Category: Law

Dr Alaba Omolaye-Ajileye, a former High Court Judge and visiting professor at the National Open University of Nigeria, is Chief Consultant, Forensic Electronic & Digital Law Consultancy. He presented this paper at the NBA Warri Branch Law Week

I am profoundly honoured to have been invited by the Nigerian Bar Association (NBA), Warri Branch, to present the Keynote Address of the 2024 Law Week on the theme: Emerging Trends in Legal Practice and Administration of Justice: Challenges and Prospects.

First and foremost, I would like to respectfully acknowledge all members of this branch of the NBA for this invitation. I also pay my due respect to the Elders of the Bar, past, present, and emerging. I pay tributes to the EXCO members as well as members of the Planning Committee of this year’s Law Week program.

Specifically, I should express my sincere appreciation to the Chairman of this branch of NBA, Chief Oghenero Okoro, and Chief Emmanuel Uti, Chairman of the 2024 Law Week Planning Committee for their thoughtful consideration in providing me with the theme of this program long ahead of time. As far back as 27th November 2023, the Chairman of the Law Week Planning Committee made the theme available to me. Having the theme in advance has allowed me to better prepare my paper without putting myself under any stress or pressure. Thank you for this.

I have been asked to choose a topic that falls within the precincts of the theme of this year’s program. The letter reads in part, “You may determine/frame the topic of your presentation, bearing in mind the Theme of the Law Week…” I have exercised my discretion in this regard in choosing the topic, “Tomorrow’s Legal Profession Today: Today’s Legal Profession Tomorrow.” I will discuss the topic in light of the practice of law and the administration of justice in the current age and the future. I will also venture into the emerging trends in these two fields of human endeavours with the challenges and prospects associated with them to cover the field of the theme.

The legal profession is the body of individuals qualified to practice law in a particular jurisdiction.

The profession could be viewed and defined from other perspectives, but, I suppose, this simple definition suffices for our purpose here today. Bear in mind that the legal profession here encompasses both the Bar and the Bench whose responsibilities embody the practice of law and administering justice in different spheres: two sides of a coin, as they say.

Indisputably, the legal profession is one of the oldest professions in modern Nigeria. It is vast; and, at the risk of being accused of blowing the trumpet of the profession, I make bold to say, it remains one of the most prestigious professions in the world. The profession is a noble and respectable one, where all its members are described as learned, to the chagrin and consternation of other professionals, but, to which, the legal profession offers no apologies. The profession is characterised by great discipline and guided by law and rules of professional ethics. In short, it is a highly regulated profession. In the words of Onnoghen CJN (as he then was), the legal profession is “…the most brilliant and attractive. It is a profession most honourable, most noble, most high, and most mighty.” 

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The foregoing, nevertheless, is not to suggest that all members of the legal profession are angels. Far from it. As we have in other professions, there are bad eggs in the legal profession, who tend to bring down the nobility of the profession by engaging in professional misconduct or unethical acts. Others drag the good name of the profession in the mud through sharp practices and corruption. All the same, the good news about the profession is that it has an internal machinery of self-cleansing. The violation of the rules, principles of engagement, and ethics of the profession can attract such sanctions as suspension or expulsion from practice. Lawyers found liable for professional misconduct in the past had received punishment as serious as having their names struck off the Roll of Legal Practitioners in Nigeria by the Legal Practitioners Disciplinary Committee, for acting irresponsibly or fraudulently to the detriment of their clients and the legal profession.

Most recently, the Legal Practitioners’ Disciplinary Committee came down heavily on a senior lawyer of 41 years post-call for using derogatory language against an Anambra State Chief Magistrate. In an application seeking to transfer a case from the Chief Magistrate, the lawyer had accused the Chief Magistrate of “shamelessly telling lies, ranting and shouting at Counsel and not being able to appreciate legal issues before the court.” The lawyer was suspended from the Roll of Legal Practitioners and from engaging in the business of practicing law for 24 months.

A brief excursion into the history of the legal profession in Nigeria is expedient at this point. To a very great degree of accuracy, it is correct to say that the legal profession in Nigeria is a product of colonialism. In ancient times, when the kings ruled their kingdoms, there was not the slightest trace of a distinct legal profession in the sense in which it is understood in modern times. The kings, chiefs, and elders discharged judicial functions as part of their traditional responsibilities to keep the peace in their domains.

