Protecting Legal Profession from Extinction, Adulteration, Infiltration (2) – Mike Ozekhome SAN

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Introduction

Last week, I started my discourse from the keynote address I delivered during the NBA, Onitsha branch, Annual Dinner, held in Onitsha. So far, I have defined some certain legal terms; the legal profession and the schools of thought; the origin and make-up of the Nigerian and English legal systems; and who can enter the legal profession; categories of lawyers in Nigeria and rights and duties of lawyers. Today, I shall continue with our treatise, having commenced with who can practice in Nigeria, last week.

Who can practise in Nigeria? (continues)

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.

However, the Chief Justice may on application entitle any advocate in any country where the legal system is similar to that of Nigeria to practise as a barrister for the purposes of proceedings described in the application by a warrant issued under his hand (section 2(2), LPA).

Also, appointment of any persons to the office of Attorney-General, Solicitor-General, or Director of Public Prosecutions will entitle him/her to practise as a Barrister and Solicitor for the purposes of that office. However, this is rare in practice, as most appointments to these offices are usually made only to already-qualified legal practitioners.

There are no limitations on lawyers advising in Nigeria. A lawyer once admitted into the Nigerian Bar is qualified to practise anywhere in Nigeria without any restrictions, whether by practice area or territory.

Lawyers in Nigeria are expected to abide by the provisions of the RPC made by the General Council of the Bar.

Generally, only those with their names on the Roll of legal practitioners kept by the Chief Registrar of the Supreme Court have a right of audience to conduct litigation in courts. However, in some circumstances and with limitations, some officers by virtue of their office (such as the Police and law enforcement agencies) can conduct litigation in a matter they are prosecuting (Section 23 Police Act, Cap P19, Laws of the Federation of Nigeria 2004).

Rule 8(1) of the RPC permits legal officers to conduct litigation by virtue of their office. However, a legal practitioner in salaried employment is not allowed to conduct litigation on behalf of his employer by virtue of Rule 8(2) of the RPC.

A person with a cause of action can represent himself in any action brought by him and can also defend himself in person before any court. Also, any advocate from a country where the system is similar to Nigeria’s who has a warrant from the Chief Justice of Nigeria can conduct litigation in court, if the Chief Justice believes it expedient to permit that person to practise as a barrister for the purpose of the proceedings specified in the application.

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Rights of foreign lawyers

Foreign lawyers cannot provide temporary legal services in person. To provide legal services in Nigeria, you must be qualified to practise in Nigeria as a Barrister and Solicitor of the Supreme Court (section 2(1), LPA).

Foreign lawyers and law firms can only establish a commercial presence in Nigeria through contracting with lawyers qualified to practise law in Nigeria. For law firms, they can form a partnership in which the partners will be Nigerians qualified to practice law in Nigeria, while retaining the name of the law firm in the foreign country, thereby forming a group structure. Rule 5(1) of the RPC prohibits a direct partnership, as a lawyer cannot form a partnership with a non-lawyer or with a lawyer who is not admitted to practise law in Nigeria.

Foreign lawyers cannot represent clients in courts in Nigeria. To have a right of audience in court, he/she must be qualified to practice in Nigeria as a Barrister and Solicitor of the Supreme Court and must have paid the practising fees. However, on application by a foreign lawyer to the Chief Justice of Nigeria who then issues a warrant, the foreign lawyer can conduct litigation in court if the Chief Justice is of the opinion that it is expedient to permit that person to practise as a Barrister for the purpose of the proceedings he applied for. The foreign lawyer must be entitled to practice as an Advocate in any country where the system is similar to that of Nigeria (section 2(1), LPA).

What are the challenges faced by the legal profession in Nigeria today?

Backlog of pending cases

One of the challenges faced in our legal profession today is about the inadequate number of judges in Nigerian courts. Judges are overworked as a result of having way too many legal issues to deal with. This leads to prolonged cases in court. Sometimes a case is adjourned  for 5 months at the trial court,  while at the appellate court, it could  take a year to be heard in court  for a mere application.

These issues make the profession less attractive and more cumbersome. In this type of scenario, cases certainly take longer time to be finalized and verdicts passed unlike in a case where there are adequate numbers of Judges to reduce the average workload per Judge.

Furthermore, delay tactics and unethical practices on the part of both prosecution and defence counsel prolong criminal cases and make such cases drag through ages.

Emotional problems

Emotional challenges are one of the major source of the challenges faced by the legal profession in our country today. Without emotional stability of the legal professional, the sanctity of the profession is eroded.

