Sunday, 30 August 2020

An Expository Inquisition into the Hallowed Place of Nigerian Bar Association as the Most Far-Reaching Regulator in Nigeria`s Legal Profession

     An Expository Inquisition into the Hallowed Place of Nigerian Bar Association             as the Most Far-Reaching Regulator in Nigeria`s Legal Profession

 


By Sylvester Udemezue

 

Background

 

I had on 29 August 2020 read a very enlightening commentary by a very respected learned silk and human rights advocate on the sad state of affairs within the Nigerian Bar Association, among other issues, especially as they relate to membership of the Association and threat by some allegedly aggrieved NBA members to pull out. An aspect of the learned silk`s commentary had suggested that “Even though the NBA is represented in these statutory bodies it does not have the legal capacity to regulate the conduct of any lawyer who has been called to the Bar in Nigeria.” Although I do not agree with this statement, it was a comment I saw later, on 30 August 2020, on a platform that goes under the name “NBA Matters,” which informed my decision to immediately do the present paper. A learned friend, Mr. Olasupo Ojo had written that “NBA is not a union but an ordinary association like that of pepper sellers registered with the CAC. Go and dig deep pls.”  I had decided to take up the challenge, and I have dug deep. The present commentary is the result of my “digging deep.” I hope my friend, Mr. Olasupo Ojo and indeed all Nigerian lawyers would read this and see that NBA is not like a “pepper-sellers` association,” but is an association of all lawyers duly called to the Nigerian Bar. Beyond this, and with the greatest respect to both the learned silk and my friend, Mr. Ojo, I hold the view that the NBA is not just a regulator in Nigeria`s legal industry, but indeed the most far-reaching regulatory body within the legal profession in Nigeria. I start by looking at the limits of section 1 of the Legal Practitioners Act, which purports to confer powers respecting “general management of the affairs of the Nigerian Bar Association” on the General Council of the Bar/Body of Benchers. I then proceed to discuss and offer examples and legal authorities, to illustrate the protuberant role and status of the NBA as a regulator of the legal profession in Nigeria. There is no doubt that, as I try to also show, beside the aforesaid, the NBA is represented in almost all other institutions, bodies and organs within the legal profession. I pray and hope that my learned seniors and friends, and indeed all NBA enthusiasts, onlookers and researchers, would find my humble efforts and contributions in this respect relevant and useful. So, help me, God! Happy reading, please!

 

Does the General Council of the Bar Manage The NBA?

Although under section 1 of the Legal Practitioners Act, CAP L11, LFN, 2004, (before the 1994 amendment, that is , Decree 21 of 1994),  the General Council of The Bar (GCB) (to be hereinafter called “the Bar Council”) has the power for  “general management of the affairs of the Nigerian Bar Association” (NBA), powers of the Bar Council over the NBA are made subject to such “limitations for the time being imposed by the Constitution of the Association.” So says the same section 1 of Cap L11. Note that the powers given to the Bar Council under section 1 of the LPA were later transferred to the Body of Benchers vide section 2 of the Legal Practitioners Act, (Decree 21) of 1994.The Bar Council is out of the way, by virtue of Decree 21 of 1994, as far as management of the affairs of the NBA is concerned. But one question then arises:  Does Body of Benchers (BOB) now manage the affairs of the NBA? In my humble opinion, the answer is NO! Let us check out the current position of the law.

 

Does the Body of Benchers Manage The NBA?

In reality, attempts by the Body of Benchers to manage the affairs of the NBA have always been met with stiff resistance because section 1 of the same LPA, CAP L11 expressly provides that any decision of Bar Council (now the BOB) under that  provision “may be revoked or modified by the Annual General Conference or any general meeting of the Association.” Such modifications are found in section 6(a) of the NBA Constitution, as amended, which clearly has almost taken all such powers away from the GCB/BOB. Please note that in this respect, and by virtue of section 1, of Cap L11, LFN, 2004, the provisions of the NBA Constitution SUPERSEDE any powers of the GCB/BOB under section 1 of LPA, Cap L11. This means that the powers given to the GCB/BOB are meaningless since they cannot be exercised except/unless with the NBA`s permission, and to the extent that the NBA permits. This buttresses the fact that NBA is on its own a regulatory organ (a Regulator) in the Legal Profession. From the aforesaid, it is obvious that Legal Practitioners Act (LPA), Cap L11, has clothed the NBA with statutory powers to VETO decisions of GCB or BOB in respect of the affairs of the NBA, thus testifying to the far-reaching nature of NBA’s status as a Regulator in the legal industry

