By Godfree Matthew Esq.

ABSTRACT

Nigerian lawyers woke up on the 6th September, 2020 to learn that the law governing their professional body was unilaterally amended by the Honourable Attorney General of the Federation (hereafter referred to as HAGF).

This action by the HAGF was done barely some weeks when another group of lawyers wanted to form a rival faction of Nigerian Bar Association (hereafter referred to as NBA). The act of the HAGF was criticized as unlawful because other members of the association were not consulted before the law was amended. Thus, while others viewed the act as violation of the rule of law, there were others who saw it as a welcome development. It was this development that gave birth to this work. Therefore the aim of this work was to explore the legal position on who had the power to amend the lawyer’s Rule of Professional Conduct, 2007(hereafter referred to as RPC). It was established by this work that the HAGF lacked the authority to singlehandedly amend the RPC, 2007. It is also established that section 12(4) of the Legal Practitioners Act, 2004, CAP L111 LFN, 2004, relied on by the HAGF to amend the RPC, was wrongly exercised. This article relied on statutes, case laws, rules and other internet sources to make this work resourceful.

INTRODUCTION

A particular section of law is not potent enough to justify the deployment of power by an individual to execute an act.  For such acts of an individual to be valid, a holistic rendition of such section and the law under which that section emanates is necessary. It is when this is done, that one could safely conclude that the act of that particular individual is justified in the eyes of law. This position fits into the recent controversial amendment of RPC by HAGF Abubakar Malami, SAN. This development provoked the question as to whether an individual can singlehandedly change the provisions of the Rule of Professional Conducts, 2007. It is the response to this question that inspired the authorship of this article. To further lay proper foundation for this discourse, it is pertinent to reproduce the purported/controversial amended sections which read as follows:

In exercise of the powers conferred on me by section 12(4) of the Legal Practitioners Act, CAP L.111,Laws of Federation of Nigeria,2004 and all other powers enabling me in that behalf, I Abubakar Malami, SAN Attorney General of the Federation and President the General Council of the Bar make the following  rules:

  1. The Rules Of Professional Conduct For Legal Practitioners, 2007 is amended by deleting the following rules, namely: 9 (2),10, 11, 12 and 13.
  2. The Rules may be cited as the Rules of Professional Conduct for Legal Practitioners (Amendment) Rules, 2020.

……………………………………………………………..

EXPLANATORY NOTE

(this note does not form part of this rule but is intended to supply their purport)

These rules amend the rules of Professional Conduct for Legal Practitioner Act, 2007, the Law Officers Act, and the Constitution of the Federal Republic of Nigeria.[1]

Therefore, this work will be structured from the prism of the purported section. In the first part of this work, the writer will examined the first preamble of the purported amendment by HAGF. In doing so the writer will examined the scope of the said section 12 (4) of the Legal Practitioners Act CAP L.111, Laws of Federation of Nigeria, 2004 (hereafter referred to as LPA). In the second arm of this work, the writer examines the province of the purported deleted sections and their effects o Nigeria’s jurisprudence and legal practice. The third arm of this work discussed the concepts behind the explanatory notes of the purported amended RPC and see whether it is has any legal justification. The fourth parts concluded with options opened to NBA and the ways forward.

 

EXAMINING THE SCOPES AND IMPORTS OF THE DELETED SECTIONS AND THE EFFECTS ON LEGAL PROFESSION

Preamble to the purported Amended RPC

The preamble to the amendment started by tracing the ‘root of authority’ of the AGF to singlehandedly amends the RPC. The HAGF relied on section 12(4) of the LPA, 2004 and other powers that enabled him to make the amendment. The AGF further relied on his personal qualification in the legal theatre as SAN, AGF and President of the General Bar Council. For purpose of clarity the said preamble is reproduce below:

In exercise of the powers conferred on me by section 12(4) of the Legal Practitioners Act, CAP L.111,Laws of Federation of Nigeria,2004 and all other powers enabling me in that behalf, I Abubakar Malami, SAN Attorney General of the Federation and President the General Council of the Bar make the following  rules:

In doing justice to the AGF’s purported ‘root of legal title’ it is pertinent to reproduce the provision of section S.12 (4) he seeks to rely on. Thus, the said section provides that:

(4)  it shall be the duty of the Bar Council to make Rules from time to time on professional conduct in the legal profession and cause such rules to be published in the Gazettes and to be distributed to all the branches of the Association

A careful perusal of the above provisions is a clear revelation that it is the Bar Council that has the statutory duty of amending the RPC and not the HAGF. The said section did not even mention the name of the HAGF; rather, it states the name of the Bar Council as group. The power of the General Bar Council as legitimate body empowered to make Rules of Professional Conduct for lawyers is recognized by the courts in the case of Uchi & Anor  V Sabo & Ors.,[2] where the court held that it is the General Bar Council that has the power to make the Rules of Professional Conducts to regulate the use of Stamp and Seal. The court did not mention HAGF as a person authorized to do so.

