By Sylvester Udemezue
Memory Verse:
By virtue of section 1(1) of the LPA, CAP L11, LFN, 2004, any decision of the General Council of the Bar or the Body of Benchers with respect to the “affairs of the NBA” may be revoked or modified by the NBA.
(1) The BOB (BODY OF BENCHERS) as established by section 3 of the Legal Practitioners Act CAP L11 LFN 2004, as a statutory institution, is susceptible to government control or influence judging from its membership composition. The affairs of the Bar in most countries of the world is run/managed by the leadership of the Bar Association, an independent organisation elected in a periodic democratic election. In the UK, the bar (solicitors) is run by the Law Society of England. www.nysba.org reports that “the New York State Bar Association (NYSBA) has been the voice of the legal profession in New York state for more than 140 years. The www.americanbar.org reports that the American Bar Association is the national voice of the Bar in the USA. The Law Society of Kenya runs the affairs of the bar in kenya. In Canada, as reported by flsc.ca/about-usery lawyer in Canada and notary in Quebec is required by law to be a member of a law society and to be governed by its rules. According to the website, “The Federation of Law Societies of Canada is the national association of the 14 law societies mandated by the provinces and territories to regulate Canada’s legal profession in the public interest. It is the body through which Canada’s law societies collaborate at the national level, share information on trends and issues affecting the legal profession, and engage in collective action and decision-making. The Federation is also the law societies’ national and international voice on important issues related to the regulation and core values of the legal profession” Similarly, the Australian Bar Association is the peak body representing barristers throughout Australia. As reported by austbar.asn.au, The barrister profession in Australia is represented in each of the States and territories. Barristers are regulated by the Bar for the jurisdiction where they practice. All state and territory Bar Associations are members of the Australian Bar Association. The Bar is a private institution and must be managed and presided over by a private independent body like the NBA.
(2) The only leadership installed by all the lawyers in Nigeria, through a general election, to run the affairs of the Bar, is the NBA leadership. The leadership of the BOB was installed by only about 80 persons, none of whom was elected to represent any segment of the Bar. A leadership installed by 80 persons should not run the affairs of about 200,000 lawyers in Nigeria.
(3) Membership of the BOB comprises persons from both the Bar and the Bench. Section 3(1) Legal Practitioners Act, CAP L11, LFN 2004 provides, in that, the BOB shall “consist of the following members, that is- (a) the Chief Justice of Nigeria and all the Justices of the Supreme Court; (b)the President of the Court of Appeal (c) the Attorney-General of the Federation and Minister of Justice; (d) the Presiding Justices of Court of Appeal Divisions; (e)the Chief Judge of the Federal High Court; (f) the Chief Judge of the Federal Capital Territory, Abuja; (g)the Chief Judges of the States of the Federation; (h)the Attorneys-General of the States of the Federation; (i) the Chairman of the Council of Legal Education; (j)the President of the Nigerian Bar Association; (k)thirty legal practitioners nominated by the Nigerian Bar Association; and (l) such number of3 persons, not exceeding ten, who appear to the Body of Benchers to be eminent members of the legal profession in Nigeria of not less than 15 years post-call standing”. For God’s sake, leadership of the Bench (SC) is made up of only members of the bench. The affairs of the Bar should similalry be managed/run by ONLY members of the Bar.
(4) Judges who are BOB members are susceptible to government influence and control, and cannot effectively and independently speak for the Bar. Only an independent association (like the NBA) which is 100 percent free of government link or influence, can speak for the Bar, and speak truth to power.
(5) The BoB has performed woefully in the job of lawyers professional discipline which is legally assigned to it. The reward for good performance is more responsibilities. While the reward for woeful performance is that nothing more will be given to you. The BOB has failed woefully in discharging that function; the Legal Practitioners Disciplinary Committee (LPDC) is very ineffective, especially because it is allegedly controlled and unduly influenced by the BOB which reportedly doesn’t allow the LPDC to function effectively. The result is that discipline at the Bar is in a coma, because the LPDC cannot function effectively. One other reason the LPDC is in a coma, is because, instead of settling down on its statutory role of lawyer professional discipline, which is very enormous and strenuous, the BOB appears of late to be more interested in, indeed carried away by, working to change all extant laws with a view to wrestling controlling authority from the NBA, and all others regulators including even the Council of Legal Education. So, no one should look any further for reasons why discipline at the bar is in a coma; the body that ought to perform that role is busy pursuing other needless objectives.
