Being text of a lecture delivered by a Justice of the Court of Appeal, Olasumbo Goodluck, at a dinner on May 7, 2023 by Faculty of Law, University of Lagos (UNILAG), Akoka in honour of recently elevated and appointed Judge, Senior Advocate of Nigeria (SANs) and professors
‘Introduction
The legal profession has always been one of the most respected and reputable professions across all jurisdictions. Given the profession’s reputation, there are three defining roles – the framework by which the standard of the profession is assessed – each role layered with different ethical considerations. These defining roles – as technicians, counsellors and leaders, implicate responsibilities to the legal system, the clients, the bar and the society at large. The ethical dimensions of these triumvirate roles require equal attention, if the legal profession is to properly function as the key instrumentality of the third estate of democracy. Lon Fuller and John Randall, in a report of the Joint Conference on Professional Responsibility made an insightful statement, thus –
“A profession to be worthy of name must inculcate in its members a strong sense of the special obligations that attach to their calling. One who undertakes the practice of a profession cannot rest content with the faithful discharge of duties assigned to him by others. His work must find its direction within a larger frame. All that he does must evidence a dedication, not merely to a specific assignment but to the enduring ideals of his vocation. Only such dedication will enable him to reconcile fidelity to those he serves with an equal fidelity to an office that must at all times rise above the involvements of immediate interest”.
Notably, the legal profession’s highest duty is not only to persons but to institutions and procedures. A lawyer, must above all, recognize that he is a trustee of the procedures and institutions that secure the integrity of the administration of justice. Nigerian Courts have also emphasized the importance of the legal profession in the society. For instance, in PDP v. JIME & ORS. [2019] LPELR-48229(CA), the Court of Appeal of Nigeria, per Abiru JCA, quoted with approval the words of the great jurist, J Wesley McWilliams, who writing in an American Bar Association Journal in January 1955 (41 ABA 1 8) wrote in an article he titled “The Law as a Dynamic Profession” thus:
“We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling, it has rewarded us with success and with prestige and leadership in our communities. It has given much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with whom we have cemented warm friendships and enjoyed happy for these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the of the profession.”
The legal profession, exemplified by the Bench and Bar, have a shared responsibility for giving a practical effect to the ethical framework. Members of the legal profession must maintain a proper conduct and high standards to demonstrate the seriousness of legal practice. Commenting on this ethical obligation, the Supreme Court in N.B.A vs Ohioma stated that the “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.”
Against this backdrop, this article highlights the relationship between the Bar and the Branch: which is important so as to be able to examine the effectiveness of the legal profession and its impact on the administration of justice. The article also considers the ethical roles of the Bar and the Bench in order to have a proper understanding of the duties and obligations within the ethical framework. The article concludes with discussion on cross-cutting issues implicated by the ethical framework, the suggestions and way forward for a more harmonious relationship geared towards the goal of equitable administration of justice.
Brief History of the Bar and Bench in Nigeria
A cursory look at the history of the Nigerian Judiciary will reveal 4 distinct eras; Period of indigenous jurisdiction before 1842, the native Court Era between 1843 -1912, the period between 1914 to 1953 and 1954 to date.
The various indigenous people of the territory that make up the sovereign State of Nigeria today had diverse methods of dispute resolution mechanisms. The major tribes: Yoruba, Ibo, and Hausa Nations had their traditional institutions. The Yoruba referred contentious matters to the head of the family, where this fails, the matter was further referred to the Baale; who was the head of the immediate clan, and finally to the Oba (king) who then possessed the authority to deliver the final verdict. Similarly, the Ibo had a practice likened to that of the Yoruba save for some communities where authority resides solely on the head of each family. Thus, there were the family heads, the Amala, and finally the Igwes (Ezes).
The Judiciary in the North was more formal as it was founded on the Islamic legal system, the Sharia. The Court system was primarily based on the Alkali system. The Emir was the ultimate appellate Judge.
British colonial rule brought about the Foreign Jurisdiction Act of 1843 and 1893 which preceded the establishment of the Courts of Equity in the Southern parts of Nigeria in 1854. It operated alongside Consular Courts established by the Royal Niger Company and had jurisdiction over its areas of operations, until the Charter creating them was revoked in 1899. Native Courts, however, continued to function provided the native law and custom administered were not repugnant to natural justice, equity, and good conscience.
In 1863, by Ordinance No 11 of 1863, the Supreme Court of Lagos was established with both civil and criminal jurisdictions. Subsequently, in 1900, via the Supreme Court Proclamation Order No. 6, a Supreme Court was established for the Southern Nigerian protectorate with the same powers and jurisdictions as were vested in The Queen’s High Court of Justice in England.
Before 1892, Sharia Law was operated in most parts of Northern Nigeria. However, in 1899, the Queen proclaimed jurisdiction over the Northern territory. In 1901, Sir Henry Gollan was appointed as the Chief Justice of Northern Nigeria. In 1899, the Northern Nigerian Order in Council gave the Commissioner of the protectorate of Northern Nigeria the power to provide for the administration of justice in that protectorate. By that order, the High Commissioner issued the Protectorate Courts Proclamation of 1900, which established a Supreme Court, Provincial Court and Cantonment or Magistrate Courts. The High Commissioner also issued the Native Courts Proclamation Order of 1900, which established a new system of Native Courts for the territory presided over by an Alkali, while the higher grade called Judicial Council was presided over by an Emir. This was ensured until the amalgamation of Nigeria in 1914.
At the birth of Nigeria, Provincial Courts were abolished and in its place were established High Courts, Magistrate Courts, and Native Courts in that order of hierarchy. The Supreme Court exercised appellate jurisdiction over the High Courts. Between 1934 and 1954 appeals from the Supreme Court went to the West African Court of Appeal and Appeals from the West African Court of Appeal went to the Privy Council. However, from 1954, appeals from the Supreme Court of Nigeria went directly to the Privy Council.
In 1954, a Federal Supreme Court was established and was presided over by a Chief Justice of the Federation. It had appellate jurisdiction over the 3 regions, which were each presided over by a Chief Justice, while appeals from Magistrate Courts, Customary or Native Courts Grade A, and went to the regional High Courts. In 1967 Nigeria had 12 States each with its state judiciary and a regional Court of Appeal. With the advent of the 1999 Constitution, the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory Abuja, the Customary Court of Appeal, Abuja, the State High Courts, the Sharia Court of Appeal of the States and the Customary Court of Appeal of the states are recognized as the Courts of superior records in Nigeria.
On the other hand, advocacy also developed with the development of the Courts System, evolving from the quasi representation found in customary judicial systems mentioned earlier to Professional advocacy and Legal representation. With the advent of Colonialism came socio-economic and political activities in Nigeria, complex commercial transactions and political disputes ensued.
To this end, Law Courts, modeled after the English Court were established in Nigeria between 1862 and 1872 thus, requiring lawyers to occupy judicial positions as well as render legal services in the Courts. However, due to a dearth of legally qualified legal practitioners, the colonial government initially appointed non- lawyers with basic education and a working knowledge of English law, to practice as attorneys and Judicial Officers.
The basic requirements for the issuance of Practicing Licenses by the then Chief Justice were to be “fit and proper” with basic knowledge of English law to occupy the newly established judicial positions and practice as attorneys.
Mr. Nash Hamilton Williams was enrolled as the first legal practitioner in Nigeria on 20 February 1886. See By 1913, the number of overseas trained legal practitioners had risen to forty – two, at this landmark, the Chief Judge stopped issuing licenses to “local attorneys?. Nigerian lawyers who received training abroad were on completion of their study, called to the English Bar. The effect of their overseas training was that the three years of training in law, at the English Inns of Court was not tailored towards the indigenous needs of Nigeria.
Consequently, in April 1959, the Government appointed a committee known as the Committee on the Future of Legal Education in Nigeria. The deliberations and recommendations of this committee resulted in the establishment of the Nigerian Law School, which has since provided vocational training for legal practitioners in Nigeria. At independence in 1960, Nigeria had a total of 963 (Nine Hundred and Sixty-Three) Lawyers. Today there are a total of 197, 015 (One Hundred and Ninety-Seven Thousand, fifteen Lawyer enrolled as Solicitors and Advocates of the Supreme Court while only about 120, 000 (One Hundred and Twenty Thousand) belong to the professional association of lawyers, namely, the Nigerian Bar Association, (NBA) sixty years after its inception.
