The Nation Newspaper

Category: Law

  • How to practise in multi-jurisdictions

    How to practise in multi-jurisdictions

    In the case of professional qualification requirements, any division of the Bar in the country may admit a legal professional practising outside the country to practise in South Africa provided the person has been admitted as an advocate in a designated country, resides and practises as an advocate in that country, is fit and proper to be admitted, and, has no disciplinary proceedings pending or contemplated against him or her. Namibia, Nigeria, Zimbabwe and Lesotho are the only countries that have been designated countries in terms of this particular provision. Advocates from these countries may be allowed to practise across border in South Africa. It is pertinent to note that this provision constitutes a violation to MFN treatment obligation because it is not applied in a non-discriminatory manner to all other WTO member states and has not been listed as an exemption.

    East African Community States (EAC)

    As regards the EAC partner states, they have agreed that the opening of their service sectors within the common market would be progressive. Burundi has agreed to liberalise its legal services by eliminating all market access restrictions by 2015; Kenya agreed to liberalise only the legal advisory and representation services in judicial procedures concerning other fields of law; Rwanda agreed to liberalise its legal sector by 2010; Uganda agreed to fully liberalise its legal sector by 2015 while Tanzania didn’t make any commitment with regard to legal services.9

    At the moment, the East Africans are debating the EAC Cross Border Legal Practice Bill, 2014 at the East African Legislative Assembly as at March, 26, 2015. According to the report, the East African Law Society and National Law Societies in the EAC acknowledge the need for the enactment of an EAC Cross Border Legal Practice law to facilitate provision of cross border legal services within EAC, to harmonise legal training and certification, provide common standards and rules to regulate cross border legal practice and facilitate free movement of legal services. Presently in EAC, lawyers are confined to practising within their countries, a situation that hampers them from taking advantage of cross-border opportunities even in instances where there are shortages of skills.

     

    Ghana

    In Ghana, the legal profession allows a qualified lawyer to practise as either a solicitor or a barrister. Foreign lawyers are permitted to practise in Ghana provided they have the required qualifications from their home jurisdiction, a letter of good – standing from their home bar which must be certified by the General Legal Council. The foreign lawyer must also pass the required exam in Ghanaian Constitutional law and the customary law of Ghana. Non–Ghanaian citizens are also required to demonstrate seven years post qualified experience (PQE) in a country with a compatible legal system.

     

    The Qualified Lawyers Transfer Scheme (QLTS)

    A recent innovation to enhance cross border practice is the Qualified Lawyers Transfer Scheme. The Qualified Lawyers Transfer Scheme (QLTS) allows lawyers qualified in foreign jurisdictions to requalify as solicitors of England and Wales. This is a fast-track route to qualification with no experience or training contract requirement. There are now numerous important business centres around the world in which many of the negotiations and transactions are governed by English law. Consequently, there is an increasing demand for locally based, dual-qualified lawyers who can provide English cross jurisdictional as well as local legal advice.10

     

    Issues arising from mobility of Lawyers /cross border practice

    When lawyers practise law in countries in which they are not licensed, problems of varying degrees and magnitude are bound to arise. It is intended to examine some of those problems as they apply to the African continent. By way of a preface, it has been argued in some quarters that it is a violation of the rules of ethics and that the reason why many lawyers do not consider it risky to engage in some or all of this conduct is that the rules prohibiting multijurisdictional practice are not well defined and is almost entirely unenforced. However, since multi-jurisdictional practice is now a reality the tendency of foreign counsel is at times to operate in host countries outside his home jurisdiction very freely.

    Since the practice of law is not confined to litigation, but extends to activities in other fields which entail specialised legal knowledge and ability, there is usually an encroachment into the provision of legal services by other professions i.e. Estate Surveyors, Accountants. Etc.  Now, the line between such activities and permissible business conducted by non-attorneys is unclear.  Because of this ambiguity, what is, and what is not, the authorised practice of law is best decided in the context of an actual case or controversy.

    Again, new areas of law and regulations have created whole new fields for legal services, many transactions have become significantly more complex, the effects of which are not in the contemplation of existing laws of jurisdictions that act as host to foreign lawyers not licensed to practice there. There is, therefore, a need for a constant revision of local domestic laws so as to keep pace with developmental advances in the legal profession brought about by the rapid advances propelled by globalisation.