(6) With due respect, the role of making or proposing laws and or reforms to extant laws at the Bar in Nigeria, is not not that of the BOB but of the NBA as the undisputed leader of the Bar with clear-defined and unambiguous-delineated, statutorily-endorsed objectives which include proposing and promoting law-making and law reforms especially for the Legal Profession, etc. See section 3(5) NBA Constitution, a statute-approved document and which, as a result, is an extant law in the legal profession in Nigeria
(7) Go and check the proposed/draft LPA Bill, being sponsored by the BOB. Almost all of its contents are targeted to make the BOB the Almighty God of the Legal Profession (the Bar) in Nigeria. BOB’s plan is to take over some powers of other regulators and give to itself. Why? How far has the BOB performed in the one job legally assigned to it? The reward for good performance is more responsibilities, as I said earlier. Lawyers’ professional discipline in Nigeria is so weak and ineffective that a Professor of Law, Charles Adekoya recently declared that many Nigerian lawyers cannot practice in the United Kingdom “due to their [Nigerian lawyers’] penchant for sharp practices and unethical conduct”. According to the renowned Learned Prof, many Nigerian lawyers would have lost their licenses or been fined on the grounds of unprofessional practices. Hear the Prof: “a Barrister could be sanctioned for unnecessarily appealing against a concluded matter or for bringing an appeal that is baseless, including the award of cost and report to the regulatory body which might lead to the Barrister being debarred. Many of our colleagues could not practise in the UK as they would have had costs awarded against them or even lose their licences on grounds of unethical or professional misconduct”.[See: “Why many Nigerian lawyers cannot practice in UK – Varsity Don”; December 15, 2022: Daily Post]. On the other hand, in February 2020, some prominent lawyers in Nigeria were fined by the highest court in the land for filing frivolous suits. Till date, there is no evidence they’ve paid the fine. The Cable had reported on 15 February 2020, that “The supreme court has imposed a N30 million fine on Afe Babalola and Wole Olanipekun, two senior lawyers, over the application for a review of its judgment on Bayelsa governorship election”. Hear Hon Justice Amina Augie, JSC, who read the lead judgment on behalf of the seven-man panel of the Supreme Court: “With tears in my eyes, I cannot believe that in my lifetime, I would see very senior members of the bar bring applications of this nature to this court which are aimed at desecrating the sanctity of this court, violating the principles and decisions of this court and destroying the esteem on which this court is held. The applications are vexatious, they are frivolous and gross abuse of court process. In the circumstances, the two applications are hereby dismissed and the cost of N10 million each is awarded against the first, second and third applicants respectively in favour of the first, second and third respondents to be paid personally by their respective counsels”. [See: “‘No force on earth can change our decision’ — supreme court”; 26 February 2020: the Cable].
(8) BOTTOM LINE: let everyone stay within his own legal limits. The BOB has the following powers and functions assigned to it within the legal profession in Nigeria; let it stick to these, to the extent it is permitted by law:
a) Formal Call to Bar or aspirants to the Bar. See section 3(1), and 4(1)(c), and 4(3) of the LPA, Cap L11 LFN 2004. Please, note that the fact that the BOB performs the function of inducting Aspirants into the legal profession doesn’t give the BOB the right or power to assume or arrogate to itself the role of leadership of the Bar. Call to the Bar is a swearing ceremony. The Chief Justice of Nigeria (CJN) performs the function of swearing in the President of Nigeria; this doesn’t make the CJN to think he should now be the Leader or manager of the affairs of Nigeria, to the be extent of trying to wrestle from the President, control of Nigeria. BOB issues certificate of call to the Bar to inducted lawyers. Similarly the Chairman of the INEC (Independent National Electoral Commission) issues Certificate of Return to an elected President. This doesn’t make the INEC to think itself the leader Nigeria or that it has control over Mr President. Let’s be careful.
