NBA v. IBEBUNJO: Delimitating the Scope of Lawyers` Involvement in Sale of Land Transactions Amid Steadily Shrinking Legal Practice Space in Nigeria
By Sylvester Udemezue[i]
Considering the controversy generated by the unprecedented decision in NBA v Ibebunjo[ii] and the deluge of misinterpretation that has greeted the Nigerian Legal Practice Space since the judgment came on board, the present writer has chosen to leave the following commentary on proper interpretation and implications of the decision of the LPDC in the case, so as to remove all erroneous impressions and misapprehensions that could lead to using the decision as a strategy to further shrink the Nigerian legal practice space and deny legal practitioners reasonable participation in an area that is hardly outside the precincts of the concept of conveyancing. The writer considers whether interpreting or outstretching the decision in NBA v Ibebunjo to deny bona fide lawyers honorable personal participation in the business of sale of land, would not constitute an unjustified and unjustifiable hasty generalization in the absence of sound, realistic evidence indicating that every other Nigerian lawyer who gets involved in actual “selling and buying of land” is likely to end up defrauding his or her client, unlike what happened in the case of Mr Ibebunjo. Then there is a cursory attention paid to determining whether, or the extent to which, lawyers themselves are blameful in the noticeably diminishing legal practice space in Nigeria. An illustration of aspects of noticed incursions into the law practice arena from outside the profession is taken together with an analysis of how other professionals and non-professionals, within and outside Nigeria, muzzle lawyers and take away traditional legal jobs while lawyers themselves do only little to ward off pillaging predators in order to secure the legal profession for present and future generation of legal practitioners in Nigeria.
- Background: Facts and Decision in NBA v Ibebunjo
The Nigeria Weekly Law Report summarizes the facts of the case as follows:[iii]
“The respondent, Anozie Ibebunjo, a legal practitioners, fraudulently or by trick obtained from the petitioner the sum of N1.6 million under the pretext that he sold to the petitioner eight plots of land at Agbama Olokoro in the year 2002, but since that year, the petitioner had not been able to take possession of the land or received refund of his money despite repeated demands. The respondent did not show his root of title, as there was no receipt or memorandum evidencing the customary purchase from the original land owners. The respondent drafted a Power of Attorney wherein he promised to indemnify the petitioner in the case of any defect in his title. The promise was not kept. He however alleged that he refunded the sum of N300,000 (three hundred thousand naira) to the petitioner. Upon consideration of the facts, the Nigerian Bar Association concluded that a prima facie case of unprofessional conduct had been substantiated against the respondent and consequently filed a complaint before the Legal Practitioners Disciplinary Committee of the Body of Benchers”
- That you, ANOZIE A IBEBUNJO ESQ, legal practitioner, sometime in the year 2002, received a total sum of N1,600,000 (One Million, Six Hundred Thousand Naira) from Mr. Frank Ezeife of No 2, Lagos Street, Umuahia, Abia State, as purchase price for the purported sale of eight (8) plots of land and also neglected to fully refund/account for the entire sum paid to you by Mr. Frank Ezeife despite repeated demands for same, thereby taking advantage of the confidence reposed in you by the petitioner and by so doing you have failed to maintain the high standard of professional conduct expected of a legal practitioner by engaging in conduct unbecoming of a legal practitioner, all contrary to rules 21, 24, 49 and 59 of the Rules of Professional Conduct in the Legal Profession, 1979, now Rules 1, 23 and 55 of the Rules of Professional Conduct in the Legal Profession, 2007
- That you, ANOZIE A IBEBUNJO ESQ, as a legal practitioner, sometime in the year 2002 in Umuahia, Abia State, personally engaged in the business of trading, buying and selling of land and by so doing, you have failed to maintain the high standard of professional conduct expected of a legal practitioner by engaging in conduct unbecoming of a legal practitioner, all contrary to rules 21, 24, 49 and 59 of the Rules of Professional Conduct in the Legal Profession, 1979, now Rules 1, 7(2) and 55 of the Rules of Professional Conduct in the Legal Profession, 2007
In its judgment, the LPDC found that “the legal practitioner engaged in “trading” (land speculation) because he claimed he equally sold part of his land to others whose names were not mentioned i.e. engaging in buying and selling…” and “the entire transaction was shrouded by fraud carefully designed by the legal practitioner,”[vi] and held (unanimously) that[vii] the respondent, Anozie Ibebunjo, legal practitioner was guilty of infamous conduct in a professional respect; that the respondent should refund the sum of N800,000 to his client (the supposed purchased) Mr Frank Ezeife; and that the name of the respondent`s name be struck off the roll of legal practitioners. The LPDC went further:
“As it relates to count 2, it is clear beyond per adventure that the business of selling land is a trade or business incompatible with the practice of law. In the instant case, the respondent was clearly doing illegal business to sell land. Rule 7(3) clearly provides the category of business that are compatible with the practice of law. From what we have reproduced above the respondent was clearly playing with fire when he was using the platform of his legal practice to sell land. The justice of this case demands that we allow him go full time into his main business of selling of land and to leave the business of practicing law to those who are bona fide legal practitioners.[viii] ….This case exemplifies the wisdom of the founding fathers in prohibiting legal practitioners from carrying on trade or business incompatible with the practice of law. This was to forestall a situation where the profession of law will be robbed of its lustre and brought into odium, opprobrium and disrepute by allowing the ethic of other professions to fuse or intermingle with the noble ethics of the legal profession. Legal Practitioners must make up their minds whether or not they desire to practice law. The profession will not tolerate those who in the morning are lawyers, and in the afternoon or evening of the same day, members of other businesses or professions. The stream of the ethics of our profession must be kept clear and sparkling, unpolluted by the understanding of our members of the business practice and ethics of other professions. Indeed, it is a matter of choice for a person to practice law or any other profession and no lawyer should stand by and watch so-called members of our profession bring the profession into disrepute. The link between the respondent`s misconduct and his office as a legal practitioner is therefore apparent. He has brought a great dent on the image of the profession and the only remedy is to exit from the profession.”[ix]
