The Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), has been under attack for allegedly and unilaterally amending the 2007 Rules of Professional Conduct (RPC) for lawyers which surfaced on social media at the weekend. It has been a battle of words and insinuations by the NBA, as Senior Advocates and lawyers flex muscle on the legality of such amendment. Is it legal and proper for the AGF to tinker with the provisions of the RPC without recourse to the General Council of the Bar ( GCB)?
LAST Saturday, social media platforms were awash with reports that the Attorney-General of the Federation ( AGF), Mr. Abubakar Malami (SAN), allegedly and unilaterally amended the Rules of Professional Conduct (RPC) for the Legal Profession. The reports stated that the amendment to the RPC was carried out contrary to the provisions of Section 1 of the Legal Practitioners Act ( LPA) which authorises the 57 members of the General Council of the Bar ( GCB) to do this.
The RPC for legal practitioners is a very vital document to the practice of law in Nigeria.
The reports stated that, in the amendment, Serial Number S. 1 No. 15 of 2020 contains provisions which purportedly deleted Rules 9(2), 10, 11, 12 and 13 of the Rules of Professional Conduct for Legal Practitioners 2007. It said the second provision is to the effect that the amended rules are to be cited as the Rules of Professional Conduct, 2020.
Some lawyers however see this as a ploy to whittle down the powers and grip of the Nigerian Bar Association ( NBA) on the profession, others see it as a clandestine move to pave way for the emergence of a New Nigerian Bar Association (NNBA), whereas some others see it as continuation of the battle against the new President of the NBA, Mr. Olumide Akpata, who is not a member of the Inner Bar.
Composition of GCB
In establishing the General Council of the Bar, Section 1 of the LPA states: “(1) There shall be a body to be known as the General Council of the Bar ( GCB) (in this Act referred to as “the Bar Council”) which shall be charged with the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the constitution of the Association) and with any functions conferred on the Council by this Act or that constitution.
Section 2 provides for the membership of the GCB as follows:
(a) the Attorney General of the Federation, who shall be the president of the Council;
(b) the Attorneys General of the States; and (c) twenty members of the Association.
(3) The persons mentioned in paragraph (c) of subsection (2) of this section shall
(a) be elected to serve on the Bar Council at elections in which all members of the Association are entitled to vote in such manner as may be provided by the constitution of the Association; and
(b) hold office for such period as may be determined by or under that constitution, and not less than seven of those persons shall be legal practitioners of not less than ten years’ standing.
(4) The quorum of the Bar Council shall be eight, and the Council may make standing orders regulating the procedure of the Council and, subject to the provisions of any such orders, may regulate its own proceedings; and no proceedings of the Council shall be invalidated by any vacancy in the membership of the Council, or by the fact that any person took part in the proceedings who was not entitled to do so” As a result of this, the NBA at its Annual General Meeting of August 27, 2017, elected the following members into the GCB for ratification by the AGM: Augustine Alegeh (SAN); JB Daudu (SAN); Okey Wali (SAN); Adedgboyega Solomon Awomolo (SAN); Chief Niyi Akintola (SAN); R. Lawal-Rabana (SAN); Tayo Oyetibo (SAN); Ferdinand Orbih (SAN); A. B. Mahmud (SAN); J-K Gadzama (SAN) Prof. Fabian Ajogwu (SAN); Okey Amaechi (SAN); Solomon Umoh (SAN); Dr Garba Tetengi (SAN); Jubrin S. Okutepa (SAN); Mr. Anozie Obi; Mazi Afam Osigwe; Mr. Rasaq Isenalumhe; Mr. Chidi Onyiuke and Mrs. Titi Akinlawon (SAN).
The proposed names were adopted and ratified and the persons so named were deemed elected into the GCB.
No meeting of the GCB has held from that date till now, only for a purported amended version of the RPC by the Attorney-General of the Federation to appear on social media platforms at the weekend.
While some lawyers criticised it for being illegal because the meeting of the Bar Council was not convened prior to the amendment, others said there was nothing strange about what Malami did since it was the same procedure that brought the said provisions in 2007.
Why purported RPC should be discountenanced
Reacting to the development, a former General Secretary of the NBA and Bencher, Mazi Afam Osigwe, said: “My attention has just been drawn to a document widely circulating in the social media which purports to be the Rules of Professional Conduct for Legal Practitioners (Amendment) Rules 2020.
