Can a Senior Advocate of Nigeria appear before Inferior Courts?

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Balogun Sofiyullahi

Read the Balogun Sofiyullahi O.’s position on whether a Senior Advocate of Nigeria can appear before inferior courts as he reviews the case of ATTORNEY GENERAL OF LAGOS STATE V. PERSONS UNKNOWN (2016) All FWLR (pt.815) @ 245

ABSTRACT

Judicial Activism has always been a necessary and veritable tool in every judicial polity in interpreting the provisions of the Constitution and at best other statutory enactments for the advancement of the core mandate of the Judiciary in order to effectively discharge its constitutional role as the interpreter of the Law and more importantly, purposefully seeking the intention of the Law makers in case of seeming ambivalence as to the direct vantage of the legislative purpose which has dominated the legal systems of many counties, since the nineteenth century .

However, it has always been a commendable effort for a judex to tow the lane of being a Judicial Activist as against Judicial Craftsmanship/Passivism. See the All Nigerian Judges Conference of 1982 : Problems of the Interpretation and Application of the Constitution.

Unfortunately for the doctrine and the whole legal system in Nigeria, the albatross on the neck of a judex who chooses to be an activist in the interpretation of an enactment: is the need for him to be wary in not committing an infraction against the settled principle of judicial precedent which is the basis, on which this paper is anchored as envisaged in the case of AG Lagos State v. Persons Unknown.

This paper argues that the judicial activism that was activated by the learned trial judge did seriously miss the target having regard to the whirlwind doctrine of judicial precedent which continues to flourish and dominate the legal system of Nigeria.

Relatedly, the article contends that the issue of self-representation of a legal practitioner before any court of law in Nigeria in a case in which he is a party in the comprehensive sense had been recently varied by a legislative enactment contrary to the Supreme Court of Nigeria stance on the matter.

INTRODUCTION

This is yet another turning point in the development of our jurisprudence as Magistrate M.A Etti sitting at the Magistrates’ Court, Badagry Division on Wednesday, 17th June 2015 by the Ruling of his worship in the case of Attorney General of Lagos State v. Persons Unknown(supra) declared that a Senior Advocate of Nigeria (SAN) has a right to appear before a Magistrate Court being an inferior court without any form of inhibition. Hence, the Ruling of the Court marked a total U-turn from the rendition of the Court of Appeal over sixteen years ago in the case of Reg. Trustees of ECWA. Church v. Ijesha (1999) 13 NWLR (pt.635)368 that for all practical purposes a Senior Advocate of Nigeria(SAN) cannot appear before Inferior Courts as a legal practitioner.

Interestingly, having painstakingly read with appreciation the Ruling of his worship I have decided to appraise the said rendition and at the same time review some unsatisfactory reasoning advanced by his worship on the following points:

  1. The interpretation placed on Senior Advocate of Nigeria (Privileges and Functions) Rules by his worship vis a vis the settled doctrine of judicial precedent as applicable to the case;
  2. The issue of self-representation of a Senior Advocate of Nigeria before Inferior Courts in a case in which he is a party thereto.

I shall therefore take them in turns anon.

THE JUDICIAL ACTIVISM IN AG LAGOS V. PERSONS UNKNOWN AND THE PROBLEM OF JUDICIAL PRECEDENT: AN IRRECONCILABLE ALBATROSS

Judicial Precedent, according to the Supreme Court of Nigeria in the case of Dalhatu v. Turaki(2003) 15 NWLR(pt. 843)310, where Justice Niki Tobi JSC(as he then was) defined it thus :

“The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously.”

However, Judicial Activism, according to Justice A D Mane of High Court of India in an article : “Judicial Activism A Theory of Judicial Philosophy”, he poignantly noted :

“The term judicial activism is explained in Black’s law Dictionary, Sixty Edition, [Centennial Edition (1891-1991)] thus, “Judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint expected of appellate Judges. It is commonly marked by decisions calling for social engineering…”

Going further, the learned judge quoting Justice V. R Krishana of India noted that :

“ After all, social justice is achieved not by lawlessness process, but legally tuned affirmative action, activist justicing and benign interpretation within the parameters of Corpus Juris”. [In Search of Social Justice, page.8]

It is therefore apparent from the two concepts that the lines of distinction between them are far too wide to envisage.

