By Dele Adesina SAN
WHO IS A LAWYER/LEGAL PRACTITIONER?
I have been asked to speak on the sub-topic –Lawyers, Ethics, Values and Corruption in Nigeria. The word Lawyer/Legal Practitioner can be used interchangeably. I am going to do so in this paper because they mean one and the same thing. Lawyers are trained professionals in the knowledge and application of law. The Blacks Law Dictionary 10th Edition page 1021 defined the word “Lawyer” to mean “Someone who having been licenced to practise law is qualified to advise people about legal matters, prepare contracts and other legal instruments and represent people in Court.” In Nigeria, we are not licenced but we are “called to the Bar” by the Body of Benchers – the highest regulatory Body in the profession.
The Body of Benchers is established by Section 3 of the Legal Practitioners Act CAP L11, Laws of the Federation 2010. As Law students, once you attend a recognized University, by recognized University I mean a University that is approved by the Council of Legal Education to offer Law as a course, you graduate and proceed to the Nigerian Law School and passed the Bar exams, and you are certified by two members of the Body of Benchers as a fit and proper person to be called to the Bar, then you will be called to the Bar at a Call to the Bar Ceremony and you can begin to practise as a Lawyer. No matter how well you perform either at the University or in the Law School, if you are not a person of good character and be so certified, you cannot be called to the Bar.
I will not complete my definition of who a Lawyer is without stating the legal authority for the Call to the Bar because it is not just a ceremony. Section 4(1) of the Act provides as follows:
“Subject to the provisions of this Section, a person shall be entitled to be called to the Bar if
a. He is a citizen of Nigeria
b. He produces a qualified certificate to the Benchers
c. He satisfies the Benchers that he is of good character
A person who is not a citizen of Nigeria can also be called to the Bar once he produces a qualifying certificate to the Benchers and he satisfies the Benchers that he is of good character by virtue of Section 4 (2).
Section 4(4) states that the Benchers shall issue to every person called to the Bar pursuant to sub sections 1 & 2 of this section, a certificate of Call to the Bar which shall be in such form as the Benchers may determine.
You are either a Barrister/Advocate or a Solicitor. However, in practise in Nigeria, you are both a Barrister and a Solicitor unlike in the U.K where we imported our legal system. In the UK, you either practise as a Barrister, that is to say you go to Court or you practise as a Solicitor who does not go to Court but gives the briefs to the Barristers, relate with the Clients and do other Solicitor’s job.
On the definition of Legal Practitioner, the Supreme Court, per J.A. Fabiyi J.SC (as he then was) in FBN plc v. Maiwada (2013)5 NWLR 444 SC relying on Section 24 of the Legal Practitioners’ Act, Cap. L11, LFN, 2004 stated as follows:
“… Legal Practitioner means a person entitled in accordance with the provisions of the Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purposes of any particular office or proceedings…”
In support of the foregoing, Section 2 (1) of the Legal Practitioners’ Act, Cap. L11, LFN, 2010 goes further to provide thus:
“Subject to the provisions of this act, a person shall be entitled to practice as a Barrister and a Solicitor, if and only if his name is on the roll”.
Once you are called to the Bar, your name enters the Role of Lawyers kept at the Supreme Court and the name remains there except and until it is struck out for any offence or contravention of the Rules of Professional Conduct.
I believe that all of you can now answer the question who is a Lawyer.
According to the Blacks Law Dictionary 10th Edition, at Page 670,
“Ethics is a system of moral tenets or principles: the collective doctrines relating to the ideals of human conducts and characters. Also, it is the study of behaviour as judged by moral rights or wrongs including the sources, principles and enforcement of behavioural standards.”
Oxford Advanced Learners Dictionary simply defined the word Ethics at page 393 to mean “a system of moral principles or rules of behaviour”. The Legal Profession is a highly regulated Profession with profound rules of standard behaviour the contravention of which is punishable either by warning, suspension from practise or outright striking out from the role of legal practitioners depending on the gravity of the offense.
