Within 48 hours of its introduction, over 1000 lawyers have filled forms signifying their intention to join a new lawyers association that is about to take off in Nigeria.
Gavel International had on Sunday, August 9, 2020 broke the news that a new bar initiative has commenced, just as the news broke online and forms were being circulated.
Since the news break however, discussions on the propriety of a new bar association has continued to rage amongst Nigerian lawyers. While some said it is a welcome development, others find it unnecessary and a ploy that will bring not good.
However, one of the hosts of the online platform that introduced the new bar initiative confirmed to Gavel International on Monday evening that over 1000 lawyers have registered.
When asked if this reported can view those who have registered, the lawyer who preferred to remain anonymous “for now” said “the list cannot be released yet due to private policy reasons”. He however promised to raise the discussion with registered members on the platform and see if they will give their consent to release their details.
Gavel International investigations however revealed that the initiative to set up another lawyers association is not new. It actually started after the Nigerian Bar Association(NBA) conference debacle in Port Harcourt, Rivers State in 1992. In that year, a group with allegedly with the support of the then military government of Military President, Gen Ibrahim Babangida had wanted to wrestle po we’re from the then NBA President, Chief Mrs Priscilla Kuye. The pro-government group was led by Alhaji Bashir Dalhatu who was said to be the candidate of Gen Babangida.
In a swift move, the progressive group that mainly consists of young lawyers who saw themselves as proteges of Alao Aka-Bashorun (now late), a former President of the association, approached a Port Harcourt High Court and got an interim injunction restraining the NBA to continue with the conference.
The conference adjourned sine die, putting the entire association into a limbo until 1998, when the Association of Chairman and Secretaries of NBA branches under the leadership Chief Adegboyega Awomolo SAN as chairman, and Chief Richard Oma Ahuonaruogho as Secretary rescucitated the association, held an election which produced Chief Onomigbo Okpoko SAN as president.
However, sometimes in 1994, a group of lawyers, seeing the NBA in limbo started moves to register another association known as Law Society of Nigeria(LSN). The society was eventually registered with the Corporate Affairs Commission between 1995 and 1996, with a Board of Trustees, around the time the Association of Branch Chairmen and Secretaries started meeting to resuscitate NBA. LSN was therefore said to have been put aside to give NBA a chance for revival. Besides, the idea was not very popular because of the dictatorial government of Gen Dani Abacha which ruled the country with an iron fist.
It is also instructive to note the NBA as an association of lawyer always show the way the larger Nigerian society goes. For example, a year after NBA was scuttled in Port Harcourt (1992), Gen Babangida annulled the June 12, 1993 Presidential elections won by the late business mogul, Chief Moshood Kashimawo Olawale(MKO) Abiola. Also, the NBA was resuscitated in 1998 and Chief Okokpo elected as president, the Nigerian larger society came under a civilian- democratic government in 1999 when President Olusegun Obasanjo was elected to lead the country.
Meanwhile, the issue of the new bar initiative for obvious reasons have become very controversial with many lawyers taken either side.
Lagos lawyer and former President of the Committee for the Defence of Human Rights(CDHR), Olasupo Ojo sees the new association as a welcome development. “The NBA is not a creation of the constitution. my friends. NBA was formed by some lawyers and registered as an association of lawyers with Trustees under CAMA. I have Certified True Copies of all incorporation documents.
As soon as another association emerges with sizeable membership, the privileges attached to NBA wherever it is mentioned in any legislation must automatically be extended to the new association(s) by operation of law. Failure to extend the privileges or impose NBA by compulsion will bring it in collision with the NBA. Ignorance will not last long unless sustained fraudulently”, he argued.
Ojo argued further: “Please read and research Gani Fawehinmi Vs NBA very well. It was expoused that NBA is not a juristic entity because it was not established by law. It was merely a juridical entity that cannot be sued in its name but through its representatives. However, after the registration of NBA under Part C of CAMA, it became a body corporate which has since been sued severally through its incorporated Trustees. The mere mention of NBA in some legislations does not confer statutory existence or monopoly on the NBA. at all. To reason otherwise is to display ignorance of the law”.
