Lawyers Are Liars: A Misnomer Or Aptonym? -By Damilola Obanijesu Oyawole
The rhetoric ‘Lawyers are liars’ is one that has received considerable reception amongst laymen. I must quickly add here that the word ‘laymen’ is not in any form derogatory neither is it intended to place lawyers in a superior position, not even when they are referred to as learned (a term which does not in any way express self adulation but rather describes a lawyer as one who is always learning. See Njaba L.G.C. v Chigozie (2010) 16 NWLR (Pt. 1218) 166 at 193 paras. B-C, per Ogunwumiju, JCA (as she then was)). ‘Laymen’ simply refers to a group of persons who do not belong to a particular profession, consequently, lacking specialised knowledge in that particular profession. The phrase ‘Lawyers are liars’ seems to be a view drawn from the conclusion that a lawyer’s duty is to ‘misrepresent facts to suit his client’ for whom he intends to win at all costs. An average man in the society claims that lawyers have a strange relationship with ‘the truth’, lawyers never concede a point, lawyers always argue to win, the word ‘lawyer’ has received divine blessings to rhyme with the word ‘liar’, et al.
The skewed public opinion, the misjudgment (faux pas), misconception or prejudice against lawyers is strong, maddening and infuriating. The crux of this article pontificates that the myths and batch of jokes about the general moral depravity of lawyers are common, unoriginal and misdirected. It addresses succinctly this blind spot and sets the record straight.
Basically, there are two types of law – Civil law and Criminal law. Civil law deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded in form of damages to the victim, on the other hand, Criminal law is the body of law that deals with crime and the legal punishment of criminal offences. It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment.
In criminal cases, many wonder why a lawyer would even dare defend a man who was ‘caught in the act’, a ‘guilty’ man, a man who is ‘circumstantially’ the culprit. For this reason, many see lawyers as persons who have had their consciences seared with a hot iron, persons who have sold themselves to advocating the devil, persons living ‘a life of calling black white’, ‘absent in heaven’, ‘headed for hell’, ‘enemies of justice’ to mention but a few. Marc Galanter captures the public cynicism in his book Lowering the Bar: Lawyer Jokes and Legal Culture, University of Wisconsin Press, 2006, 114 (analysis of hundreds of jokes from Mark Twain) thus:
Lawyers have long been associated with discord and strife. They are frequently portrayed as aggressive…unprincipled mercenaries who ferment strife, prolong conflict and promote disorder by encouraging individual self-serving and self-assertion, rather than cooperative problem solving.
I must state accordingly and rightly that every citizen of the country of Nigeria cannot be held to be unaware of the existence of the extant Constitution of the Federal Republic of Nigeria (hereinafter to be referred to as ‘the Constitution’). A constitution is not a thing in name only, but in fact, it has not an ideal, but a real existence; and wherever it can not be produced in a visible form, there is no constitution. It is a composition of provisions to which you can refer, and quote section by section, line upon line, precept upon precept, a little here, a little there. It is the fons et origo, not only of the jurisprudence but of the legal system of the country. It is the beginning an the ending of the legal system, in Greek, it is the alpha and the omega. It is the supreme law of the land, every action, inaction or law inconsistent with its provisions shall be declared null and void to the extent of its inconsistency. See S. 1(1) & (3) of the Constitution.
To pronounce a person guilty before conviction by a competent court of law is an abuse of the fundamental tenets of fair hearing, a hornbook principle, of which the presumption of innocence is an integral part. See S. 36(1) of the Constitution. Even Adam and Cain were given fair hearing by God before punishment, how much more a suspect? In the words of His Lordship, Hon. Justice Oputa, JSC (of blessed memory) in the case of Alhaji Chief Yekini Otapo v Chief R.O. Sunmomu & Ors (1987) NWLR (Pt. 58) 587, ‘Almighty God gave us two ears. So we have to hear both sides. To hear one side to a dispute and refuse to hear the other side is a flagrant violation of the principle of eternal justice.’
Also, the Supreme Court in the case of OGUNSANYA v THE STATE (2011) LPELR – 2349(SC), (P.40, paras. B-E), per Fabiyi, JSC, held thus:
‘It is basic that an accused person standing trial on a criminal charge should be accorded a fair hearing during his trial. A fair hearing must involve a fair trial. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case.’ See also UDOFIA v THE STATE (1988) LPELR – 3305(SC), per Oputa JSC, JOSIAH v THE STATE (1985) NWLR (Pt.1) (P. 28, paras. B-G), per Oputa JSC.
