Fmr NBA 2nd VP Ubani, Challenges Unilateral Amendment Of RPC, Drags AGF, Malami To Court

The former 2nd Vice President of the Nigerian Bar Association, Monday Ubani Esq, files an action in court challenging the unilateral amendment of the rules of professional conduct for lawyers by the Attorney General of the Federation.

In a suit, commenced by Originating Summons, the former 2^nd Vice President of NBA, and a human rights activist, based in Lagos, is challenging the powers of the Attorney General and Minister of Justice of the Federation, as the president of the General Council of the Bar, to unilaterally make and or amend the rules of professional conduct for lawyers.

In the said Originating Summons, filed by the human rights activist, he is seeking the determination of the following questions by the Federal High Court:

1. Whether given the combined provisions and proper interpretation of sections 6(6b), 36(1) and Section 251(q&r), of the Constitution of the Federal Republic of Nigeria 1999, as amended, section 23A, of the Legal Practitioners Act, which prohibits and removes the right of action or access to court by any person with respect to the management of the affairs of the Nigerian Bar Association, is not inconsistent with the constitution of the Federal Republic of Nigeria, 1999, as amended.
2. Whether by a community reading and proper interpretation of the provisions of sections 1(1&2) and 12(4) of the Legal Practitioners Act, which created and donated to the General Council of the Bar, the powers and responsibility of making rules of professional conduct, for the legal profession, the 1^st Defendant, in its official capacities, as the Attorney General and Minister of Justice of the Federation, and or as president of the General Council of the Bar, can unilaterally, alter, amend and or make any Rules of professional conduct, without a proper meeting of the General Council of the Bar, duly convened, and notices thereof, issued to other members of the General Council of the Bar.
3. Whether given the community reading of sections 1(1&2) and 12(4) of the Legal Practitioners Act, the Attorney General of the Federation, is given any powers to unilaterally make rules of professional conduct or to amend the existing rules of professional conducts for lawyers in Nigeria.

The following reliefs were also sought before the court:

1. A DECLARATION, of this honourable court, that the provisions of section 23A of the Legal Practitioners Act, as amended, is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and therefore null, void and of no effect whatsoever, to the extent of its inconsistency with the Constitution of the Federal Republic of Nigeria, 1999, as amended.
2. AN ORDER of this honourable court deleting or expunging section 23A, of the Legal Practitioners Act, as amended, for being inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
3. A DECLARATION that the Attorney General of the Federation, lacks the capacity, powers or vires to unilaterally make, amend and or alter the provisions of the Rules of Professional Conduct for legal practitioners, 2007, in his personal or official capacities, as the Attorney General of the Federation and or as president of the General Council of the Bar, without the input of other members of the General Council of the Bar, in a meeting duly convened and notices of the said meeting properly issued and served on the members of the General Bar Council.
4. A DECLARATION by this honourable court that the decisions and resolutions with respect to the management of the affairs of the Nigerian Bar Association, by the General Council of the Bar, especially, as it relates to the making of, and or amendment of the rules of professional conduct, can only be reached, or taken, in a meeting of the General Council of the Bar, properly convened by the Bar Council, through invitations, timely issued and served on all members of the General Bar Council.
5. AN ORDER of this honourable court, declaring the unilateral amendment and the gazetting, of Rules, 9(2),10,11,12 and 13, of the Rules of Professional Conduct for Legal Practitioners 2007,on the 3^rd of September 2020, via the statutory instrument No 15 of 2020, by the 1^st Defendant herein, as illegal, unlawful, unconstitutional and therefore null and void and of no effect whatsoever.
6. AN ORDER OF PERPETUAL INJUNCTION, restraining the 1^st Defendant, whether by itself in its official capacity or personal capacity, its agents, servants, employees, or howsoever and by whatever name called, from unilaterally altering, amending and or making rules of professional conduct for Legal Practitioners in Nigeria.
7. FOR SUCH FURTHER OR OTHER ORDERS OR RELIEFS as this honourable Court may deem fit to make in the circumstances of this case.

He contends that given the composition of the General Council of the Bar, as provided for in section 1(2) of the Legal Practitioners Act, that the Attorney General and Minister of Justice of the Federation, and the president of the General Council of the Bar, cannot unilaterally purport to amend, the rules of professional conduct without other members of the General Council of the Bar. He further opined  that any amendment of the rules of professional conduct for lawyers in Nigeria, can only be made by the General Council of the Bar, and not by the Attorney General of the Federation, in that capacity or the capacity of the president of the General Council of the Bar.