With the foregoing historical analysis, a proper discussion of the relationship between the bar and the bench can commence.
The Bar and Bench Relationship
‘Bar’ in legal parlance means an association or group of lawyers or advocates. When used in relation to court, it means lawyers, advocates, or where lawyers assemble in the court. While the term ‘Bench’ on the other hand signifies judicial officers or where they sit in the Court. The word ‘Bench’ also has a broader meaning in law – it is a metonym used to describe members of the judiciary collectively, or the judges of a particular court. It can also mean a tribunal or place where justice is administered. To appear before the full Bench means to appear before the entire group of judicial officers of a particular court.
The Bar and Bench are two sides of a coin, they are members or parts of the same body, the justice system – the third estate in democracy – without them, justice cannot be efficiently administered in the courts. To ensure proper administration of justice, both the Bar and Bench are expected to operate like the Biblical Trinity, they must co-exist as partners and professionals in the temple of justice to enable the system function optimally.
It is important that members of the Bar and the Bench must, as a matter of necessity and the ethics of the profession, treat themselves with respect and co-exist in a cordial manner. Though they perform different functions, their roles, functions, and duties are complementary to each other. Niki Tobi (JCA) as he then was, in Alon & Anor v Dandrill (Nig.) Ltd. & Anor. noted as follows:
“…Because of the professional fraternity between the Bar and the Bench, there is need for reciprocal cordiality between the two bodies. Aspersions and disparagement, particularly when they are undeserved, as in this appeal, could destroy the cordiality of the relationship.”
In the words of Ibrahim Mohammed Musa Saulawa in William Esq. & Anor. v. Adold/Stamm Int. Nig. Ltd. & Anor. “…the bar and bench must be able to work together in harmony, give mutual respect to each other and ensure that they are committed to the upliftment of the image of the legal profession. Members of the bar must see themselves as ministers, in the temple of justice who have a duty not only to their client but also nation at large.
What is more, they should be patriotic, honest and not allow themselves to be swayed by momentary consideration or selfish interest…”
The smooth interaction of the Bar and Bench underlines the success of the administration of justice. In the words of a great jurist; Joe Busbey Hamiter of the Supreme Court of Louisiana:
“There is, of course, a relationship between the Judge and the lawyer that exists in no other profession and no other walk of life: it is unique. This relationship is fraught with the hazards of tempers that sometimes seethe in the stormy billows of the Courtroom and of antagonisms that occasionally arise from-the loss that must, inevitably, be sustained by one side as every legal battle ends. Yet the desirable future of this great country of ours may well depend upon the proper balancing of such relationship and upon an understanding by the lawyer and the Judge that without the mutual assistance and respect of each toward the other, neither can carry out his assigned role, despite great learning and dedication to duty”.
Likewise, Hon. Justice Chinwe Iyizoba aptly opined that “…the Bar and the Bench are indispensable partners in the achievement of this objective, with the judiciary at the top of a strong and vibrant bar and complemented by it. There must be mutual understanding and respect between the partners. Each partner has its own duties which if faithfully professionally, diligently and effectively performed will enable the system function optimally. Failure by one partner to perform its duty will naturally affect the other. Thus, the principal duty of both the Bench and the Bar is to work diligently, effectively, honestly and sincerely towards achieving justice in the polity. This is a duty they both owe the society primarily and each other.”
Comparative Analysis of the Relationship between the Bar and the Bench in Nigeria and the United Kingdom
Speedy dispensation of Justice
In the United Kingdom, the dispensation of Justice is without delay which may largely be attributed to the technological and infrastructural development in that clime. While in Nigeria, cases are delayed, including criminal matters which ordinarily ought to be heard expeditiously. A case could go on for over 10 years because of incessant adjournments, lack of synergy between the bar, the bench, and the registry. Furthermore, other actors, such as, the parties or their witnesses may be absent from court or even the correctional /prison system which may not meet up with the speed of the Court, also, instability in the polity amongst other factors.
Specialisation
In the United Kingdom, members of the bar specialise in aspects of the law and are licensed to do so for example, family law, criminal law, or tort while in Nigeria, lawyers are majorly general practitioners as they are trained in almost all aspects of the law as well as in procedure and practice of the law at the Law School.
Communication
There is an almost hitch-free mode of communication between the bar and the bench in the United Kingdom while still maintaining professional work ethics in the relationship, lawyers are informed on time whether the court will sit. While in Nigeria communication is not as easy because there is a lack of communication between the bar and the bench and as such both Bar and Bench find it very difficult to communicate with one another.
This drawback has contributed largely to the poor rate of case disposition in Nigeria.
Ethical Roles of the Bar and Bench
In order to maintain the high standard, values, and integrity of the legal profession in relation to clients and the general public, the duties and obligations of members are guided by established rules of professional conducts, ethics and principles of engagement. In Calabar East Cooperative Thrift & Credit Society Ltd v. Ikot , Achike, JSC succinctly summarised the respective duty of the Bench and the Bar in administration of justice thus:
“The whole purpose of adjudication in our adversary system is for a party to explicitly put his case across the table which will enable the opponent to respond appropriately to that case he has fielded, and then the Judge, as an impartial umpire will adjudicate on the issues in controversy. That and nothing more is the epitome of what justice or fair trial is all about.”
In the light of the above, the ensuing paragraphs highlight some of the specific roles of the judges and advocates in relation to each other and members of the public.
The Bar
The Rules of Professional Conduct for Legal Practitioners, 2007 (RPC) specifies the duties and obligation of lawyers in carrying out their legal duties. A lawyer is expected under the RPC to maintain a high standard of professional conduct and not engage in conduct which is unbecoming of his status. Rules 30-38 of the RPC particularly stipulates the duties of lawyers in their relations with members of the Bench.
Lawyer as officer of Court
By Rule 30, a lawyer is an officer of the court, thus, he should not conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice. This provision was sanctioned by the Supreme Court in Maba v. State where the Supreme in emphasizing on the provision, stated as follows: “by a combination of Rules 30 and 32 (2)(j) and of the Rules of Professional Conduct for Legal Practitioners 2007, a lawyer is an officer of the court and accordingly, he is not to do any act or conduct himself in a manner that may obstruct, delay or adversely affect the administration of justice”
In Rondel v Worsley [1969] 1 AC 191, 227, Lord Reid made the following observations in relation to the duty owed by a lawyer to the court:
“As an officer of the court concerned in the administration of justice [a legal practitioner] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests”
Notably, a lawyer is expected to be punctual in all court appearances and, whenever possible, should give prompt notice to the court and to all other counsel in the case of any circumstances requiring his tardiness or absence. He must make every reasonable effort to prepare himself fully prior to court appearances. Obstructing, delaying or adversely affecting the administration of justice process is an abuse of the process of the court or which is has been described by the Supreme Court as dishonourable and unworthy of an officer of the law charged, as a lawyer, with the duty of aiding the administration of justice in the society.
Relationship with Judges
It is an obligation for a lawyer to conduct himself in such a way, as to give the impression, or allow the impression to be created that his act or conduct is calculated to gain, or has the appearance of gaining special personal consideration or favour from a judge.
Conduct during Trial
A lawyer appearing before a judicial tribunal shall accord due respect to it and shall treat the tribunal with courtesy and dignity. He has a right and duty to fully and properly present his client’s case and to insist on an opportunity to do so. He should vigorously present all proper arguments against any ruling he deems erroneous and should see to it that a complete and accurate case record is made. In this regard, he should not be deterred by any fear of judicial displeasure or even punishment.
In the case of Magna Maritime Services v. Oteji & Anor. , the apex court in analyzing the role of a legal practitioner in the justice system referred to the general provisions of the Rules of Professional Conduct which stipulates that a lawyer is to maintain a respectful attitude to the court at all times in a bid to ensure maintenance of respect and for confidence in the Judicial office. The court cited the words of Ngwuta JSC in the case of Dariye V. FRN : “They owe a duty to their client but they owe a higher duty to a higher cause-the cause of justice.” Regarding the role played by the judge, the court stated that it was important for the bench to maintain a civil approach to both counsel and litigants appearing in court: “…To balance the equation, the law also acknowledges that the judicial officer should also while carrying out his duty must be civil to lawyers appearing before him. Not only to lawyers but also to litigants”
In dispensing this obligation, a lawyer must be highly courteous and respectful towards the authority of the court. He is expected to treat the court with due respect, dignity and honour. In Mindi v State, the Supreme Court chastised the Appellant’s counsel who the court considered to be rude and unethical in his approach towards the court.