The same Oxford Advanced Learners Dictionary defined the word Value with reference to profession as distinct from monetary value at page 1319 to mean “moral or professional standards of behaviour.” At dictionary.cambridge.com, defined the word Value as “the principles that help you to decide what is right and wrong, and how to act in various situations.”
Corruption is the last key word of the topic under discuss. The word corruption hardly needs any introduction to the average Nigerian audience. However, for the sake of formality and perhaps with due regards to my audience who can be said to be a little far away from the word and its consequences, let me define it. According to dictionary.cambridge.com Corruption means: “illegal, bad or dishonest behaviour, especially by people in positions of power.” Corruption is typified by dishonesty, exploitation or the misuse and abuse of public office, either directly or indirectly, for personal gains or unjust enrichment in negation of due process or established protocol.
From the definition of corruption given above, it is apparent that it encompasses any improper action notwithstanding the severity of the act. Any departure from what is generally known and accepted as the right procedure is an act of corruption. In this regard, and for the purposes of this address, it can be said that corruption is a compromise of correct values or established ethics.
Corruption, the world over, remains an inhibitor to national and economic development and ultimately brings with it, the perversion of rule of law and good governance as well as the denigration of socio-economic rights which when left unchecked, eventually snowballs into insecurity which is an existential threat to the future of any nation.
The sitting President of the Federal Republic of Nigeria once said that “if Nigeria fails to kill corruption, corruption will kill Nigeria.” Corruption is a mountain that we must be brave enough to surmount if Nigeria is to be a great nation. Only the brave ever becomes great.
Let us hear the opinion of some leaders of thoughts on the subject matter of corruption in Nigeria.
Chief Emeka Anyaoku, a distinguished Nigerian and an eminent world personality and Former Secretary General of the Commonwealth said and I quote:
“Corruption is by far the greatest bane of our national, economic and political development. It is a formidable cankerworm that needs to be comprehensively addressed if our Country is to regain health and begin to function maximally for the benefit of the entire Nigerian people”. He continues, “if the truth must be told, corruption now afflicts virtually all parts of the Nigerian society. It has eaten deep into our value system and is now even threatening to spread to our culture”.
Late Professor Dora Akunyili, a Former Director-General of NAFDAC and former Hon. Minister of Information and Communication once said:
“Pervasive corruption is the bane of our national identity. It was fed for a long time by past governments that paid lip service to the fight against it. Because of our reputation as a corrupt country, the Nigerian state has become a liability to its citizens abroad”.
The former United States Secretary of State and Chairman, Joint Chiefs of Staff, General Collin Powell, in his own concerned commentary when he visited Nigeria had this to say:
“I am concerned about some of the continuing problems that Nigeria faces… the continuing feeling I sense in the international community, that the wealth of the country is not being equitably shared. There is too much corruption, this kind of continuing situation with respect to corruption will ultimately undercut the successes of democracy”.
It is not in doubt that there is a war that must not only be fought but must be fought and won.
Our Courts have not failed to make epochal pronouncements in total condemnation of this cankerworm called corruption.
For instance, Hon. Justice Uwaifo, JSC (as he then was) in the case of ATTORNEY-GENERAL OF ONDO STATE VS. ATTORNEY GENERAL OF THE FEDERATION said pointedly that:
“In foreign countries, Nigerians are recognized and regarded as corrupt people; unlike other nationals, no bank will allow Nigerians to open a bank account as of right. The Nigerian green passport is synonymous with corruption…National Newspapers are filled with stories of loots with money stashed in foreign banks. The stolen resources lost by Nigeria through endemic corruption and abuse of office have had inimical effect on the economy of the country…The crisis which endemic corruption has triggered off in Nigeria certainly poses exceptional peril to the economic, social and political stability, the national interest and integrity of Nigerian Nation…”
These were the immortal words of the learned Justices of the Supreme Court of Nigeria when they were dealing with the interpretation and the nationwide application of the CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT NO. 4, 2000 which has now been replaced with the CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2003. It was in this same case that the Supreme Court of Nigeria also held that
“In our own situation, taking the issue of corruption and abuse of power nationally, will best serve the interests of all and the general welfare of Nigeria both nationally and internationally, because corrupt practices have become an overwhelming menace for Nigeria. It can therefore not be left totally to individual states in Nigeria” .