“The document claimed that in the exercise of the powers conferred on him by Section 12(4) of the Legal Practitioners Act, the Attorney General of the Federation has amended the Rules of Professional Conduct for Legal Practitioners, 2007 by deleting Rules 9, 10, 11, 12 and 13.
“A close look at Section 12(4) of LPA referred to as well as the fact that the Bar Council which has the power to make any such amendment, has never met, shows why the document should be discountenanced.
“Section 12(4) of the Legal Practitioners Act (LPA) vests the power to make Rules regulating the Conduct of Legal Practitioners on the General Council of the Bar.”
In his reaction, the NBA President, Mr. Olumide Akpata, called on lawyers to remain calm.
He argued that the Rules of Professional Conduct, 2007 is yet to be amended in line with the conditions stipulated by the Legal Practitioners Act. No meeting was convened for the amendment of the Rules and, therefore, the purported amendment could not be said to be true.
Akpata said: “I have seen and read Statutory Instrument No. 15 of 2020 (the “Instrument”), making the rounds on social media and which purports to amend certain provisions of the 2007 Rules of Professional Conduct for Legal Practitioners (RPC). Since the Instrument was released, I have received numerous calls and messages from lawyers across the country seeking clarification and guidance on the purport of the Instrument.
“By virtue of the Instrument, the following provisions of the RPC are to be deemed deleted:
a) Rule 9(2), which relates to default in payment of practising fees;
b) Rule 10, which relates to stamp and seal for legal practitioners;
c) Rule 11, which relates to mandatory continuing professional development;
d) Rule 12, which relates to the Annual Practising Certificate for legal practitioners; and
e) Rule 13, which relates to the obligation to give notice of the commencement of legal practice to the branch of the Nigerian Bar Association (“NBA”) responsible for the jurisdiction in which the practice is located.
He noted that the explanatory note to the Instrument suggested that it was done to bring the RPC in conformity with the Legal Practitioners Act, the Law Officers Act, and the Constitution.
The NBA President further explained that the Legal Practitioners Act (as amended) confers the power to issue Rules of Professional Conduct for Legal Practitioners, and any amendments thereto, on the General Council of the Bar (the “Bar Council”).
Akpata said: “The Bar Council comprises the Attorney-General of the Federation (AGF), the Attorneys-General of the 36 states of Nigeria, and 20 members of the NBA. Consequently, the RPC and any amendments thereto may only be validly issued after it has been deliberated upon and approved at a properly convened meeting of the Bar Council.
“As far as the NBA is aware, no notice convening a meeting of the Bar Council was issued to its elected representatives on the Bar Council and no meeting of the Bar Council was convened and/or held to deliberate on the Instrument.
“To that extent, our position is that no authority or approval was given for the amendment of the RPC. Consequently, the NBA maintains that the RPC has not been amended and enjoins all legal practitioners to remain calm and continue to conduct their affairs in the same manner as they did prior to the issuance of the Instrument.”
The President assured lawyers that he was engaging closely with the AGF on the issue and would provide further updates in the coming days.
He added: “Indeed, as part of the commitment of the current administration of the NBA towards the welfare and capacity building of members and the overall improvement of the Bar, we intend to propose certain amendments to the RPC that will be critical to the attainment of those objectives.
“However, in doing this, we will ensure to carry our members along with a view to getting their buy-in as critical stakeholders”.
RPC amendment condemnation not in good faith
But a member of the Body of Benchers, Mr. J.S Okutepa SAN, took a different view. According to him, the condemnation of Malami’s purported amendment of the Rules of Professional Conduct was belated and not done in good faith.
“I do not think we as members of the legal profession are consistent in our stand and condemnation of illegality and usurpation of functions particularly on the alleged amendments said to have been made to Rules of Professional Conduct in the Legal Profession 2007,” Okutepa said.
He noted that he was yet to confirm the veracity of the news, but that the condemnation was late.
Okutepa said: “I am yet to confirm this. But if the amendments done are indeed at the instance and by the Attorney of the Federation, then I see the condemnation by some legal practitioners as belated and not well rooted in good faith; the reason is simple.