- Practical Implications of the Decision in NBA v Ibebunjo
In summary, in this case, the Legal Practitioners Disciplinary Committee (LPDC)[x] appears to have banned Legal Practitioners in Nigeria from engaging in the business of “buying and selling land” or landed property. Taking the judgment on its plain words, one could conclude propose this conclusion: “a lawyer is not allowed to combine the business of selling land or landed property (with himself as a party) & the business of law practice.” There is no doubt that a Lawyer is legally permitted to engage in EITHER, but is, according to this judgment, prohibited from engaging in both concurrently. Accordingly, on a careful reading of the judgment, this injunction would not be violated if a person, on being called to the bar, decides to not practice law, to not set up a law firm and to not join any law firm, but to, instead, concentrate solely on the business of buying and selling real property. However, based on this case, as long as the same lawyer is still engaged in this “land sale” business, he is not permitted to take any legal practice brief from any client for any purpose requiring him to exercise or apply or deploy his knowledge of law on the client’s behalf. The rule would be deemed violated, and the lawyer in breach, if, for instance a lawyer who engages only in the business of buying and selling of land, at any time while still in his land business, decides to draft and indeed drafts a land-sale agreement or Deed of Assignment or other legal instruments for anyone of the parties to a land-sale transaction and he collects money (professional legal fees) for drafting such documents. He is also barred from even rendering any form of legal advice to any party to such transactions or other legal transactions and may also not be permitted to undertake investigations on behalf of any party to such transactions, for as long as he is still involved as a party to the land-sale or land purchase. Such a lawyer is however entitled to, at any or at some future time to decide to now put a STOP to his “land-sale” business, and to revert to law practice, which is his discipline.
However, it must be pointed out that, however one approaches interpretation of the decision in NBA v. Ibebunjo, the ban seemingly placed on lawyers is not violated by a lawyer whose involvement in a real property transaction/business is only as a Conveyancer, for purposes only of either rendering legal advice, participating in negotiations on behalf of his clients (vendor or vendee), and or of preparing agreements, Deeds, Requisitions, Abstracts of Title, Epitome of Title, and of writing legal letters and or rendering Legal Advice to or on behalf of his clients, for which he is rightfully permitted to charge and be paid adequate professional fees in line with the RPC.[xi] An illustration: Mr Ade, a lawyer, appears in court on Wednesday (25 March 2020) on behalf of a client (Mr Obi) who is being prosecuted by the Police on charges related to assault. Thereafter, on Thursday (the following day, 26 March 2020), the same Mr Ade prepares a Deed of Assignment in a land deal between Chief Lawson and Madam Amina and (Mr. Ade) gets paid by the parties to the land transaction. In my opinion, Mr Ade cannot validly be accused of having combined property business with law practice; accordingly, he has not violated rule 7 RPC and has not violated the decision in NBA v. Ibebunjo. Indeed, in this scenario, Mr Ade has not engaged (as a party) in the business of selling or buying of land.
However, the dividing line appears very thin, because, in my humble view, a Conveyancing Lawyer is not necessarily engaged in the business of “buying and selling land,” in the same manner as a real property businessman (speculator, or seller or buyer of land) is not necessarily a conveyancing lawyer. Cambridge Dictionary of Modern English[xii] defines the word “Conveyancing” as “the process of moving the legal ownership of property or land from one person to another.” The Black’s Law Dictionary sees “Conveyancing” as “that part of the lawyer’s business which relates to the alienation and transmission of property and other rights from one person to another, and to the framing of legal documents intended to create, define, transfer, or extinguish rights. It therefore includes the investigation of the title to land, and the preparation of agreements, wills, articles of association, private statutes operating as conveyances, and many other instruments in addition to conveyances properly so called”[xiii] This definition appears to have made the dividing line blurrier. Take as an instance, however one interprets it, the decision in NBA v. Ibebunjo would not be deemed dishonored where a practicing lawyer who, having lived in a house owned by him in Lagos State in Nigeria for ten years, decides to relocate to Enugu State, also in Nigeria, and as a result to sell off the house. He has every right to sell his own house (his own property) to anyone, even though he is a full-time practitioner of law. However, it is doubtful whether it would be in line with Legal Ethics for the same lawyer-seller to be the one to draw relevant conveyancing agreements in respect of the same sale transaction involving his own property with himself as the vendor. In this writer`s view, there is nothing unethical in being the one to draft relevant agreements under such circumstances, especially the Land Sale Agreement, since, generally in conveyancing it is the Vendor’s solicitor’s responsibility to draft the Land Sale Agreement, though the responsibility of preparing the Deed of Assignment is that of the purchaser’s solicitor. One should be free to engage a lawyer to act for one in the sale of one`s own house, when one is also a lawyer, although, in such a case, one must accept that it would be a matter of choice, except one is not disposed. But one must always act and be seen to have acted fairly, honestly and transparently![xiv] This is the crux.