The above position can be justified by further exploring the establishment section of the Bar Council. Section 1 of the LPA provides for the establishment of the General Bar Council as a statutory charged with the general management of the of the affairs of Nigerian Bar Association. The said section further provides for the composition of the Bar council as to consist of the HAGF, the Attorneys-General of the 36 States and the Twenty Members from the NBA. The HAGF is the President of the Bar Council. [3] These persons in the Bar council are elected by the members of the Bar in well prescribed manner in terms of qualification and compliance with other criteria.[4]

Furthermore, the Act specified the quorum of the Bar Council to be 8 persons. The council is empowered to regulate its own proceedings. The concept of quorum is not absolute. The law states that no any proceedings of the Council (as group) shall be invalidated because certain person are absent or persons who partook in the proceedings are not competent to do so.[5]

Therefore, from the province and precinct of section 1 and section 12(4) of the LPA, there is nowhere it is stated expressly or impliedly, that the AGF can unilaterally amend the RPC. Consultation and ratification of other members of the Bar council is a condition precedent for the amendment of the RPC. Thus, since the amendment of the RPC is a defined procedure specified in the LPA, it must be followed.[6] Any other way that is done contrary to these procedures is a nullity that is an evasion of rule of law. This position is upheld by the Court of Appeal  in the case of Slok (Nig.) Ltd V Chief Judge FHC Nig.,[7] where it was held that where a law sets out a mode or pattern of taking an action, any contrary step taken to evade the stated procedures will render such acts unlawful.

Furthermore, another Achilles Heels of the HAGF is that relying on the provisions of section 12(4) to delete sections 9 (2), 10, 11, 12 and 13 of RPC, will be against the letters and spirit of LPA. Thus, it will not be in the interest of parent law to grant a power to a rule that will conflict with its aims and objectives. The aims and objects of legal profession include the promotion of the independence of the Bar and the promotion of the rule of law.[8] By claiming to have unilaterally amended the RPC alone, the AGF is undermining the institution of the Bar.

Equally, it is important to note that some of the said sections that are purportedly deleted by the AGF are already provided and covered by the LPA. For example, sections 9 and 12 of RPC, 2007 purported to be deleted by the HAGF, provides for the Annual Practicing Fee as a necessary obligations of a lawyer. And without paying practicing fee a lawyer is not allowed to frank any document.

However, the HAGF ought to avert his attention that provision of Rules 9 and 12 on Annual Practicing Fee are rooted in the Legal Practitioners Act. Thus, section 8(2) of the LPA, provides that no legal practitioner shall be accorded the right of audience in any court in Nigeria in any year unless he has paid his annual practicing fee to the registrar. The only persons exempted from those licensed by Chief Judge by Warrant to practice law in Nigeria under subsection 2 and 3 of section 2 of LPA.

Also the statutory nature of the payment is further reflected in the provision of section 23(2) of the LPA which prescribes how the NBA Association shall ensure accountability of the annual fees. Also, the statutory support for Annual fees is reflected in the fact that the LPA designated a special subsidiary legislation known as Legal Practitioners (Bar Practicing Fees), Notice. The said law prescribed for the annual practicing fee of all legal practitioners from Senior Advocates down to the latest green wigs. Therefore, it will be hard for the purported deletion of sections 9 and 12 of RPC by the HAGF to have any effects on the position of LPA on annual practicing fee.

Again, assuming but not conceding that the amended RPC by AGF stands, it is factual that the LPA still recognizes the need for payment of annual practicing fee as condition precedent for any lawyer to practice in Nigeria. Thus, the effect of this act of the AGF is that it pitched the purported amended RPC to be in conflict with the parent law that gave birth to it, that is the LPA. And the position of Nigerian law is clear on what happened where there is inconsistency between a parent law and the rules that emanates therein. The law is that where a rule conflicts with statutes that rule will give way to that statute.[9]

Also by purportedly deleting Rule 10 of RPC 2007, the HAGF is acting arbitrary and in violation of section 12(4) of the LPA. Because he lacks the authority to amend the RPC ab initio, the exercise of that power is of no any legal validity. These became more apposite when some of the members of the Bar Council say that they were not consulted and not aware of any act before the amendment by NBA.[10]  Thus his lack of consultation before amending the RPC is abuse of due process and such act cannot be recognized by the law.

