompolo before a Federal High Court, Lagos, while following an application by EFCC, the court issued a bench warrant for his (Tompolo).

Otetibo and Adegborowa in reacting to the report, said “For the avoidance of doubt, the newspaper did not hide its knowledge of the fact that Tompolo, had appealed the order of the Federal High Court for the issuance of a warrant of arrest against him. If the newspaper believes in the supremacy of the rule of law, it ought to have respected the time tested rule that once a matter is pending before a court of law, all persons are enjoined to refrain from making comments that could prejudice the subject matter of the suit.

“So, in essence, the publication shows disrespect to the court by embarking on the needless exercise of sitting in judgment over the case. Quite apart from this preliminary issue, the publication raised some fundamental issues which, with respect to them, were borne out of ignorance of matters of law and procedure.

“The question whether the defendant is entitled to appeal the order of arrest is for the Court of Appeal to determine and not the report. For the education of report, however, it would be sufficient here to enjoin them to read section 241 (1) (b) of the Constitution. On the alleged temerity of counsel to file an application seeking to set aside the Warrant, the report should educate themselves by reading the case of Dr Olu Onagoruwa V (1) Justice O. Nwokedi (2) Inspector General of Police (3) Commissioner of Police Lagos State, (1982) 3 NCLR 547 @ 550, where a Warrant of arrest was issued by the High Court of Anambra State presided over by Justice O. Nwokedi against  Dr. Olu Onagoruwa,  an eminent lawyer, well schooled in the best tradition of the Bar and constitutionalism. “He did not wait to be arrested and taken to Enugu State. No. He approached the High Court of Lagos State for an order to set aside the warrant of arrest. In hearing the application to  set aside the warrant of arrest, Ademola Johnson J. said, inter alia, as follows : “The institution of judgeship is not a cult to be used to deprive any aggrieved party of the right to a fair hearing as required by the constitution.

“Also in Charge NO.ID /4C/88 : STATE V. Col Akilu, the accused persons were accused of murder. They applied to the court to quash the charge but were not physically present in court. The private prosecutor insisted that they must be physically present but the court rejected his argument. In a subsequent appeal in Fawehinmi V. Attorney General of Lagos State (1989) 3 NWLR part 112 page 707 at 739, the Court of Appeal held that the accused persons were entitled in law to take their objection to the charge irrespective of the fact that they were not physically present in court. The media house should learn from this.

“For the education of the report, it is not the duty of counsel to produce a defendant in court for arraignment. Rather, it is the duty of the prosecution. In this regard, paragraph 3 (b) of the Federal High Court Practice Direction 2013 provides as follows:  On the date of 1st arraignment, the Prosecutor must produce the accused person in court.”

“Thus, Judges look at the facts of a case and the applicable law, but not sentiments, in deciding cases that come before them. In Ezeogu V. Ohavere (1978) 6-7 SC 171 Justice  Obaseki of the Supreme Court said: ‘’…  sentiments command no place in judicial deliberations for if it did, our task would be infinitely more difficult and less beneficial to the society.’’ It would be useful if the media would, in future, seek proper legal advice before embarking on passing judgment upon matters bordering on law and procedure so as to avoid falling into the type of grave error of judgment they committed on this occasion.

“The media house regrettably pontificated that if counsel to the defendant fails to produce him in court they should be sanctioned for professional misconduct. For the information of the media house, the legal profession in Nigeria is regulated by written Rules. The application or invocation of those rules is not dependent upon media backlash or editorial opinions of Newspapers on matters being handled by members of the profession which opinions are, on most occasions, completely borne out ignorance of the law and applicable procedure.

“It only remains for us to add here that the notion, which recently began to gain currency, that lawyers who take up the defence of persons accused of crimes, particularly corruption, are aiding corruption is totally misconceived .

“May the day never come in Nigeria when lawyers would be afraid to take up the defence of persons accused of crime simply because of media backlash or editorial opinions. We make bold to assert, with unwavering legal equilibrium, that it is in the best interest of the society that persons accused of even the most heinous of crimes be defended by the best of counsel available  so as to test the veracity of the allegations raised against the accused with a view to ensuring that justice is not only done but is seen to have been manifestly done. After all, it has been said by the Supreme Court that justice is a three way traffic.

“Justice to the society, justice to the victim of the crime and justice to the accused. As two notable American authors, M.S Lief and H.M Caldwell once observed, ‘’…even the most vociferous critics are grudgingly forced to admit that even the most reprehensible (accused person) by having a fair trial with effective counsel, strengthens the legal protections enjoyed by all Americans.’’  Thus Rule 14 of the rules of Professional Conduct for Legal Practitioners provides that “it is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and, subject to any rule of law, to act in a manner consistent with the best interests of the client”.

“Recently the EFCC was accused by the Senate of the Federal Republic of Nigeria of misappropriating about N 1 Trillion out of the money said to have been recovered from suspects by reason of which a summons was issued on the former chairman of the Commission to appear before the Senate with a threat of issuance of a Warrant of arrest against him pursuant to the provisions of section 89 of the Constitution if he failed to appear.

“The former Chairman of the commission however believed that his right would be violated by the order consequent upon which he sought the services of a Nigerian lawyer who, in reliance on Rule 14 of the Rules of Professional conduct for Legal Practitioners, provided technical support for the Chairman and got his right protected.

“In conclusion, we urge report to respect the rights of every Nigerian who has been accused of crimes to defend himself according to law and the rights of Nigerian lawyers to practise their profession according to law.”