THE LEGAL PROFESSION AND THE SOCIETY
By our training and practice as Lawyers, we are given to appreciate the value of Democracy as well as the virtues of Rule of Law and good governance. A Lawyer must therefore not be restricted only to managing his affairs and or solving the problems of his Clients. Otherwise, such a Lawyer will be justifying the age long criticism that Lawyers are guilty of extreme conservatism with unabashed preference for capitalism. He may even be accused of being guilty of primitive accumulation of wealth.
According to Kenneth Kaunda, former President of Zambia:
“The Lawyer in a developing society must be something more than a practising professional man; he must be more even than the champion of the fundamental rights and freedom of the individual. He must be, in the fullest sense, a part of the society in which he lives and he must understand that society, if he is to be able to participate in its development and the advancement of the economy and social well being of its members”.
And then the bombshell:
“The Lawyer must go out beyond the narrow limits of the law, because why the Law is the instrument through which the society is preserved in its shape and character, it is the reflection of the society”17.
Lawyers must never forget the fact that by virtue of their calling, they are social Engineers. Chief Afe Babalola, SAN, a leading member of the profession and a foremost Senior Advocate of Nigeria in a paper he delivered at the 2003 Annual Conference of the Nigerian Bar Association, at Enugu said
“Lawyers by virtue of their calling, are looked upon by the larger society sometimes for rescue operation (figuratively speaking) especially when the society is in dire straits. A good example is when a Nation is under going dictatorship or civilian despotism”
According to that very erudite and distinguished Judge, Hon. Justice I. C. Pats-Acholonu, JSC, CON of blessed memory
“The lawyer of the 21st century should be astute enough to defend the rights of man. The rights are fundamental because they were not given by men but by God. It is the duty of the lawyers to watch the observance of these rights with eagle eyes. It is therefore evident that a modern lawyer should be everything to everybody. His learning, his experience in human psychology, his understanding and appreciation of the frailties of mankind, will bring to bear on the problems that are bound to arise in future as the society becomes more and more complex.
He is expected to be bold. Courageous enough to strive to uphold the truth defend truth and trumpet the truth in high heavens”
The combined effort of the Bar and the Bench, in other words, the legal profession have taken the bull by the horn to state emphatically the expectations of the society from the Lawyers/Legal Practitioners. Please remember what I said before that both the Advocates practising at the Bar and the Judges at the bench are both Lawyers involved in the application, interpretation and enforcement of the Law in order to get an ordered society.
THE LEGAL PROFESSION – ETHICS AND VALUES
A discussion on the importance of ethics of the legal profession cannot be considered without making reference to the rules provided for in the Rules of Professional Conduct (RPC).
Rule 1 of the RPC provides as follows:
“A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct and shall not engage in any conduct which is unbecoming of a legal practitioner”
The purpose and relevance of RPC was stated in the case of Ikeme v Anakwe (2003) 10 NWLR 548 C.A where the Court of Appeal held that:
“The rules of conduct in the legal profession are designed to protect and preserve the high standard of professional ethics at the bar”
Rule 30 of the RPC also provides that:
“A lawyer is an officer of the court and, accordingly, he shall not obstruct, delay or adversely affect the administration of justice”
Again, the Supreme Court per Onnoghen, J.S.C (as he then was) he later became the Chief Justice of Nigeria in the case of Okafor v Nweke 2007 10 NWLR 521 S.C. stated that:
“… Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exists as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise, which can only but result in embarrassing the profession if encouraged”
Sequel to the provisions of the RPC and other relevant regulatory authorities guiding the ethical conduct of lawyers, the duties of a legal practitioner in Nigeria can be distilled into three distinct parts:
• The duties owed to his client;
• The duties owed to the court; and
• The duties owed to other Counsel.