- Some Other Aspects of Legal Ethics Relating to Lawyers` Involvement in Purchase of Land or Real Property
Speaking generally, this writer is of the considered opinion that where a lawyer (as a purchaser) buys real property from some other person, what would constitute a breach of legal ethics would depend on the scenario. The first instance is that where a lawyer is buying property from his own client (a person for whom the lawyer has acted, even if in a separate, unrelated transaction), it may amount to breach of legal ethics to act as a solicitor in the sale transaction (unless the lawyer acts for only himself as a purchaser).[xv] Rule 17(3) RPC provides that a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation which he is conducting for a client, except that he may acquire a lien granted by law to secure his fees and expenses; or contract with a client for a reasonably contingent fee in a civil case. The second instance is that where a lawyer buys property from a person who is not his client and with whom he has never been in the lawyer-client relations. There appears to be nothing unprofessional in the lawyer acting (in person) as the solicitor to the purchaser since he is the purchaser. But the lawyer should know when to not act also for the vendor while acting for himself.[xvi] It is respectfully also advised that such a in such a case, the lawyer should engage another lawyer as his (Vendor’s) solicitor, especially where he himself acting for both the vendor and the purchaser would lead to conflict of interest on the part of the affected lawyer. Rule 17(4) RPC requires that “a lawyer shall not accept a proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it is likely to involve him in representing differing interests, unless it is obvious that the lawyer can adequately represent the interest of each, and each consents to the representation after full disclosure of the possible effect of such representing on the exercise of his independent professional judgment on behalf of each.”
Rule 17(5) RPC provides that “a lawyer shall not appear as counsel for a client in legal proceedings in which the lawyer is himself a party.” To what extent the provisions for Rule 17(5) RPC applies outside litigation appears not yet adequately discussed and unambiguously delineated. It needs to be recalled that where a lawyer is required to decline employment or to withdraw from employment under any of these rules, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.[xvii] Besides, the lawyer must act in good faith, ensuring full disclosure of all his interests in the transaction in line with Legal Ethics as encapsulated in Rule 17 RPC. Where the lawyer considers that acting for both parties would not lead to conflict of interest, he must ensure that “important agreements between him and the client are, as far as possible, reduced into writing, although it is dishonorable for the lawyer to evade or avoid performance of a contract fairly made with his client, whether or not reduced into writing.[xviii] Further, as required by Rule 23 RPC, “a lawyer shall not do any act whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by the client. Where a lawyer collects money for his client, or is in position to deliver property on behalf of his client, he shall promptly report, and account for it and shall not mix such money or property with, or use it as, his own.”
- The Seeming Blanket Ban: What NBA v Ibubunjo did not decide
Did the case of NBA v Ibebunjo place an absolute ban on sale or purchase of land by a lawyer? This writer believes the answer is in the negative. A second question arises as to whether the decision by the LPDC in this case could be stretched to render incompatible with the practice of law, a lawyer`s merely engaging in sale of land in a manner that maintains/promotes a high standard of the legal professional conduct on the part of the legal practitioner. Again, this writer believes the answer is in the negative, reason being that to stretch the judgment of the LPDC to that level would mean punishing all lawyers for the sins of only Mr Ibebunjo, exactly in the manner of tagging all fingers “oily” only because a single finger has touched the oil. To appreciate where the writer is coming from, one needs to advert one`s mind to a very curios aspect of the decision in NBA v Ibebunjo; although the question as to “whether the business of selling land is incompatible with the practice of law in view of rule 7(3) of the Rules of Professional Conduct” was also considered by the LPDC, yet it appears that the major reason the LPDC was moved to order the striking out of Mr Ibebunjo’s name from the roll, was the fraud and dishonorable conducted exhibited by Mr. Ibebunjo against the purchaser in the purported land transaction which led to the complaint and trial before the LPDC. This proposition is heightened when one looks at a portion of the judgment under consideration, which aspect this writer sees as both a form of prevarication and an equivocation on the part of the LPDC, but which nevertheless someway gives a subtle testament to this writer`s suggestions. In offering its reasons why it though that Count 2 of the Complaint, bothering on breach of Rule 7(3) of the RPC, was proven, the LPDC had this to say:
“Initially, we were of the view that the sale of land is clearly business of trading or trade incompatible with the practice of law and clearly capable of undermining the high standing of the profession, the count alleging that he failed to maintain the high standard of professional conduct as a legal practitioner ought not to succeed. This is because it was apparent that the respondent acted clearly as a land vendor throughout the transaction. But upon a closer inspection or review of the facts, particularly the contents of exhibits 8, 9, and 10 (receipts evidencing the purported sale of land) it is clear that the deception of the entire transaction was achieved because the respondent masqueraded in the toga of a legal practitioner. Consequently, though not compatible with the profession of law, the respondent was clearly using his office as a lawyer to lend the veneer of trust and respectability to the rather distasteful and dishonorable business of duping people through phony land sales.”
One could easily see that it was the dishonorable conduct of Mr Ibebunjo, and not his mere personal involvement in a sale of land transaction, that had led the LPDC into ruling that sale of land by a lawyer is a breach of Rule 7, RPC. In other words, if the only complaint against Mr Ibebunjo in that case was that he had engaged in sale of land, the LPDC`s decision in this wise would have been different if there was no evidence that Mr. Ibebunjo acted fraudulently and dishonorably in the transaction. One could therefore conclude that a lawyer engaging in sale of land in a manner that maintains the high standard of the profession and engenders confidence in legal practitioners generally, without more, depending on the circumstances of each particular case, may not be outrightly considered a conduct incompatible with the practice of law. In NBA v. Ibebunjo, there was no doubt that while acting as a vendor an presenting himself as a legal practitioner at the same time, Mr Ibebunjo had abused or taken undue advantage of the confidence reposed in him by the purchaser; this was the principal reason for the decision and pronouncement made by the LPDC. This writer respectfully believes that further support for this view may be found in a paper titled, “Ethics and The Legal Profession,” presented by Mr. Yusuf Ali (SAN) at the Nigerian Institute of Advanced Legal Studies’ (NIALS`) training course on Leadership, Negotiation And Management Skills For Legal Practitioners, held in Abuja on November 07, 2016, wherein the learned Silk accurately (in this writer`s view) represented the real reason behind LPDC`s striking out of Mr. Ibebunjo`s name from the Roll. Says the learned silk:[xix]
“a lawyer shall not do any act whereby for his personal benefit or gain, he abuses or takes advantage of the confidence reposed in him by his client. In NBA v. IBEBUNJO, the respondent, putting himself forward as ‘Barr. A. A. Ibebunjo’, fraudulently obtained from the Complainant the sum of N1.6 Million under the pretext that he sold to him 8 plots of land in 2002. However, the Complainant was unable to take possession of the land or receive a refund of his money despite repeated demands. He was found liable of infamous conduct in the course of the performance of his duty as a legal practitioner.”