“The Appellant’s Counsel, Mr. Okoro, seems, in his bloated ego that he possesses omniscience, to have a rude and unethical alibi for this novelty. In paragraph 4.08 of the Appellant’s Brief, Counsel contumaciously argued that the reasoning of the trial Court was ridiculously affirmed by the Court of Appeal. He further argued that the “the lower Courts failed to appreciate the law that the burden of proving the voluntariness of extra judicial statement of a suspect lies on the prosecution squarely which must be proved beyond reasonable doubt.” Mr. Okoro of counsel for the Appellant has crossed the line. 31(1) of the Rules of Professional Conduct for Legal Practitioners, 2007 provides: A lawyer shall always treat the Court with respect, dignity and honour. It is unethical, professionally, for a lawyer or Counsel to use the occasion or an opportunity of an appeal to insult, denigrate or deride the integrity or intellectual ability or capacity of the Judges/Justices of the Courts below”
Legal practitioners are obligated to avoid the use of un-salutary words in presenting their submissions before the court. It is highly pertinent that lawyers are conscious of their use of words in the court room. The case of Ode v Akaa came with similar reaction of the court towards the manner of language by counsel in the matter. This led to the stating as follows:
“One final word before I conclude. It is amazing to behold the use of un-salutary language employed by both learned Counsel in presenting their submissions under this issue. It is difficult to see why and how Counsel, as Ministers in the Temple of Justice, allowed themselves to utter such words that, for a minute, caused me to wonder whether I had strayed into a motor park instead of being in a Court of law where decorum, propriety and sobriety are the order of the day. Such unwholesome use of language is both unbecoming of persons belonging to this noble profession and should rightly attract sanction in one form or the other.”
Good advocacy lies on the use of decent language in court. This was the position of the court in Alon & Anor v Dandrill (Nig.) Ltd, where Niki Tobi JCA (as he then was), stated thus:
“I have said it several times and I will say it again that good advocacy lies on the use of decent language in Court. Because of the professional fraternity between the Bar and the Bench, there is need for reciprocal cordiality between the two bodies. Aspersions and disparagement, particularly when they are undeserved, as in this appeal, could destroy the cordiality of the relationship.”
Candour and Fairness
Candour and fairness must underline the interaction of the lawyer with the court; a lawyer should only deal with the court in a manner that is candid and fair. A lawyer should in court inform the presiding judge of subsisting decided recent cases that relates to his case including cases where the decision is against his client. However, the lawyer is entitled to distinguish any such case.
He should not knowingly misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of a decision or a textbook; cite as authority a decision that has been over-ruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved etc.
In Chukwu & Anor v INEC & Ors., it was held that “the rule of professional conduct requires lawyers not only to display a respectful attitude towards the bench but also to exhibit a high level of decorum, candour and fairness to the Court and to other lawyers.”
It is unprofessional and dishonorable to deal other than candidly with the court in the presentation of client’s case. The court of appeal in the case of Etim v Obot (2009) LPELR-4128 (CA), frowned at the conduct of a lawyer who used the words ‘strange’ and ‘mysterious’ to describe the judgment of a lower court. Similarly, the Apex Court in Aliyu v. State, per Eko JSC held as follows:
“The lingua franca of the two courts below is English Language. Page 32 of the records is the proceeding of the trial Court written in simple laconic English that would not take a final year pupil of a primary school preparing for his Common Entrance to comprehend. Here is a lawyer, before us at the Supreme Court appearing not to understand very simple English Language. And it is not to his credit to insist that he has come before us merely to confuse issues and thus pander to the beer parlour gossip or glib that the lawyer is he who turns black into white and vice versa. This common man’s impression of the lawyer, though false, should of course be scandalous of us all lawyers!! The Appellant’s lawyer is, like every lawyer, an officer of the Court enjoined not to do any act or conduct himself in any manner that will adversely affect the administration of justice. A deliberately mischievous distortion of facts, no doubt, is a conduct unbecoming which is not only capable of adversely affecting the administration of justice, but does actually affect the administration of justice. Every lawyer appearing in his professional capacity before a court shall deal with the court mostly candidly and fairly. Rules 30 and 32 of the Rules of Professional Conduct for Legal Practitioners, 2007 should, and indeed, offer very basic precept to every lawyer called to the Nigerian Bar and enrolled in the Supreme Court after Law School. It is not palatable to call an officer of this Court a liar, as I am tempted to call the Appellant’s Counsel”
Courtroom Decorum
A lawyer should be dressed in a proper or dignified manner. He should not be dressed in a way to attract attention to himself. He is to conduct himself with decency and decorum, he should rise when addressing, or being addressed by the Judge.
While the court is in session a lawyer should not assume an undignified posture, and should not, without the judge’s permission remove his wig and gown in the courtroom. He should address his objections, requests, arguments, and observations to the Judge and shall not engage in the exchange of banter, personality display, arguments or controversy with the opposing lawyer.
He should not engage in undignified or discourteous conduct which is degrading to a court or tribunal. The provision of Rule 36 was reiterated by the court in HDP Petitioner v INEC & Ors.
“Rule 36 covers “Court room Decorum” in the following words: – “36. When in the Court room, a lawyer shall: (b) conduct himself with decency and decorum, observe the customs, conduct and code of behaviour of the Court and custom of practice at the bar with respect to appearance, dress, manners and courtesy, (e) not engage in undignified manner or discourteous conduct which is degrading to a Court or Tribunal.” The act of walking out on a Court in the middle of proceedings in a matter in which the counsel is appearing is a discourteous conduct, which is certainly calculated to bring the Court into disrepute and deter the administration of justice.”
Consequently, a lawyer has a general duty to protect the integrity and dignity of the court. Where he falls short of this duty, he may be charged for the offence of contempt of court.
Roles and Expectations of Senior Advocates in the Dispensation of Justice
The ranking of courtroom advocates for exceptional contributions to the administration of justice is a historical tradition practiced in the United Kingdom (UK). The title is referred to as King’s Counsel or Queen’s Counsel depending on the monarch in power. The practice has been adopted by other common law territories with diverse nomenclature – in Kenya – Senior Counsel, Canada – Queen’s Counsel, South Africa – Senior Counsel. In Nigeria, it is referred to as Senior Advocate of Nigeria.
The Senior Advocate of Nigeria (SAN) rank is conferred on legal practitioners qualified to practice in Nigeria for at least ten years who have distinguished themselves in the legal profession. The title bequeaths prestige, elevating a legal practitioner to a high-class level in the legal community. SANs enjoy a suite of privileges and few restrictions. They have a right to wear silk robes, sit at the inner bar (or front role), mention cases out of court, etc. The law mandates them to appear with a junior lawyer in court and restricts them to practice only as barrister. The rank signifies excellence and exceptionality as an advocate and attracts the attention of clients and practitioners seeking legal services. Remarkably, in concurrence with the privileges of the title of SAN are obligations critical to the justification of the using the title – to whom much is given, much is expected.
What, then, are the obligations of the Senior Advocates of Nigeria, and what should their roles be in the administration of justice?
Decongesting the Courts: Duty to Encourage the Use of ADR
The Nigerian legal system is challenged by unacceptable delays in the administration of justice at all levels, given the judiciary’s lack of capacity and infrastructure and ineffective court registries. The surge in cases filed is alarming, judicial officers are inundated with countless cases, and recent innovations like case management and frontloading have not impacted the accomplishment of an effective and timely dispensation of justice. An efficient administration of the justice system is not the sole responsibility of the judiciary; all stakeholders in the justice delivery system have pivotal roles to play. A Senior Advocate of Nigeria is primarily responsible for assisting the court in achieving its primary objective, which is the just and speedy disposal of cases based on law and evidence. Thus, all actions and inactions of a Senior Advocate must be geared toward helping the court achieve this mandate by making meaningful and practical contributions.
The conscientious practice of Alternative Dispute Resolution (ADR), particularly Mediation and Arbitration, is recommended to tackle some of the identified challenges. ADR mechanisms are designed to relieve the courts of their mounting workload, decongest the court dockets and prevent undue cost and delay, facilitate access to justice, and provide more effective dispute resolution methods that can be adopted to reach an expeditious settlement. It is expedient for parties to explore alternative dispute resolution mechanisms that are simple and rapid.