Reminded of a court decision that placed solely on NBA, the compulsory association of Nigerian lawyers, Ojo replied that it was a very wrong perspective. “The description by the court of membership of the NBA as “compulsory” is itself a collision with the constitutional right to freedom of association. I challenge anyone to show me any statute that established the NBA. I have all my facts and documents intact. Read me well. I stated that all the parties and the court litigated on the basis of ignorance. The facts placed before the court as basis for the judgment was false. The court also did not research beyond the submissions otherwise it would have known and factor the implications of registration of NBA under part C of CAMA in its reasoning and come to an informed judgment instead of the judgement it recorded.
Kindly note the express constitutional qualifications to the right to freedom of association and whether the NBA is mentioned? Also note that the NBA can regulate its own activities BUT cannot regulate the Legal Profession. Also note the distinction between the NBA as an association registered under Part C of CAMA and the Legal Profession established by the Legal Practitioners Act(LPA). NBA is not a professional body established by the constitution of the Federal Republic of Nigeria or Statute but an Association of Legal Practitioners just like Association of Magistrates or Judges.
Note that NBA does not licence lawyers in Nigeria hence a lawyer has the constitutional right to belong to another lawyers association for the protection of his interest or not to belong to any at all”.
But another lawyer, Mr Ademola Ade wale disagreed with Ojo, saying another association is patently illegal.
He said: “It must be said that the legality of the NBA is a complex mixture of Strict legality and Public Policy;
Legality- that legal profession is governed by specific legislation Primary amongst which is the Legal Practitioners Act , LPA and many subsidiary legislations thereto notably the Rules of Professional Conduct, RPC;
Public Policy in the sense that there are many aspects of the practice of the profession that are not contained in any written legislation but which are nonetheless acceptable practice in the profession. They are mostly aimed in the preservation of the great esteem and respect with which the profession is held in society;
LEGAL ISSUES- The major legislation governing the practice of the profession still remains the LPA . By virtue of the said legislation, a person becomes a Legal Practitioner only UPON satisfying the requirements of Act . And upon the fulfilment of such requirements the person is deemed to be a Solicitor and Advocate of the Supreme Court of Nigeria. And in that position only he in the entire country can prepare , frank and endorse legal documents. Section 2(1)& 24(1) LPA .
Okafor v Nweke (2007)3SC (Pt2) 55.
The Legal Practitioner upon being called to the Bar is required to be enrolled at the Supreme Court of Nigeria. And in recent times is entitled to an enrolment number.
The legal practitioner is also required to discharge certain statutory obligations by virtue of his office as legal practitioner namely pay his annual Practice Fees on or before the 31st March of every year without which he can not successfully practice his profession;
These statutory duties and obligations are hardly strictly enforced but that does not change the fact that they remain statutory obligations.
Additionally in recent times the legal practitioner is required to procure Professional Stamp and Seal without which he cannot validly write the shortest of letters . Rule 10(1)& (2) endorsed by the Supreme Court decision of Sarkin Yaki v Bagudu (2015) 18 NWLR (Pt 1491) 288.
Again this statutory duty is hardly enforced but that does not change the fact that this statutory duty exists.
Now the core issue is whether a lawyer can VALIDLY AND LEGALLY practice without being a member of the NBA . The legal answer is NO.
How can a legal practitioner who has not satisfied the requirements of paying his annual practice fees VALIDLY write the shortest of professional letters since by Sarkin Yaki v Bagudu (supra ) he must engross his NBA Stamp which he can not do not having paid for that year.
I will not deceive my self by denying that thousands of professional letters are being written daily by lawyers who have not paid Practice fees in years not to talkabout all manner of legal documentation. BUT THAT IS NOT THE LAW !!!!
The same thing also applies to professional representation in Court a lawyer who has not paid his practice fees does not enjoy any audience in a Court of Law. Once again I will not play the hypocrite by feigning ignorance of what obtains.
But the fact still remains that what is going on is PATENTLY ILLEGAL!!!!