Obviously, Mr Ibebunjo was found to have failed to “maintain the high standard of professional conduct” required of legal practitioners, and had failed to refrain from “conduct which is unbecoming of a legal practitioner.”[xx] This is what I think had informed the decision of the LPDC to take away from Mr. Ibebunjo, the business of law practice so that he might concentrate fully on his “sale of land” business. Even the seemingly general declaration made by the LPDC that the business of selling land is a trade or business incompatible with the practice of law and that the respondent was clearly “playing with fire” when he was using the platform of his legal practice to sell land was made because of LPDC`s utter displeasure with Mr Ibebunjo`s distasteful conduct. LPDC was of the view that Mr Ibebunjo “has brought a great dent on the image of the profession and the only remedy is [for him] to exit from the profession.”[xxi] The Committee hence cited the demands of the “the justice of this case” as the real reason behind its decision to declare that lawyers ought to refrain from personal involvement as parties in sale of land transactions. The LPDC was resolved to force Mr Ibebunjo to “leave the business of practicing law to those who are bona fide legal practitioners.” Hear the LPDC once again:
“it is clear beyond per adventure that the business of selling land is a trade or business incompatible with the practice of law. In the instant case, the respondent was clearly doing illegal business to sell land. Rule 7(3) clearly provides the category of business that are compatible with the practice of law. From what we have reproduced above the respondent was clearly playing with fire when he was using the platform of his legal practice to sell land. The justice of this case demands that we allow him go full time into his main business of selling of land and to leave the business of practicing law to those who are bona fide legal practitioners.”[xxii]
On a critical look at the above dictum of the LPDC, and at the aforesaid, it would appears the main focus was on Mr. Ibebunjo’s unbecoming, criminal and unprofessional actions. Else, where a lawyer has acted honorably, discussions geared towards determining and delineating relevant boundaries between what is incompatible and what is not, as far as a lawyer`s involvement in “sale of land” businesses might be considered unnecessary; all the more so, because, in my view, even definitions from the dictionaries and case law, earlier cited, make the dividing lines too blurry! This writer seriously doubts that involvement in sale or purchase of land, which is the heart of conveyancing, is not among the business of law practice. To interpret or take LPDC`s pronouncement on its face value is, to say the least, to help to takeaway an aspect of the business of law practice, thereby further shrinking the boundaries of the Legal Practice Space.
- Does the Decision in NBA v. Ibebunjo extend to Conveyancing Transactions Other Than Sale of Land?
Does the decision in NBA v. Ibebunjo extend to non-sale-of-Land” transactions, such as mortgages, Wills, administration of estate, leases and tenancies, creation or donation of power of attorney? This aspect needs to be discussed and resolved because NBA v. Ibebunjo is particular about “selling and buying of land,” and says nothing about such other conveyancing transactions. The words used by the Legal Practitioners Disciplinary Committee (LPDC), as shown above, leaves no one in doubt about this: “Mr. Ibebunjo was clearly playing with fire when he was using the platform of his legal practice to sell land. The justice of this case demands that we allow him go full time into his main business of selling of land and to leave the business of practicing law to those who are bona fide legal practitioners.” To help us in arriving at a quicker resolution of the issues raised by this poser, this writer leaves us with two questions to ponder upon:
- If the LPDC took away the business of law practice from Ibebunjo because he was impliedly considered to be not a “bona fide legal practitioner,” in that he was practicing his own law “fraudulently” or was hiding under his law practice to commit fraud against “his clients”, why would other lawyers who act or practice “Bona Fide” and who are neither cheating nor defrauding their clients, not be allowed to go ahead and continue with involvement in all conveyancing businesses, including sale or purchase of land, as they used to?
- If, as the LPDC found in that case, Mr Ibebunjo was “playing with fire” by venturing into the “land sale business,” would it amount to or constitute also an act of playing-with-fire for other lawyers to get involved in such non-sale-of-land transactions as referred to above? Or, should the dictum/decision of the LPDC be taken to extend also to such other transactions by association?
This writer respectfully submits that lawyers should just leave the principle in NBA v. Ibebunjo where it rightfully belongs, which is to the business of “selling and buying of land” the boundaries of which are not even yet settled, although as pointed out above. Outstretching the injunction in NBA v. Ibebunjo to extend to mortgages, power of attorney, wills, leases, and so on, might tantamount to inserting into the decision what obviously is not there. Besides, it might give support to the widespread view that we Lawyers themselves are their own worst enemies — yes, because such would mean that lawyers are the ones working so hard to take away from themselves what rightfully is their own, and to hand same over to non-lawyers. |Of course, by the time all these legal jobs have been taken away from the lawyer, one wonders what other work or jobs would be available for lawyer in Nigeria for his law practice and to make ends meet.
- The Steadily Shrinking Legal Practice Space in Nigeria: Are Lawyers Not Blameful?