There is no gainsaying that Nigerian Society is highly litigious. It is even more compounded during and after elections when the Justice system is substantially preoccupied with determining election petition matters. The Inner Bar is urged to be deliberate in proffering ways and means of imbibing ADR as a supplement to litigation to reduce the number of actions instituted in court. Disputes which can be resolved by alternative means other than litigation should be referred to ADR. Even though there are existing Rules of Court in place that mandate the referral of certain cases to be resolved by ADR, some of these cases should never have made it to the court’s dockets if the parties were duly advised on other options for the resolution of their disputes. Hence, Senior Advocates are urged to encourage clients, even those who may have the mindset that the court is the only place they can get justice or who may not be aware of the ADR processes, to explore the ADR options and also provide informed guidance on how they can navigate the processes and which ADR options is suitable for the resolution of their case.
As a step forward, it is suggested that prospective Senior Advocates’ use of ADR mechanisms should be included as a prerequisite for the conferment of the rank. In addition to the required number of cases that must have been led and completed in the courtroom, a prospective Senior Advocate must have ten (10) Mediation and/or Arbitration Awards to his credit. This will make a huge positive impact assuming such a number of cases are removed from the court’s dockets.
Finally, a Justice delivery system noted for prompt dispute determination is a highly rated haven for foreign investors. Indeed, the legal practice will thrive under such an effective system. The rewards of enhancing the justice delivery process are immense, and this distinguished legal assemblage is urged to accord this malaise the seriousness it deserves.
Provision of Support to Young Lawyers
The alarming number of unemployed young lawyers whose numbers multiply annually as they graduate from the Law School is quite unsettling. I am sure this auspicious gathering as part of the midwives in the delivery process are well acquainted with this challenge. The men and women of the Inner Bar have a responsibility to act as role model and mentor to groom the young lawyers in the legal profession who have aspired to become lawyers having been imbued by their performance in the lecture hall, in the courtroom and in Chambers. The lot falls on the Inner Bar to assist these corps of learned young gentlemen and women to find their feet and earn a living with the dignity and respect traditionally ascribed to this noble calling.
It is recommended that a Foundation should be established by the body of Senior Advocate of Nigeria to provide support and mentorship to unemployed young lawyers. Through the platform of this Foundation, various innovative initiatives such as a mentorship schemes, development of legal hubs, a funding scheme can be financed and implemented. For the Mentorship Scheme, young lawyers registered with the Foundation will have the opportunity of being closely mentored by a Senior Advocate for a period of six (6) months. During this period, the young lawyer is able to practically observe and imbibe the sanctimonious values, qualities and culture of the legal profession. He/she learns to understand in practicality what is expected of him/her as a minister in the temple of justice, how to relate with the court and colleagues in courteous and polite manner and how to be measured in his/her approach to the legal practice. This is expected to be an efficient scheme because most young lawyers look upon Senior Advocates as role models, they learn largely by imitation and a scheme like this will help them to learn through an appropriate and organized channel.
Additionally, with regards to the development of a legal hub. It is recommended that a legal hub should be established where young lawyers have access to an exclusive free co-working space located in strategic locations across all the states of the Federation which will specifically serve as law office rooms, with general administrative staff, to hold meetings with clients, to be served processes and to work. Young lawyers who are just establishing their private practice but lack the financial capacity to rent an office space will have access to this space for a certain number of hours per day, after which the user will vacate the space and another user will take over. The hub will provide opportunity to receive catered mentorship and access to members of the Inner Bar as well as exclusive networking opportunities and connections. It will also assist upcoming ambitious lawyers to find a footing in the journey to building up their own private practice.
Similarly, we also recommend a funding initiative for unemployed brilliant and vibrant lawyers who are consummate in law practice. One of the requirements for eligibility for funding will be participation in the mentorship scheme. This requirement is important to ensure quality control so that young lawyers going into private practice would have been exposed to the salient values and culture of the profession and understand their roles in the society.
All of the above are professional responsibility that the legal profession owe to the young generation of legal practitioners and the frontliners of this initiatives should be the men and women of the Inner Bar given the pivotal roles they play as elites of the profession.
Appointment as Judicial Officers
The Chief Justice of Nigeria, Olukayode Ariwoola in 2022 stated that the judiciary is in dire need of passionate judges who will promote the rule of law and the integrity of the judiciary. The senior advocates should provide a pool from which judges of superior courts in
Nigeria can and should be appointed. For instance, in the UK over 99% of the judges of the superior courts are appointed from the ranks of the QC and over 70% of reported litigation in England are decisions of first instance judges. The expertise of the members of the Inner Bar in procedural and substantive law and their familiarity with legal issues given their vastness and experience is needed in the judiciary. The deep and talented pool of SANs provides a very valuable and dependable source for the appointment of high-quality judges and reinforces the pre-eminence and attractiveness of the legal profession.
Roles of the Bench
It is a generally accepted aphorism that the most exalted function which a man can be entrusted is the administration of justice to his fellow beings. The performance of this onerous duty undoubtedly requires the presence of certain qualities, as well as the sacred observance of standard of behavior. The exercise of judicial powers and/or functions are vested in the law Courts and are constitutionally recognized. The Code of Conduct for Judicial Officers of the Federal Republic of Nigeria sets out in detail the manner in which judicial officers are to conduct their affairs as it relates to their office. Every judicial officer has a duty to observe a high standard of conduct that will ensure and preserve transparently, the integrity and respect for the independence of the Judiciary and the administration of justice. A judicial officer must adhere and observe strictly the rules set out in the code. The following are some of the duties of Judicial officers as stated by the Code:
Impropriety and Appearance of Impropriety
A judge shall avoid impropriety and the appearance of impropriety in conduct of his/her activities both in his/her professional and private life. A judicial officer should respect and comply with the laws of the land and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.
Judicial officers must always act, lawfully, within the confines of the law and the rules of court in the discharge of his judicial functions.
Social Relationship
A judicial officer must avoid social relationships that are improper or may give rise to an appearance of impropriety or that may cast doubt on the ability of a judicial officer to decide cases impartially. He must not belong to a body or association that is discriminatory on the ground of race, gender, religion, ethnicity or other cause contrary to fundamental human rights.
Adjudicative Duties
A judicial officer should be true and faithful to the Constitution and the law, uphold the course of justice by abiding with provisions of Constitution and the Law. He should acquire and maintain professional competence. He should be industrious, putting in consistent and methodological efforts and research.
A Judicial Officer must avoid the abuse of the power e.g. unsubstantiated issuance of interim injunctions, ex parte order. We have cases of the National Judicial Council sanctioning judges for issuing conflicting ex parte orders. This is should be totally avoided as it does not speak well of the judiciary.
A Judicial Officer should accord to every person who is legally interested in a proceeding, or his legal representative full right to be heard according to law. He is to devote adequate time to his duties, to be punctual in attending Court and expeditious in bringing to a conclusion and determining matters under submission.
A Judge must avoid situations which might reasonably give rise to the suspicion of or appearance of favoritism or partiality. In Doma v. FRN, judicial bias was described as follows: “… bias denotes a tendency of partiality in a judex/adjudicator which prevents him from objective consideration of controversy before him.” In Newswatch Communication Ltd v. Atta the Supreme Court held as follows:
“It is trite law that the primary duty of a Judge in the adjudication of cases is to do justice to the parties without fear or favour. See Sha (Jnr) v. Kwan (2000) 8 NWLR (Pt. 670) 685. He or she should not be carried away by sentiment or undue adherence to legal technicality. He or she must be impartial, fair and just to both parties, and because of the double sided nature of justice and fairness, the Judge must be even handed. In our adversary system, it is incumbent upon the parties in a case, to put their respective cases across the table before the Judge, who as an impartial arbiter and umpire, will adjudicate on the issues in controversy. That is the epitome of fair trial.”
Administrative Duties
A judicial officer should diligently discharge his administrative duties. In the exercise of his administrative duties, a judicial officer should avoid nepotism and favoritism. He should require his staff and other court officials under his direction and control to observe the standards of fidelity and diligence that apply to him.