Further, it is important to note that by deleting rule 10 of RPC the AGF is indirectly condoning the invasion of legal profession by quacks and impostors. This is because the essence of the Rule 10 of RPC is to prevent and safeguard legal practice from ‘marauders’ and ‘predators’. The position is reiterated by the Court of Appeal in the case of Uchi & Anor V Sabo & Ors [11]applaud the used of seal and stamp as a worthy innovation.

Again by deleting Stamp and Seal, the HAGF is clearing the coast for the would- be violators of section 22 of LPA. The said section provides that any person who is not a lawyer  practices, holds himself out as a lawyer, uses the title of a lawyer and  willfully prepares a document shall be liable to a fine or imprisonment for a term not less than two years.  The intention of the law makers on this provision is to prevent mischief and dubious characters that are likely to invade the legal   profession. It is a section that is meant to guard the noble profession from being abused by the unscrupulous members of the public. Thus, in order to protect the institution of the Legal Profession that the NBA initiated the concept of Seal and Stamp.

Another salient part of RPC that became the victim of the HAGF’s purported deletion is section 11 of the RPC. The said section 11 of RPC provides for Mandatory Continuing Professional Development (CDP). It is meant to serve as refresher courses for lawyers in Nigeria. Certain hours of participation are provided for and certificates were issued after the study. Therefore, by deleting section 11 of the RPC, the HAGF is undermining the growth and development of legal education in Nigeria.

However, the further effect of HAGF’s act put his exercise of power in the web of conflict with legislation. This is because of the following reasons. In the first place, by deleting the sections on Continuing Professional Development (CDP), the AGF is further tampering with the provisions of section 3 of the Legal Education (Consolidation, etc) Act. The said section provides that the Council of Legal Education has the additional responsibility of ensuring continuous legal education of lawyers.  By this proposition despite the purported deleting of section 11 of RPC, the position of law on Continuous Legal Education is still covered by section 3 of the Legal Education (Consolidation etc), Act. Thus, in case of conflict between in statutes and rule, the law accords superiority to the Act.[12]

With respect to the purported amended of section 13 of the RPC which deals with the notification of Legal Practice, the AGF’s act amount to affront on the right of the Bar as an Association.  By purportedly deleting this section from RPC, the AGF is offending certain provisions of the LPA. For example, section 16 (2) of the LPA provides that a legal practitioner or a firm shall not be able to claim his fees unless the bill of charges is prepared by that law firm or its partnership.

Apart from, the effect of deleting section 13 of the RPC, the action of the HAGF will have a dastard effects on legal practice. For example, the rules of the courts enjoined lawyers to provide for their address in case of services of court processes. Address for service is so important that, the Rules of Court sometimes direct that parties should sometime provide for address of service within jurisdictions. The need for lawyers to have well designated offices will help in communication and contact tracing. Where lawyers change their address is necessary that the NBA should be aware.

Furthermore, the other aspect of the preamble to the HAGF’S amended RPC that attracts for attention is references to “and all other powers enabling him on that behalf”. A curious mind will like to know what are those other laws that enabled him to unilaterally amend the RPC? While it is not the position of this writer to claim the knowledge of all the laws regulating the powers of AGF, however, the writer still maintains that the Constitution, neither the LPA nor other allied laws may equip him with powers. But in all these laws none accord him the exclusive powers to singlehandedly amend the law governing the destiny of over one hundred thousand Nigerian law professionals. It is the further expression of this writer that he is willing to have a contrary rebuttals or rejoinder against this position. This will further extend the frontiers of knowledge.

AN APPRAISAL EXPLANATORY NOTE OF THE PURPORTED AMENDED RPC, 2020

This part of the purported amended RPC, 2020 is only a further detail to the amendment. It does not have any legal implication on the force to be attended to the law.  The most interesting part of these amendments that is of interest to this work is reproduced as these:

These rules amend the rules of Professional Conduct for Legal Practitioner Act, 2007, the Law Officers Act, and the Constitution of the Federal Republic of Nigeria.

From the above provision one is prompted to ask how an act that is done in flagrant abuse of constitution can be said to be valid. It is the further position of this writer that in no way does the unilateral amendment of RPC by HAGF can in any way affect the Constitution of the Federal Republic of Nigeria, 1999. This is because the amendment of the Constitution cannot be unilaterally done by the HAGF. Thus, whatever rights and privileges accrued to HAGF in any other laws, it cannot in anyway affect the rights of lawyers’ association as a group.