The annexation of Lagos by Great Britain must be accepted as a landmark and an event of historic importance to the legal profession in Nigeria. The Treaty of Cession was signed on August 6, 1861, consequent upon which Lagos became a Colony of Britain, and all laws in England became applicable in the colony. In 1862, a Police Court was set up in Lagos to deal with cases that had arisen because of the growing commercial transactions in the colony.

In 1863, the Supreme Court Ordinance of 1863 was promulgated. It constituted the Supreme Court of Her Majesty’s Settlement of Lagos with effect from 9th April 1863.

Between 1863 and 1874, nine other courts were established. They included the Petty Debt Court, the Court of Civil and Criminal Justice, the Court of Requests, and a West African Court of Appeal (WACA).

Significantly, by Order 16 Rule 1 of the Supreme Court (Civil Procedure) Rules, 1945 the Chief Justice was empowered to admit to practice, any person who satisfied him that he is entitled to practice as a barrister or solicitor in England, Scotland, or Ireland; and that he is of good character. By this, enrolment at the Nigerian bar was essentially at the discretion of the Chief Justice. The direct effects of the foregoing are first, in the early days of colonialism, the legal profession was dominated by foreigners. They were persons called to the English, Scottish, or Irish bar. Second, until the time the Nigerian Law School was established, all Nigerian lawyers were trained abroad. This trend continued until 1962.

Christopher Sapara Williams made history in November 1879 when he became the first Nigerian to be called to the English Bar. He studied Law at Inner Temple in London and on November 17, 1879, he was called to the English Bar. Over the years, the number of lawyers called to the Nigerian Bar has grown exponentially such that at the Call to Bar Ceremony that was held in December 2023, Four Thousand, Seven Hundred and Eleven lawyers (4,711) were called in one fell swoop! And, in March this year, within a space of three months, another set of Four Thousand four Hundred and Twelve (4412) lawyers was called. One gets concerned here about the absorptive capacity of the Nigeria’s not-so vibrant economy to accommodate this high rate of production of lawyers. Well, it may be said that while a high or even a higher number of lawyers will enhance access to legal services, and contribute to legal development, I would say here that it is still essential to manage the balance between supply and demand to ensure the sustainability and effectiveness of the legal profession. An oversupply of lawyers can saturate the legal market, leading to intense competition for clients, drive down wages, and create job instability, especially for young or junior lawyers.

Be that as it may, broadly speaking, as a threshold point, in considering the emerging trends in legal practice and the administration of justice, we must necessarily position or situate the legal profession within its conservative milieu. One trait that is usually associated with the legal profession is conservatism. The legal profession, not only in this country but in other countries as well, is inherently conservative. It has often been criticised for being behind times, opposing progress, and change; and for clinging to traditions of ages long past. Stephen Mason captures this attribute of the legal profession more appropriately, when he asserts, ‘[t]he legal profession tends to look backward, especially in common law jurisdictions. As a result, there is often a failure to look forward, or even in the “now”’ . You will agree with me that there is a big issue here. The opinion expressed in the Editorial of Digital Evidence and Electronic Signature Law Review, Volume 6, 2007

also buttresses the point made by Mason:

It seems, that a large majority of lawyers, legal academics, and judges have failed to realize they are now living in a world dominated by digital evidence, and that digital evidence is now the dominant form of evidence. Although quantifiable figures are not available, it can be asserted with some confidence that the majority of lawyers, legal academics, and judges do not know they do not know; a smaller number know they do not know, and an even smaller elite knows about digital evidence, but they are realistic enough to know they need to know more .

Flowing from the above-quoted statements, a valid postulation that can be established here is that if we desire “Tomorrow’s Legal Profession Today or Today’s Legal Profession Tomorrow, we must be forward-looking. This is especially so because whether we like it or not, the legal profession of today is bound to operate within the terrain of a rapidly changing world. The world of today should be seen as a moving object. If you are pursuing a moving object, you should aim to intercept it along its trajectory, not at its point of departure. We can advance the hypothesis further: if we want Tomorrow’s Legal Profession Today, we should not simply focus on what the world is like today. Of course, that must be our starting point, but our real focus must be on the world as it is progressing and how it is going to be tomorrow. Essentially, this is an exercise in extrapolation. It involves a projection based on the trend of events, although some imponderables might frustrate the prediction. Life itself is sometimes unpredictable.

