By Abubakar D. Sani, Esq.

This thought-provoking, if not outrightly provocative, question is fueled by the seeming ambiguity in relevant legislations pertaining to the subject, and not merely a desire to play the Devil’s Advocate. Nevertheless, it is surely startling to challenge the very basis of discipline, etiquette, probity and accountability in the supposedly noblest of professions.

And why, you may ask, will anyone(least of all, a legal practitioner of over three decades standing) raise such a poser? I assure everyone that the motivation is completely altruistic, prompted by no more than the demands of critical thinking, and a quest (at the risk of immodesty)for excellence. So, here goes.

Regulatory Over-view

That the 1999 Constitution is the grundnorm of our laws is trite. By virtue of Section 4(3) and Item 49 of the Exclusive Legislative in the Second Schedule to the Constitution, the National Assembly possesses the exclusive power to regulate “Professional occupations as may be designated by (it)”. The Assembly exercised that power in relation to the legal profession by enacting the Legal Practitioners Act, Cap. L. 11, LFN 2010 (“LPA”).I believe that, beyond Section 1 of the LPA, one would be hard-pressed to find any provision which specifically authorizes any person or body to enact the Rules of Professional Conduct in the Legal Profession (“RPC”). This has been the position for more than half a century (since 1962, to be precise) when the LPA was first enacted.

As for the aforesaid Section 1 thereof, it merely provides that: “(1) there shall be a body to be known as the General Council of the Bar (in this Act referred to as “the Bar Council”) which shall be charged with the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the Constitution of the Association) and with any functions conferred on the Council by this Act or that Constitution;

“(2) The Bar Council shall consist of:-

The Attorney-General of the Federation who shall be the President of the Council;
The Attorneys-General of the States; and
Twenty members of the Association
History of the RPC

The Legal Practitioners Rules of Professional Conduct were first enacted by the General Council of the Bar in November,1967, and were amended in1979; this amendment bears the imprimatur of the then Attorney-General of the Federation, Dr. (subsequently Hon. Justice) Augustine Nnamani, and was published in the Official Gazette of the Federation dated 18th January, 1980.The current edition of the RPC was made in 2007, by Hon. Bayo Ojo, SAN, the then Attorney-General of the Federation. Both versions of the Rules were apparently made pursuant to Section 1 of the LPA(see the Preamble thereto, which proclaims: “for general information, that the General Council of the Bar . . . in furtherance of the aims and objects of the Nigerian Bar Association under the Constitution of the Association as referred to in Section 1 of the Legal Practitioners Act and for maintenance of the highest standards of professional conduct, etiquette and discipline in terms of that Constitution, has made the rules of professional conduct in the profession as are set out hereunder”.

The NBA Constitution

It can be seen that apart from the LPA, the authority of the Bar Council to enact the RPC is supposedly derived from the NBA Constitution which proclaims one of its aims and objects as “the maintenance of the highest standard of professional conduct, etiquette and discipline”(see Section 3(1) (f) of the NBA Constitution 2015). This presumed power is clearly not a blank cheque, however, as Section 6 of the same Constitution categorically qualifies it, inter alia, as follows: “the statutory powers of the General Council of the Bar as provided pursuant to the Legal Practitioners Act shall not include:-

any control over the budget or finance of the Nigerian Bar Association;
the power to appoint representatives of the Association to any Statutory, Executive/Judicial or other bodies;
the power to issue any statements purporting to express the view of the Association upon any matter affecting the interest of the Legal profession generally;
the power to make any arrangements whatsoever (including the drawing up of an agenda or choice of venue) for the Annual General meeting or any other General Meeting of the Association”.
Applying the principle of statutory interpretation known as expressio unius est exclusio alterius, it would appear thatthese express limitations on the powers of the Bar Council over the general management of the affairs of the NBAsuggest that, to the extent that they are silent to on the conduct, discipline and etiquette of legal practitioners, the Council may legitimately regulate them: I believe that this would be a suggestio falsio, however, as in my view, the key words are those of Section 1(1) of the LPA, which simply charge the Council “with the general management of the affairs of the NPA”. It is trite that the object of every statutory interpretation is to determine the intention of the Legislature; this is to be deduced from the words used in the enactment.

In this regard, I doubt that anything in the entire provisions of the LPA (not just Section 1 thereof) even remotely suggests that the National Assembly intended to empower the Bar Council tomicro-manage the behavior of every legal practitioner in Nigeria in the way the RPC evidently does. I believe I am reinforced in this view by the fact that the aforesaid provisions of the LPA are general, whilst those of the NBA Constitution which enjoin the NBA to pursue the highest standards of etiquette, discipline, etc. are special. The legal effect of this is commonly expressed in the maxim generalia specibus derogant, or general things derogate from special things. This means that “where there are two enactments, one making specific provisions, and the other general provisions, the specific provisions are impliedly excluded from the general provisions”: see ATT-GEN. OF THE FED. Vs. ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472 and INAKOJU vs. ADELEKE (2007) 4 NWLR pt. 1025 pg. 423 @ 629.

In my opinion, the Council over-reached itself and exceeded its powers by purporting toprescribe a code of conduct for everylegal practitioner in Nigeria, as opposed to just their umbrella body, the NBA, which I believe is its specific remit under the LPA. I submit that directing the general management of an entity or group is vastly different from purporting to dictate or control how individual members of that organization or group behave or make personal choices.I believe that the latter is what the RPC represents and is its entire raison d’etre. The question is: does it have that power under the law? From the foregoing analysis, I humbly submit that the answer is an unequivocal ‘no’.

I believe that this conclusion is supported by the provisions of Section 27(3) of the Interpretation Act which stipulate that “where a body established by an enactment comprises three or more persons and is empowered to make subsidiary instruments, any such instrument may be executed under the hand of any two of the members thereof as may be authorized by such body generally for that purpose or specially on any particular occasion”.This is because, whilst at all material times the Bar Council consisted of 57 members, only Chief Bayo Ojo, SAN, the then Attorney-General of the Federation signed the RPC 2007. This, of course, assumes that the Bar Council possessed the requisite vires, vel non, to make the Rules. It didn’t, and,in my view, it still doesn’t.

Conclusion

The inevitable conclusion to be drawn from the foregoing is that the RPC is ultra vires the General Council of the Bar, invalid, null and void. This is regrettable, of course, but it is not beyond remedy. By way of a solution, I humbly recommend bold, proactive action by the NBA (in General Meeting), debating and adopting a brand-new RPC, in furtherance of the said aims and objectives of its Constitutionto maintain the highest standards of professional conduct, etiquette and discipline among Nigerian lawyers. I believe that this would be consistent with Section 10(2) of the Interpretation Act, which provide that: “An enactment which confers power to do an act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it”; See ATT-GEN. OF CROSS-RIVER STATE vs. OJUA (2011) All FWLR pt. 594 pg. 151 @ 169F. I posit that the General Council of the Bar simply has no role to play in this, as we are eminently capable of regulating ourselves, especially as the structures for enforcing infractions of the Rules (Legal Practitioners Disciplinary Committee, Appeal Committee of the Body of Benchers, etc) are already directly provided for by the LPA.

Written By Abubakar D. Sani, Esq.