It is to be noted that the law regulating the Senior Advocates of Nigeria apart from the Legal Practitioners Act, is the Senior Advocate of Nigeria (Privileges and Functions) Rules, 2004 (hereinafter referred to as SAN Rules) (a subsidiary legislation) made pursuant to the provision of section 5(7) of the Legal Practitioners Act Cap. L11 LFN 2004 and it carries the same weight as the enabling Act. See the case of Trade Bank Plc. v Lagos Island Local Government Council(2003) F.W.L.R (pt. 161) @ 1734 where Justice Oguntade (JCA) (as he then was) held thus :

“A subsidiary legislation when validly made has effect and force as the principal or enabling Act”

The SAN Rules was enacted by the Legal Practitioners Privileges Committee in order to regulate the dispositions of all holders of the rank.

However, the combined effects of the SAN Rules,2004 are that :

 a Senior Advocate of Nigeria has exclusive privileges to be accorded to him by all Courts in Nigeria {Rule 1(a) & (b)};

he must appear with a junior or another SAN in civil case before superior court except when it’s in Judges’ Chambers{Rule 2(1) & (2)};

 he may appear alone in criminal cases (Rule 3);

he cannot issue any process except in court he can appear(Rule 4);

 Rule 6 defined Superior Courts of Record as contained in section 6(3) of the 1999 Constitution.

Importantly, the case of AG Lagos State v. Persons Unknown was before the Magistrate Court of Lagos State and Section 9 of Magistrates’ Court Law of Lagos State,2009 provides :

“Notwithstanding any custom or practice, all legal practitioners called to the Bar in Nigeria are entitled, regardless of conferment, title or rank, to appear in any Magistrates’ Court in the State”

Without much stress, based on the composite effect of the Senior Advocate of Nigeria(Privileges and Functions) Rules, 2004; section 5(7) of Legal Practitioners Act and section 9 of Magistrates’ Court Law of Lagos State, 2009; his worship held at page 255 paras. D – E thus  :

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“I dare say with emphasis that there is nothing in those provisions that prohibits a Senior Advocate from appearing at all in any court, whether superior or inferior. The appearance of a Senior Advocate is merely regulated with some conditions in a superior court of record. There are no such conditions as regards his appearance in other courts such as this court”

His worship said further at page 256 paras. D-H thus :

“In my humble view, the law maker(of the S.A.N. Rules) used the phrase “superior court of record” deliberately and specifically to exclude other courts from the conditions regulating the appearance of a Senior Advocate…The Magistrates’ Court is a court of law in Nigeria before which legal practitioners are entitled to appear…I hold therefore that Lawal Pedro SAN, has right of audience in this court and is allowed to issue any process or make any application before this court”.

The learned magistrate in order to alleviate the possible outcome of the ‘re-interpretation’ embarked upon by him of the SAN Rules said at page 257 paras. C-D :

“Now, if the Court of Appeal in Reg. Trustees of E.C.W.A Church v. Ijesha considered a provision similar to the provisions of section 9 Magistrates(‘) Court Law 2009, there would be three major possibilities : (a) both the decision and the reasoning would be the same or (b)both the decision and the reasoning would be different or(c) the decision would be the same but reasoning different. The fourth possibility is unthinkable; it is that the decision would be different but the reasoning would be the same.”

One has no other option than to watch from a vantage point the poignant elucidation of his worship above because he is salvaged by the eloquent propositions of Abraham Lincoln quoted by Justice Mane thus :

“Have we not lived enough to know that two men may honestly differ about a question, but both be rights? In this paradox lies the secret of judicial process. There are areas where the judges must be activists and there are areas where they must be passivists. In which areas they should be activist and in which areas they should be passivists can be gathered from the knowledge we get by experience.”

However, it is trite law without skepticism that sentiment has no place in judicial adjudication: see Ransome-Kuti v. AG Federation(1985) NWLR (pt. 6) 211. For this reason, the question that reasonably comes to mind which now leaves me with much to desire is: what is the legal implication of what his worship had done in AG Lagos State v. Persons Unknown having regards to the precedent rule?

Before we consider the implication based on the prevailing settled principle of Law, it is important to note at the outset that the Court of Appeal had strenuously considered, construed and interpreted the SAN Rules wherein it unanimously held based on it in the case of E.C.W.A v. Ijesha(supra) that :

“A Senior Advocate of Nigeria (SAN) by virtue of being elevated to the position of a SAN he is totally restricted from appearing in lower court(I.e Area courts etc) and if in any case he should appear there it would be against him.”

The implication is that his worship of the noble Magistrate Court with all due reverence, was therefore wrong to have embarked on a voyage of re-interpretation of the SAN Rules where a Court superior in hierarchy over it (I.e Court of Appeal) had previously interpreted same before.