Today, we live in an age that is dominated by the computer. The age is rightly christened “the computer age” or “the electronic age” or the digital age” or “technological age”. The unalterable truth is that the advancement in technology witnessed in the last few decades has turned the world around, or, put in another way, or a better way, has revolutionalised the world and launched the world on an information super-highway. It has defined how we live, work, and think such that the world has not remained the same again. Technology has reduced the geographical space of the world and brought the world, not only into a global village or global sitting room anymore but now, a global palm. With a single cell phone in your palm, the whole world is in your hand! With the help of technology, routine tasks are being fast-tracked in workplaces. Jobs that would have taken man several hours and days are today done in a split of seconds. We have gone past the jet age and are now in an age where digital knowledge surpasses manual knowledge. Today, technology is gradually eroding manual knowledge. Technology has, indeed, shocked the world! What was thought to be impossible in the fifties, sixties, and seventies has become a reality today . We may not have gotten flying cars yet, but we’ve got robots. We’ve got artificial intelligence. The innovations are amazing! And yet, there appears to be no end to where technology is taking the world to. It is as if the world has embarked on a rapid but complex and endless voyage of discoveries and innovations. That is the world we live in today.   

The initial attitude of a typical Nigeria lawyer or judge to the emergence of technology few years ago is analogous to that of Luddites of old. In the days of the Industrial Revolution, the Luddites were opposed to the use of machines. The original Luddites were British weavers and textile workers who objected to the increased use of mechanized looms and knitting frames. Most were trained artisans who had spent years learning their craft, and they feared that unskilled machine operators were robbing them of their livelihood. 

Some years past, many old lawyers and judges in Nigeria, resisted technological innovations. They considered themselves as too old to learn to use computers. They were not prepared to render themselves amenable to change. But I think things are changing. While the actual statistical figure may not be available to me, having not carried out an empirical study on the subject, it is apparent that old Lawyers and Judges who didn’t like the use of computers are gradually disappearing from active practice and service. We now have lawyers and judges who are beginning to understand and recognize the evolving landscape of technology. The legal profession is now experiencing a notable shift towards embracing technology in recent years. This trend is driven by the recognition of the potential benefits that technology can bring to legal practice and administration of justice.

In the past years, technology and law were considered as two distinct irreconcilabilities. In recent times, however, they have increasingly become comingled. Over the past few decades, technology has had a significant impact on the practice of law and the administration of justice. With the rise of the Internet, it has exposed an average legal practitioner and judge to volumes of legal information. Several technologies have come out recently that are changing the face of the legal profession and administration of justice with significance.

Admittedly, the legal profession is inherently conservative. One element in adhering to conservatism is that it makes us adopt and stick to a particular way or have a particular mindset of doing things over and over again. It ties us down to a paradigm. The danger here is that we can become locked up in that particular way such that we cannot see any other way or believe that there is any other (better) way to do it. The reality is that we cannot stick to just one way of doing a particular thing over and over again and expect a different result. We must, therefore, get to a point when we recognize or appreciate that there is a necessity for improvement in our approach or viewpoint. This can only occur when there is a radical change in our approach; in other words, when our “paradigm shifts.” This must happen to the practice of law and the administration of justice in Nigeria in order to secure Tomorrow’s Legal Profession Today. 

The advocacy here is that our conservatism should not make us resist change. We live in a changing world. It is a most momentous and exciting time. Change is happening around us in ways that we had not imagined just a few years ago. All aspects of human endeavour are changing. The legal sector – to be precise, the practice of law with the administration of justice is not spared. We must be amenable to change. As lawyers and judges, we must constantly adapt and innovate or be prepared to be pushed aside and become irrelevant. With every sense of humility and responsibility, I say here that what is helping me today, still making me relevant even after my retirement, is the fact that early in my judicial career I embraced technology. In the tone of the theme of this program, early enough, I followed the emerging trends in the application of technology around the world. For instance, when little was known about virtual studies, in early 2000s, I enrolled and completed a rigorous online post-graduate studies at Walden University, Minneapolis, Minnesota, USA.

