Award or Denial of SAN Is an Absolute Privilege, Immunizes the LPPC From Lawsuit, No Matter How Wrongful The Action/Inaction Is (Part 2)
(by udems)
In
the Part One of
this discussion, published under the title, “Can A Court Restrain or
Compel the Legal Practitioners Privileges Committee (LPPC) In Respect of Award
of SAN In Nigeria?”, I had held the view that no court can compel or
restrain the Legal Practitioners Privileges Committee in respect of process of
award of SAN. See also “Limits of Influence of Courts of Law In the Process of Award
of the Rank of SAN In Nigeria” The present part (Part Two) was
triggered by some reactions to the first part. One of such suc reactions went
thus:
“Although the rank of SAN is conferred at the
discretion of the LPPC, it has to be exercised according to the relevant extant
laws. The arising implication is that the discretion to be so exercised isn't
absolute, or without restraint. Besides, the LPPC doesn't enjoy any immunity
conferred on it against any legal action, in the event that its right of
discretion in the performance of its function isn't being or hasn't been
exercised according to law, or is being wrongly exercised in breach of the
law.”
With the
greatest respect to the lawyers who hold views represented by, or similar to,
the one reproduced above, or those who outrightly insist that “there is
nothing like absolute privilege," I think they all have completely
missed it. Absolute privilege exists in law, in some instances. The discretion
of the LPPC is absolute as far as powers given to it, by section 5 of the Legal
Practitioners Act (LPA) for conferment of the rank of SAN, goes. The
law recognizes certain occasions in regard to which the public interest
requires that a person or group should be protected from legal liability for a
statement or action even though the statement/action might be seen as
improperly made/taken or actuated by malice or wrong motives. This kind of
protection or privilege is of two kinds — absolute and qualified. Where the
privilege is “absolute", defendant’s malice does not destroy the
privilege, in view of its absolute character. Where the privilege is
“qualified”, presence of malice destroys the privilege.
Examples of
situations of absolute privilege include statements made in the course of
proceedings of Parliament, or published from those proceedings by authority of
Parliament and statements made in the course of judicial or quasi-judicial
proceedings. Action of the LPPC in denying or awarding the rank of SAN is
similarly absolutely privileged. The Black`s Law Dictionary (see page 1316, 9th
ed., by B. Garner) draws a clear distinction between absolute privilege and qualified
privilege. An absolute privilege is one that “immunizes the actor
from law suit, no matter how wrongful the action might be and even though it is
done with an improper motive”. A qualified privilege is one that “immunizes
the actor from law suit only when the privilege is properly exercised in the
performance of a legal or moral duty.” Award of SAN is not a qualified
privilege because qualified privilege arises in the course of performance of a
legal duty; award of SAN has absolutely nothing to do with performance of a
legal duty.
In view of
the above, I respectfully repeat my position, that the court cannot compel the LPPC to award
the rank, or to refrain from awarding same, to anyone. If it were otherwise,
many lawyers who obviously deserve the rank, but have apparently been
improperly denied same, would have flooded our courts with lawsuits, each
seeking to compel the LPPC to do the needful. Further, some lawyers who feel
they have been unjustly denied the rank, especially on account of petitions
(alleging professional misconduct), filed against them by some other persons,
would have approached the court to strike down LPPC`s decision using the
judgement in Amaechi v. INEC as their ground, because,
according to the Supreme Court, in that case, no citizen deserves to be denied
anything otherwise due to him, on account only of a mere allegation unproven
before a court of law. In Amaechi v. INEC (2008) 5
NWLR (Pt 1080), the Apex Court (per Oguntade. J.S.C):
“I say again
that convictions for offences and imposition of penalties and punishments are
matters appertaining exclusively to judicial
power. See Sokefun v. Akinyemi [1980] 5-7 S.C.
(Reprint) 1; [1981] 1 NCLR 135; Garba
v. University of Maiduguri [19861 1 NWLR (Pt. 18)
550. An indictment is no more than an accusation… The jurisdiction and
authority of the courts of this country cannot be usurped by either the
Executive or the Legislative branch of the Federal or State Government under
any guise or pretext whatsoever….It is not a simple matter to find a citizen
of Nigeria guilty of a criminal offence without first ensuring that
he is given a fair trial before a Court of Law….It is simply impermissible
under a civilized system of law to find a person guilty of a criminal offence
without first affording him the opportunity of a trial before a court of law in
the country. …Indeed, it is a subversion of the law and an unconcealed
attempt to politicize the investigation and prosecution of criminal offences.”