Examples abound of how several other professionals and non-professionals, within and outside Nigeria, have steadily hit the Nigerian lawyer and his law practice so ferociously from all over the place, with a view to muzzling lawyers and taking away all law work from the lawyer. The sad thing is, lawyers themselves appear to be doing only very little to ward off these noticed external incursions into law practice space/arena. Indeed, this writer believes that Nigerian lawyers have constituted themselves willful contributors, as is seen in the unnecessary blanket ban which the LPDC (comprising exclusively lawyers) have tried to hand out against lawyers in NBA v. Ibebunjo. With due respect to the LPDC, this writer looks at such attempt by the LPDC as an overzealous, unjustifiable hasty generalization; there appears to be not a single evidence indicating that every other Nigerian lawyer who gets involved in actual “selling and buying of land” would end up defrauding his or her client or the purchaser, unlike what happened in the case of Mr Ibebunjo. In this writer`s view, striking out Mr Ibebunjo`s name, and doing nothing more other than ordering Mr Ibebunjo to refund all monies he had fraudulently collected from the supposed purchaser (Mr Ezeife) was sufficient punishment for Mr. Ibebunjo`s ignoble and inglorious conduct. Besides, one might consider it curious that the Nigerian Bar Association had in that case framed a second, unnecessary, complaint pertaining to the import, application or scope of rule 7 (2) and (3) of the RPC, which the LPDC later considered, leading to the pronouncements pertaining to the seeming total ban on lawyers` personal participation in sale of land transactions. In that case, clearly, the LPDC ended up making itself a major contributor to this unfortunate shrinking of the Legal Practice Space as we used to know it. A few other examples of the needless external interferences, interruptions and intrusions into the Nigerian Legal Practice Space would serve to illustrate the point I try to make here.
- Against clear provisions of the CAMA,[xxiii] and purportedly in pursuance of the Nigerian Federal Government`s ease-of-doing-business concept, the Corporate Affairs Commission has been fighting hard to take away some aspects of the lawyer’s work and to hand same over to its (CAC’S) in-house Lawyers. On 5 April 2017, the Nigerian Minister of Industry, Trade and Investment, had amended the Companies Regulation, 2012 by inserting amongst others, a new Regulation 11(b) which in essence was aimed at whittling down the role of legal practitioners other than those who are in the employment of the Corporate Affairs Commission (CAC) in the process of registration of companies. Specifically, the amendment handed over to CAC`s inhouse lawyers the role of signing CAC`s Form of Statutory Declaration of Compliance, required to be signed by lawyers[xxiv] with the result that when a new Company`s first directors or subscribers presented an application for registration a new company, lawyers in private practice would hardly ever have the opportunity of signing these Forms for their clients. It meant that private practitioners would no longer be required in the process of registration of companies. Besides, company promoters would have no need to go through private legal practioners in respect of registration of companies; they could take their applications straight to the CAC. Expectedly, and relying on the new Regulation, CAC had published a Notice to the general public to the effect that private legal practitioners were no longer needed for registration of companies in Nigeria[xxv] Angered by this development, Ernest Nkwocha Esq., a Kano based Constitutional Lawyer, had dragged the Minister of Industry, the CAC and the Attorney General of the Federation, to the Federal High Court, arguing that the conducts of the Minister and of the CAC were unknown to the Nigerian laws. The lawyer further contended that section 585 and 609 of the Companies & Allied Matters Act CAMA),[xxvi] which the Minister had relied on, did not grant the Minister any powers to make the kind of provision the Minister had made. The lawyer contended that sections 16 of CAMA was a general rule while section 35(3) of the same CAMA dealing with Statutory Declaration of Compliance, was a special and particular provision appearing subsequent to the general rule. Citing the rule of interpretation of statutes, generalia specialibus non derogant, the lawyer stressed that section 35(3) of CAMA would override the general rule in section 16 of CAMA in cases of conflict. The suit was filed on Friday, 11 May 2018.[xxvii] In a judgment delivered on 19 November 2018 by the Federal High Court, sitting in Kano, Hon Justice A O Egwuatu barred legal practitioners who are in the service of Corporate Affairs Commission (CAC) from further deposing to the Statutory Declaration of Compliance towards complying with requirements relating to registration of new companies.[xxviii] However, to demonstrate its determination to steal lawyers` jobs, the CAC quickly appealed the FHC judgment.[xxix] Happily, the only way to take this exclusive right away from private practitioners is to amend the principal law, the CAMA, because as it stands now, in company formations, a statutory declaration by legal practitioner engaged in the formation of a company must be produced before a company can be incorporated.[xxx]
- Foreign embassies and consulates in Nigeria have recently turned their officials into “Notaries Public” for purposes of attesting to relevant documents, and this practice has rendered Nigeria`s indeqenous Notaries Public almost useless in that respect. On the official website of the Embassy of the United States in Nigeria, the following notice/advert[xxxi] is boldly displayed, and Nigerian Lawyers appear to be doing practically nothing about that: “…. Notary services are available to all U.S. passport holders and foreign nationals for documents destined to be used in the United States. The fee is 50 U.S. dollars (USD), or the Nigerian Naira (NGN) equivalent, for each notary seal stamp administered. The NGN to USD exchange rate may vary. All services must be paid for upfront in cash. We do not accept any form of card payment or personal checks….”