Disqualification
A judicial officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. A judge has the power to recuse himself from a case where he may be perceived as bias. This issue was addressed in Mbaji v. Amobi as follows:
“The starting point will be to ascertain what is bias and what does it portrays when it is levied against a judicial officer. Bias is described as a state of mind incapable of precise definition or proof, whatever impression it may convey… In the instant case it should have been much safer and more in the interest of justice if the lower Court had disqualified itself from the matter, upon an application brought by counsel to the Defendant asking him to do so. See Okoebor v. Police Council & Ors (2003) 14 NSCQR Page 434.”
Similarly, in Abo v State it was held that:
“Where the prosecutor is the wife of the trial Judge as happened in this case, the fairness of the trial is already impugned. Communication between a trial Judge and one of the counsel or parties to a trial to the exclusion of the other party is never encouraged but how would anyone forbid communication between couple in a legal marriage. The likelihood of bias in this instance is genuine, and I cannot in good conscience validate a trial conducted in the circumstances in issue.”
Prohibition of Acceptance of gifts
A judge and members of the Judge’s family shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the Judge in connection with performance of judicial duties except in some circumstances as stated in the code. Where a judge acts in contrary to this, he is guilty of a criminal offence. In FRN v. Ademola , the Respondent, who is a judge, was charged with the with corruptly receiving a BMW Saloon 320i valued at 8,500,000 through his son as gratification in exercise of his official functions as a judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.
Practice of Law
A judicial officer should not practice law nor act as an arbitrator. A judge shall not outside official duties, act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity.
Courteous behavior
A judge should respect advocates and fellow judges in the performance of the duty of his office.
In Makinde v. Mene & Ors. it was held that “…to balance the equation, the law also acknowledges that the judicial officer should also while carrying out his duty must be civil to lawyers appearing before him. Not only to lawyers but also to litigants. See SALIM VS. IFENKWE (1996) 5 NWLR (PT 450) 564.”
Also, in the same case, the court speaking on the roles of both the Bar and the Bench. Legal Practitioners are to ensure that professionalism is regarded as the basis of practice. The court stated that:
“Legal Practitioners are ministers in the temple of justice and therefore are not to engage in smart practices and unprofessional conduct. A legal Practitioner should not sacrifice professional ethics for the case of a client. I make bold to say, no client is worth it. The first and major duty the Legal Practitioner owes is towards the profession in ensuring sometimes at the risk of the case of his client that justice is done. That is the whole enhance of litigation. It is not about winning a case at all cost but rather ensuring that justice is done at all cost. All persons who have the privilege to belong to the noble profession of law, at whatever level of practice and involvement either as a judicial officer or legal practitioner must ensure the highest level of dignity and integrity in conducting the affairs of his calling.”
Cross-cutting Issues
Having discussed the roles of the Bar and Bench, it is important to touch on some cross-cutting issues that affect both the Bar and Bench, and touch on the efficiency and efficaciousness of the legal profession as an instrumentality of the third estate of democracy.
Financial autonomy of the Judiciary
It is no doubt that the independence of the judiciary was at the heart of the drafters of the Nigerian Constitution; Flowing from Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as altered) (CFRN) which establishes the judiciary, and Section 17(1)(e) CFRN, which provides that “the independence, impartiality and integrity of courts of law, easy accessibility thereto shall be secured and maintained”, it is clear to see that what the framers of the CFRN had in mind was a judiciary, that is separate and self-competent, easily accessible and affordable to all. The framers understood that the independence of the judiciary is of utmost importance in upholding the pillars of the democratic system, hence, ensuring, a free society.
Commenting on the importance of an independent judiciary, the Court of Appeal per Ibrahim Mohammed Musa in the case of Sahara Reporter & Anor. v. Saraki held thus:
“I have deemed it expedient to reiterate the fundamental axiom, that an independent and courageous judiciary is the greatest asset of a free people anywhere in the world. This is absolutely so, because by the very nature of the fundamental functions and role, thereof, the judiciary is the citizens’ last line of defence and hope in a free democratic society. Indeed, that is the line separating constitutionalism from totalitarianism. It was once aptly reiterated by the Apex Court: The Judiciary cannot shirk its sacred responsibility to the nation and maintain the rule of law. It is both in the interest of the Government and all persons in Nigeria. The law should be even handed between the Government and the citizen. See GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) NWLR (Pt. 18) 621 PER Obaseki JSC. I think, it was the legendary philosopher, Cicero, who about 2000 years ago echoed: “Amid the clash of arms the Law is silent.” However, barely 70 years ago, Lord Atken, that quintessential, courageous, erudite common law jurist thought otherwise, and cherishingly echoed the ever-immutable dictum: In this country (England) amid the clash of arms, the laws are not silent. They speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principle of liberty for which on recent authority we are now fighting, that the judges are no respecter of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law. See LIVERSIDGE VS. ANDERSON (1942) AC 206 per Lord Atken @ 244.”
There is no gainsaying that a critical component of and imperative for, an independent judiciary, is financial autonomy. This fiscal autonomy is broad-based and both inward and outward looking and includes remuneration and compensation, administrative and support, infrastructure and service.
The foregoing said, regardless of the fact that judicial independence may stand guaranteed under the CFRN, the extent to which the judiciary is fiscally independent is questionable as certain aspects of the judiciary’s finances, in reality, continue to be controlled by the executive. It is not far-fetched thus, to conclude that the fiscal (and total) independence of the judiciary envisaged by the CFRN cannot be achieved if the courts’ finances are determined, controlled and administered by the executive and the legislature over whom the courts should exercise judicial control.
In reality, and unfortunately, over the years, the Nigerian judiciary has been denied the freedom to operate without interference by the executive arm of government both at the federal and state levels, either by inadequate appropriation or the withholding of appropriated funds. In these and other ways, the executive and legislature have demonstrated an unwillingness to recognize and respect the financial independence of the judiciary. This is in spite of Section 81 of the CFRN, which provides that
“any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the states under section 6 of the Constitution”,
The foregoing is bolstered by the Supreme Court’s decision in AG Abia v. AG Federation , where the apex court emphasized that the salaries and allowances of judicial officers as well as recurrent expenditure of judicial offices in the Federation, are charged on the Consolidated Revenue Fund. In respect of the judiciary in the 36 states of the federation, section 121 of the CFRN also stipulates that
“any amount standing to the credit of the judiciary and the Consolidated Revenue Fund of the state shall be paid directly to the heads of courts concerned”.
It is also clear that the performance by the judiciary of its judicial as well as administrative functions directly turns upon financial economy as efficient administration requires resources to support remuneration necessary staff and acquisition of equipment and facilities. In the interest of independence of the judiciary, it is important that the administration of the judiciary be carried out by the judiciary itself or by a professional agency under the supervision of the judiciary.
The issue of financial autonomy of the judiciary was the central issue in JUSUN v FGN (2014), before A.F.A Ademola J., of the Federal High Court, Abuja. The suit was filed by the Judicial Staff Union of Nigeria to challenge what was described as ‘piecemeal’ release of funds to the judiciary from the Consolidated Revenue Fund, contrary to the provisions of sections 81(3), 121 (3) and 162 (9) of the CFRN. The union sought a declaration that the piecemeal payment/allocation of funds through the states’ ministries of finance to the states’ judiciary at the governors’ pleasure was “unconstitutional, un-procedural, cumbersome, null and void”, and should be stopped immediately. While restraining the Federal Government alongside the 36 States governors from holding on to funds meant for the judiciary, His lordship meant that funds meant for the judiciary should be disbursed directly to the heads of courts and not to the executive arm of government. His Lordship also held that the practice of the executive disbursing funds to the judiciary was unconstitutional and also threatened the Independence of the judiciary.
Similarly, in another matter, Hon Justice A.R Mohammed of the Federal High Court, Abuja, held that
“the Judiciary is an arm of government like the Executive, and not a Ministry under the Executive”, His Lordship gave a poser that, “If the National Assembly does not submit its budget to the Executive Arm for appropriation and disbursement, why should the judiciary do so?”
He then held that the disbursement of budgetary funds to the judiciary by the executive arm is unconstitutional, null and void. His lordship further held that a situation whereby the judiciary would continue to depend on the executive arm of government for its budgeting and funds’ release runs contrary to the provisions of section 81 (2) and section 84 (1) (2) (3) (4) and (7) of the CFRN.
As borne out by the foregoing cases, the judiciary is not an extension of the executive and should have financial autonomy -without depending on the executive to perform its administrative duties, and its fiscal affairs should not be under the control or direction of the executive. The executive is thus, invited to show unconditional commitment to respect the financial independence of the judiciary.