Beside the
aforesaid, "privilege" is an exception to legal right or duty;
failure to grant a privilege does not subject the actor to any form of
liability, unlike a breach of duty, which subjects the actor to some liability
(Garner, Ibid). A privilege is awarded, granted, or given, unlike a
right which is an inherent, irrevocable entitlement held by all citizens or all
human beings from the moment of birth. The word "granting" is crucial
to understanding the difference between "privilege" and
"right". As rights are not granted/awarded/conferred by anyone, they
cannot be taken away or altered by anyone. Rights are inherent; they belong to
all of us equally, simply by virtue of the fact that we are human. Indeed,
properly understood, the Constitution does not exist to give us our rights, but
to protect the rights we are born with. Privileges, on the other hand, do not
belong to all. They are given to some and withheld from others. Privileges are
unequal by nature. Denial of privilege does not result in any legal liability,
unlike denial of right. This is why grant of the rank of SAN is a mere
privilege, not a right.
Although,
sometimes, grant of privilege is conditional, fulfilment of such condition(s)
does not automatically entitle one to the privilege. This is the case with
award of SAN by the LPPC, because there is no legal duty upon the LPPC to award
the title to a person merely upon that person`s fulfilment of all set
conditions. In effect, fulfilment of such conditions is merely an invitation to
treat. Until LPPC actually confers the rank upon a person and the person in
turn accepts same, an offer cannot be said to have been made to such a person,
capable of being accepted in order to give rise to an enforceable contract. The
LPPC usually advertises that applicants should come forward and fulfil certain
conditions, to prove they are suitably qualified for consideration for the
award of the rank of Senior Advocate of Nigeria (SAN), which appears to be in
the nature of an offer, made to the whole world, as was the case in Carllil
v. Carbolic Smoke Ball [1892] EWCA Civ 1, that could be accepted
by one or a group to give rise to a binding and enforceable contract. In that
case, the court had held that an advertisement containing certain terms to get
a reward constituted a binding unilateral offer that could be accepted by
anyone who performed its terms. This is different from the advert or call for
applications by the LPPC, because, unlike was established in the Carllil case,
there is in the present case, absence of any indicated intentions or assurances
on the part of the the LPPC. Thus, whether one fulfils the advertised
conditions or not, the LPPC does not have any duty or legal obligation to award
you SAN. A legal obligation is a legal duty that an individual can be forced to
perform or penalized for neglecting to perform.
Finally, the
difference between a privilege and a right may also be explained by reference
to "power" and "duty". The LPPC has a power, but not a
duty, to award SAN. Its power here is discretionary, and the manner of exercise
of the discretion is not compellable/enforceable. There were two perfectly
obvious examples, among many, of wrongful denial of the rank of SAN to
obviously deserving lawyers in Nigeria. One was the case of Chief Gani Fawehinmi
and the second was the case of Mr. Femi Falana. Each of whom had been denied
the SAN rank for so many years. Of course, each could have gone to court to
compel the LPPC; yet, neither went to court; this, perhaps, was/is because they
knew such suit would not succeed in court, since award of SAN is an absolute
privilege entirely within the power of the LPPC to grant to whomsoever it
pleases. Another case was reported of Dr. Olumide Ayeni who finally got
awarded the SAN rank in 2020, upon his 10th application. He was denied the rank
on nine previous occasions, yet he did not go to court. This perfectly
illustrates my point that, although anyone who is denied the rank is entitled
to go to court, the case would fail for the reason I have set out in my earlier
submissions. Similarly, anyone who drag the LPPC to law for purposes of
compelling it to withhold the award from any lawyer to whom the LPPC has
decided to award same, is merely chasing after shadows. This, I respectfully
submit, is the fate of the case filed by Hon. Friday Sani Makama, at the
Federal High Court, against the LPPC, for nominating Barrister Abdul Wahab
Mohammed for the title of Senior Advocate of Nigeria (SAN). (“Former Kogi House
Of Assembly Member Sues LPPC For Nominating Abdulwahab Mohammed as SAN”;
(published on TheNigeriaLawyer)
This is my humble opinion, without prejudice to whatever the court may choose to do.
Respectfully,
Sylvester
Udemezue (udems)
08109024556, [email protected]
----------------------------
POST SCRIPTUM:
In respect of complaints regarding rampant
withholding of the SAN rank from, or undue delay in awarding the rank to, lawyers who are genuinely deserving of same (Fawehinmi, Falana, Ayeni, etc), please, permit me to recall
my comment in 2009, which remains my position till date:
“[the] argument that giving the title to too many lawyers a year would diminish the prestige of the office and high standing of the law profession is untenable. After all, there is really no justification for denying some deserving applicants of the title if truly it is based on merit; what is good for the goose is equally good for the gander."
(See: Udemezue, Sylvester, 'Senior
Advocate of Nigeria: To be or not to be' (Vangaurd.com, September 03, 2009)
<https://www.vanguardngr.com/2009/09/senior-advocate-of-nigeria-to-be-or-not-to-be/>
accessed 25 November 2020
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