- At the High Court Probate Registries and Land Registries across the country, staff members of the registries are in the habit to advising prospective applicants for Letters of Administration, Probate and Resealing (in the probate registries), and for Perfection and Regularization of Land Documents, titles and transactions, etc., to ignore Lawyers and instead bring their applications and documents direct to the probate and land registries for registration, processing, and perfection, respectively as the case may be. The wordings of the Legal Practitioners Act[xxxii] leaves no one in doubt about the role it assigned to lawyers in the process of application for, and processing of, documents for probate or letters of Administration. The term “legal practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.[xxxiii] Besides, a person shall not be entitled to practice as a barrister and solicitor in Nigeria if his or her name is not on the roll.[xxxiv]
- Officers and men of the Nigerian Police and some other Law Enforcement agencies in Nigeria would tell their suspects, accused persons, arrestees and detainees that they have no need for lawyers as “police are their friends.” The Nigerian Police are now a debt recovery agency, and collecting more than the 10 percent usually due for the lawyers for services rendered towards the legal jobs relating to debt recovery, against clear pronouncements of the Supreme Court of Nigeria warning security agencies to stay off pure civil disputes.[xxxv] Then, at the various zonal offices of the Economic and Financial Crimes Commission (EFCC), Nigerian lawyers are hardly allowed to operate. Section 8(2) of the Administration of Criminal Justice, Act (the Act), 2015 provides that: “a suspect shall not be arrested merely on a civil wrong or breach of contract.”[xxxvi] Some potential clients still resort to using these law enforcement agents notwithstanding the pronouncement of Nigeria`s Court of Appeal in Anogwie v. Odom:[xxxvii] “…the invitation of the police to intervene in a matter that is purely civil in nature cannot be justified under any circumstances. The duties of the Police as provided under Section 4 of the POLICE ACT, Cap 359 LFN 1990 does not include the settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties.”
- Most clients now prefer to take the law into their own hands by enlisting the services of members of the O`dua Peoples` Congress (OPC), Movement for the Actualization of the Sovereign State of Biafra (MASSOB), Indigenous People of Biafra (IPOB), AREWA Youths, or even retired or active militants, ethnic militias, areas boys, thugs and even social miscreants and louts, etc., to get their legal jobs done quick – jobs which range from debt recovery, ejection of recalcitrant tenants to settlement of scores with perceived social, community or political enemies, etc. Some other prospective clients prefer to use serving or retired military men for a “quick action.”
- What is more? Right inside the Law Firm/Offices, where lawyers are supposed to feel at home, most (of course, not all) senior lawyers/colleagues treat their juniors in Chambers, as rags or salves.[xxxviii] Some Law Firms owe workers` salaries (including salaries of fee earners[xxxix]) for months while some others pay as monthly salaries to each employee, money that would not even be enough to cover the affected employee`s transportation cost in one month.
- Outside the Law Firm, some establishments claim they have no jobs for lawyers; the truth, however, is, they get these otherwise legal jobs done through extralegal or extrajudicial means.
- Then, what happens within the precincts of the court of the courtrooms, the court of justice? There are incessant cases of court-is-not-sitting, dirty deals, corruption, kickback, needless and annoying adjournments and other delays and delay-tactics, mostly perpetrated by lawyers, litigants, court officials and (in some cases) presiding judicial officers alike. The result is that litigation is becoming increasingly unattractive to the ordinary clients who bring their cases to the courts, in genuine expectation of quick and fair dispensation of justice. So many discouraging stories and disheartening reports[xl] emanating from the courts of justice are an increasing source of worry and discouragement to prospective litigants. There were recent reports about the stench oozing out of the Lagos State judiciary: “Justice for Sale (I & II): Extortion, Injustice prevail in Lagos State Courts”[xli] The result of all these is a steady decline in the number of clients who are willing to settle their cases by litigation, which automatically translates to fewer jobs for the litigations advocates.
- The Omo N’Iles[xlii] quacks and other non-expert Land Speculators and Grabbers unleash their own terror on legal practice. To checkmate the activities of these land grabbers in Lagos State, Governor Akinwunmi Ambode had on 15 August 2016, signed into law the Lagos State Properties Protection Law, 2016,which was geared towards the prohibition of forceful entry and illegal occupation of landed properties, violent and fraudulent conducts in relation to landed properties in Lagos state. The main objective of the law is to provide legal comfort and assurance to interested investors that they can carry on legitimate land and property transactions without fear of harassment, intimidation or unnecessary exploitation by these land grabbers.[xliii] The Anambra State of Nigeria had in 2012 enacted the Prohibition of Fraudulent Practices on Land and Property Law 2012.[xliv] Activities of these land grabbers, which cut across states in Nigeria, have serious adverse effects on conveyancing law practice in Nigeria; indeed, it is one of the major challenges faced by lawyers in conveyancing practice in Nigeria. Some writers have tried to explain the menace of land grabbers,[xlv] but the phenomenon persists. Recently, the Lagos State Government vowed to go tough on land grabbers, popularly known as ‘Omonile’ who specialize in seizing people’s properties.[xlvi]
- Recently, Union Bank, with all the customers’ monies at its disposal, still proceeded to place an advert, telling the whole world to ignore lawyers as Union Bank was now a legal-services-rendering institution, apart from being a Banker; two clearly incompatible occupations. It took open protestation and condemnation[xlvii] by so many lawyers before our Nigerian Bar leadership[xlviii] took relevant steps to kick against[xlix] and halt Union Bank’s stray into irresponsibility and mischief
- Some Federal and State government agencies prefer to farm out to lawyers in foreign lands, legal jobs meant for lawyers called to the Bar in Nigeria, in breach of the Legal Practitioners Act which forbids law practice in Nigeria by anyone who was not duly called to the Nigerian Bar,[l] save for the purpose of special proceedings after having fulfilled conditions prescribed by law.[li] In an earlier published work, the present writer had cause to make the following observations on this:[lii] “… a large chunk of the biggest legal jobs in Nigeria (legislative drafting, etc.) are usually given out to foreign law firms, in America, Canada, UK, etc at cut-throat foreign currencies, while Nigerian lawyers, who are more often than not, more capable and competent and of course willing to work, are left to fight over crumbs and pieces from the table of the non-Nigerian Lawyers!!! One may even ask a question, what has become of the Nigerian laws that say a person who is not qualified as a lawyer in Nigeria cannot practice law in Nigeria? Do those provisions not forbid giving lawyers’ job in Nigeria to non-Nigerian lawyers? Where is the Nigerian Bar Association its branches, and Nigerian lawyers doing about all this illegal exportation of just entitlement of Nigerian lawyers?
