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Recently, the Nigerian Bar Association (NBA) Ikeja Branch marked its Annual Law Week, themed “Preserving the Legal Profession for Tomorrow”. Several eminent Lawyers and Judges were in attendance, some of them offering their own perspective as Keynote Speakers, on how best to achieve this call to action.
The Chairman of the Law Week Committee, Chukwudi Enebeli, SAN poignantly remarked in his programme address that:
“Many Lawyers no longer recognise their responsibility, to the Nation and the Profession. Some Lawyers feel that they owe a greater duty to their clients, over their duty to the Bar. We see the erosion of ethical standards. We witness a diminishing sense of mentorship. We observe a generation of Lawyers increasingly disconnected from the tradition of service, scholarship and social responsibility that once defined our calling. We are watching the slow dilution of legal excellence in the face of commercial pressures, and the growing perception of the legal practitioner not as an advocate for justice, but as a mere technician for hire. The ordinary man out there has almost lost faith in our profession, to the extent of preferring to take the law into their hands, instead of engaging the services of a Lawyer……. To preserve the profession for tomorrow, as members of this noble profession, we must recommit to a culture of self-regulation”.
How and where do we begin to address this challenge? How can we even go about achieving these objectives, bearing in mind that self-regulation itself has very broad parameters. As usual, the 1999 Constitution is the starting point.
The Need for an Administration of Justice Act
Since we obtained independence in 1960, all our Constitutions, 1960, 1963, 1979, I989 and 1999 have contained unduly elaborate Judicature provisions. The down side to this is that we can hardly self-regulate. The structure of our courts, the right to appeal and a lot more are all embedded in the Judicature provisions contained in the Constitution. If the Chief Justice of Nigeria, the President of the Court of Appeal and other appellate Judges and Chief Judges feel the need to create a new Court as with the National Industrial Court (a few years back) or perhaps, the need to curtail the right to appeal as of right in certain instances with regard either civil or criminal matters, a constitutional amendment would be required. This is hardly self-regulation or independence! Why should the CJN have to lobby lawmakers, not just at the National Assembly, but across the various State Houses of Assembly, in order to improve or implement desirable changes to the structure of our courts, or how we appeal both civil and criminal matters?
It’s for these reasons that an Administration of Justice Act, under which the CJN and other influential Judges in consultation with the Attorney-General and National Assembly can effect necessary changes from time to time to the Judicature provisions, without the need to go through a tedious and full scale constitutional amendment which would also require the consent of 2/3 of the Houses of Assembly in the Federation.
The US Constitution doesn’t have a specific section, dedicated solely to appeals in civil or criminal cases. However, several provisions touch on aspects related to appeals and the judicial process:
Relevant Provisions include:
•Article III, Section 2. This Section outlines the jurisdiction of the Supreme Court, including its appellate jurisdiction in cases involving Federal law or treaties.
– Habeas Corpus Clause (Article I, Section 9, Clause 2). This clause relates to the right to challenge detention or imprisonment, which can be relevant in criminal cases.
Appellate Jurisdiction – The Constitution grants Congress the authority to define the appellate jurisdiction of the Supreme Court and the lower Federal courts.
– Through legislation, Congress has established the framework for appeals in Federal courts, including the procedures and grounds for appeal. While the Constitution doesn’t explicitly guarantee a right to appeal, it provides a foundation for the judicial system and the structure of appellate jurisdiction. The specifics of appeals in civil and criminal cases, are largely determined by statutory law and judicial interpretations. The US has cultivated a less rigid approach to the appeals process, by allowing Congress to legislate in this regard.
It’s time for Nigeria to follow/adopt a similar approach, and become less rigid in the constitutional appeals process by opting instead for an Administration of Justice Act. It would allow for better fluidity, in initiating justice sector reforms.
Recorders of the Court of First Instance of the High Court
Trials are the bedrock of litigation, in any jurisdiction. Unfortunately our Judges spend an inordinate amount of time attending to interlocutory matters, and are not able to focus enough on trials. It’s time for Nigeria to create the position of Recorder, as is the practice in England and Wales and other Common law jurisdictions.
Hong Kong, for instance, operates a system of appointing part-time Recorders similar to that of England and Wales. The Recordership scheme was introduced in Hong Kong as far back as 1994, to encourage experienced practitioners who are willing to sit as High Court Judge for a few weeks every year, but are not prepared to commit themselves to a permanent, full-time appointment. It was intended to act as a more formal system of appointment, compared to the more ad-hoc nature of the appointment of Deputy High Court Judges (a system we once had here in Nigeria in the past).
Recorders are practitioners in private practice (senior Counsel) who are appointed by the Chief Executive (the equivalent of our Governors) on the recommendation of the independent Judicial Officers Recommendation Commission (JORC). The appointment is for a fixed term of a few years, during which the practitioner sits as a Recorder hearing cases in the Court of First Instance of the High Court for a few weeks a year. Recorders may exercise all the jurisdiction, powers and privileges of a full-time Judge of the Court of First Instance.
The qualification for appointment as a Recorder is the same as that of High Court Judge: that is, having practised for at least 10 years as a Barrister, Advocate, Solicitor or Judicial Officer in Hong Kong or another common law jurisdiction.
