By Abdulrasaq Sulyman Abidemi
“Appearance Of Senior Advocates Of Nigeria Before A Magistrate Court: Inconsistency of the both Senior Advocates of Nigeria (Privileges and Functions) Rules and Judgment of the Court of Appeal in the case of Registered Trustees of ECWA. Church Vs. Ijesha with Section 36(6)(c) of the 1999 Constitution.”
The rank of the Senior Advocate of Nigeria (SAN) is a prestigious position in Nigeria. It is the apogee position any legal practitioner could attain and it certainly comes with privileges.
Over the years, the question has been whether a SAN can appear before an inferior court? This legal question also brings to limelight the societal attachment of hierarchy that is well observed among legal practitioners in Nigeria.
It is pertinent to note that the Constitution did not use the phrases inferior and superior courts. The phrases are used solely for convenience in academic parlance. By virtue of Section 6 (5) of the Constitution, superior courts of records are:
(a) The Supreme Court of Nigeria;
(b) The Court of Appeal;
(c) The Federal High Court;
(cc) The National Industrial Court;
(d) The High Court of the FCT, Abuja;
(e) High Court of a State;
(f) The Sharia Court of Appeal of the FCT, Abuja;
(g) Sharia Court of Appeal of a State;
(h) The Customary Court of Appeal of the FCT, Abuja;
(i) Customary Court of Appeal of State;
From this list, courts such as Area, Customary, and Magistrate Courts are exempted. These courts are known as the inferior courts. The question, whether a SAN can appear before an inferior court first came up for determination in the case of REGISTERED TRUSTTEES OF ECWA. CHURCH v. IJESHA (1999) 13 NWLR (Pt. 635) 368 where the Court of Appeal held in disaffirmation. The court’s ratio decidendi (reason for judgment) was based on Senior Advocate of Nigeria (Privileges and Functions) Rules, 2004 (hereinafter referred to as SAN Rules) which is the principal law regulating Senior Advocates in Nigeria and the literal interpretation of the provisions of the rules.
For the purpose of clarity and proper guidance, the relevant rules are reproduced hereunder:
- A Senior Advocate of Nigeria may appear as counsel in any criminal causes or matter before any court of superior record with or without another counsel.
- A Senior Advocate of Nigeria shall not apply for or issue originating process or any other process from or application before a court in any cause or matter except in relation to for process those matters in which he is entitled to appear pursuant to rules 2 and 3 of these Rules.
- In these Rules, unless the context otherwise requires, superior court of record means the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court, or any other court or tribunal with powers not less than those of a High Court.
With this, the position of law seems to have been settled that a Senior Advocate can not appear before inferior court in Nigeria.
WHETHER THIS POSITION IS INCONSISTENCE WITH SECTION 36 (6) (C) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED).
This legal issue has caused a lot debate over the years, so I have studied various laws and constitution and came up with this opinion on the said matter.
According to Section 36 (6) (c) of the Constitution, an accused person is entitled to defend himself in person or by a legal practitioner of his own choice. This is a fundamental human right extended to every accused person in Nigeria.
However, The Rules of Professional Conduct in Appendix F.4 (Senior Advocates of Nigeria Privileges and Functions Rules) states that a Senior Advocate can only appear in a superior court of record which include every court or tribunal not less than those of a High Court.
In a situation where the accused person’s choice of legal practitioner is Senior Advocate but he was charged before a Magistrate Court. What should be the outcome?
The accused person’s right to a counsel of his own choice could be said to have been infringed if he is precluded from choosing a Senior Advocate of Nigeria. The Constitution by virtue of Section 6 (5) recognizes Superior Courts of Records and names them accordingly. However, it should be noted that in paragraphs J and K provides for other courts that can be created by both the National Assembly and State Houses of Assembly. It can be said that such inferior courts are recognized and permitted under the law.
Seventeen (17) years after the decision of the Court of Appeal in REGISTERED TRUSTTEES OF ECWA. CHURCH v. IJESHA (1999) 13 NWLR (Pt. 635) 368, the courts have appeared to be divided on the issue. The Magistrate held in the case of ATTORNEY GENERAL OF LAGOS v. PERSON UNKNOWN (2016) ALL FWLR (Pt. 815) that SAN has a right of audience before a Magistrate Court and disagreed with the decision in ECWA CHURCH v. IJESHA (supra) where the court held that for all practical purposes a Senior Advocate of Nigeria cannot appear before a inferior courts as a legal practitioner.
While it is necessary to laud the brilliant points raised by the learned judge in that case, though based on the landmark principle of judicial precedent, it was no place for the learned Magistrate to overturn the decision of the Court of Appeal. The principle of judicial precedent is that lower courts must always follow the decisions reached by superior courts in cases that are of similar fact, and it is immaterial that the decision of such superior court was decided wrongly.
It must be noted that the rights that are entitled to an accused person is applicable in every court of law whether superior or inferior. The choice of a legal practitioner should be regarded as inalienable right. Every person is equal before the law, which means that no person can enjoy the same rights that others are denied except as provided under the law due to certain circumstances. Section 1 (1) of the Constitution clears that the constitution is supreme and has binding force on all authorities and persons through out the Federal Republic of Nigeria. This means all persons are entitled to the same rights and privileges as provided under the constitution. Therefore, the right to be represented by a Senior Advocate (which is the choice of the defendant) should be respected in any court of law in Nigeria as long as such court is recognized under the law.
CONCLUSION
This writer humbly submits that based on the land mark principle of judicial precedent, it was no place for the learned Magistrate in the case of ATTORNEY GENERAL OF LAGOS v. PERSON UNKNOWN (Supra) to overturn the decision of the Court of Appeal in the case of REGISTERED TRUSTTEES OF ECWA. CHURCH v. IJESHA (Supra). It is trite that lower courts must always follow the decisions reached by superior courts in cases of similar face and it is immaterial that the decision of such a superior court was wrongly decided.
On the other hands, the Constitution is the supreme law of the land as provides under Section 1 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and any law or judgment that is inconsistence with it, that law or judgment shall to the extent of the inconsistency, be void. As both the Senior Advocates of Nigeria Privileges and Functions Rules and Judgment of the Court of Appeal in the case of REGISTERED TRUSTTEES OF ECWA. CHURCH v. IJESHA (Supra) were all inconsistence with the Constitution, both should be thereby declared null and void to the extent of inconsistency.
A Senior Advocate should be entertained by any court of law recognized by law In as much as a suspect or accused person can afford legal fees of a Senior Advocate of Nigeria, nothing can stop him from enjoying his fundamental right as provides under the Constitution from choosing SAN as his legal practitioner of his choice viz-a-viz nothing could stop a Senior Advocate of Nigeria to appear before the Magistrate court in as much the SAN is absolutely satisfied with the fees.
Abdulrasaq Sulyman Abidemi is a Student of Faculty of Law Ahmadu Bello University, Zaria.
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