This right stands above the ordinary laws of the land and in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our Constitution since independence is to have this right enshrined in the Constitutions so that the right could be immutable to the ‘non immutability’ of the Constitution itself.
Section 36(5) of the same Constitution also provides thus, ‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.’ It can be seen that the principle of presumption of innocence is firmly entrenched in the Constitution. More so, Article 11(1) of the Universal Declaration of Human Rights, 1948, Article 14 of the International Covenant on Civil and Political Rights, 1966 and Article 7(b) of the African Charter on Human and Peoples’ Rights, all of which Nigeria has assented to, also provide for the presumption of innocence. The courts have consistently established over the years that an accused person does not bear a legal burden of proof, the position of the law is that the legal burden of proving a case against the accused person beyond reasonable doubt rests squarely on the prosecution and only shifts to the defendant if the prosecution discharges such burden. See S. 136(1) of the Evidence Act. He does not have to prove his innocence, it behooves the prosecution to lead evidence to prove all elements of the charged offence(s). This is also in line with the provisions of the Evidence Act. See 135(1) of the Evidence Act.
An illustration is quite instructive, if Bayo steals Janes’ phone, even if she saw him taken the phone but does not have any substantial proof before a competent court of law that he took the phone and that same is owned by her, she will definitely not succeed with the case. An accused person is presumed innocent until the prosecution succeeds in proving his guilt. The reason for this is not far-fetched, the reason is called the Blackstone’s ratio. This principle has been shown to have biblical foundation in Genesis 18:23-32, where Abraham solicited before God on behalf of the innocent. In William Twinning, Theories of Evidence: Bentham & Wigmore, Fotescue had stated: ‘I would rather wish twenty evildoers to escape death through pity than one man to be unjustly condemned.’ Lord Stafford also stated: ‘It is better that a thousand persons that are guilty should escape than one innocent person should die.’ Blackstone in this regard made the most widely used and accepted expression when he stated: ‘The law holds that it is better that ten guilty persons escape, than one innocent suffer. (Blackstone, IV Commentaries, Chapter 27, p. 358).
The prosecution must prove beyond reasonable doubt that the offence has been committed by the accused. Beyond reasonable doubt simply means that every ingredient of the offence charged must be established through evidence. There is a squillion of decided cases in that respect. See ANKPEGHER v THE STATE (2018) LPELR – 43906 (SC), per Kekere-Ekun, JSC at pages 24-25, IFEJIRIKA v THE STATE (1999) 3 NWLR (pt. 593) p. 59, at p. 62; OGUOBUNJO v THE STATE (1996) 6 NWLR (pt. 452) p. 78, at p. 80: The Court of Appeal held in this case that there is no burden on the accused person to prove his innocence; ESANGBEDO v THE STATE (1989) NWLR (Pt. 113) 5 at 69 – 70 paras. H – A, per Ignatius Igwe Agube, JCA.
It is, however, not surprising that a ‘suspect’ is immediately condemned by the general public. The officious bystander in the society tags an arrested person a criminal, ‘only criminals were arrested and taken away by the police.’ The learned silk, Femi Falana (SAN) once narrated his story under the defunct military dictatorship when his house was raided several times by the NSO (now DSS). He stated: ‘On one occasion, my son, Folarin (Falz), asked his mother if I was a criminal because his teacher had taught him, only criminals were arrested and taken away by the Police, he did not understand that my ordeals were politically motivated.’
An average person in the society will be reluctant to believe that Mr. A who was arrested for killing Mr. B could have acted in self-defence and would in turn be guilty of manslaughter and not murder as the case may be. Sadly, cases like this occur now and then, innocent Nigerians are arrested and arraigned. See IKOMI v THE STATE (1986) 3 NWLR (pt. 28) 340, BODE GEORGE v FRN (2013) 12 SC (Pt. 1) 1. Chief Bode George was convicted and he served out his two years jail term before the Supreme Court upheld his innocence. Justice Ikomi, on the other hand, could have been killed before the confession by a member of the armed bandit who stage-managed his ordeal.
Even when a lawyer knows that a defendant has committed a crime he is still expected to be guided by the Rules of his profession! The Rules of Professional Conduct for Lawyers provides thus, ‘It is the duty of a lawyer to accept any briefs in the Court in which he professes to practice provided the proper professional fee is offered unless there are special circumstances which justify his refusal.’ This is known as the cab rank rule. A lawyer is not expected to accept and deny briefs from his client as he so pleases.