So the question is if we were to strictly follow and enforce the law can a legal practitioner who operates outside of NBA , that does not belong to any branch of the NBA even if it is mere technically for the purposes of paying practice fees . Does not have Stamp and Seal Seal with which to frank and engross documents and letters; Prepare any form of legal document or appear in Court to represent any one. Assuming the laws were to be strictly enforced as opposed to now when Laws are honoured in breach rather than obedience.
Finally let me conclude with a purely policy argument as I posited from the very onset. If we desire to ever have an up to date record of lawyers in Nigeria. And wish to weed out fake lawyers, the Stamp and Seal project which is tied to the Mandatory membership of the NBA is the only way out.
I will be the first to admit that as presently constituted the project is subject to all manner of manipulations and defects. But all those can be sorted out with constant deliberations and discussions. Not an outright cancellation to allow every lawyer operate like a birds in the air which can include all kinds of characters claiming to be lawyers when they are not. In fact if this profession is not well monitored and regulated at least by some form of mandatory membership, it is only a matter of time before those who were never called to the Bar become SAN and JSC.
Finally, the right to freedom of association like every fundamental right is not Absolute but qualified. Dokubo – Asari v FRN ( 2007)SC!!!!
I rest my case.
The conversation continued thus:
Ojo: Thanks so much my great lawyer for assisting to expose the fraudulent altars on which the myth of monopoly of NBA is erected.
I am happy you did not dispute the truth that the NBA is an association registered like any other association under part C of CAMA. The implication is that NBA has no statutory genealogy that entitles it to special statutory status and protection or monopoly over any other association of lawyers registered by the CAC.
It is true there is no such alternative association presently and this creates the farce monopoly that is being ascribed to the NBA even in court judgments.
On the requirements to practice law in Nigeria, I agree with you up to the point of enrolment at the Supreme Court of Nigeria, assignment of enrolment number and statutory duty to pay Annual Practice Fees (APF) to the Supreme Court. This is where the requirement to practice as a Solicitor and Advocate of the Supreme Court ends statutorily. Any other condition is extra legal.
I note your mention of the fact that payment of the Annual Practice Fee (APF) can only be paid through the NBA to the Supreme Court.
This is one of the Crux of the fraud. The truth is that up till recent time, payment of APF was made direct to the bank account stipulated by the Supreme Court. However, when the NBA realized that majority of lawyers were not interested in the NBA or it’s activities neither are they paying annual dues to the NBA but prefers to pay the APF only to avoid challenge in court to standi to practice, the NBA approached the Supreme Court with proposal to help the SC drive the collection of the APF by more lawyers and to entitle the NBA to share a percentage of the collected APF. The proposal was approved by the SC but payment must still be made into the SC bank account directly as prescribed statutorily. This is why the payment of APF is directly into the bank account of the SC till now in accord with STATUTORY requirement. It is later the SC will pay the agreed percentage to the NBA.
The implication here is simply that the NBA is not collecting for the SC but is a parasite that collects a percentage of payments by lawyers to the SC which is a Federal Institution.
It is interesting to bring to your attention the current informed opinion in some quarters that the APF is a statutory public fund due to the Federal Government from which the Supreme Court has no power to share any percentage with the NBA or any other association of lawyers without statutory amendment and enablement. This is a sound and logical point of law.
Now let me address the issue of regulation of Legal Practice.
Between the Body of Benchers and the NBA, which of them has the STATUTORY POWERS AND AUTHORITY to regulate Legal Practice under the LPA? The correct answer is the Body of Benchers and I challenge any person to assert the contrary. Even the BoB has power to regulate the affairs of the NBA itself.
This shows the ignorance in any judgment that ascribed regulatory powers over the legal profession to the NBA which is just a registered association of those being regulated by the BoB.
How can the regulated now statutorily become the regulator as is being bandied about ignorantly?. I believe it is time to explode and expose the fraudulent myth.
The Professional STAMP AND SEAL is of similar genealogy like the APF agency. It was consequent upon a request by the NBA for amendment that it was inserted into the Rules of Professional Conduct (RPC) recently in year 2007.