He further pointed out  that exhibit 1(which is a copy of the amendment of the rules of professional conduct), was clearly and unilaterally made by the 1^st Defendant in his capacities as the Attorney General and Minister of Justice of the Federation and the president of the General Council of the Bar. He argued that given the clear and unambiguous provisions of sections 1(1&2), and 12(4) of the Legal Practitioners Act, the 1^st Defendant alone, in its capacity as the president of the General Council of the Bar, cannot unilaterally amend or make rules of professional conduct for lawyers. Any rules of professional conduct for lawyers, pursuant to sections 1(1&2) and 12(4) of the Legal Practitioners Act, must be made by the General Council of the Bar, who is statutorily empowered by virtue of section 12(4) to make such rules.  He further argued that the express mention of the Bar Council which consist of the Attorney General of the Federation as president, the Attorney General of States, and 20 members of the Association, is a clear indication, that section 12(4)  of the Legal Practitioners Act, never envisaged a situation where the 1^st Defendant will amend the rules unilaterally in any capacity whatsoever. It was further his submission that in law, the express mention of a thing is an express exclusion of the things not mentioned.

It was further argued in the said suit, that paragraph 1, of the Exhibit 1, clearly show that the 1^st Defendant was wielding powers, not conferred on it by section 12(4) of the Legal Practitioner Act or any other law whatsoever. The opening paragraph of exhibit 1, provided as  follows:

In exercise of the powers conferred on me by section 12(4) of the Legal Practitioners Act, Cap L11, Laws of the Federation,2004 and all other powers enabling me in that behalf, I, Abubakar Mallamai,SAN, Attorney General of the Federation and Minister of Justice and President General Council of the Bar, make the following rules…”

It was further argued that by virtue of sections 1(1&2) and 12(4) of the Legal Practitioners Act, no powers were donated on the 1^st Defendant to either make, or amend the rules of professional conduct for legal practitioners. The powers to make or amend the rules of professional conduct were donated to the General Council of the Bar, which consists of not just the1st Defendant, but Attorney General of States and twenty members of the Association, by section 12(4) of the Legal Practitioners Act. Consequently, every rule of professional conduct made pursuant to section 12(4) of the Legal Practitioners Act, can only be made by the General Council of the Bar, and not by the 1^st Defendant who has no such powers. The court was referred to the case of AHMED v. ABU & ANOR(2016) LPELR-40261(CA), where the Court of Appeal held as follows:

It is now firmly settled that where a statute confers specific power on any person or authority for the performance of certain acts or duty it is only that person or authority and no other person that is contemplated in the performance of the acts or duty under the relevant Law. Only that person and none other can do that assignment and in strict compliance with the power vested in him by the relevant statute. Anything short of this cannot be endorsed by the Law. GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT.18) 550, EMUZE C. V. UNIVERSITY OF BENIN (2003) 10 NWRL (PT.825) 328. In BAMIGBOYE V. UNILORIN (1999) 6 SCNJ 295, the Supreme Court re-stated the Law, thus:- “The person to whom on office is delegated cannot lawfully devolve the duty upon another unless he be expressly authorized to do so …”Per AMINA AUDI WAMBAI ,J.C.A ( P. 29, paras. A-E )

He further argued that where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirement to the details. The non-observance in the process of reaching any decision renders the decision itself a nullity. BAMIGBOYE V. UNIVERSITY OF ILORIN (Supra), YEMISI V. FIRS (2012) LPELR CA/AK/02/2010.The position of the law, is that every action founded on a void act, is also bad and incurably bad. You cannot put something on nothing and expect it to stand. We refer my Lord to the case of Macfoy V UAC Ltd (1962) AC 152 at 160.

The Court was urged to declare the unilateral amendment and the gazetting, of Rules, 9(2),10,11,12 and 13, of the Rules of Professional Conduct for Legal Practitioners 2007, on the 3^rd of September 2020, via the statutory instrument No 15 of 2020, by the 1^st Defendant, as illegal, unlawful, unconstitutional, ultra vires, and therefore null and void and of no effect whatsoever.

Nkem Okoro, who jointly filed the action with Monday Ubani Esq, said they also asked the court to declare the provisions of section 23A of the Legal Practitioners Act, as unconstitutional for taking away the right of access to court by lawyers.

No date has been fixed for the hearing of the suit.