It is also important to ensure that judges are not subjected to the bureaucracy of the executive arm of government after they retire, thus, imperative to align the pension of Judges with their salaries and allowances which is already charged on the Consolidated Revenue Fund. It was on this basis that the constitution of the Federal Republic of Nigeria (5th Amendment) Bill 2012, was proposed to the National Assembly farm an amendment to section 291 of the CFRN by inserting a subsection that provides that:
“any pension and allowances payable by virtue of subsection(3) of this section shall be charged upon the Consolidated Revenue Fund of the Federation or of a State as the case may be”.
In comparison with the regime in the UK, where the Senior Salaries Review Body (SSRB) provides independent advice to the Prime Minister, the Lord Chancellor and the Secretary of State for Defence on the remuneration of the judiciary, senior civil servants and senior officers of the armed forces, Members of the House of Commons, Members of the House of Lords and other groups, as are referred to it from time to time.
In the United States the judiciary is funded by the discretionary appropriations which are sufficient to cover its expenses. Commenting on the fiscal year 2015 appropriations Judge John Bates, Director of the Administrative Office of the U.S. Courts stated that ‘the funding levels are sufficient to enable courts to operate effectively and we appreciate that Congress has again made the Judiciary a funding priority. Although the federal judiciary’s budget is only two-tenths of the one percent of the federal budget, adequate resources are essential for the courts to dispense justice in a timely fashion’.
As advocated by May Agbamuche-Mbu,
“Nigeria should borrow a leaf from these developed countries and safeguard the financial autonomy of the judiciary so that the courts can improve on infrastructure and acquire state of the art technology to ensure the smooth running of the courts. We must look to the other two arms of government for support in making the judiciary independent enough to allow it deal with all its numerous problems”
The import of the foregoing is that the judiciary will be completely independent of any interlocking with the executive, which in turn will stimulate development and vibrancy of the justice system. It is therefore strongly advocated that the salaries, allowances and pension of judicial officers and their administrative support staff should be a first line charge of the Consolidated Revenue Fund and disbursed directly to the heads of courts.
Impartiality of the judiciary
The principle of impartiality of a judicial officer connotes that he is not prejudiced in the consideration of the case brought before him at the detriment of the other party. Under this principle, the judge is limited to forming his opinion and building his judgment on what the litigants give him. Evidence in accordance with the law and shall adjudicate in the case brought against him according to what he concluded during his assessment of the evidence submitted and as provided by law.
The society expects judicial officers to be impartial and to discharge their judicial functions without any form of bias whatsoever. The twin pillars of justice: Audi Alterem Partem and Nemo Judex in Causa Sua must be adhered to strictly by the Bench in the conduct of cases before it. This will improve the quality of judgments and ensure that justice is dispensed without fear or favour. Judicial Officers are urged to always provide adequate opportunity for Counsel to adequately and exhaustively present his client’s case in court.
It is noteworthy that the relationship between the advocate and judicial officer is quite delicate. On the one hand, it is important to allow counsel to be firm and resolute in the pursuance of his case while on the other, the judge must maintain his authority in the court. In presenting his case, a lawyer must avoid making rude, insolent or insulting comments against the court and a judge should not be over-sensitive to remarks made against him.
Corrupt-free Adjudication Process
It is the expectation of the society that judicial officers to be incorruptible and to discharge their judicial functions free of corrupt practices. On duty of a judge to be upright and above suspicion, the court in Eriobuna v. Obiorah opined that “A Judge by the nature of his position and professional calling, is expected to be straightforward, upright, diligent, consistent and open in whatever he does in court and in any other place of human interaction and human endeavour that he happens to finds himself. This is because his character as a Judge is public property. He is the cynosure of the entire adjudication in the court, and like Caesar’s wife of Ancient Rome, he is expected to live above board and above suspicion, and he must live above board and above suspicion, if the judicial process should not experience any reverse or suffer any detriment. A Judge should know that by the nature of his judicial functions, he is persistently and consistently on trial for any improper conduct immediately before, during and immediately after the trial of a case.”
A Judge shall not ask for, nor accept, any gift, bequest, loan or favour in connection with performance of judicial duties except in some circumstances as stated in the code of conduct for judicial officers. It is also expected that judicial officers who are guilty of corruptible conducts are adequately charged to bear the consequence of their actions. See FRN v. Ademola (supra).
Speedy disposal of cases
The Judiciary is urged to embrace the system of case scheduling to ensure speedy dispensation of justice. The normal practice of bringing every lawyer to Court at 9am daily should be reviewed. The Courts in fixing matters should set both a date and a time for the matter. This would allow the time allotted for each matter to be effectively utilized. Allocation of time to cases would send a clear message to Lawyers that the time allocated must be effectively utilized and frivolous applications for adjournment would no longer be the norm. To this end, Practice Directions should be issued to make this the standard practice in every Court.
Limitation of Powers of the Judiciary
Central to its existence is the doctrine of separation of powers which highlights the importance of the Judiciary’s independence and freedom from interference from the other Arms. Constitutional powers such as the prerogative of mercy that give the Executive power to either pardon or reduce a sentence for an accused limits the power potential of the Judiciary. The Appointment of Federal Judicial Officers while on the recommendation of the National Judicial Council is ultimately decided by the President or the Governor.
Overwhelming Workload
The volume of cases the Judges are faced with is overwhelming leading to complaints of delay in the dispensation of justice and ultimately perceived as Justice denied. Hence, it is highly expedient that the ADR methods are embraced in order to decongest the courts.
Lawyers’ Stamp and Seal
The Legal Profession has been plagued by many problems – one of which is the impersonation of lawyers by dropouts from either the law school or faculties of law. These people masquerade as legal practitioners and render legal services to unsuspecting clients; some of them have even had the audacity to appear in courts. Apart from being a criminal act, the actions of these impersonators have constituted a great dent to the integrity of the Legal Profession.
In order to remedy this, the Nigerian Bar Association (relying on Rule 10 of the Rules of Professional Conduct 2007) introduced the Stamp and Seal for lawyers. The primary objective for this development is to fish out the quacks in the profession, to protect the integrity of the profession and give more credence to the rule that court processes can only be franked in the name of a Lawyer whose name is on the Roll. See: Okafor vs Nweke (2007) 10 NWLR (PT 1043); FBN vs Maiwada (2013) 5NWLR (PT 1343); SLB Consortium Ltd vs NNPC (2011) 9 NWLR (PT 1252).
The Judiciary has given its blessings to the usage of the seal and stamp through its notable pronouncements in decided cases. In Uchi v. Sabo (2016) 16 NWLR 284 C.A, the Court held that; “The provisions of Rules 9 & 10 of the Legal Practitioners Rules of Professional Conduct, 2007 relate to the affixing of seal & stamp of a legal practitioner on legal documents prepared by him. The policy is worthy innovation to enhance the integrity at the Bar and should be jealously guarded in its application”. The Court of Appeal in the case of Today’s Car Limited v. Lassco Assurance Plc & Anor (2016) 16 NWLR 284 C.A, held that, “A lawyer who makes payment for his seal and stamp can affix the receipt evidencing payment made in that regard to the document in the absence of the seal and stamp”.
One of the issues that have arisen on the use of stamp by lawyers is whether a lawyer can affix an expired on a court process? This is so, given that the stamp has the lifespan of a year before renewal is due – i.e. a seal issued for the year 2020 is valid until March 2021. This issue has generated lot of arguments amongst legal practitioners who are of the opinion that the seal should not have a lifespan as same was not provided for in the Rules of Professional Conduct nor in the Legal Practitioners Act. However, others especially the Nigerian Bar Association has argued that the seal should continue to have a lifespan as it serves as a form of check on the legal practitioners to ensure that the seals are actually issued to those entitled to practice and not does who may have been disbarred by the LPDC based on some offences committed.
The decision of the Court of Appeal Emechebe vs. Ceto Int’l (Nig.) Ltd. [2018] 11 NWLR (PT. 1631) 520, has now puts the argument to bed. The Court while commenting on the effect of usage of an expired seal on a process, held that:
“Since the originating processes contain a stamp which bears the name and number of the counsel who filed the said processes and it is not that the Respondent had failed to affix any stamp at all, and even if the Appellant’s contention is upheld herein, it is at best an irregularity, which can be remedied by affixing the unexpired stamp and seal, which from the records before us, learned counsel for the Respondent no doubt has, having been clearly affixed to other applications filed at the lower court. Since the material constitutes part of the records before us, I am bound to take judicial notice and hold that the submission of learned counsel for the Appellant on this point lacks merit and must be and is hereby discountenanced by me.”