With due respect to the learned magistrate, this attitude had been deprecated in the case of Achebe v. Nwosu [2003] 7 NWLR (Pt.818) pg.103, wherein the late sage, Justice Olagunju(JCA)(of blessed memory) held :

“Therefore, if the provision of section 236 has been interpreted by the Supreme Court and this court…I am at a loss to understand why it was considered necessary for the learned trial Judge to embark upon a re-interpretation of section 236 of the Constitution in the idle pastime of interpreting the provision of sub-section 230(1)(r). The laxity does not show an acquaintance with the principle of stare decisis…it is sheer effrontery and vacuous bravado by the learned trial Judge to have embarked on a reinterpretation of that section. It is presumptuous and a mindless efficiency parade”.

It doesn’t lie with due respect, within the province of the learned magistrate to have substituted the interpretation of the Court of Appeal with his own under any guise whatsoever as same is grossly improper. See the case of Osakue v. Federal College of Education(Technical) Asaba(2010)All FWLR (pt. 522) 1601 SC.

With due respect, what his worship ought to have done is to accept the interpretation in the case of E.C.W.A v. Ijesha based on the principle of judicial precedent but he is allowed to distinguish it (without application) based on the operative effect of section 9 of Magistrates’ Court Law of Lagos State (he could have been justified upon so doing, if at all he could have been correct in its Ruling).

However, I am still at loss with the Ruling of his worship vis a vis the composite effect of the provisions of sections 5(7) and 8(1) of the Legal Practitioners Act and the SAN Rules vis a vis section 9 of the Magistrate Court Law of Lagos State .

For ease of reference and clarity, they provide :

Section 5(7) of Legal Practitioners Act :

“The Legal Practitioners’ Privileges Committee may, with the approval of the Body of Benchers, make rules as to the privileges to be accorded to a Senior Advocates of Nigeria, as to the functions of a legal practitioner, which are not to be performed by a Senior Advocate of Nigeria, as to the mode of appearance before courts by a Senior Advocate of Nigeria, and generally, but without prejudice to the foregoing, for ensuring the dignity of the rank of Senior Advocate of Nigeria”   (emphasis mine).

Section 8(1) of Legal Practitioners Act :

“Subject to the provisions of the next following subsection and of any enactment  in force in any party of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Shariah Court of Appeal or any area or customary court, a legal practitioner shall have the right of audience in all courts of law sitting in Nigeria”.

Section 9 of the Magistrate Court Law of Lagos State :

“Notwithstanding any custom or practice, all legal practitioners called to the Bar in Nigeria are entitled, regardless of conferment, title or rank, to appear in any Magistrates’ Court in the State”

My understanding of the both provisions (sections 5(7) and 8(1) of Legal Practitioners Act)  based on their literal meanings is that :

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The Legal Practitioners’ Privileges Committee may make Rules for Senior Advocates of Nigeria

That the Rules make in (a) shall state the functions ,privileges and restrictions on appearance in Courts for Senior Advocates of Nigeria

That the Rules so made is in furtherance of ensuring the dignity of the prestigious rank

That an enactment can be so made in any part of Nigeria (either an Act, State Law, and subsidiary legislation) in order to prohibit or restrict the right of a litigant to be represented by a legal practitioner in the following courts : Supreme Court, Shariah Court, Area Courts and Customary Courts

As a general rule, a legal practitioner shall have right of audience in all courts in Nigeria but subject to (b),(c) and (d) above.

It is to be noted that it is a cardinal principle of statutory construction that the most elementary rule of interpretation is the Literal Rule of interpretation which postulates according to the Supreme Court in the case of Dankwambo v. Abubakar (2016) All FWLR (pt.823) @ 1801 that :

 “where the words used in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. If the words of the statute are precise and unambiguous, no more is required to expound them in their natural and ordinary sense. The words of the statutes alone in such circumstances best declare the intention of the law maker.” See also the cases of A.G Abia State v. A.G Federation (2005) 12 NWLR (pt. 940)452; Ifezue v. Mbadugha(1984) All N.LR 256;(1984) LPELR-SC.68/1982

Therefore, the ordinary meanings of sections 5(7) and 8(1) of the Legal Practitioners Act given above are to my view unassailable.

However ,it is my view that his worship was not correct to have ignored the community reading of sections 5(7) and 8(1) of the Legal Practitioners Act together because they cannot be divorced of one another as both sections are related. And it is the law, that in any statutory construction, related provisions are to be read together for the general legislative purpose to be determined. See the case of Elelu Habeeb v. Attorney General of the Federation & ors(2012) LPELR-SC. 281/2010.