Undoubtedly, we are in the middle of a technological revolution of a great magnitude, scale, scope, and complexity. Also, as it may be noticed, the pace of change appears to be faster than previous revolutions . To maintain relevance and remain competitive in any industry, profession, or endeavour, one needs to understand the impact of emerging technologies on the future of work. Indeed, we must go beyond mere acquisition of knowledge. We must be prepared to integrate modern innovations strategically in our work to increase efficiency, and productivity and improve our paradigms.

At this point, let me cite some aspects of legal practice and administration of justice that technology has positively affected. There is the digitisation and storage of case law, statutes, and regulations. In the past, statutes and law reports were only available through hard copies in book form or prints or typescripts. Today, access to different sources of law is now unrestricted. Laws of the Federation and judgments of courts reported in many law reports, local and foreign, are now available on the Internet and in electronic format. In the past, lawyers and judges spent considerable number of hours in libraries searching for case laws and statutes. Today, there are now electronic versions of law reports e. g. Law Pavilion Electronic Law Report (LPELR), Nigerian Weekly Law Report (NWLR), the Legalpedia, All Federation Weekly Law Report (All FWLR), and JUDY Electronic Law Report etc. The availability of these materials in electronic format simplifies research and enhances the performance of legal practitioners and judges who are compliant enough to take advantage of them in this electronic age. Most of the research these days is done electronically through legal research databases and virtual libraries. With the rise of smartphone technology and tablets, legal practitioners can access large quantities of legal information at their fingertips. These days, various apps can be downloaded that will allow legal questions to be asked. Sometimes, those questions are not answered by an actual attorney, but by computers.

In other climes, virtual offices now exist in legal practice. They are making it easier for legal practitioners to practice law while saving on large overhead costs. In virtual offices, there is no longer any need for brick-and-mortar offices to conduct legal business. By the way, does a client need to come to a physical office to be attended to by his lawyer all the time? Law practices now invest in legal software that allows for interaction with clients online. The trend in many countries now is the use of mobile apps for lawyers, SMS texting and client portals that enable clients to check in 24/7 on the progress of their cases.

In the court-room, legal practitioners are now compelled to demonstrate their knowledge of computer-generated evidence. Evidence is now located in computers and digital devices such as telecommunication or electronic multimedia devices, and utilised daily in courts. Evidence is also found in e-mails, Digital photographs, ATM transaction logs, word processing documents, Instant messages, social media files, documents saved from accounting programs spreadsheets, Internet browsers, databases, contents of computer memory, computer backups, computer printouts, Global Positioning System tracks, and Digital video or audio files, amongst others. Laws are being amended to include provisions on the appreciation of digital evidence. 

Furthermore, it is worth mentioning here that there now emerges, an area of studies called computer forensics. It is a branch of forensic science about legal evidence found in computers and digital storage media. Computer forensics is also known as digital forensics. In Oyetola v. INEC the Supreme Court held that whenever it is alleged that there was an over-voting in an election, the documents that are needed to prove same are the voter registers, to show the number of registered voters; the BVAS machines, to show the number of accredited voters; and Forms EC8As to show the number of votes cast at the polling units. These three documents, according to the apex court, would show exactly what transpired at the polling units.

This decision has been criticised in some quarters, especially, the requirement for the production of BVAS machines. It is argued that the requirement places an unnecessary burden on petitioners. The practicality of the production of BVAS machines is also queried. Unknown to the critics, the pathway being introduced by the Supreme Court is the acknowledgment, approval and application of forensic science into our electoral jurisprudence. The BVAS machines are not to be tendered for the sake of tendering. As a principle of law, their contents must be openly demonstrated. It is only through forensic science that the number of accredited voters in a BVAS machine can be demonstrated openly in court. That is the sense behind Oyetola’s case.

