The Alibi That Was Invented on Sunday
You act for Chidi, charged with armed robbery before the High Court of the Federal Capital Territory, Abuja. The prosecution alleges that on 3 March he robbed a bureau de change at gunpoint; the CCTV is inconclusive. Chidi has consistently told you that he was at home. Two days before the next hearing, he tells you in conference that he was actually with his girlfriend, and that he has asked his brother, Sunday, to 'confirm' that Chidi was with him at a football viewing centre in Nyanya. Sunday is listed as your second witness and will testify next. Chidi says: 'You are my lawyer; you cannot tell anyone. Just ask him the questions.' The prosecutor has already indicated she will not oppose an adjournment. Chidi's family has paid N400,000 of a N1.2m fee. You have been on record for five months.
1. What are your obligations to the court and to Chidi, and may you call Sunday?
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Duty to the court. The lawyer's first duty is to the court. You must not knowingly present false evidence, coach a witness to lie, or examine a witness in order to elicit evidence you know to be fabricated.
Application. You now know that Sunday's account is invented. You cannot call him, and you cannot ask him the questions Chidi wants. The client's instruction does not convert perjury into advocacy; the duty of zeal stops at the point where the lawyer would be participating in a deception of the court.
What you may do. Advise Chidi in conference of the consequences of perjury and of the risk that Sunday will collapse under cross-examination. Explore any genuine defence - for example, the girlfriend's evidence, if it is true. You may also explore a plea or a lesser charge on instructions.
Conclusion. You may not call Sunday. If Chidi insists on the fabricated alibi, you cannot act on that instruction.
2. Can you withdraw, and if so how? What if leave is refused?
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Withdrawal. You may apply to withdraw, but only with leave of the court in a pending criminal trial, and you should ask for an adjournment so Chidi can instruct new counsel. Give neutral reasons - 'professional grounds' - and do not tell the judge that Chidi admitted planning a false alibi. That is a privileged communication (Evidence Act 2011, s.192) and Chidi has not consented to disclosure. The privilege survives withdrawal.
If leave is refused. You may continue to act, but you must not call Sunday or elicit the fabricated alibi. Confine yourself to matters you do not know to be false, and put on record, in neutral terms, that you are unable to call a particular witness. You cannot simply sit silent and let the client run the false case through you.
Fees. Render an account; the N400,000 paid is likely to be substantially earned after five months and a trial in progress, but any unearned balance must be refunded.
3. May you disclose Chidi's admission to the court or the prosecutor?
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No - not without his consent. The communication was made to you in conference, in your professional capacity, and it is privileged. The privilege belongs to the client, not to the lawyer, and it does not lapse because the client is behaving badly or because the lawyer withdraws.
Disclosure would also be a breach of confidence and could expose you to a complaint, as well as to the argument that Chidi was deprived of a fair trial.
What you can do. You can urge Chidi to abandon the false alibi and to give truthful evidence, warning him of the consequences of perjury. If he consents to disclosure, you may then put the position to the court. If he does not, your remedy is to withdraw without reasons (with leave) or to continue without the false evidence. The court's interest in not being deceived is protected by your refusal to call Sunday, not by betraying the client.