However, it is indeed true without speculation that section 9 of the Magistrate Court Law of Lagos State is a provision of an enactment validly made within the meaning of section 8(1) of the Legal Practitioners Act, but the one million question is that : is the import of section 9 of the said law within the purview of section 8(1) of the Act ? I think not, with due respect to the learned magistrate.

The import of section 9 of the Law is to remove any inhibition whatsoever ‘regardless of conferment, title or rank’ of a legal practitioner from appearance before the Magistrate Court, while section 8(1) of the Act permits an enactment to be so made in order to ‘prohibit or restrict’ the appearance of a legal practitioner from representing a litigant in some Courts specifically mentioned therein (i.e Supreme Court, Shariah Courts, Area Courts and Magistrate Courts).

It seems to me without reading any extraneous meaning to any of the two provisions of section 8(1) of the Act and section 9 of the Law that the conflict is apparent without speculation.

The Magistrate Court Law envisages no inhibition on a legal practitioner’s appearance be it a Senior Advocate or not while the Act is to the effect that the enactment to be made in any part of Nigeria pursuant to section 8(1) must be to ‘prohibit or restrict’ the appearance of a legal practitioner in certain circumstances.

On this point, it is my view that whenever there is a conflict between the Act of the National Assembly (in this instant the Legal Practitioners Act) and a State Law (Magistrate Court Law in this case), the former shall prevail so far it is validly made. See section 4(5) of the 1999 Constitution of the Federal Republic of Nigeria which provides :

“If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.”

Also,see the case of ASIMS (Nig.) Ltd. V. Lower Benue River Basin Dev. Authority(2002) F.W.L.R (pt.84)101 where it was held thus :

“However, where there is a conflict or inconsistency between a Federal enactment and State Law on the same subject matter, the Federal enactment shall prevail and the State enactment shall be void to the extent of the conflict or inconsistency”.

Regardless of the above submissions, however, since a court of jurisdictional competence has not declared section 9 of the Magistrate Court Law of Lagos State to be inconsistent and void, I am guided at this juncture by the eloquent position of the Supreme Court in the case Attorney General of Federation v. Attorney General of Abia State & ors (2002) F.W.L.R (pt.102) at page 297 paras. A-B where Justice Iguh(JSC) held thus :

“Until an enactment by the National Assembly or indeed, by a State House of Assembly is repealed in clear terms or duly avoided by a court of law, it has the full force of law as an enactment duly and validly made by an appropriate legislature and in respect of which the courts of law are entitled to take judicial notice thereof as a validly enacted law of such National Assembly. See Peenok Investment Ltd. v. Hotel Presidential Ltd.(1982)13 NSCC 477 at 510-511.”

 Finally, it is desirable to point out based on all the above submissions that there is nothing unconstitutional about the Legal Practitioners Act and the SAN Rules,2004 vis a vis section 36(6)(C) of the 1999 Constitution of the Federal Republic of Nigeria.

Section 36 (6)(C) provides :

(6) Every person who is charged with a criminal offence shall be entitled to –

(c) defend himself in person or by, legal practitioners of his own choice(emphasis mine).

The Supreme Court has held in the case of Awolowo v.Federal Minister of Internal Affairs(1962) LLR 177 that the above provision should be read subject to the provision of a law validly made by the National Assembly in order to regulate the right so enjoyed by the accused person, while the Court of Appeal equally took the same position in the case of E.C.W.A v. Ijesha(supra) on section 36(6)(c) of the Constitution and the SAN Rules . Therefore, the Legal Practitioners Act and SAN Rules are to my view within constitutional coverage.

THE ISSUE OF SELF-REPRESENTATION OF A SENIOR ADVOCATE OF NIGERIA BEFORE INFERIOR COURTS IN A CASE WHICH HE IS A PARTY THERETO

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I must at this point remind myself that it is the ‘ratio decidendi’ in a case that is binding and not the ‘obiter dictum’. See Dalhatu v. Turaki(supra).

However, the dicta of his worship at page 259 paras. E-F with respect, cannot be supported.

The learned magistrate noted :

“As a newly enrolled legal practitioner can appear in the apex court, a senior advocate can appear in the lowest court. To agree with the respondents/applicants means (sic) …a senior advocate who is a party cannot appear for himself.”(emphasis mine).

he concern of this writer is the last limb of the assumption of his worship while discountenancing the submissions of the applicant’s counsel in the case. His worship was wrong with all sense of humility based on his dicta/assumption above,  but I think a proper exposition of the state of the Law presently on this point is pertinent for the sake of clarity.

