IF I WERE ATIKU, I WILL FIRE ITSE SAGAY AS MY LAWYER
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By: Ibrahim Danlami, College Park USA
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Lately,
Nigerians have been treated to a series of interviews and sometimes 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.
When a lawyer puts his legal maneuvers in the public glare as Sagay does, he
unwittingly undermines and hurts his client’s interest in so many different
ways. One way he can hurt his client is by giving away his strategies
confidences to the party opponent. For instance, through Sagay’s numerous
interviews and careless publicized remarks, it is now well known to INEC/Yar'Adua’s
side that Atiku lacks specific proof of his case-in-chief (irregularities).
Perhaps part of the reason Iwu/Yar’Adua’s lawyers appear to be a step ahead of
Atiku’s legal team is because Sagay’s numerous public remarks have provided a
window and a peek into the mental impressions and strategies of Atiku’s team.
This is the stuff many a lawyer will pay humongous sums to a private
investigator for, but thanks to Sagay, Iwu/Yar’Adua’s lawyers are getting the
whole stuff for freebies and using it so successfully to build a solid defense
for their clients. And if you think about it, you will notice that Iwu/Yar’Adua’s
lawyers are not in the habit of disparaging Atiku or even Buhari in the press
because they know better than do that; and from the quiet way they carry on by
limiting themselves to answering on the record, they exude the requisite
confidence and professionalism common to a case of such national significance.
The parties in the case are free to unleash their spinmeisters on the public
without a Sagay who is duty-bound to limit his comments to the record.
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 in 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 hhe 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.
Ibrahim Danlami is a research scholar in Legal Ethics and he wrote in from
College Park USA. ibrahimdanlami@yahoo.com
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