The stamp policy introduced by the Bar should be considered a welcome development and should be followed by constant improvements such as digitalizing the seal and stamp. It adds to the integrity of the bar and reduce all administrative bottlenecks affecting prompt issuance of the stamp and seal.
Continuous use of the Wig and Gown
By the current tradition and rules of practice, no lawyer has the right of audience in our superior court of records in Nigeria, unless “properly robed” which means, wearing the gown and wig. The wearing of wig and gown dates to the 17th century and was inherited as part of the legacy of colonialization of Nigeria by the British.
The question is whether this tradition has outlived its usefulness or not? Starting with the United Kingdom which gave the tradition to the world, there are a lot of reforms going on. For example, as part of modern reforms, British judges in England and Wales have stopped wearing wigs in civil and family cases and they only now wear very simplified gown. It is only lawyers appearing in criminal courts who still continue to wear wigs and a black gown. Furthermore, since November 2011, lawyers appearing before the UK’s Supreme Court and the Judicial Committee of the Privy Council are no longer required to wear robes. So, the British people themselves are gradually abandoning the “time-honoured” wig and robes.
In the United States, wig had been jettisoned in the United States as far back as middle of 19th Century. Today, American lawyers wear neither wig nor gown but only business suit. Also, in some commonwealth countries like Canada, South Africa, India, Pakistan, and Kenya, the judges and attorneys don’t wear wigs.
The foregoing shows the need for the Bar and Bench to look inwards by assessing the importance and continued necessity of the wig and gown to the legal profession.
Recommendations
Having discussed the relationship between the Bar and Bench, their ethical obligations and other cross-cutting issues, the following are some of my recommendations:
Increased use of ADR in resolution of disputes
Administration of justice is an essential part of governance. In its original form, the administration of justice process is configured to work efficiently, but in reality, the justice system in Nigeria is fraught with a number of challenges, some of these problems are structural while others are institutional in nature. They include high number of cases in the courts’ dockets; increasing cost of litigation; undue technicalities and delay.
The length of litigation and undue delay are disincentives to people who are considering instituting matters in court. For instance, as gleaned from the Technical Report on the Nigerian Court Procedures Project 2001, land matters topped the list of cases with the longest average period of 7.8 years of disposal from filing to judgment. Personal injuries/tort cases take 3 years, commercial cases – 3.3 years, and family disputes and divorce have the least average of 2.5 years. It took 7 years to dispose of a case of wrongful termination of employment in Eperokun v. University of Lagos . Maja v. Samouris took 9 years from 1993-2002 to final judgment at the Supreme Court, Obasohan v. Omorodion – 16 years, Ekpe v. Oke – 17 years, Onagoruwa v. Akinremi – 21 years and Nwadiogbu v. Nnadozie – 23 years.
In most cases, by the time the matter is concluded, the litigants may have completely lost interest, suffer irrecoverable loss and/or may have in no way benefitted from resorting to the courts. These problems continue to make the search for justice sometimes a mirage and there is an imminent need to foster an effective and efficient Justice delivery system. Hence the search for a viable alternative for resolving disputes.
The use of Alternative Dispute Resolution (ADR) is rapidly increasing across the world. The mechanisms of ADR including Arbitration, Mediation, Negotiation, and Conciliation have increasingly been employed for effective decongestion of court cases. For instance, in Australia, USA and Canada, ADR has gained prominence in preference to litigation and most courts have provisions of ADR stipulated in their rules. ADR is a faster, less formal and interest-based process of dispute resolution; most importantly, increase in the use of ADR automatically reduces the burden on the courts by reducing the number of court cases.
In Nigeria, while ADR has gained some grounds, there still remain a lot to be covered. Lagos State is a front liner in the area of using the mechanisms of ADR to tackle backlogs of court cases. In 2018, the Lagos Backlog Elimination Programme (BEP) was launched; the programme was designed to decongest the courts by re-evaluating old cases and finding ways of resolving them through Alternative Dispute Resolution (ADR) or accelerated hearing. The Rules of various High Courts across the country have provisions touching on promotion of amicable settlement of disputes by parties. Besides, in almost all jurisdictions in Nigeria, there exists one form of non-adjudicatory institution for the resolution of disputes. Some of these institutions are indeed court connected. Such as the Abuja Multi Door Court House, Lagos Multi-Door Court House, Settlement Corridor in Borno State etc. There are dedicated ADR sections or centers in some courts such as the Federal High Court, National Industrial Court etc.
The foregoing said, it is obvious that the concept of ADR is not a novel one in our jurisdiction, the challenge then is the extent to which it has been used in the administration of justice processes in Nigeria, hence, it is highly recommended that there should be increased use of ADR in the justice delivery system. The number of caseloads of judicial officers are on the increase and it is rather unfortunate that not all cases pending before the court are amenable to litigation. Thus, while some may only be resolved through litigation, the Judges must endeavour to encourage parties appearing before them to utilize any of the ADR hybrids to amicably resolve their differences.
Further, it is recommended that practice direction and/or rules be made which specifically requires that arbitration clauses be mandatorily contained in every agreement. To encourage this, courts should place any case with arbitration clause on fast track upon application by the Claimant as a means of imbibing arbitration culture and reducing the workload on the court’s docket. On the part of the Government, Agreements with an arbitration clause should be made to qualify for a discounted stamp duty fee.
For the conferment of the title of Senior Advocate of Nigeria (SAN), there should be a requirement of matters resolved by ADR in at least 4 cases. For instance, if 400 legal Practitioners apply to become SAN, and each has concluded at least using ADR mechanisms, the general cause list would have been reduced by 1600 potential litigation suits.
The fact remains that ADR processes have the capacity to drastically reduce the undue delays, which are often encountered by litigants in course of seeking justice and this is attributable to the very nature of ADR which is consensual and voluntary. The increased and active use of ADR will result in more efficiency and effectiveness of our justice system.
ADR Trainings for Judges and Legal Practitioners
In the business of delivering justice, the Bar and the Bench are the main role players. Knowledge of the rudiments of ADR mechanisms and how they can be applied to the resolution of disputes by members of the Bar and Bench is indispensable. There should be mandatory periodical trainings for judges and legal practitioners so as to expose them to the knowledge of other forms of dispute resolution processes and how they complement litigation, and the role of the judges and legal practitioners in supporting such other processes of dispute resolution.
There is a high number of judicial officers and practitioners who are untrained in the field of ADR and it is glaring that the starting point is to train and continuously train them in this area. With the requisite information on the principles and practice as well as goals of ADR, it will be realized that the work of the courts would become easier and their caseloads drastically reduced.
Respectable and dignified livelihood for New Wigs
Year in year out, a large number of new wigs are churned out into the labour market. It is noteworthy to mention that the Nigerian Bar Association (NBA) in the categorization of a young lawyer makes it within the post-call range of 1-7 years. Thus, anyone that falls within this grade is a young lawyer in Nigeria.
It is a popular aphorism that young lawyers are the future of the profession, however, the welfare of new wigs as the future of the profession is a core leadership burden. The problem is not in the entry of these young lawyers into the labour market but the questions that comes to mind is ‘what is the plan for the new wigs in the profession?’ is there space to accommodate them at the two sides of the court room? what can be done to ensure a dignified and respectable livelihood for them?’
There have been prevailing challenges of unemployment, poor remuneration and lack of opportunities for young lawyers in the profession, thus, it is recommended as follows:
1. Proper remuneration and Incentives: there is a need for proper remuneration and incentives for young lawyers. The salary package of lawyers should be upgraded across all cadres in the law profession. There should be an end to the era of paying a lawyer #10,000 as wage. It is recommended that a rule is made by relevant regulatory bodies to define the minimum amount a young lawyer should be paid.
2. Accessibilities to Loans, Grants and Scholarships: To leverage opportunities in the emerging fields, it is imperative that young practitioners are assisted in the development of personal and professional skills to enhance productivity. There should be availability of welfare packages for young lawyers who may desire to pursue further education or take courses in relevant areas through sponsorship programmes. The current administration of the NBA leadership is making efforts in this regard but more efforts can be made especially in ensuring that the young lawyers indeed practically benefit from this structure.