The Supreme Court had settled the issue of self-representation of a legal practitioner in the celebrated case of Fawehinmi v. NBA(no 1)(1989) 2 NWLR (pt. 105)494 and Atake v. Afejuku(1994)9 NWLR (pt.368)379. But, the former case (hereinafter referred to as Fawehinmi’s case) is the most relevant for purposes of my exposition herein because the latter deals principally with the propriety of the appearance of a retired judicial officer prosecuting a case in person.

The Supreme Court in the lead judgement of Obaseki JSC (as he then was) in Fawehinmi’s case held that :

 “Every appellant, be he a barrister or solicitor or ordinary member of the public, has a right to argue his case either at first instance or on appeal in person. See sections 17(2)(a & b); 33(1) of the 1979 Constitution of the Federal Republic of Nigeria. See R. v. Staff Sub-Committee of London County Council Education Committee & Another Ex parte Schonfield and others (1956) 1 All E.R. 753.”

But, one principle stands throughout the judgment in Fawehinmi’s case when the court declared that :

 “As parties, a barrister litigant is entitled to conduct his case personally or by counsel of his choice… I agree with Lord Westbury, L.c. when in the case of New Brunswick & Anor. v. Conybeare (supra), he said the characters should not be mixed. A barrister litigant has a right to conduct his case in person as any other member of the public or be represented by counsel as any other member of the public. It is not right or correct to say that a barrister represents himself. Such a representation does not exist in law although the legal training he has acquired can be utilized for his own benefit and for the benefit of others who retain his services when he has properly enrolled and paid his fees as a legal practitioner. See Section of the Legal Practitioners Act 1975”.

The proper exposition of the Law is that a Senior Advocate of Nigeria has a right to appear in any court of law in Nigeria (inferior courts included) and conduct a case in which he is a party in person like any ordinary citizen but not as a counsel in the regalia of a Senior Advocate of Nigeria from the well of the Court (I.e the Bar) as erroneously with honor, assumed by his worship.

Besides, it therefore seems to me that one of the principles enunciated by the Supreme Court in Fawehinmi’s case is no longer a good law as it has been overtaken by a legislative event. The court held :

“I therefore agree with the submission of Kehinde Sofola that there is authority for holding that a legal practitioner is entitled to speak from the Bar wearing his robes in civil actions by or against him in person. I do not think a legal practitioner should lose his status because he is a litigant in person. If the privilege arises as a result of litigation, it does not appear to make any difference whether the litigation is conducted in person or on behalf of another.” (emphasis mine).

Having regards to the provision of Rule 36 (f) of Rules of Professional Conduct for Legal Practitioners, 2007, the principle enunciated above cannot stand again.

Rule 36(f) provides :

  1. When in the court room, a lawyer shall —

(f) not remain within the bar or wear the lawyer’s robes when conducting a case in which he is a party or giving evidence.

It therefore seems to me that the implication of the recent Rule above is to, at first sight correlating it with the rule in Fawehinmi’s case put a stop to such practice of a lawyer appearing as a party in a case fully robed from the bar, even though an age-long practice.

While it is equally of fundamental importance to be noted that the Rules of Professional Conduct for Legal Practitioners, 2007 carries a strong force of Law because it is made pursuant to the provision of section 12(4) of the Legal Practitioners Act,1990 and the position of the law is that a subsidiary legislation carries the same force of law as the principal enactment. See the case of Trade Bank Plc. v Lagos Island Local Government Council(supra).

Although, many judges are still oblivious of this new Rule as reliance is still placed hitherto on Fawehinmi’s case . See Balogun Sofiyullahi v. Hon. Chief Justice of ABU SRC Court & 2 ors in the suit no : ABU/SRC/001/2017.

CONCLUSION

One indispensable clog in the progressive wheel of Judicial Activism is the over reliance on Judicial Precedent which is a product of our colonial heritage and imported common law system which continues to be a counterproductive principle in matters before our common Courts as it discourages self-reasoning according to the principle of justice. Even if a decision of a higher court was rendered per incuriam, a lower court is still bound to apply it hook, line and sinker without questioning.

However, it is submitted that the industrious effort and mental gymnastics displayed by Magistrate Etti of the Lagos State Magistrate Court as an activist who chose ‘to err on the side of access than restriction’ in AG Lagos State v. Persons Unknown  is commendable but it is needless to point out that settled principle of general acceptability like judicial precedent, cannot be swept under net in a day by a Magistrate Court as they still remain sacrosanct for stability and predictability of the Law until relaxed by the appropriate authorities in our judicial polity in Nigeria, the principle is to be accepted with full force and operative effect.

Balogun Sofiyullahi .O. (balogunsofiyullahi.gmail.com)is a student of Faculty of Law, Ahmadu Bello University, Zaria, Kaduna State

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