‘Notorious RBG’!
Rest in peace, Justice Ruth Bader Ginsburg (RBG), the second woman to sit on the Supreme Court of the United States of America – a strong advocate for women’s rights, and indeed, for fairness and equality for all. An Ivy League educated Lawyer, and an extremely sound Judge. Known for some of her dissenting opinions, one of the most famous being that of the case of Bush v Gore 531 U.S. 98 (2000) in which she opposed the majority decision which handed the election to George W Bush, on the ground that a recount of the votes in Florida was impractical. She referred to the majority decision as an ‘untested prophecy’, which ‘should not decide the Presidency of the United States’. Our hope is that, she will be replaced by someone equally as deserving of replacing her. May her soul rest in peace. Amen.
Fake “Barrister Chike”
I remember as a young Lawyer, a client of mine, a Bank, wanted to purchase a piece of land located in Victoria Island, to situate its Head Office. We held several meetings with the Seller’s Lawyer. We once visited the Lawyer’s office, and I must admit, it was rather dingy. I wondered how a Lawyer in such a face-me-I-face-you building, secured such a wealthy client! One of the Bank’s staff who was handling the transaction with us, travelled home to his village which happened to be adjacent to the village of the Seller, and we agreed that he should pay a visit to the Seller, since he had been represented by the Lawyer throughout the negotiations, and no one had actually met him. To our shock and dismay, the Seller told the Bank staff that he had not instructed anyone to sell his property. In fact, when the Bank staff mentioned the name of the so-called Lawyer, “Barrister Chike” (as he fondly called himself), it turned out that he was a fake Lawyer, a ne’er do well who had connived with some unknown people/relatives to sell the Owner’s land behind his back! Of course, in those days there was no stamp and seal, which would have been the quickest way to ascertain whether Barrister Chike was truly a legal practitioner on the Roll, and qualified to practice for that year.
Stamp and Seal
Be that as it may, the jury is still out on the usefulness or need for the stamp and seal. Some believe that even if Lawyers are constrained to use it, at least the first pack should come as part of the practising fees package, at no extra cost. Many insist that it is the fastest way to weed out fake Lawyers, curtail their activities and inject more sanity into the legal profession, while others disagree and argue that, not only has it not done much to stem the tide of fake Lawyers like Barrister Chike, it is an added cost burden on Lawyers, whose only purpose is to boost the NBA’s revenue; that it is also an inefficiently run system, as annually, Lawyers have to wait for months after payment to receive the stamp and seal – and they end up attaching receipts of payment of practicing fees to documents in lieu of the stamp and seal, until they are finally available for use.
Section 2(1) of the LPA provides that subject to the provisions of the LPA, “a person shall be entitled to practice as a Barrister and Solicitor, if and only if, his name is on the Roll”, while Section 8(2) of the Legal Practitioners Act (LPA) gives legal practitioners the right of audience in any court, once their practicing fees have been paid. This means that the LPA recognises the payment of practicing fees, as the only pre-condition for a legal practitioner to be qualified to practice (apart from obviously having the necessary educational qualifications). See the case of Yaki v Bagudu 2015 18 N.W.L.R. Part 1491 Page 288, where the Supreme Court lent its support to the stamp and seal regime. See Section 3 of the Law Officers Act which allows certain law officers in Government employ, to practice without the payment of practising fees. The LPA was never amended to include Rule 10 of the Rules of Professional Conduct 2007 (RPC), which makes the use of the stamp and seal mandatory, and deems all legal documents signed or filed without the affixation of the stamp and seal, improperly signed or filed.
Amendment of the RPC: Matters Arising
Recently, the Honourable Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN (AGF), President of the General Council of the Bar (GCB) by virtue of his position as AGF (Section 1(2)(a) LPA), issued a Statutory Instrument in which he purported to delete Rules 9(2), 10, 11, 12 and 13, under the Section A Practice as Legal Practitioner of the RPC. This move can be faulted, on several levels.
First, the AGF does not have the powers to make the amendments unilaterally, as the Section 1(1) & (2) of the LPA vests the power of making regulations on the GCB, and not the AGF alone. Second, there is no evidence that a meeting of the GCB was convened and held, to deliberate upon the amendments before they were made. Though by virtue of Section 1(2)(a-c) of the LPA, there are 57 members of the GCB, while a quorum of the GCB is eight (Section 1(4) LPA), the LPA does not clearly state how GCB meetings should be held; however, it is implied that for there to be a quorum, there must be a meeting. Last week, we had five submissions on the amendment of the RPC, four claimed outrightly that the GCB never met, and that the amendment was a unilateral decision of the AGF. The fifth stated that there were consultations on the amendment, but admitted to not knowing how wide the consultations were. The question is, whether such consultations qualify as being sufficient enough power, to make the amendments.