There is no conceivable reason why we can’t make similar appointments along these lines here in Nigeria, to assist our overburdened Judges with interlocutory applications, judicial review applications and originating summons applications. It would also serve as a useful pool in selecting full time Judges and perhaps, even Senior Advocates in the long run. We must strive to improve our judicial structure, and not remain unduly static. As in England and Wales, if we adopt this system here in Nigeria, it’s best the Recorder sits as a part-time circuit Judge. In short if you practice law in Lagos State for instance, you will be eligible to sit as a Recorder in any State other than Lagos, to avoid conflicts of interest with potential clients. It would also elevate the status and recognition of many senior Lawyers, who are neither Judges or Senior Advocates.
Academia and the Award of the title Honorary SAN
This would no doubt prove largely contentious particularly amongst our Senior Advocates, but the award of the prestigious title of Senior Advocate of Nigeria shouldn’t unduly become a cartel, and it’s only fair that the award should be subject to reform and changes from time to time.
In recent years, the number of Academics appointed to the rank of SAN has been drastically reduced from about ten appointees to one. The non-Academic Practitioners complained that it had become a much easier route to obtain the title through the academic route, and as a consequence, lobbied the Legal Practitioners Privileges Committee (LPPC) to have the numbers reduced. The irony however, is that the non-Academic Practitioners themselves have been unfairly striving and obtaining academic titles to add to their credentials, even though they are not proper Academics. Many have added the appellation of Doctor to their credentials, without actually obtaining a doctorate degree. Others call themselves Professor, even though they are no more than Visiting Professors in a University without a Chair. This is unfair to the true Academics. Who is going to stand up for them? In some cases, the academic title is purchased like a commodity.
The Government of Ghana has now banned the use of honorary doctorate titles by politicians, businessmen and religious leaders. Henceforth in Ghana, if you have not gone through the process and acquired a PhD in a recognised institution of higher learning, you cannot use the title of Dr. It’s time Nigeria followed suit, and pass legislation to this effect.
Furthermore, for fairness and balance in the profession, the LPPC should reserve a slot or two for the appointment of an Honorary Senior Advocate (Honaris Causa). This should be reserved for Lawyers who have distinguished themselves and contributed immensely to the development of the profession, and not necessarily as Practitioners in the Court room. Members of the National Assembly who are Lawyers and indeed, legal journalists who are committed and have dedicated themselves to passing meaningful legislation and reporting updates in the law that impacts positively on the profession, should also be considered for Senior Advocate Honaris Causa as is the practice in the UK. This would no doubt encourage our Legislators, to be more proactive in passing legislation that promotes justice sector reform. This is how to improve and preserve the profession.
Advocacy, Ethics and the Bar
Another area of concern touched upon during the Ikeja NBA law week, had to do with ethics at the Bar. A lot has been said over the years on the need for stricter ethics, with particular regard to advocacy at the Bar. Ironically, our Senior Lawyers have been pointing their fingers at their junior colleagues, without proper introspection amongst themselves.
A worrying trend has developed in the field of Arbitration here in Nigeria lately, and it’s threatening to cause immense damage to our standing in Arbitration disputes and it needs to be curbed immediately. Many of our Senior lawyers particularly the SANs act as Counsel or previously acted as Counsel for many commercial arbitration parties, and then subsequently, serve on an arbitration panel that involves a dispute between their client or former client, without making adequate or proper disclosure. This practice is most unconscionable, and most be stopped henceforth. How can these same Lawyers teach ethics at the Bar, if they themselves are compromised and engaged in unethical behaviour? The conflict of interest is glaring, and most other Common law jurisdiction Lawyers who are engaged in such unethical practices would be sanctioned, or in extreme instances, suspended or disbarred.
The SBL or SLP of the NBA need to take urgent stringent and immediate steps, to look into and curb this unethical malaise. It is probably one of the reasons why the same Arbitrators, are seen to clog commercial Arbitration here in Nigeria. It’s not competence as such, but an unethical cartel that is threatening the reputation of Arbitration practice here in Nigeria.
Conclusion
If we are to preserve the legal profession here in Nigeria for tomorrow, then we can no longer afford to be isolationist. It’s drawing us back. In this new age of technology and artificial intelligence, the legal profession must be able to meet the new challenges of the digital age. In my early days of practice, the ‘Grandees’ of the profession at the time, Chief Rotimi Williams, SAN; Chief GOK Ajayi, SAN and Kehinde Sofola, SAN but to mention a few, all had the latest English law reports and the White Book supplied to their respective chambers, and competition was about how to bring the new legal concepts as in those English and Commonwealth Countries into Nigerian law. That was how cases such as Kotoye v CBN- 1985 1 NWLR (Pt. 98) 419 on the grant of ex- parte orders of injunction and Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990 on the grant of Mareva Injunctions came about.
Today, we are lagging behind. There is no procedural exclusivity rule as of yet in initiating public and private law actions, and some basic tenets of procedure law such as discovery of documents are rarely utilised in our Courts, even though they’re within all the State High Court Civil Procedure Rules.
Greater exposure is needed, and our Lawyers need to become more internationally inclined and obtain international qualifications to practice in cross-border jurisdictions. The World has become one big global village, and the Nigerian Lawyer needs to be primed to be able to compete with Lawyers from other jurisdictions. We definitely have the ability, it’s just the desire to implement reform and change that’s becoming a problem.
Chukwudi Enebeli, SAN summed it up perfectly, when he wrote “To preserve the legal profession for tomorrow we must invest , not only in institutions and infrastructure but in people. Our young Lawyers must be given real opportunities, not just ceremonial mentorships. They must be equipped with the tools of modern practice, and more importantly, they must be exposed to the values that built the profession. Diligence, courtesy and respect for the rule of law”.
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