The legal profession is made up of judicial officers who are afterall human beings with the fallibility of the human nature. While there are good, intellectually sound and upright judicial officers and legal professionals of impeccable character and integrity in Nigeria, some emotional issues might impede on the expected standard of the profession from members of the public.

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Today, this emotional problem reflects in the poor quality of judgments delivered by the various courts and the growing problem of contradicting judgments and the attendant confusion they generate in the legal system in Nigeria. This also reflects in the way lawyers give ill advice to clients and pay affront to judges, thus ridiculing the legal profession.

Opposition to judicial independence

Today in Nigeria, the judiciary is suffering from lack of true independence as envisaged by section 17 the Constitution of the Federal Republic of Nigeria, as altered. The primary objective of the Judiciary is to ensure that the Executive and Legislative arms of government function within the ambit of constitutional provisions accorded to them.

This means the judiciary ought to stand isolated while performing her constitutional duty without interference from the other two arms of government. This is the kernel of the doctrine of separation of powers ably propounded in 1748 by Baron de Montesque, a great French philosopher.

The Judiciary should operate independent of any external disturbances and should function with constitutional powers vested in its office.

However, in Nigeria today, that is a far cry from the reality. Today, in Nigeria, the Executive, Legislature and even political parties influence decision-making process in the Judiciary, thus infiltrating the legal profession with inferiority complex.

Inadequate court buildings

Some of our decrepit and rickety court rooms can be liked village primary school halls. They make litigants act like children in such class rooms, such as scampering for seats and making noise while inside the court rooms. Some court rooms are so congested that litigants sometimes miss their cases because they were standing outside the court room when their cases were called up for hearing. Poor building imfracture extinguishes the nobility of the legal profession. Lawyers are kept standing in courts for lack of sitting spaces. The perspiration that bedevils all in the court is better imagined.

Disobedience to court orders

Disobedience to court orders is commonplace, especially under the present President Muhammadu Buhari regime. This breeds contempt of court. In Doma v Ogiri (1997) 1 NWLR (pt. 481) 322 p. @ 340 paras. G – H, the court defined contempt of court as:

“Contempt of Court is defined and classified in Ezekiel-Hart v Ezekiel-Hart (1990) 1 NWLR (Pt.l26) 276; (1990) 2 SCNJ 1 at P2.”Contempt of court is either criminal or civil. It is criminal, when it consists of interference with administration of law, thus impeding and perverting the course of justice. It is civil, when it consists of disobedience to the judgments, orders, or other process of the court resulting or involving private injury.” Per Orah, JCA.

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Contempt of court occurs when a person to whom an order of the court of competent jurisdiction is directed to do or to refrain from doing an act defies the order or seeks one subterfuge or the other to refuse to comply with the order. The term also embraces such invidious acts as insults or unsavoury comments with very sinister motives against a court with a view to denigrating the court and swear besmirch its nobility, its majesty, its aura, its responsibility or indulging in expressive sinister and offensive acts or words that would lower the esteem of the court in the eyes of the public.

In recent times, we have seen several instances where the Executive blatantly disobeys court orders. The cases Ibrahim of Elzakzaky and his wife, Zeenat, Col. Sambo Dasuki, Omoyele Sowole, etc, are archety-pal of this despotic government.  All these happen because judicial appointments come from the Executive and must be sanctioned by the Legislature. Of course, this negative impacts, one way or the other, on the Judiciary in giving sentimental judgments as well as emboldening public office holders to flout court orders.

Low input of computer technology

The world has gone digital. And failure to follow the trend of digital technology has led to so many challenges in the noble profession in Nigeria today. Not many legal practitioners and judicial officers are technologically savvy.  Research is still being done in analogue format with analogue mentality. This slows down the legal process, amplifies human errors, while making the legal professionals fallible, thereby rendering the profession unattractive.  Although the Supreme Court has been moving towards complete utilization of information technology, there is need for all law courts in Nigeria to be ICT-compliant.

The belligerence of law enforcement officers

The relationship between the legal profession and law enforcement agents has been nothing but belligerent. Law enforcement agents see legal practitioners and members of the Judiciary as enemies rather than as co-pilots on the flight of justice.

Execution of court judgments using Police officers and a visit to Police stations on behalf of a client in the custody of law enforcement agents can be dishonourable if not ignoble to the legal profession.

This is a pointer to the fact that after the rigors of going through court sittings and finally obtaining judgment, ordinary people still find it difficult to obtain justice because they cannot “speak the same language” with the Police.

(To be continued)

Source: Sun News Online

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