b) A part-role in the Professional Discipline of Legal Practitioners in Nigeria. In a published commentary, titled, Who is the Leader of the Bar?” (the Nation: August 09, 2022), I observed
“The Head of the FIRST HALF of the Disciplinary Arm for lawyers is the BOB Chairman (see section 11, LPA). Please note that the BOB is not the only disciplinary authority in the Legal Profession in Nigeria. The Supreme Court is one. The CJN is another. See section 13 LPA, cap L11, LFN 2004. Note that the BOB has also the power to conduct formal call to the aspirants to the Bar. Section 3, LPA. The BOB also organises law dinners for aspirants to the Bar. These powers do not transform the BOB into the leader of the Bar. Being given a disciplinary power doesn’t make you the leader. Else, the head of the Nigerian Bench should be regarded as the Nigerian leader. Also, performing formal call to the Bar doesn’t make you the leader; else, the CJ of a state who administers oath of office and oath of allegiance to the governor should be regarded as the leader of the State. Similarly, the CJN of a state who administers oath of office and oath of allegiance to the President should be regarded as the other leader of the country”.
c) BOB may generally manage the affairs of the NBA, where and if the NBA permits: 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) had the power for “general management of the affairs of the Nigerian Bar Association”. The powers given to the Bar Council (GCB) under section 1 of the LPA were later transferred to the Body of Benchers (BOB) vide section 2 of the Legal Practitioners Act, (Decree 21) of 1994. The question then arises, in view of this: DOES THE BOB HAVE LEGAL POWERS TO MANAGE THE AFFAIRS OF THE NBA? The answer, sure, is NO, based on extant law. Check it out! 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 7 of the NBA Constitution, which clearly has almost taken all such powers away from the GCB/BOB. Section 7 of the NBA Constitution dealing with “Limitations to the powers of the General Council of the Bar” provides:
“(1) Pursuant to the powers conferred on the Association by Section 1 (1) of the Legal Practitioners Act, CAP L11, Laws of the Federation of Nigeria, 2004 (“Legal Practitioners Act”), to limit the powers of the General Council of the Bar, the General Council of the Bar shall not have: a. Any control over the budget or finance of the Nigerian Bar Association; b. The power to appoint representatives of the Association to any Statutory, Executive/Judicial, or other bodies; 7 c. The power to issue any statements purporting to express the view of the Association upon any matter of public interest or any matter affecting the interest of the Legal Profession generally; d. The power to make any arrangements whatsoever (including the drawing up of an Agenda or choice of venue) for the Annual General Meeting or any other General Meeting of the Association. (2) If at any time, due to unavoidable circumstances or any emergency, an election cannot be held at the appropriate time or the National Executive Council is incapable of functioning, the General Council of the Bar shall be convened with powers to constitute a 10-member caretaker committee of members of the Association to run the affairs of the Association for not more than the unexpired tenure of the National Officers or until when new National Officers shall be elected. (3) Provided however that the General Council of the Bar acting under Section 7 (2) hereto shall not be subject to any limitation of its powers under Section 1(1) of the Legal Practitioners Act, until the expiration of the unavoidable circumstances or emergency”.
(9) 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 the highest regulatory organ (Regulator) in the Legal Profession. From the aforesaid, it is also obvious that the 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 topmost regulator in the legal industry. See also: ‘Superiority debate within the Nigerian Bar: Between “a leader” and “the leader”’ (Everyday.ng; 6 August 2022).
(10) Accordingly, one should not be surprised that the Legal Practitioners Act draft Bill (pending before the National Assembly, since 2016) has not succeeded and may never succeed; it is a Bill which appears to have been designed to cause confusion and crises in the legal profession in Nigeria. My advice is that the BOB should focus on the job of call to Bar and lawyers professional discipline to do them (especially the latter) effectively, instead of working to wrestle control of the Bar from the NBA. NBA’s leadership of the Bar is not by accident; it’s the practice the world over, based on what I have pointed out above. Section 3 of the NBA Constitution provides for the objectives and functions of the NBA. Even with all of NBA’s deficiencies, leadership of the Bar is the safest in NBA’s hands. Else, we’re doomed.
See also the following:
(A) “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 (BarristerNG: 30 August 2020)
(B). “Who’s the leader of the Bar?” (The Nation: August 09, 2022)
Respectfully,
Sylvester Udemezue
(Udems)
(16 December 2022)