 

Extent of NBA`s Veto Powers

Now, someone may want to ask another question: How does the NBA veto or how has the NBA vetoed the powers of the GCB/BOB in this respect? The Constitution of the NBA in section 6(a)(i)-(iv)) has specifically excluded the powers of the General Council of the Bar or the BOB in respect of the following:

(1) Any control over the Budget or finances of the NBA;

(2) The power to appoint representatives of the NBA to any statutory or other body;

(3) The power to issue public statements or purporting to express the view of the NBA upon a matter of public interest or upon a matter affecting the interest of the legal profession generally; or

(4) The power to make arrangements (including the drawing of an agenda or choice of venue of meetings) for the Annual General Conference or any other meeting of the NBA.

 

NBA`s Role in Fixing Bar Practicing Fees

Although the powers of the GCB to fix Practicing Fees was transferred to the BOB by the 1994 LPA (Decree 21 of 1994), nevertheless, the current position of the law is that the Attorney General of the Federation fixes the practicing fees BUT ONLY after consultation with the NBA. See also Legal Practitioners Amendment Act No 31 of 1999. Accordingly, by law, NBA is neither controlled nor managed by the GCB/BOB.

 

The Regulator versus A Regulator

Please, do not get me wrong; what I have said is that NBA is “a Regulatory Body.” I did not say that NBA is “The Regulatory Body.” The use of the word “a” is a clear indication that NBA is not the only Regulatory authority in the Legal Profession. There are others: The Body of Benchers (BOB), The General Council of the Bar (GCB), The Council of legal Education (CLE), The Legal Practitioners Privileges Committee (LPPC), The Supreme Court, The Chief Justice of Nigeria (CJN), The LPDC, etc. Each regulator, including the NBA, has its own roles and powers (in the legal profession) clearly defined by statute/law: (a) the Council of Legal Education (CLE) has the responsibility of prescribing standards for an admission into law faculties, into the Nigerian Law School (NLS), and into the Bar,; it also has exclusive responsibility for legal education of aspirants to the Nigerian Bar; (b) The Body of Benchers is in charge of discipline of lawyers, of formal call to the bar, and of prescribing Call to Bar fees, etc. (c) The LPPC confers and withdraws the rank of SAN; (d). The Supreme Court as a Regulator also disciplines lawyers under section 13 (1), LPA, Cap L11, LFN, 2004; (e)The office of the CJN is also a regulator in charge of some aspects of discipline under section 13(2) of Cap L11; (f). The GCB (General Council of the Bar) makes and revises the RPC and “prescribes” Practicing Fees, although the Federal Attorney-General now exercises this power (in his capacity as the chairman of the GCB) but in consultation with the NBA. The GCB also makes the Account Rules: see section 15 of LPA, Cap L11; (e). The Legal Practitioners Disciplinary Committee (LPDC), a committee of the BOB, is a disciplinary adjudicator within the profession; (f). NBA is also a Regulator. There are other regulators.

 

Specific Examples Of NBA`s Role as A Regulator; Note that NBA as also a Regulator is Statutory:

 

(1) The NBA investigates allegations of professional misconduct against legal practitioners;

 

(2) Where necessary, NBA has the responsibility of prosecuting allegations of professional misconduct before the LPDC;

 

(3) NBA has regulatory roles with respect to Mandatory Continuing Legal Education under Rule 11, Rules of Professional Conduct for Legal Practitioners (RPC), 2007. Note that RPC is a subsidiary legislation (it is a law in Nigeria) made pursuant to the Legal Practitioners Act, CAP L11, LFN, 2004, as amended. Accordingly, the RPC is an existing law in Nigeria;

 

(4) The NBA as a regulator prescribes STAMP and SEAL which gives an insignia of validity to any legal document prepared by a lawyer in Nigeria. See Rule 10, RPC 2007. This exclusive REGULATORY powers of the NBA to prescribe stamp and seal has since been judicially endorsed. See All Progressive Congress (APC) v. General Bello Sarkin Yaki SC/722/15 (reported as Senator Bello Sarkin Yaki v. Senator Atiku Bubakar Bagudu Ors (2015) LPELR-25721 SC); ), (2015) 18 N.W.L.R (Pt. 1491) 288, where the Nigerian Supreme Court ruled that any processes filed in court by a lawyer in Nigeria without affixing the Stamp and Seal prescribed and approved by the NBA Stamp & Seal is deemed to be not properly filed. Hear the apex Court:

“In the Appeal before the Supreme Court, just like in the instant Appeal, the documents in question purported to be signed and filed by a lawyer in his capacity as legal practitioner, did not bear "a seal and stamp approved by the Nigerian Bar Association." In a unanimous decision, the Apex Court unwaveringly and staunchly held that legal documents caught in this infraction are deemed not to have been properly signed or filed in accordance with the Rule.”