Having examined the scopes and imports of the purported deleted sections, it is of further relevance to examine the effects of such purported deleted sections on the legal profession. This is the next task of this work at the subsequent paragraphs.

EFFECTS OF THE PURPORTED AMENDMENT OF RPC ON LEGAL PRACTICE AND NIGERIA’S JURISPRUDENCE

By amending the purported RPC, the following are the consequences that the legal profession may be facing. These include:

  • No payment of Annual practicing fee. This will emasculate the financial strength of the association.
  • Continuous legal education will cease to be. This will affect continuous update of knowledge in legal profession.
  • There will be problems in services of court processes in litigation. This is because the need for addresses of the law firm will become unnecessary. This will also affect the logistics of the Nigeria Bar Association.
  • Also, by deleting section 10, the AGF is indirectly authorizing the emergence of quackery and fake lawyers in the legal profession.

WAYS FORWARD

In light of the conundrum initiated by the AGF, it is the position of this writer that certain measures should be taken. The first thing is for the NBA to ignore the purported amendment by the AGF. NBA should not waste its precious time to challenge this act in court of law.  Rather, NBA should communicate the CJN and the other heads of courts, stating that its position on seal and stamp still stands. It is when the reactions from the CJN and the other heads of Nigerian courts are not favorable that NBA should resort to litigation.      

The NBA or its concerned members should be bold to petition the action of AGF to the BOSAN, African Bar Association, West African Bar, International Bar Association and other affiliated institution. This is because the aftermaths of his action is antithetical to democracy and capable of undermining the institution and democratic tenets in Nigeria.

There is the need for NBA to address the flaws inherent in its legal framework, leadership and administration structures. This development should be an eye opener for further strengthening the legal framework of NBA.  In leadership sphere, NBA should promote credible and transparency in election.

Another thing for NBA to do is to strongly advocate for the separation of the Office of the AGF from that of the Minister of justice. This will ensure where the loyalty of the AGF who is the statutory member of the Bar resides. Is it with the government in power or with the Bar?  Severing the two offices away from an individual will ensure the independence of the Bar and the Bench.

Again, other civil liberty organizations should join the Bar in this campaign to challenge the act of AGF.  Because if this is condoned, Nigerians will wake up one day and hear that either the AGF or the President has changed the Constitution without the inputs of the National assembly.

Lastly, the general bar council should issue an opposite statement reversing and condemning the purported act of the AGF. They should come out as a group to condemn the said attack. The voice of some of its members like Mazi Afam Osigwe is applauded, but the voice will be louder if the other members of the Bar council issue a statement as a group.

CONCLUSION

This work starts by examining the legal framework from which the HAGF derived his power. The work also established that the HAGF lacked the power to amend the RPC alone. The effects of the purported deleted sections of the RPC on the NBA and legal profession were examined. The work ends by recommending the ways forward on how to prevent the recurrence of such ugly incidence.

  1. [1]This is culled from the purported document alleged to the copy of the amended RPC,2020 that was trending the social media.

[2]2. .(2015)LPELR-40635(CA)@PP-34-38 Paras. E-A. Other cases are Yaki V Bagudu (2015) LPELR-25721(SC)  and Fawehnhimi V NBA NO. 2 (1989)LPELR-12S2(SC)

[3]3..Section1 (2) of LPA

[4]4..By section1 (3)LPA, 7 of these persons shall be legal practitioners who are 10 years post call..

[5]5 Section1 (4) of LPA

[6]6.Ibid

[7]7..(2020) 11 NWLR [email protected], Paras-A-B

[8]8. .Article 3 of The NBA Constitution (2015 as Amended)

[9]9.See Nwanieze V Idris &Anor (1993) LPELR-2104(SC). See also SEC V Big Tree PLC(2020) 5 NWLR PT. 1718

[10]10..Bridget Edokwe, ”Stamp and Seal: AGF Cannot Unilaterally Amend the RPC- Mazi Afam-Osigwe”@thenigerianlawyer.com<accessed on September 14th, 2020>

[11]11.Supra

[12]12..This position was upheld by the Supreme Court in the case of Univ.of Lagos  V.Aigoro  (1985) NWLR( Pt.1). in this case the court held that where there is a conflict between the provision of the Act and the rules of court, the statutes  shall prevail.