Protecting Legal Profession from Extinction, Adulteration, Infiltration (1) – Mike Ozekhome SAN

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Introduction

I had delivered this Keynote address during the annual dinner of the NBA, Onitsha branch, which was held at Onitsha, Anambra State, on Friday, December 13, 2019. I hereby share same with my teeming readers, who, from letters, SMS, WhatsApp messages and phone calls I receive daily, have since crossed the boarders of legal practice stricto sensu and extended to the mass majority of our people. I thank you, readers. 

Some definitions and contexts

Let us begin our series with definition of certain terms that would open up the vistas of this write-up.

The “legal profession”

Attempting a definition of the term ‘LEGAL PROFESSION’ is more difficult than one may anticipate. It becomes apparent that the simplest definition is perhaps the most befitting. The legal profession is a vocation that is based on expertise in the law and in its applications. Those who pursue these vocations collectively form a body of individuals who are qualified to practise law in a particular jurisdiction. The learned occupation of these individuals is to study, promote, uphold and enforce the collection of rules imposed by the authority. They thus form the ‘legal profession.’

Extinction

The Encarta dictionary defines extinction as the, “the gradual process of which a group of related organism dies out.” It also defines it, “as state of being no longer valid or the process of ceasing to be valid or practiced.”

Adulteration

adulteration to be, “to make something less pure by adding inferior or unsuitable elements or substances to it”.

Infiltration

The same Encarta dictionary defines infiltration, “to become part of an organization, or enter a place, surreptitiously in order to gather information or influence events, or send agents to do this.”

Accordingly, based on the various well captured definitions of extinction, adulteration and infiltration, the theme of the instant write up is targeted to suggest means by which our noble legal profession can be protected from the dangers of ceasing to exist, or making it less attractive to the society, while proscribing the enemies of the legal profession in order to keep its efficiency and efficacy prominent in our society.

The legal profession and schools of thought

The legal profession is a noble profession where many are called but few are chosen. Some scholars are of the view that the legal profession is one of the oldest professions in the world. The positivist school of thought believe that law is a command handed over from a sovereign to the led. The Natural school of thought sees law as a divine law. The Realists see law as “the prophesies of what the court will do and nothing more pretentious”. Scholars who belong to this school of thought include the respected American Jurist, Oliver Wendel Holmes. The Historical School of law of Von Savigny, views law as being deeply rooted in the past of a Nnation, the common consciousness of the people “like language; the law was developed by the character of a Nation its National Spirit (volksgeist)”.

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In OKAFOR V. NWEKE (2007) 10 NWLR (Part 1043) 521, 530 – 531 H – D and 531 -532 G – A, the Supreme Court, per Onnoghen, JSC (as he then was), held as follows:

‘’However section 2(1) of the Legal Practitioner’s Act CAP 207 of the laws of the Federation of Nigeria 1990 provides thus:

Subject to the provisions of this Act, a person shall be entitled to practise as a Barrister and Solicitor if, and only if, his name is on the roll…

…From the above provisions, it is clear that the person who is entitled to practice as a Legal Practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name’’.

The above position of the learned law Lord serves to emphasise who can practise as a Legal Practitioner in Nigeria.

According to Fred Rodell, professor of law, Yale University: “It is lawyers who run our civilization for us, our governments, our businesses, our private lives… we cannot buy a home or rent an apartment, we cannot get married or try to get divorced, we cannot leave our property to our children without calling on the lawyers to guide us. To guide us, incidentally, through a maze of confusing gesture and formalities that lawyers have created… the legal trade, in short, is nothing but a high class racket’’.

The Nigerian and English Legal Systems: Origin and makeup of the English Legal System

The English legal system forms the basis of many ‘common law’ legal systems throughout the world and therefore enjoys a superior international status. English law is comprised of criminal law and civil law. The rules governing criminal and civil laws are derived from common law and legislation which are essentially binding on all United Kingdom legal systems. Those within the legal profession have specialist knowledge of the various principles, rules and laws that govern the English legal system.

In the United Kingdom, the distinction between Solicitors and Barristers is not as clear-cut as it once was. Following the Court and Legal Services Act (CLSA), 1990, Solicitors now have the right to become certified Advocates (i.e. represent clients in court).  There are serious suggestions that Barristers have consequently lost their dominance over advocacy in courts. Although Solicitors are taking on a more active advocacy role in the lower courts, Barristers stricto sensu still maintain an unrivalled monopoly over the higher courts.

In the United Kingdom, there are essentially two main branches of the legal profession – Solicitors and Advocates, or Barristers.