 

In ADEWALE & ANOR V. ADEOLA & ORS (2015) LPELR-25972(CA), the Court of Appeal (Per AGIM, J.C.A. (Pp. 16-17, Paras. D-A; 19-20, Paras. A- B, P 20, Para C-E) stated as follows

"It is not in dispute that the notice of this appeal and the appellant's brief of argument do not bear the NBA approved seal/stamp of learned counsel, Dr. Yemi Oke, who signed them, contrary to Rule 10 (1) of the 2007 Rules of Professional Conduct for Legal Practitioners which require that a legal practitioner acting as such legal practitioner, legal officer or adviser of any Government Department or ministry or any corporation, who signs or files a legal document must affix on any such document his seal and stamp approved by the Nigerian Bar Association. The said Rule 10 (1) provides that without such seal/stamp, the document so signed or filed by the legal practitioner shall be deemed not to have been properly signed or filed.… the fact that a legal practitioner possesses the seal or stamp but failed to affix it on the court process or document signed by him would not satisfy the requirement of Rule 10(1) and the process or legal document cannot be deemed to be properly signed or filed.See Josiah Cornelius Ltd and Ors v. Ezenwa (1996) LPELR-1632 (SC) and In Re: Osibakoro D. Otuedon (1995) LPELR-1506 (SC).”

 

The requirement of stamp and seal applies to all legal documents prepared by a lawyer. "Legal documents" shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any other similar documents. See Rule 10(2) RPC.

 

(5) NBA has the exclusive statutory regulatory role of issuing Bar Practicing Certificates to lawyers under Rule 12, RPC 2007;

 

(6) The NBA has the statutory regulatory role of supervising and regulating establishment and dissolution of Law Firms by Lawyers in Nigeria, under Rule 13, RPC 2007;

 

(7) The NBA plays some regulatory role in the process of prescribing Bar Practicing Fees, because the AG Federation must consult with the NBA before prescribing the Bar Practicing Fee. I have earlier discussed this.

 

(8) The NBA is not a creation of the statute. But, to be a regulator, a body need not be specifically created by a statute. You already know that NBA was registered as "Registered Trustees of NBA" under the Land (Perpetual Succession) Ordinance 1924, contained in CAP 98, LFN and Lagos 1958. By virtue of this registration on 8th of April 1983, Registered Trustees of NBA is a juristic personality, a legal person with full powers. Note that CAP 98, LFN 1958 became Part C, CAP 59, CAMA 1990 (later called CAMA, CAP C20, VOL III, Laws of the Federation 2004). By virtue of sections 695, CAMA 1990 (later S.612, CAP C20 CAMA, LFN 2004), and 679 (1) CAMA 1990 (now S.596, CAP C20, CAMA, LFN 2004), the registered trustees of the NBA are a body corporate with perpetual succession, common seal, power to hold property and to sue and be sued in its corporate name. Please note that Cap C20, LFN 2004 has now been repealed and replaced by the Companies & Allied Matters (Repeal & Reenactment) Act, 2020.The relevant sections in CAMA 2020 may be found in Part F (dealing with Incorporated Trustees); see for example sections 823, 825, 830, 836, 837, etc., of CAMA, 2020. 

 

(9) The NBA is not a itself creation of any specific statute, but it is severally recognized by Acts of the National Assembly and subsidiary legislation made pursuant to the Acts. Accordingly, the NBA has and plays vital (including statutory) regulatory roles within the Legal Profession; NBA is a full-fledged regulator. The court cases I cited above, all have acknowledged what is already the position of the law, namely that NBA is a regulator within the legal profession.

