Background
This disciplinary proceeding arose from a dispute concerning the enforcement of a Kaduna State High Court judgment in favour of Sekav Dzever. In execution of that judgment, court bailiffs attached an uncompleted landed property. Despite the attachment and the absence of an order staying execution, a warning was written on the property stating: “Be warned, this house is b4 the Court of Appeal CA/K/443/16,” followed by two telephone numbers. The numbers were those of Malachy C. Nwaekpe, the judgment debtor’s legal practitioner.
Dzever complained to the Legal Practitioners Disciplinary Committee that Nwaekpe had used an extra-judicial method, in concert with his client, to obstruct the execution of a valid court order. Nwaekpe denied writing the inscription, but admitted that his client had caused it to be written. He maintained that the property was the subject of an appeal and argued, relying substantially on the doctrine of lis pendens, that the property ought not to be sold while the appeal was pending. He also asserted that, after discovering that his telephone numbers had been used, he instructed his client to remove them.
Nwaekpe filed a cross-application alleging professional misconduct against Dzever. Both parties adopted affidavit evidence and cross-examined each other. The Committee ultimately allowed the complaint and suspended Nwaekpe from legal practice for five years.
Issues
- Whether Nwaekpe colluded with his client to frustrate execution of the High Court judgment by an extra-judicial act.
- Whether the evidence, including the letter of the Chief Registrar tendered during cross-examination, established professional misconduct.
- Whether the respondent’s cross-application was cognizable and sufficiently proved under the Legal Practitioners Disciplinary Rules 2020.
Ratio Decidendi
A lawyer must represent a client strictly within the bounds of the law. Under Rules 15(1) and 15(2)(a) and (b) of the Rules of Professional Conduct for Legal Practitioners 2007, counsel must refuse to participate in unlawful conduct, restrain the client from misconduct, and withdraw or terminate the professional relationship if the client persists. Rule 30 further requires a lawyer, as an officer of the court, not to obstruct, delay or adversely affect the administration of justice.
Where a judgment debtor places counsel’s telephone numbers on property attached pursuant to a court order, counsel must direct that the entire inscription be removed and must challenge the attachment through lawful judicial procedures. The appropriate remedy is an application to set aside the attachment or process, or an application for stay of execution—not self-help, warnings to prospective purchasers, or conduct calculated to undermine the authority of the court. This duty arises even where counsel believes that the attachment was improperly procured.
The Committee also held that evidence elicited during cross-examination has the same probative value as evidence given in examination-in-chief when it relates to a fact in issue. The Chief Registrar’s letter, tendered by Nwaekpe during cross-examination, linked the telephone numbers on the property to Nwaekpe’s professional letterhead and reported that callers were told that fraud was involved in the attachment. Since the material contents were not effectively challenged, the evidence was accepted.
Committe Findings
The Committee found Nwaekpe’s explanation unsatisfactory. He did not call his client to confirm that the client had caused the inscription to be made. He also failed to produce telephone records supporting his denial of the alleged calls and abandoned his request to cross-examine the person said to have received the calls. These omissions, together with the unchallenged contents of the Chief Registrar’s letter, strengthened the inference that Nwaekpe and his client acted in complicity to frustrate execution.
The Committee rejected the argument that the pending appeal justified the inscription. An appeal does not automatically operate as a stay of execution; a competent court must make an appropriate order. The respondent also had a duty to notify the relevant court officials of any pending stay application or appeal and to seek judicial relief. The doctrine of lis pendens could not justify the use of self-help against property already attached under a subsisting court order.
Regarding the cross-application, the Committee held that it was not known to, and was unsupported by, the Legal Practitioners Disciplinary Rules 2020. An originating application is subject to a prima facie review before it proceeds to hearing, whereas a cross-application bypasses that safeguard and improperly inserts a new complaint into an existing proceeding. It was therefore incompetent and null from inception. Nevertheless, because disciplinary decisions may in appropriate circumstances be appealed to the Supreme Court, the Committee considered the allegations and held that Nwaekpe had failed to prove them.
Conclusion
The complaint was allowed. The Committee found Malachy C. Nwaekpe, enrolment number SCN060699, guilty of infamous conduct in the course of performing his duties as a legal practitioner, contrary to Rules 1, 15(1), 15(2)(a) and (b), and 30 of the 2007 Rules of Professional Conduct, punishable under section 12(1) of the Legal Practitioners Act.
Nwaekpe was suspended from the roll of legal practitioners and prohibited from engaging in legal practice for five years from 8 September 2021. The Chief Registrar of the Supreme Court was directed to give effect to the suspension and endorse it against Nwaekpe’s name on the roll. Notice was also ordered to be circulated to the relevant judicial, governmental, police and Nigerian Bar Association authorities.
Significance
The decision reinforces the central ethical responsibility of Nigerian legal practitioners to uphold court orders and the administration of justice. It makes clear that counsel cannot shelter behind a client’s misconduct after becoming aware of it. A lawyer must actively prevent unlawful conduct, correct misuse of his professional identity, and use formal court processes to challenge an attachment. The ruling is also significant for its treatment of unchallenged evidence obtained in cross-examination and its warning that disciplinary proceedings cannot be expanded through an unauthorised cross-application. Above all, it confirms that neither a pending appeal nor a lawyer’s disagreement with enforcement authorises extra-judicial interference with the execution of a judgment.