In fact, every citizen charged with serious crimes is entitled to a lawyer in accordance with the Constitution. See S. 8 of the Legal Aid Act, JOSIAH v THE STATE, (SUPRA), where the apex Court considered the effect of Section 33(6)(c) of the 1979 Constitution (which is in pari materia with section 36(6)(c) of the 1999 Constitution) and Section 352 of the Criminal Procedure Act and held that a person accused of a capital offence ‘has a right to have his defence conducted by a legal practitioner assigned by the Court if he was unable to afford the services of one.’
Also, the adversarial system as practiced in Nigeria is an offshoot of the Common Law. Due to Nigeria’s historical link with Great Britain, English law which includes Common Law has become a major source of its law, hence, the innateness of the adversarial legal system is not in question. The adversarial system or adversary system is a legal system used in the Common Law countries where two advocates represent their parties’ case or position before an impartial person or group of people, usually a judge in Nigeria, who attempt to determine the truth and pass judgment accordingly. Inherent in this system is the accusatorial procedure – a system of administration of justice in which conclusions as to liability are reached by the process of prosecution and defence. It is the duty of a party to litigation to prove a fact or facts in issue. Whoever asserts a fact must prove by adducing evidence. Peter Murphy in his book, Practical Guide to Evidence recounts an instructive example: A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, ‘Am I never to hear the truth?’ ‘No, my lord, merely the evidence’, replied the counsel. Nothing but the evidence counts in a courtroom.
See OKODUWA v THE STATE (1988) NWLR (Pt.76) (Pp. 35-36, paras. G-D), per Nnaemeka-Agu, JSC (of blessed memory).
Furthermore, Lawyers are taught to build a logical argument, reasoning premises derived from evidence, to conclusions impelled by logic and reason. They know the rules of evidence, this allows them to weigh the strengths and weaknesses of factual claims. A good lawyer can tell a good source from a bad one, recognise a false analogy and usually will not result to rambling ad hominem attacks.
It must also be carefully noted that Lawyers have a duty to represent their clients. At the same, they have a responsibility to the legal system and the quality of justice administered. Lord Denning MR, one the greatest proponents of legal ethics and advocacy consolidated this point beyond cavil in the case of Rondel v Worsley (1967) I QB 443. Ergo, because of the significance of His Lordship’s words, I should allow myself to quote him in extenso.
‘As an advocate, he is a Minister of Justice equally with the Judge. He has a monopoly of audience in the higher courts. No one save he can address the JUDGE, unless it be a litigant in person. This carries with it a corresponding responsibility…He must accept that brief and do all he honourably can on behalf of his client. I say ‘all he honourably can’ because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouth piece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of profession and is subject to its discipline. But he cannot be sued in a court of law. Such being his duty to the court the barrister must be able to do it fearlessly. He has time and time again to choose between his duty to his client and his duty to the court. This is a conflict often difficult to resolve and he should not be under pressure to decide wrongly, if a barrister is to be able to do his duty fearlessly and independently, he must not be subject to the threat of an action for negligence.’ – (Emphasis Mine).
See also DARIYE v FRN (2015) 10 NWLR (Pt. 1467) 323, OKONJI v ONWUSANYA (2012) LPELR – 9286(CA), per Shoremi, JCA, Rules 30 & 31 of the RPC.
Lawyers have a duty to assist the courts in the administration of justice. They must not for a meager sum mislead the court by either mis-stating facts or lying against a decision of a Court.
In conclusion, lawyers are not liars but vanguards of truth and justice. The Court is a temple and not a shrine. What goes on there is justice. The aim and focus of all participants or ‘worshipers’ in the temple of justice is justice. Therefore, either as litigants, court or counsel, everyone should be interested in doing justice and in the words of His Lordship Hon. Justice Chukwudifu Oputa, JSC in the case of Josiah v The State (1985) 1 NWLR (Pt. 1) 125 at 141, ‘Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, ‘whose blood is crying to heaven for vengeance’ and finally justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of.’
Therefore, in criminal trials, justice for not only the victim but for the accused (who may have been accused wrongly) and the society is of paramount importance.
DAMILOLA OBANIJESU OYAWOLE writes from Faculty of Law, University of Ilorin.
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