Also, there should be accessible loans or grants to young lawyers who intend to set up private firms or carry out research works on any emerging fields of law. This would help many young lawyers to find interest in these new fields as they are certain of setting up a practice or achieving a feat through their researches.
3. Law Firm Diversity: There is need for law firms to expand their frontiers to emerging areas of practice – exposing the minds of young lawyers to novel areas of law as opposed to mere limitation to traditional litigation. This will solidify their experience and improve their knowledge in these areas. Young lawyers should be exposed to other areas of law such as corporate and commercial transactions, technology law, maritime, energy, entertainment and leisure, intellectual property, tax, sports law, fintech etc.
4. Mentoring and Networking: The legal profession is a collaborative and dynamic one, thus the need for mentoring. A young lawyer ought to be mentored by a senior colleague that is already abreast in the area he intends to develop or practice and undergo some tutelage. It is a disadvantage that now, only a few firms have internship programs and many of the seniors are not even ready nor willingly to pour out themselves to a junior.
Automated Legal Procedure and Proceedings
To say technology is a blessing is an understatement, it may as well be described as a miracle. Technology has affected all aspects of the human life bringing with it ease, speed and structure. Technology has become an integral part of enhancing efficiency and promoting access to justice around the world. It has changed the approach used by legal practitioners in conducting their activities especially in the wake of the pandemic.
The legal profession in Nigeria is not left behind in this wave. Before Covid-19, the Nigerian Judiciary adopted a National Judicial Policy which provides for the use of Information and Communication Technology (ICT) in clause 2.4.10 of the Policy. Based on this policy, some form of ICT was being deployed in Nigerian courts. For instance, the Evidence Act 2011 provides for the admissibility of computer-generated evidence. Also, some Courts of record made rules of procedure containing provisions enabling electronic filing (e-filing), electronic service of court processes and even a limited form of virtual hearing. Even the Supreme Court in February 2018, launched an electronic mailing system and gave an ultimatum of July 18, 2018 as the last date for filing physical court processes at the Supreme Court. This was to enable litigants and opposing parties to file and serve their processes online without necessarily visiting the Supreme Court. The project aims at easing communication system between the bar and the bench, reduce paperwork and incidental costs and ultimately speed up the court process and thereby improve the administration of justice. During the pandemic, the reliance on technology by the administration of justice system spiked up especially in the area of virtual and remote hearings.
More recently, the Court of Appeal Rules 2021 which came into force November 2021, made some excellent provision on the advancement of legal technology in Nigeria. The Rules provide for electronic service of Notice of Appeal, 24-hours electronic filing system, virtual hearings of appeals where suitable etc.
It is obvious that we have structures for the deployment of technological tools in our judicial system, however, we have failed to take heightened advantage of these structures. It is recommended that technology is embraced more in our judicial system, e-filing should be used more often, virtual hearings should be encouraged, judges should cease the use of long writing in recording proceedings, technology should be deployed in document management, conducting legal research, there should be more accurate data base and directory of cases in court easily accessible to everyone.
Technology has the capacity to improve efficiency, increase accessibility and has the more general effect of promoting confidence in the justice system. It is no doubt that the future of legal practice and efficiency in the administration of justice is anchored on the effective use of technology in the dispensation of justice especially in the face of the pandemic which radically disrupted the ‘normal’ practice of law, hence, reliance on technological innovations and tools in the delivery of justice has now become the new normal. The Bar and the Bench must make effort to deploy all relevant technological tools in the administration of justice as this will help increase access to justice and ease their work load. We have no reason to lag behind.
Sanctions by Legal Practitioner Disciplinary Committee (LPDC) and other similar Bodies
The legal profession is a noble profession in which there is a requirement of high standard of conduct from its members. The Legal Practitioners Act (LPA), the RPC and the other relevant rules provides for the mode of conduct expected of a member of the profession. To protect the integrity of the profession, misconduct by members of the profession must be deprecated and offenders must be made to face the consequences of their actions.
The list of misconducts that lawyers could be punished for in Nigeria is inexhaustible. They have included advertisement, contempt of court, solicitor making himself a beneficiary of a will, offering a bribe to a judge, negligent handling of a client’s case etc. In recent times, misconduct among legal practitioners has become very rampant. The public have lost trust in the profession and this may be partly or wholly responsible for the now growing trend of non-lawyer Nigerians preferring to handle even their litigation cases by themselves, sometimes even up to the Court of Appeal and the Supreme Court.
In order to continue to protect the integrity of the profession and the trust reposed on the profession by the public:
1. There should be strict enforcement of law against misconduct. No unruly member of the legal profession should escape appropriate punishment for the offence committed.
2. There is a need for a procedural reform in the fight against misconduct in the legal profession.
3. There should be publication of the cases of sanctioned lawyers to serve as a deterrent to others.
It is pertinent that members of Bar and Bench who engage in misconduct are not shielded from appropriate punishment. This culture will save the profession from totally losing the confidence of the public. This article does not in any way suggest that this culture is not in place, it is only saying there is room for improvement.
Lingering Issue on the Abolition of Wig and Gown
There has been a debate on whether or not the wearing of wig and gown should continue as a culture in the legal profession. Whether the continued adornment of the wig and the gown is still of any relevance in the Nigerian Legal System has sparked different reactions and leaves the issue unresolved. This article has earlier examined the current trends in other jurisdiction including the UK where the culture was handed down to Nigeria and has highlighted how as part of modern reforms, the culture of wearing of wig and gown has been partially or fully abandoned by developed nations. However, in Nigeria, the question still persists, ‘wig and gown or not?’
It has been argued that the ‘costume’ distinguishes and protect the respect given to the legal profession. However, it is my opinion that respect and confidence in the legal profession is not dependent on what its practitioners wear but on the quality of their work and the high standard way of conduct.
Outside of the argument of protection of respect of the profession which in my opinion not concrete enough, there has not been any concrete argument in support of the continuous use of wig and gown. Hence, it is recommended that the culture of the wearing of wig and gown should be dispensed with in Nigeria, aside from the fact that it does not suitably fit our weather condition, and our courts lack the conducive infrastructure (such functioning air condition or fans etc.) to help feel completely at ease while wearing it, more importantly, the continuous wearing of wig and gown does not in any way contribute to the efficiency or effectiveness of our judicial system, as a matter of fact, it sometimes even contribute to its delay. For instance, there are many cases of lawyers who, having realised upon getting to the court that they had inadvertently left their wig and gown at home, would start running helter-skelter to borrow either from colleagues who have already done their cases or from vendors at the court premises, however, if such lawyer is not able to get substitute wig and gown, he will not be granted audience by the court and he can’t continue with his case for that day.
That said, if the legal profession insists on continuing with the tradition of wig and gown, it is indeed possible to ingeniously come up with court attire that fits our tradition and not those from a foreign culture. There are many indigenous materials from which the wig and gown can be made from, that will not only meet our climate but also bolster our cultural identity.
It is therefore important for the Bar and Bench to look inwards by assessing the importance and continued necessity of the wig and gown to the legal profession.
Conclusion
When most people think of lawyers, they think of them as technical experts on law. In this role, lawyers help clients solve fundamental legal problems by applying existing law to particular facts using their legal analysis skills and their knowledge of the legal system and legal subject matter. Solving these legal problems requires traditional attributes of issue spotting, analytic power, ability to draft, negotiate, and advocate – but also an increasing degree of a highly sophisticated substantive and procedural expertise.
In addition to being technical experts, lawyers are also often called upon to act counsel to their clients. In this role, lawyers must adhere to their ethical obligations as they serve the interest of the clients, ensure the course of justice is achieved and protecting the integrity of the legal profession.
Finally, lawyers may act as leaders in different positions of responsibility. Leadership in the legal profession may be by elevation to the bench or becoming a Senior Advocate of Nigeria (silk). In this regard, leaders of the profession are obligated to be patriotic, honest and not allow themselves to be swayed by momentary consideration or selfish interest.
The relationship between the Bar and Bench should be of true partnership. They must work together in harmony, give mutual respect to each other and ensure that they are committed to the upliftment of the image of the legal profession. Members of the bar must see themselves as ministers in the temple of justice who have a duty not only to their client but also nation at large.