- Lawyers have even begun to be harassed or castigated for appearing in court to represent their clients —that is, for exercising their constitutional and statutory rights as lawyers— while the prosecutors, investigators and law enforcement agents who often mastermind these harassments and blackmail strive hard to obtain convictions (of the defendants) at all costs, in total disregard of universally acknowledged standards in criminal justice administration. Lawyers are now afraid to honestly and diligently work for their clients![liii]
- While lawyers spend huge resources training and retraining as professional Arbitrators, Mediators, and Conciliators, and ADR experts, it is seen that at the community level much of the cases on arbitration, mediation and conciliation are taken before Village Heads, Chiefs, Oba, Igwes, Eze`s, Emirs Town Unions, and community associations, leaving the lawyer-mediator with nothing to show for the many arbitration and mediation Certificates he carries about. It needs however to be stated that lawyers have a primary professional responsibility to discourage litigation and encourage out-of-court settlements.[liv] Yes! But, how many of our lawyers ever get invited or involved in non-litigation, out-of-court settlement processes? “Only a handful” is this writer`s answer. This notwithstanding, lawyers are hereby encouraged to heed the counsel of Sandra Day O’Connor, US Supreme Court Justice: “the courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”[lv] Hence, lawyer sought to go about preaching, as Abraham Lincoln once did: “discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”[lvi]
- Peroration: Would there Still be Business Enough?
In view of this unrelenting onslaught against the legal profession in Nigeria, would there still be business enough for lawyers in Nigerian? This writer believes that there would still be business enough for lawyers in Nigeria only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to fight against those who fight against the legal profession and its members. Unfortunately, as it appears, instead of fighting the real enemies of the profession in Nigeria, Nigerian Lawyers are busy fighting one another, fighting their bar associations, and leaving the legal profession declining and the Legal Practice Space steadily shrinking. The writer has illustrated above how lawyers` traditional jobs are being brazenly seized by outsiders, who operate unhindered, while the Nigerian Bar Association is enmeshed in needless internal wrangling and unnecessary narcissistic divisions. The truth is, nothing will work unless lawyers do something.[lvii] No progress would be made in this direction if lawyers do nothing concrete and constructive to scare these saber-rattlers. |Lawyers in Nigeria need to wake up to their responsibilities! Time for the Bar, the Bench, and members of both the bar and the bench, to stand and fight to save the soul of the legal profession in Nigeria is now or never! There is no time to wait or waste; time will never be right.[lviii] As Barack Obama put it, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”[lix] If we fold our arms and do nothing to halt the steady decline in the legal practice space and also to enlarge the scope of legal jobs with a view to leaving enough for lawyers in Nigeria, or if we continue to do things the way we have always done by continuing with our superficial approach, there might be little or no improvements and we would continue to get the same results as we have always got while the professions becomes the worse for it. A stitch in time saves nine
Sylvester Udemezue (udems)
[i] Sylvester Udemezue (udems), Legal Practitioners, teaches law in Nigerian Law School and can be reached at +2348109024556, firstname.lastname@example.org
[ii] (2013) 18 NWLR (Pt.1386) 413
[iii] Op Cit, @ 414-415
[iv] In view of the decision of the Supreme Court in Nwosu v. NBA (LPELR-46918 (SC)Note that by virtue of the fact of the NBA being deemed to be registered under Part C of the CAMA, Cap C20, LFN, 2004, it is legally wrong to institute any action in the name, “Nigerian Bar Association” or “NBA.” The proper person to instate or defend a legal action where the NBA is a party is the “Incorporated Trustees of the Nigerian Bar Association” or the “Registered Trustees of the Nigerian Bar Association.” See section 592 (1)(a) of Cap C20. Meanwhile, see “The Nigerian Bar Association (NBA) as a Person in Law: Truth or Travesty?” by Sylvester Udemezue.
[v] Op Cit, 425
[vi] (2013) 18 NWLR 420
[vii] Op Cit, p. 417
[viii] Op Cit., @428, paras. A-C
[ix] Op Cit., @429 para A-E
[x] Established by section 10 of the Legal Practitioners Act, Cap L11, Laws of the Federation of Nigeria, 2004. Section provides that “There shall be a committee to be known as the Legal Practitioners’ Disciplinary Committee (in this Act referred to as “the Disciplinary Committee”) which shall be charged with the duty of considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Act. “Section 11 prescribes punishments for unprofessional conduct or professional misconduct.