“As lawyers we must be consistent in our stand and positions. I had said before that the appropriate organ saddled with the duty and responsibility to issue and make the Rules of Professional Conduct in the Legal Profession is the General Council of the Bar pursuant to Section 12(4) of the Legal Practitioners Act as amended by Law No 21 of 1994. However, the 2007 Rules was issued by the AGF as it confers more financial advantages on NBA.
“The 2007 Rules was issued by the AGF. Those who care to read the Rules can see the preamble to the Rules wherein it was expressly stated to have been issued by the Attorney-General of the Federation.
“Because that Rules conferred more financial advantages on our Association, NBA, nobody took my stand and few other lawyers’ serious when we spoke that the Rules was not issued in accordance with due process of law.”
He stated that he was among those who led the prosecution of lawyers for unprofessional conduct in the past.
Only 2007 RPC sanctioned by Bar Council
But the views of Prof. Ernest Ojukwu (SAN) differed. Ojukwu clarified that the 2007 RPC was approved by the Bar Council
He said: “Bar Council approved in 2007. The only problem with the 2007 version is how the AGF signed. 2007 and 2020 not the same facts
“It was actually a long history. The National Executive Committee of the NBA had approved the new Rules under OCJ Okocha (SAN) regime in 2001, but the Bar Council did not meet. At the end of 2006, we touched that draft by adding relicensing, stamp and seal, Continuing Legal Education and removing a complicated provision on advertising to keep it simple. The following year, February 2007, Bayo Ojo (SAN), the then AGF, called the Bar Council on it.”
Mr. Rafiu Lawal Rabana (SAN) corroborated Ojukwu’s stance.
Rabana said: “I do not want to join in the chorus of issuing statements for the sake of it. I was the General-Secretary in 2007 when the RPC was drafted and presented to the GCB for approval.
“There was a full meeting of the Council and I did the presentation on behalf of the NBA. I emphasise it was not a unilateral document made by Chief Bayo Ojo (SAN), the AGF at the material time. Prof. Ernest Ojukwu (SAN) who coordinated the draft can bear witness.
“Since the NBA has issued a statement, we all should allow the NBA to address the issue.”
But Chairman of the Caretaker Committee of Egbe Amofin Oodua, Asiwaju Adeniyi Akintola (SAN), who is also a member of the GCB, said there were consultations leading to the amendment of Rules of Professional Conduct for Lawyers, RPC, carried out by Malami (SAN), but whether such consultations were wide enough, I don’t know
“The AGF is the chairman of the GCB of which I am a member. If you are a member and you don’t attend meetings, can you blame the other members who take decisions? You can consult members of the GCB.
“ The removal of stamp and seal was a good intention but it was making too much money available to the national and branch officers. Because of the money, some lawyers have stopped going to court. If there is anything that will stem this tide, at least, it should be welcomed.”
Remove stamp and seal from rules
Former President of the West African Bar Association and civil society activist Mr. Femi Falana (SAN) supported the removal of the stamp and seal from the Rules.
He said: “Having paid practising fees why should lawyers be made to pay for stamp and seal? It is akin to double taxation. As far as I am concerned, it is good riddance to bad rubbish.
“In dialetics, what has just taken place is called the negation of negation. The NBA is a victim of the impunity it nurtured to grow and develop. I have always opposed the stamp and seal because it was meant to restrict access to the temple of justice.
“Why must every court process be stamped by a lawyer when litigants have the constitutional right to either appear for themselves or be defended by legal practitioners of their choice? In the Second Republic, the late Prof Ayodele Awojobi, a mechanical engineer, was the leading public litigator in the country. As a layman he prepared and argued his own cases from the High Court up to the Supreme Court. Notwithstanding the stamp and seal requirement, I have had cause to apply to courts to waive payment of filing fees for pro bono cases under the doctrine of in forma pauperis provided in the laws establishing our courts.
“However, I agree with some of my colleagues who have argued that the amendment is illegal as it was not enacted by the General Council of the Bar. With respect, the argument is rather contradictory because the NBA was very happy when the 2007 RPC were enacted by the then AGF on behalf of the General Council of the Bar without any meeting. That was how every lawyer was compelled to affix the stamp and seal to all processes signed by lawyers. It had nothing to do with enhancing the quality of justice but designed to enrich the NBA.”
A house divided against itself
Falana condemned any disunity in the NBA along ethnic lines.
