ITSE SAGAY AND ATIKU SHOULD BE CITED FOR CONTEMPT
Lately, Nigerians have been treated to a series of interviews and nasty opinion pieces credited to Barrister Itse Sagay, who is on the legal team representing Atiku in his ongoing petition against President Yar’Adua’s victory. What makes Sagay an interesting character is not the jurisprudential quality of the many things he has to say but the lack thereof. The other is his carriage and demeanor, which all together demonstrates a brazen contempt for the learned justices of the Presidential Election Tribunal. Without doubt, Sagay’s true intention is to intimidate and pre-empt the tribunal by recklessly opinionating on why Atiku should win the case. What is more? Mr. Itse Sagay is an attorney of record to boot, retained by Atiku in the same case in which he has abandoned the privileged corridors of the tribunal for the allure of romancing the media with his wild and hollow postulations that don’t mean much for rehabilitating a petition that Atiku is losing by the day. Atiku is losing partly because of Sagay’s tactless pastimes, which, in the opinion of many trial lawyers, clearly constitute ineffective assistance of counsel and flagrant violation of ethical rules of conduct in many ramifications.
While Mr. Sagay occupies his attorney billable hours with pillorying Maurice Iwu/INEC in the press and taunting the tribunal and President Yar’Adua, his client’s case continues to suffer several setbacks that a little bit of legal research by Sagay could have foreseen and averted. The tribunal hearing the petition against Yar’Adua, as constituted, has the powers of a superior court, which includes the broad powers to punish in contempt and to prevent pre-emption and unnecessary distraction by an officer of the court and counsel of record who should know better than engage in conduct deemed prejudicial to the proper administration of justice. What makes it more troubling is that the NBA has chosen the path of silence while Mr. Sagay continues to conduct himself in manners that are clearly violative of established norms of professional behavior for an attorney of record and of his standing at the bar. Every bar association in all democracies – both emerging and advanced have clear rules barring counsels of record from engaging in unguarded public utterances that might either hurt their client’s interest or appear to be interfering with a decorous handling of the proceedings still pending before a court. And the prestige and integrity of all bar associations is largely judged by their ability and readiness to bring discipline to bear on any erring member, otherwise overall professional discipline may suffer in the long run.
As a common law jurisdiction, Nigerian courts – tribunals and regular courts alike should abide or be seen to abide by the universal rules underpinning professional conduct of lawyers retained to represent clients in matters already pending before a court of law. In the past, we have seen the superior courts of this country proceed aggressively against professionally irresponsible behavior similar to Mr. Sagay’s by either issuing a gag order or invoking its inherent contempt powers to punish as a means of curbing such misconduct. Therefore, Mr. Sagay must be prepared for the consequences of his conduct once the tribunal gets beyond its busy docket to notice the damage he has been doing to the legal profession, the integrity of the court process, and even the interest of his client – Atiku. Atiku is not a lawyer and thus may not have realized the monumental damage Sagay is doing to him and his case, but with the likes of Professor Nwabueze on his legal team, I don’t see how Sagay’s clumsy and bizarre public remarks can go unchecked in the interim.
Sagay’s conduct hurts Atiku and makes him out to be a desperate litigant, if not casting his petition as lacking in any real legal merit. And the public which Sagay appears to be courting by what he is doing is likely to also come to the same conclusion that the only reason for such misbehavior and pedestrian tactics is because Atiku is devoid of any compelling evidence that can pass evidentiary muster, thus prompting Sagay’s panicked resort to appealing to public sentiments. Further, Sagay seems less credible when he goes to the press with his theory of the case instead of the tribunal, which is where whatever he has to say matters. Additionally, if anything he is saying is true or admissible, all he needs to do is to convert it into material evidence and file it before the tribunal for consideration as part of the record.
And when a lawyer such as Sagay continues to behave as he does, he hurts the administration of justice by hampering the efforts of the tribunal at putting his client’s case into proper context. The learned justices of the tribunal read newspapers and when they read Sagay’s comments, certain questions must arise in their minds. What do they go by? Is it by any legal briefs filed before them by Sagay or is it by his many public comments? Judging by the recent turn of events, Sagay’s mission to intimidate the tribunal or harass Maurice Iwu or Yar’Adua is not working because it is now clear that both Iwu and Yar’Adua have adopted a scorched-earth policy towards this case and have hankered down to answering Atiku with equal aggressiveness. To the credit of his case and stability of the country, Yar’Adua is no longer telling anybody that he will go back to Katsina were he to lose the case at the tribunal. It is now the opposite as the President has been emboldened to a gutsier defense of his mandate by irresponsible and disrespectful statements being purveyed by Sagay and his likes.
What is more troubling is Sagay’s evident evasiveness in not disclosing to the public that he is fact a counsel of record for Atiku in the ongoing petition. He pretends to be rendering an objective and disinterested professional opinion in a manner that is misleading about his true role in the case. This is unacceptable both under the cannons of professional conduct, common decency, and rules of the court. The legal profession is an honorable one, and if Sagay takes this seriously, then he needs to just stop from going from one newspaper to the other to plead Atiku’s case. Instead he needs to go back to the drawing boards or his law library and find out why Atiku’s case seems to be floundering especially since after Maurice Iwu answered the 27 odd irrelevant interrogatories Sagay and his colleagues saw fit to tactlessly propound. And as if that was not enough, Sagay and his team leaked the interrogatories and the answers to the press in the vain hope that some sympathy will be drawn to their side. But it seems to have backfired as many legal analysts are at a loss over how helpful it is to Atiku’s evidence-in-chief to go off-mark to issue interrogatories on whether the presidential ballots contract was awarded or re-awarded to a South African firm or how much it cost to print them.
And hear this: Is it relevant to making a case for electoral irregularities by querying Iwu on whether the ballots underwent customs destination inspection or not? This is the sort of interrogatory Sagay is promoting in the media as part of his case-in-chief, hoping to make some connection that no one as yet understands. If he cares to poll some of his peers, he will be shocked to learn that this whole strategy of rushing to the press to say one nasty thing or the other about Iwu or Yar’Adua every other day is not working for him or his client – Atiku, but is fast making him and what he represents a laughing stock and butt of jokes amongst all lawyers that know better than embarrass themselves the way Sagay does.
Therefore, if Barrister Itse Sagay does not summon the good sense and professional judgment to walk a straight path and behave responsibly, it might get to the intolerable point that Atiku and his other lawyers will lose their cool and cut him loose, if the tribunal does not beat them to it by censuring him for contempt.