It is clear, from the foregoing, that technology and law have become inseparable. With the rise of technology, the legal profession now has no hiding place. It is now compelled to shift from its paradigm or comfort zone. I suggest here that the Nigerian Bar Association should begin to make it mandatory for lawyers to have technology-based Continuing Legal Education (CLE) programs. This will enable older lawyers to learn how to use electronic devices and documents and how to browse the Internet.

The Tomorrow’s Legal Profession Today is projected as one where law firms must introduce and increase the use of technology to stimulate the workforce through automation of more mundane tasks and empower lawyers to concentrate on high-value tasks associated with technology. Technology has become an indispensable tool for the legal profession from legal research platforms to virtual courtrooms, communication with the court and clients, and the rest of the profession. It streamlines processes, improves efficiency, and enhances collaboration. Additionally, advancements like artificial intelligence and machine learning are increasingly being utilised for tasks such as contract analysis, all forms of writings through ChatGPT, and predictive analytics, further augmenting and enhancing the capabilities of legal practitioners and judges. It is, indeed, inconceivable that someone can today function as a lawyer or a judge without a computer. Of course, as we all know, possession of simple computers, such as laptops, has become a standard requirement for every new entrant into the Nigerian Law School and should be in any law firm or judicial appointment. The law practice environment must change to make it amenable to the current technological age. There is no excuse these days for a lack of basic competency in the use of computers for law practice and judicial functions. Leaders of law firms and heads of courts must encourage practitioners and judicial officers working with them to make use of the vast resources available these days including online resources to better equip themselves in the practice of law and administration of justice. We must stop wearing ignorance and lack of innovation as a badge of honour. There is nothing honourable in them.

The legal profession around the world is moving to a point where it is becoming unacceptable for judges to record proceedings in longhand. It is regrettable that in Nigeria, longhand writing of proceedings remains a practice that Nigerian Judges still embrace. In an interview I granted Thisday newspaper recently, I described this as clear evidence of our backwardness which is antithetical to the current technological age. Unfortunately, many courts don’t seem to see anything wrong in this archaic practice as it has not become an issue at all to them to be addressed. In some cases, paucity of funds has always been advanced as a reason for this backwardness. But unknown to many heads of courts, a lot can be done to overcome this challenge and ameliorate the needless strain associated with longhand writing. My prescription here is that courts that are not properly funded can begin with simple employment of stenographers and transcribers who are proficient in shorthand or stenography to assist judges in capturing proceedings accurately. This can significantly reduce the burden of writing. Courts that are well-funded can now have digital transcription technology that can convert spoken words during proceedings into written text. This speech-to-text technology also allows judges to dictate their judgments and rulings verbally to an app, which can be converted to texts. Legal research and drafting software can also be installed for judges to enhance their research capacities and capabilities.

Virtual hearings have become an important component of the justice system all around the world, no thanks to COVID-19. There are many advantages associated with virtual hearings for which they should be highly recommended. Virtual proceedings, especially in the context of the digital age are the “to-go” solution depending on various factors. Virtual hearings enhance accessibility to the justice system by allowing participants to join remotely, thereby overcoming geographical barriers. Virtual hearings can also streamline court processes, reduce delays, and lead to more efficient case management. Participants can save time and costs associated with travel, accommodation, and other logistics related to attending in-person hearings. In operating virtual hearings, we must be prepared, nevertheless, to address some challenges and considerations such as inaccessibility to reliable technology or Internet connectivity. Security and confidentiality of virtual proceedings are crucial to maintaining the integrity of the legal process. We must ensure they are intact.

In the years ahead, we also have to accept that the way justice is dispensed will undergo even more radical transformation. The legal profession must be at the forefront of that transformation. There will be more – not less – technology in the courtroom. Court processes must be digitized and there should be less and less reliance on paper. Judges too have to become technology savvy. Judges and legal practitioners must be able to access dockets remotely, enter orders, and make court filings online. 