Let me touch on these duties briefly.
Duties of Counsel to his Client
This is the ultimate duty of any Counsel as an Advocate. Before an Advocate can be held to be lawfully and properly performing his duties to his clients, the mandate of his client to him must always remain intact and in exercise of his apparent authority. He must demonstrate that the best interest of his client is always uppermost in his mind. See the case of NNPC V. Trinity Mills Insurance Brokers (2003)9 NWLR 384 CA.
Duties owed to the Court
I am sure you must have heard the statement that a Counsel is a Minister in the temple of justice and an officer of the court. Let me state that this duty imposes the obligation on Counsel appearing in court as a Minister of Justice to honestly disclose all facts favourable and unfavourable as doing so will assist and guide the court in the judicious discharge of its judicial functions.
The point must be emphasised however that as much as the Judex cannot speculate so also must the Bar not put the Bench in a state of factual uncertainties of material facts in the case. See generally the case of Umar V. Federal Republic of Nigeria & ors. (2020) LP ELR – 5252449 SC.
Under this duty, also is the duty of Counsel to be respectful and courteous in addressing the court. It is the duty of learned counsel not withstanding his side of the divide to guide and protect the integrity of the court. Any aspersion expressed or implied, cast on the court by any Counsel reflects adversely on the Counsel.
Duties owed to other Counsel.
A Counsel must desist from using abusive and insultive language in Court and or in his brief of argument. The rules of professional conducts requires Lawyers not only to display a respectful attitude towards the Bench as I stated earlier, but also to exhibit a high level of decorum, candour and fairness to other Lawyers. See generally the case of Chukwu V. INEC (2014)10 NWLR 385 (SC).
I must not forget to add that there are several instances where legal practitioners have been found wanting of these duties imposed on them by the Rules of Professional Conduct. These include but are not limited to instances of money laundering, abusing the trust of their clients (Rule 23, RPC) aiding and abetting non-lawyers in the practice of law (Rule 3, RPC), forgery, sharing professional fees with non-lawyers (Rule 3, RPC), divulging clients’ confidential information without approval (Rule 19, RPC) bringing frivolous applications to the court when he does not believe in the merits, combining legal practice as well as any other vocation (Rule 6, RPC) etc.
In the case of Okike v. LPDC (2005) LPELR-2450 (SC), a legal Counsel was accused of infamous conduct by his client when he received money on his behalf but refused to pay over to the said client. Upon initial conviction at the trial, the accused being dissatisfied with the judgment, appealed to the Supreme Court, where the Supreme Court, in dismissing the appeal for want of merit regarding the poor ethical conduct of the Appellant held per Musdapher, JSC as follows:
“Now, it is, I think, a fair characterization of a legal practitioner’s responsibilities in this country, that he stands as a ‘shield’ in defence of right and to ward off wrong in a profession charged with such responsibilities, there must be exacted those qualities of truth speaking, of a high sense of honour, of the strictest observance of fiduciary responsibility…”
It is clear from the above case law examples that there are a plethora of circumstances in which a legal practitioner could betray the fiduciary obligations placed on them, which is unfortunate given that they are expected to be the beacons of morality and nobility.
Let us emphasize that a fair characterization of a Legal Practitioner’s responsibility is the fact that “he stands as a shield in defence of a right and to ward off wrong.” in the words of the Supreme Court. In a profession charged with such responsibilities, there must be exerted those qualities of truth speaking, of a high sense of honour and of the strictest observance of fiduciary responsibility.