Certainly, the onus has shifted back to the AGF to prove that the LPA was strictly adhered to in amending the RPC; that a meeting was held, and at least eight members (quorum) present, assented to the amendments. Furthermore, Section 27(1) of the Interpretation Act requires that in such a body as the GCB which is established by statute and comprises of more than three persons, any act carried out by the body must be done by the majority or a quorum, and any instrument thereto must be executed by at least two people. Third, it was only the AGF that executed this particular Instrument, which is ultra vires his powers. Fourth, the deletion of Rule 9(2) on default of payment of practising fees, seems to violate Section 7(2) of the LPA which mandates the payment of practising fees, to be eligible to practice, at least for legal practitioners not in Government employ.
Fifth, and more interesting, is the allegation against the AGF, that he made the RPC amendments to support and pave the way for the Northern proponents of the ‘New Nigerian Bar Association’ (NNBA), and that he is also being supported by those who felt disgruntled by the outcome of the 2020 NBA elections, and are therefore, seeking to destabilise or fragment the NBA as a result of their disenchantment.
While it is only the AGF (and the so-called disgruntled members of the NBA) that can confirm the reasons behind the stand taken, we can however, make some germane observations about the AGF’s latest move – it has the resultant effect of allowing any Lawyer in Nigeria to practice without being a member of the NBA. The consequence of the amendments, is that it erodes the monopoly which the NBA has enjoyed for the past 60 years, on the regulation of the legal profession and the practice of law in Nigeria.
The truth of the matter is that, had the NBA not become somewhat disunited after the 2020 elections and the El Rufai saga, maybe this issue would not have arisen in the first place; maybe the AGF would not have been confident enough to go full throttle with these amendments under this cloud of non-consultation, even going as far as gazetting them ‘with immediate effect and automatic alacrity’, as Chief Eleyinmi of the Village Headmaster television series of those days would say! The unity and interest of the NBA which the Board of Trustees claimed that they were seeking to protect, in coming to their somewhat bizarre decision to uphold the 2020 elections despite all its flaws and lapses, seem to, nonetheless, be at stake now with these deletions from the RPC, because splinter groups can now be formed without having to be members of the NBA, unlike the sectional/ethnic Associations which are already in existence, but are offshoots and still part of the NBA. It is of no moment, that the NNBA may claim that it is not seceding from the NBA – if these amendments are tested in court and they stand, then be it the NNBA or any other group, there will no longer be a need to have any connection with the NBA, to be legal practitioners in Nigeria.
Constitutionality
Most importantly, the question as to the constitutionality of the rules that were deleted from the RPC vis-a-vis the provisions of Section 40 of the Constitution is crucial – that is, freedom of association to pursue your interests. Are rules like the ones that the AGF deleted from the RPC, which constrain Lawyers to be members of the NBA which is a voluntary Association, constitutional? I think not. One can only imagine that, this will be one of the issues that will be tried in court, in order to lay the matter to rest once and for all.
Conclusion
For now, until such a time that the AGF’s amendments may be overturned by the courts, the position is simple – for those who choose to continue to use the stamp and seal like my humble self, so be it; and for those who do not want to, they now have the choice not to use it. Still yet, for those who do not want to be members of the NBA, they are no longer constrained to be – unless there is an injunction granted to maintain the status quo ante bellum, until the final determination of the case.
I must say that I was quite amused, when I heard complaints that the AGF didn’t follow due process, and some of the quarters from which the complaints emanated from – ‘pot calling the kettle black’! Don’t people, including the NBA, just do as they please these days, constitution or not, rule of law or not? I had previously warned that the fallout from a questionable election where the rule of law was treated with outright contempt and blatant disregard by the highest levels of the NBA, would only lead to additional anarchy. Even if the speculations are true – that those who were disgruntled with the outcome of the election have teamed up with the AGF to make these amendments, thereby whittling down the powers of the NBA – so what? The spirit of the democratic dispensation which we are in, gives us that freedom of choice and association. If I am dissatisfied with an Association, I should have the right to leave, if I so desire. After all, the NBA is not a secret cult where anyone has taken a blood oath to be a life member – it is a voluntary organisation.
All the same, there is something to be said for having uniform rules emanating from one body, that guides the conduct of a profession, especially in a complex country like ours, which has diverse standards. Hopefully, the AGF and the NBA, will come to a meaningful resolution.