Leaving technology aside, I want to comment on a change of culture we can bring about in the way justice is administered. Administration of justice must shift from the orthodox adversarial approach to more collaboration between lawyers, parties, and the court with the focus being an earnest effort to isolate the real issue in a dispute from a maze of ill-digested causes of action and defences. The judge’s role must be transformed from the traditional umpire role to that of active case manager. By this, I mean we must introduce in our Rules of Court, situations where judges must take an active part – together with learned counsel – in identifying at an early stage of the proceedings what is the real dispute between the parties and, working together with the parties, charting a course that will result in the adjudication of the dispute as speedily as possible and at minimum costs. That is now the system of judicial case management that is taking hold in many jurisdictions across the world. We must move with the world in this regard. The days of over-pleading, raising as many issues that you can muster in the hope that one might just stick, should be something of the past. Courts should decide only the real disputes between the parties. In that way court’s time is saved and judges can dispose of more cases. Litigation should be limited to what is truly in dispute between the parties and not to obfuscate and terrorise the other side.

One of the greatest impediments to speedy trial is interlocutory skirmishes which drive up costs and drain the resources of ordinary litigants, many who are struggling to make ends meet. One way out of this malaise is to encourage clients to embrace the use of alternative dispute resolution mechanisms such as mediation and arbitration, to resolve their disputes outside the traditional court system. ADR can be faster and less resource-intensive. In this regard, I suggest a well-funded and court-accredited mediation program in terms of which cases are to be referred by the judges to compulsory mediation. With that initiative, we can significantly reduce the number of cases that actually go to court per year with resultant reduction in legal costs for litigants.

The Tomorrow’s Legal Profession Today is one that demands specialisation. Specialisation here can be seen in terms of the choice of areas of law and the nature of practice. In this regard, I have a word for young lawyers, who must recognise that legal practice involves more than just litigation. Admittedly, litigation is a significant aspect of legal practice, there are many other areas where lawyers can make valuable contributions. To new wigs, my advice is, use your initial years of practice to learn about all aspects of the law and practice but move gradually towards specialising in a particular field. In that way, you can sharpen your skills.

As lawyers of today, thinking about tomorrow, you ought to be thinking about the expansion of the frontiers of your practice beyond the shores of Nigeria. The establishment of the African Continental Free Trade Area (AfCFTA) Agreement has afforded this opportunity. AfCFTA has grown to become one of the world’s largest trading blocs, fostering intra-African trade and bolstering economic integration across the continent of Africa. Nigerian lawyers must familiarise themselves with the Agreement and be proactive with the global trade trends. African Lawyers, generally, have an added responsibility of advising clients and drafting agreements in the light of AfCFTA. With the remarkable growth and wide-ranging scope of AfCFTA, it is only natural that disputes between party states will arise and will continue to do so at an ever-increasing rate, especially, as the AfCFTA expands. These disputes often revolve around the interpretation of trade protocols, and their effective resolution is essential to the continued success of this agreement. Lawyers will surely serve as important players in this context. Together with the courts, lawyers would provide the essential legal frameworks for resolving trade-related disputes, ensuring that the principles of justice, fairness, and due process are upheld.

As lawyers I must remind you that you are service providers while your clients are consumers of your services. Law practices must adapt to the changed reality of consumers’ tastes. The truth remains that the public is becoming all the better informed in this information age. You can only retain their attention if the services you offer are of good quality. You should ensure that you give your clients value for their money. This is a professional obligation you owe them.

Because of the nature of its work, the legal profession is, regrettably, prone to being abused to achieve nefarious ends such as money-laundering. The core of this point is that lawyers must be on heightened alert and, through appropriate due diligence, protect themselves from breaking the law. As we navigate these changes you need to remind yourself as members of the legal profession, individually and collectively, of the core values which are the bedrock of the profession: integrity, independence, honesty, and above all, fidelity to the law. The radical changes I have mentioned will prove profitable to some but will eat into the profit margins of many a practitioner. It is in moments such as that the legal practitioner will be expected to rise to the occasion and live up to the values that the profession holds.

Mr. Chairman Sir, in concluding, I must, once again, commend the Warri NBA for the choice of the theme for this year’s Law Week. The legal profession in Nigeria needs to reflect on the changes taking place around her. She needs to debunk the myth that the profession is a conservative profession averse to change. Change must be driven from within the profession otherwise others will do it for us –with unwelcome results. We must accept that the old ways of doing things are not necessarily the best. Therefore, the old practices and traditions we keep must not stand in the way of our progress. This is my submission.

I thank you and wish you all the best in your Law Week celebrations.