The LPA empowered the AGF as the Chairman of the General Council of the Bar to make and promulgate the RPC as a subsidiary legislation which power includes power to amend same. What the NBA did was to use it’s influence to convince the then AGF, who was a former NBA President, to insert the provision so as to give it some statutory flavour. The same source of power exists to be tapped by any other association of lawyers who desires to have their own Stamp and Seal such that the RPC can also be amended to the effect that “wherever mention is made of the NBA, it shall include any other association of lawyers registered by the CAC”.
This will enable any other association of lawyers to produce their own Stamp and Seal and charge money thereon as THE NBA is doing presently to line it’s purse.
If the request is made to the AGF and he refuses to amend the RPC, then the next more powerful option shall be explored successfully.
It can be successfully argued that the imposition of NBA stamp and seal on all lawyers is a violation of the right of non members of NBA who has paid their APF to practice their profession. In essence, any lawyer who has conscientious objection to being a member of NBA can practice once he has paid the APF. The imposition of the NBA stamp and seal by the AGF as requirement for legal practice in Nigeria can be successfully argued to be illegal and contrary to both the LPA and the CFRN hence is ultra vires the powers of the AGF. Proof is that proceeds of the Stamp and Seal does not go into the Federation Account.
Now to your core poser as to whether a lawyer can validly and legally practice without being a member of the NBA? Flowing from all the foregoing points, my obvious and legally justified answer is YES once he has fulfilled the direct requirements set by the LPA which terminated at payment of APF into the account of the SC. All other requirements are not statutory as they are imposed in favour of a single association contrary to law.
The truth I that the NBA will continue to enjoy the fraudulent monopoly until alternative association(s) of lawyers with sizeable number of members emerge to challenge the NBA using constitutional provisions as tools to break the NBA yoke, remove the burden, and enable lawyers to enjoy their God given freedom of association and free choice between NBA and other associations.
It is now time for progressive Nigerian Lawyers to rise, organise and break the chains. Only the oppressed and extorted can determine the end of their burden.
The above is just a snippet from my very robust piece on EXPLODING THE MYTH OF NBA MONOPOLY.
I remain Olasupo Ojo.
Adewale: Without attempting a rejoinder to your article which is as long as mine let me just say that if all Nigerian Lawyers are trained by ONE NIGERIAN LAW SCHOOL although now different Campuses with a SINGLE Curriculum approves by One COUNCIL OF LEGAL EDUCATION and called to the Bar by One BODY OF BENCHERS and enrolled at One SUPREME COURT I do not see the merit in your advocacy for breaking of the MONOPOLY of the NBA. Why?
Is it simply out of anger or to satisfy one unclear political ideology. For instance in the UK where we got our legal system from, the Bar still remains the Bar Council of England and Wales. And the Law Society of England and Wales for Solicitors. More than 300 years after these sections of the Legal Profession were established.
I am aware that the Practice is different in the United States of America. But our practice even legal history is completely different from the American system and I don’t expect us to blindly copy a system that is alien to us .
We are a Sovereign state and are expected to do only those things that are good for us and not because Country A or B is doing the same.
Even with our centralised legal system and practice of the law we don’t have adequate data and record of the number of lawyers’in Nigeria. Even with the verification being done by the Supreme Court many lawyers still do not have verification number. And there is no single reliable website where you can turn to at any point in time to know whether Mr Lagbaja is truly a lawyer when he was called and his enrolment number etc. And there are so many fake lawyers in the system, many of those who either dropped out in the University or did not pass the Bar exam and yet go about as lawyers without any one being able to challenge them because there is no reliable record or data to challenge them except in certain circumstances where serious interests are involved and those interests can take the pains to check them outside prove their fakery or quackery.
But that does not bother you because of your ideological anger against the NBA as presently constituted all you are interested in is breaking the monopoly of the NBA howsoever!
Well you are entitled to your aspiration. But you certainly do not have my support at all which position I am as constitutionally entitled to as yours.
I will be deceiving myself that there are no serious problems with the present arrangement of the NBA . But the solution can NEVER be the dismemberment of UNITED NBA or the creation of several mushroom Bar Associations so that we do not have a Monolithic Bar!
And the conversation continues….