 

(10)                     Some have asked the question, whether the NBA plays any role in prescribing the standard of admission to the bar. With due respect, I am shocked at that question. May I remind us that sometimes, the NBA President doubles as the Acting Chairman of the Council of Legal Education.  Besides, the NBA is, and indeed must be, represented in all the other regulatory institutions and bodies in the legal profession. Both the National Judicial Council (NJC), the Body of Benchers (BOB), which are respectively the highest disciplinary organs in the Bench and the Bar, each has NBA`s representatives as mandatory members. As a mandatory requirement of extant laws in Nigeria, NBA-nominated representatives are mandatory members of the following bodies, among others -- NJC, BOB, LPPC, GCB, LPDC, CLE, National Human Rights Commission, Legal Aids Council.

 

(11)                     Even the Constitution of The NBA is Recognized by Statute and the Case Law: In N.B.A. v. KEHINDE (2017) 11 NWLR (PT 1576) 225 at page 246the Court of Appeal observed (per TUKUR, JCA):

“I agree with the arguments of appellant’s counsel to the extent that the NBA is statutorily recognized by the Legal Practitioners Act. This was why my Lord Hon.Justice Obaseki,(JSC) in the case of Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (No.2) (1989) LPELR-1259( SC)PP. 92-93,paras. C-E, (1989)2 NWLR (pt.105) 558 at p.628, paras. G-H while commenting on the status of the Nigerian Bar Association stated thus: ‘The Constitution of the Nigerian Bar Association … was accorded its due superior position by the Legal Practitioners Act, 1975 in the conduct of the affairs of the Nigerian Bar Association by the General Council of the Bar’”

Further Case Law Recognition of the Status of the NBA as a Regulator: In N.B.A. v. KEHINDE (2017) 11 NWLR (PT 1576) 225 AT 250 -251 paras H- A, His lordship, NIMPAR.JCA, stated as follows:

 

“The Nigerian Bar Association (NBA) was established for the purpose of regulating the affairs and conduct of all legal practitioners in Nigeria and upon being called to the Nigerian Bar, there is automatic membership to the NBA on a lawyer … “

 

This position was buttressed by the case of CHINWO v OWHONDA (2008) 3 NWLR (Pt. 1074) 341, at 361, where Court of Appeal declared as follows:

“The appellant was not compelled to take up the profession of law and its attendant compulsory membership of the Nigerian Bar Association. However, once he made the choice to study and practice law and thereby placing his name on the roll of honour of belonging to the profession, he stands bound by the internal rules and regulations of the Association. There would therefore be no issue of a breach of the Constitution of the country if the rules demand of him, UNDIVIDED LOYALTY”

 

Conclusion

 

Permit me to conclude this commentary by respectfully restating that the Nigerian Bar Association (NBA) is not just a regulatory body, but indeed is the most far-reaching regulatory body in Nigeria’s legal profession. As I earlier pointed out, aside from the fact that the NBA is an independent regulator, the NBA is itself also (mandatorily and statutorily) represented in almost all other regulatory bodies and institutions within the profession. This in effect means that, by law, the NBA is the only regulator in the legal profession, that has some say in virtually everything that happens everywhere in the legal profession. The highest courts of the land are therefore not mistaken when they acknowledge the hallowed status of the NBA as a core regulator in the legal profession. This position is unassailable in view of all the aforesaid. My learned seniors and friends may now agree that the NBA, as an association of noble and honorable minds, is not like the “Pepper Sellers Association.” The fact that the NBA is currently facing challenges has not diminished its hallowed status and the pride of place the NBA occupies in the Legal profession. I am proud to be a member of the NBA. Let every other lawyer in Nigeria feel as proud.  Let those who are unhappy sheathe their swords, bury the hatchet and let us all put hands on deck to salvage our profession. The duty and responsibility are ours, collectively, to help this great body, the NBA. Escapism is not the solution. As Joseph Fort Newton said, “a duty dodged is like a debt unpaid; it is only deferred, and we must come back and settle the account at least.” Said Barack Obama put it, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.” We are only as strong as we are united, as weak as we are divided. And as I had earlier written, “We’re each other’s business because upon the conduct of each depends the fate of all. Stronger unity within the profession is essential to timely realization of set goals. The deepest and sincerest form of communication is communion; even the weak become strong when they’re united. Where there’s unity, there you find progress, success and victory.”  (see https://www.lawandjustice.ng/2020/07/dissecting-focus-of-dr-ajibades-five.html)

I rest my case here.

Long live the Nigerian Bar Association!

Respectfully,
Sylvester Udemezue (udems)

[email protected]

(30/08/2020)


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