He said: “Our colleagues must stop playing the ethnic card of the reactionary elite. Has any branch in the North declared support for the NNBA? A few branches in the North decided to boycott the last NBA conference in solidarity with Governor Nasir el Rufai. None of the four branches in Kaduna State boycotted the conference. Did the proponents of conspiracy theories draw any lesson from the principled stand of the lawyers in Kaduna State?
“Instead of fighting impunity oozing out of the office of the AGF we are accusing the North of a hidden agenda. Years before the appointment of Mr. Abubakar Malami (SAN) as AGF, the NBA had abandoned the GCB. Since nature abhors any vacuum, the incumbent AGF has always usurped and exercised the powers of the Council. Whereas Section 1(2) of the Legal Practioners Act provides that the NBA shall have 20 members in the Council. The members of the NBA shall be:
(i) elected to serve on the Bar Council at elections in which all members of the
Association are entitled to vote in such manner as may be provided by the constitution of the Association;
(ii) hold office for such period as may be determined by or under that constitution,
(iii) not less than seven of those persons shall be legal practitioners of not less than10 years’ standing.
“Instead of electing the NBA representatives the NBA President, Mr Austin Alegeh (SAN) nominated the 20 members in the 2015 AGM. And without any election whatsoever the President announced that his nominees had been ratified and “deemed to have been elected.”.
“Assuming without conceding that they were properly elected, neither the NEC nor the AGM has ever demanded to be briefed about the activities of the Council since 2015. The Council has never met for over five years. Yet our representatives claim to be members of the Council. They have no fixed tenure as required by the Legal Practitioners Act. Contrary to the law which prescribes that ‘not less than seven of those persons shall be legal practitioners of not less than 10 years’ standing’ all the 20 members are senior lawyers of several decades’ standing.”
NBA pressured Supreme Court to approve of stamp, seal?
The rights activist said “without any fear of contradiction, that the General Council of the Bar did not impose the stamp and seal on Nigerian lawyers. It was done by the AGF Bayo Ojo SAN on behalf of the General Council of the Bar in 2007.
“It is on record that following the decision of the Supreme Court to the effect that the law did not require processes filed by lawyers to have stamp and seal affixed on them, the NBA leaders mounted pressure on the apex court. Hence, the Court reversed itself in another judgment.
“But out of sheer negligence, the NBA has been unable to make the stamp and seal readily available to lawyers. Hence, the courts have bent over backwards to accept mere receipts of payment for the stamp and seal. Up till now, it has never occurred to the NBA to requisition the meeting of the Council to ratify the stamp and seal.
AGF runs Bar Council with members’ consent
Falana further explained that the AGF has been acting for the Bar Council with the members’ tacit approval.
He said: “The General Council of the Bar does not meet. In fact, it has never met since 2015 when the NBA appointed its members in the Council. So, the Council is run by the AGF with the consent and knowledge of the members and the NBA. But for the removal of the repeal of the sections relating to the stamp and seal the NBA would have protested the usurpation of the powers of the General Council of the Bar,” Falana stated.
However, for former Chairman of the National Human Rights Commission (NHRC) Prof. Chidi Odinkalu, the purported amendment of RPC by the AGF, was fraught with irregularities because it was done without the requisite power under the law.
He said: “Nigeria’s Attorney-General and Minister of Justice, Malami ( SAN), claims to have amended Rules of Professional Conduct (RPC) in the Legal Profession under powers conferred by s.12(4l) of Legal Practitioners Act. There’re no such powers? We have a HAGF (that) can’t do basic due diligence.
“The power to prepare, and from time to time revise, a statement as to the kind of conduct which the Council considers to be infamous conduct in a professional respect” created in Section 11(4) of the Legal Practitioners Act, belongs to the GCB and not to the AGF.
“The BarCouncil is a statutory body created by Section 1 of the Legal Practitioners Act. It comprises 57 persons, made up of AGF as president; all States Attorneys-General; 20 representatives of the NBA
“No meeting of the Bar Council has been called to amend the RPC and so, the purported amendment of the RPC by Malami (SAN) is as dud as a bounced cheque because he claims to have acted under a section of the law that gives him no such powers. Even if he acted under the right provision, he can’t usurp the role of the Bar Council and he knows it.
“The only way to go is to totally disregard and ignore this alleged amendment by AGF Malami ( SAN) of the RPC. It does not exist and did not happen”.