However, in Nigeria the distinction does not apply as lawyers act as both Solicitors and Advocates.

The Nigerian legal system

The Nigerian legal system however includes the customary laws of the different peoples that make up the Nigerian Federation, as well as the Sharia laws derived from the Islamic legal system. They are applied side by side the received English laws to ensure law and order in the Nigerian society.

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There are currently over 60,000 practising lawyers in Nigeria, all governed by the Legal Practitioners Act, Cap L11, LFN, 2004. Lawyers represent clients in court and in corporate establishments, and give specialist opinions on complex legal and quasi-legal matters after receiving instructions from clients.

Who can enter the legal profession?

A consistent requirement for those intent on entering the legal profession is that of high academic achievement. This forms the basic criterion that the vast majority of candidates must meet, before any additional skills they may possess will be considered. Candidates will need a range of skills, which vary depending on the area of the legal profession they wish to specialise in. To become an outstanding Barrister, eloquence, excellent articulation, confidence, an analytical mind and power persuasiveness are essential requirements. In contrast, the skills demanded of a Solicitor lean more towards an aptness for problem solving, an enquiring mind and a flair for generating ideas on new business and winning clients. It thus becomes clear that in spite of the enactment of the CLSA, 1990, Solicitors cannot rival or replace Barristers given their very separate and distinct roles within the legal profession.

The legal profession is renowned and heavily criticised for its almost impenetrable nature. The first hurdle for many applicants hoping to enter the legal profession is to secure that all-important place at a recognised university, to complete their law degree and then at an equally reputable institution to complete their legal education at the Law School, as the case may be. The real competition begins, however upon completion of these two stages. The lawyer then proceeds for pupillage to prepare him or her for the task ahead.

Categories of lawyers

There is therefore one general category of lawyer in Nigeria. All lawyers are admitted to the Bar as Barristers and Solicitors of the Supreme Court without any distinction as to their roles or functions. However, section 5 of the Legal Practitioners Act, Cap L11, Laws of the Federation of Nigeria 2004 (LPA) provides for the conferment of the rank of “Senior Advocate of Nigeria” as a privilege on members of the legal profession who have practised and distinguished themselves as legal practitioners for over ten years and satisfy the requirements as determined by the Legal Practitioner’s Privileges Committee.

Rights and duties of lawyers

All lawyers have a right to conduct and take part in any court proceedings, sign legal documents and instruments and file any such documents as a legal Practitioner on the condition that they hold a practising certificate for that year.

The Rules of Professional Conduct for Legal Practitioners 2007 (RPC), specify that the duties of a lawyer are tripartite. He owes a duty to his client, duty to the court and duty to the State.

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In summary, the duty of a lawyer is to uphold and observe the rule of law, promote and foster the cause of justice, maintain high standard of professional conduct and portray the legal profession in a good light.

How do foreign lawyers come in?

Foreign lawyers can requalify as lawyers in Nigeria. Foreign lawyers are required to go through a mandatory Bar Part 1 at the Nigerian Law School, where they learn the fundamental principles of Nigerian Law. The programme is a full-time programme of three months, and is open to graduates of law of common law countries whose law courses have been approved by the council of legal education in Nigeria.

After successfully completing the Bar Part 1 course, the foreign lawyers are admitted into the regular Bar Part II one-year programme and if they qualify, will be admitted into the Nigerian Bar as a Barrister and Solicitor of the Supreme Court.

Who can practise in Nigeria?

There are two major requirements for obtaining a practising certificate in Nigeria for every lawyer called to the Nigerian bar, which confers on the lawyer a right to audience in court.

The first requirement is the payment of a practising fee not later than a date in every year specified by the Nigerian Bar Association (NBA) (currently 31st March). The amount of practising fees to be paid depends on the year of qualification and is also a requirement for obtaining a stamp and seal at the various branches of the Nigerian Bar Association.

The practising certificate is renewable annually and issued to lawyers whose names are on the annual practising list (because they have satisfied the two requirements for the relevant year). In practice, however, an actual licence is rarely issued by the NBA and a receipt acknowledging payment of practising fees for the year is sufficient for a lawyer to practise law in Nigeria.

There is no distinction in the legal requirements for obtaining an annual practising certificate for In-house counsel. In-house counsel must pay their practising fees and complete the required CPD programmes in order to be entitled to practise for the year.

Also, by virtue of section 2(1) of the LPA, a legal practitioner is only entitled to obtain a practising certificate if (and only if) his name is on the roll.          

(To be continued).

Source: Sun News Online

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