The Supreme Court in applying the above principle to the conduct of a Counsel undergoing a disciplinary proceeding in the case of NBA V. Monyel(2013)NWLR Pt 1386 pg. 454 at 466 asked the following questions:
“which of the above qualities can the Respondent, given the litany of his tendentious, shameless, unabashed contrivance, said to possess? He is neither a shield in the defence of right nor with this kind of character ward off any wrong. With a man of this kind of sly character like the Respondent, where lies the quality of truth in him? Is the word “honour” not a strange bed fellow with the Respondent? Given his elaborate attempt to cover up the recovery of part of the debt he was contracted to recover, can anyone credit him with an iota of fiduciary responsibility or fidelity?”.
My prayer is that this shall not be said of any of you when you eventually join the Profession.
I must not fail to make the point that the days of professional impunity by the Legal Practitioners are now limited if not over.
Allegation of Corruption.
I must not fail to say something on the Judiciary.
Historically, Judges were seen as Caesar’s wife living above board. According to Chief Wole Olanipekun SAN, past President of Nigerian Bar Association,
“It was very unusual in the past, in fact a taboo to accuse a judge of corruption. In a research done some years ago in respect of British judges, it was found out that whereas the Judiciary of Britain is several centuries old, only one allegation of corruption was made against a judge and same was proven to be frivolous when investigated. Today, we live in the unimaginable situation of the National Judicial Council (NJC) applying the big stick of dismissing some of our judges, suspending some and admonishing others for proven case of corruption.”
The general perception today most unfortunately is that the judiciary of Nigeria is corrupt. It is on record that some Judges in this Country once stood trial for one form of allegation or the other.
Very recently, in a publication titled: Senate Leader accuses wealthy Nigerians of buying Court Judgments, the Senate leader of the 8th National Assembly had this to say at a plenary session,
“Ours is a society where people who have so much money buy judgments.”
I ask, is the judiciary of Nigeria corrupt? Or some of the judges in Nigeria Judiciary? Are these statements one and the same thing? I do not think so. Why it may not be contested that a few of the Judges are corrupt – and I dare say that they are very very few, in comparative terms, I wish to submit that very many Judges and Justices of our courts are not only honest and principled but also are incorruptible.
We must all rise up to refute this perception and stigmatization of the Nation’s Judiciary as a corrupt Judiciary. Perception can become real more than reality and even more dangerous is when perception attempts to change the reality as we are being made to believe in Nigeria. The truth about the Judiciary of this Country is that it continues to live up to its historic and Constitutional responsibilities.
Somebody had this to say with respect to the Judiciary of another country,
“Many Lordships hardly deserve the high office, since in their rulings they do not share the basic values of their oath. Luckily, a large learned humanist and morally exemplary Judges maintain the majesty and high dignity of our courts.
The above statement captures very accurately my position in this matter on the widely held but wrong perception that the Nigerian Judiciary is corrupt.
I am not a member of the crowd of the generalization theory that the Nigeria Judiciary is corrupt. Indeed, I call this a fallacy of generalization. That a few individual Judges are corrupt is not a defence to say that all Nigerian Judges are corrupt. The generalization theory is unacceptable and the earlier we jettison it, the better for the system, the administration of justice and indeed for the nation. Let me state here that this is not to say that there are no bad eggs in the system like you probably will find in some other professions, but the point must be vigorously made that the few bad eggs have given the entire institution a very bad name to which even innocent ones in the system have become victims and perhaps helpless.
We must not be helpless otherwise we become captives of a situation we did not create. The corrupt ones must be located and be shown the way out and the men and women of discipline, principle and integrity must be openly commended. I believe in purification rather than condemnation in order to help ourselves and the nation.
The Profession of Law is a Profession of leadership. It is first among equals. It is a noble profession and the members of it must be noble men and women of high ethical standard and high moral and superior value. That is the Profession you are aspiring to. I cannot wait to welcome you.
Thank you very much for listening. God bless you all.
Adesina, former General Secretary, NBA, Principal Counsel, Dele Adesina LP 2021 one-day conference of Baze University Law Clinic, Faculty of Law, on Tuesday July 13, 2021