[xi] 2007, Rules 48 and 49
[xii] “Conveyancing: Meaning in the Cambridge English Dictionary” (Cambridge Dictionary) <https://dictionary.cambridge.org/dictionary/english/conveyancing> accessed January 8, 2020
[xiii] see Livermore v. Bagley, 3 Mass. 505
[xiv] See Rules 15, 17, and 23 RPC, 2007
[xv] See Williams v. Franklin (1961) All NLR 218
[xvi] see Rule 17, RPC and Smith v. Mansi, relating to existence of conflict of interest
[xvii] Rule 17(6) RPC
[xviii] see Rule 18(2) RPC
[xix] <https://yusufali.net/articles/ethics_legal_profession.pdf> accessed January 8, 2020
[xx] See Rule 1, RPC
[xxi] NBA v. Ibebunjo Op Cit., @428, paras. A-C
[xxii] NBA v Ibebunjo (2013) 18 NWLR (Pt.1386) 413 @428, paras. A-C
[xxiii] Companies and Allied Mattes Act) Cap C20, Laws of the Federation of Nigeria, 2004
[xxiv] pursuant to section 35(3) of Companies and Allied Matters Act Cap. 20 LFN 2004
[xxvi] Cap C20, Laws of the Federation of Nigeria, 2004
[xxvii] with suit no. FHC/KN/CS/86/2018
[xxviii] “Court Bars CAC Lawyers from Deposing To Statutory Declaration Of Compliance Requirements For Registration Of New Companies” (NigeriaBar) <http://www.nigeriabar.com/2018/11/court-bars-cac-lawyers-from-deposing-to-statutory-declaration-of-compliance-requirements-for-registration-of-new-companies#.XhUgUEdKjIU> accessed January 8, 2020
[xxix] “CAC Appeals Courts Judgement Restraining Its Lawyers From Further Deposing To The Statutory Declaration Of Compliance Requirement.” (LEDAPJanuary 25, 2019) <http://ledapnigeria.org/cac-appeals-courts-judgement-restraining-its-lawyers-from-further-deposing-to-the-statutory-declaration-of-compliance-requirement/> accessed January 8, 2020
[xxx] Section 35(3) Companies and Allied Matters Decree 1990 (now CAPC 20, VOL III, LFN 2004).
[xxxi] “Notarial Services” (U.S. Embassy & Consulate in Nigeria) <https://ng.usembassy.gov/u-s-citizen-services/local-resources-of-u-s-citizens/notaries-public/> accessed January 8, 2020
[xxxii] Section 22(d)
[xxxiii] See the Legal Practitioners Act, CAP L11, LFN, 2004, section 24
[xxxiv]Op Cit., section 2
[xxxv] See EFCC v. Diamond Bank (2018) LPELR-44217 (SC) page 23 parag A-D & page 25-26, para B-B. See also Diamond Bank v. Peter Opara (2018) LPELR-43907 (SC)
[xxxvi] See Chukkol O.G., “Use of Law Enforcement Agents to Recover Debt Is Illegal – O. G. Chukkol” (DNL Legal and StyleDecember 22, 2017) <https://dnllegalandstyle.com/2017/use-law-enforcement-agents-recover-debt-illegal-o-g-chukkol/> accessed March 27, 202
[xxxvii] (2016) LPELR-40214 (CA) see also Skye Bank Plc v. Emerson Njoku & Ors (2016) LPELR-40447(CA)
[xxxviii] See Udemezue S.C, “Bar Associations and the Sad Story of Nigerian Lawyers – Sylvester Udemezue” (DNL Legal and StyleNovember 3, 2017) <https://dnllegalandstyle.com/2017/bar-associations-sad-story-nigerian-lawyers-sylvester-udemezue/> accessed March 27, 2020
[xxxix] Lawyers who work in Law Firms are classified as “fee earners,” as opposed to the non-lawyer employees in the Law Firms who are collectively classified as the “to support staff.”
[xlii] a Yoruba term used to describe land grabbers
[xliii] See <https://omonilelawyer.com/lagos-state-properties-protection-law/> accessed 26 March 2020
[xliv] See < http://www.iosrjournals.org/iosr-jestft/papers/Vol13-%20Issue%205/Series-2/G1305025158.pdf> accessed 26 March 2020
[xlv] See “Why Land Grabbers Are On The Prowl” published on <https://www.independent.ng/why-land-grabbers-are-on-the-prowl/> accessed 26 March 2020
[xlvii] “Lawyer Faults NBA over Bank’s Free Legal Services” (The Guardian Nigeria News – Nigeria and World NewsMay 1, 2018) <https://guardian.ng/features/lawyer-faults-nba-over-banks-free-legal-services/> accessed January 8, 2020
[xlviii] (PUBLIC NOTICE ON THE LEGAL ADVISORY SERVICES & ALTERNATIVE DISPUTE RESOLUTION OFFERED TO THE PUBLIC BY UNION BANK NIGERIA PLC) <https://www.nigerianbar.org.ng/index.php/news1/386-public-notice-on-the-legal-advisory-services-alternative-dispute-resolution-offered-to-the-public-by-union-bank-nigeria-plc> accessed January 8, 2020
[xlix] irresponsibility and mischief
Ifeoma P, “NBA Condemns Union Bank’s Move to Offer Legal Services” (DNL Legal and StyleApril 18, 2018) <https://dnllegalandstyle.com/2018/nba-condemns-union-banks-move-to-offer-legal-services/> accessed January 8, 2020
[l] Section 22, LPA
[li] section 24 and 2 LPA; Awolowo v Sarki (1966)1 All N.L.R. 178
[lii] Udemezue S.C, “Bar Associations and the Sad Story of Nigerian Lawyers – Sylvester Udemezue” (DNL Legal and StyleNovember 3, 2017) <https://dnllegalandstyle.com/2017/bar-associations-sad-story-nigerian-lawyers-sylvester-udemezue/> accessed March 27, 2020
[liii]Udemezue, Op Cit.
[liv] See for instance Rule 15 (3) (d) RPC, 2007
[lvi] See https://quod.lib.umich.edu/l/lincoln/lincoln2/1:134.1?rgn=div2;view=fulltext> accessed January 8, 2020.
[lvii] Attributed to Maya Angelou, American poet, singer, memoirist, and civil rights activist.
[lviii] Napoleon Hill American self-help author (1883-1970)