    There is therefore a need to admit that there are indeed problems posed by or associated with multi-jurisdictional practice in Africa. The most apparent being the uncertainty of legal rules governing the process. Equally engaging are incidences of professional misconduct committed by foreign counsel while operating outside the jurisdiction that ordinarily has the power to discipline them. Proffering solutions to the issue, American contributors to the issue suggested the European Union solution to the discipline of lawyers engaged in unethical practice outside their own shores and identified the issues thus:

    “In thinking of solutions to problems posed by multi-jurisdictional practice in this country, it is instructive to consider the approach taken by another large federal system. The European Union consists of fifteen countries bound together by a series of treaties. (It styles itself a “union” and avoids use of the word “federal”.) The EU nations, of course, are highly developed economically with much cross-border activity, and the problems of multi-jurisdictional practice by attorneys are quite familiar there. Each country, of course, regulates practice within its borders and some of them in the past did much to hinder the cross-border practice of law; this hindrance closely resembled the practice of states in this country. Because those cross-border restrictions were inconsistent with the EU’s strong commitments to open markets and the free movement of workers, the EU authorities, backed by the European Court of Justice, whittled away at them. Finally, in 1998, the EU adopted Directive 98/5 (OJ 1998 L77/36) to deal with the situation directly.”

    The manner in which the EU dealt with the problem is best expressed in the words of the learned contributors thus:

    “Under that Directive, an attorney licensed to practise in one member state is entitled to practise law in any other member state. He may do this on a permanent basis, although he must practise under his home-state title ( e.g., “solicitor”) and register with the host-state authorities. The attorney may give advice on both host and home state law, international law, and on EU law. Attorneys so practising are subject to the disciplinary rules of both the home and host authorities. An EU attorney who practises continuously in a host state for at least three years can gain admission to its bar without further examination and use the proper host-state title for his practice. The benefits of the new EU process are quite apparent to clients and attorneys alike. What is interesting to an American observer is the belief by the EU lawmakers that, when it comes to regulating the practice of law, the 15 member states have much more in common than their sometimes quite different legal systems would suggest. Thus, the benefits to clients in terms of better service and the benefits to attorneys that come with increased mobility significantly outweigh the possible costs of not being sufficiently grounded in a particular legal culture. It may be time for Americans to consider emulating the lawyers of Europe.”

     

    The need to address all categories of  Lawyers Altertanative Dispute Resolution

    There is a raging controversy as to whether alternative dispute resolution actually constitutes the practice of law. The writer holds the preliminary view that it does, notwithstanding the fact that ADR is engaged in by persons from other professions i.e. engineers, accountants, valuers etc. This is because the advocates who participate with their clients in a form of ADR in seats or venues outside their home jurisdictions for purposes of neutrality are actually engaged in the practice of law in the multi-jurisdictional sense. This is so as ADR has a positive effect on the legal profession and its success in promoting peaceful settlement of claims impacting on rights qualifies it as multijurisdictional practice of law.

    As regards professional misconduct of lawyers in International Arbitration some of the potential disciplinary measures as prescribed by local jurisdictions include issuing an admonition, reprimand or other type of warning. Fines and occupational bans have also been suggested. In some jurisdictions counsel assume civil liability towards the client in case counsel is guilty of a breach of the contract between it and the client and if such breach caused a loss to the client. While most countries observe that the breach of an ethical rule may not per se qualify as a breach of contract. In France ethical misconduct is likely to constitute breach of contract. These by admission are remedies provided by different nations in the exercise of their individual legislative control over the profession. The IBA has made model recommendations, which can be adopted by willing stakeholders although it has been argued that Guideline 26 of the IBA Guidelines might enhance liability risks for counsel, as it allows the Arbitral Tribunal to sanction a party for ethical misconduct of its counsel.

     

    Litigators

    Litigators are the only set of lawyers that have explicit restrictions to practise law in other jurisdiction. For instance, a Nigerian trained Barrister cannot litigate in a court of law in Scotland except he is authorised by the relevant domestic laws to practise law in Scotland. However, in the United States there are circumstances in which lawyers who are admitted only in one state may be admitted pro hac vice to conduct litigation in another State. A pro hac vice is a legal term usually referring to a lawyer who has not been admitted to practise in a certain jurisdiction but has been allowed to participate in a particular case in that jurisdiction. This process is helpful in two ways. On the one hand, it allows the client to use a particular lawyer of the client’s choice even if the lawyer is not admitted locally. On the other hand, it creates a safe harbor for the lawyer who is admitted pro hac vice and who therefore need not be concerned about engaging in unauthorised practice in the same manner as multi-state business transaction lawyers. Nonetheless, this does not mean that the present system is ideal or even adequate from the point of view of courts, clients, litigators or the public interest14.

     

    Corporate Counsel

    The problems facing in-house counsel are probably the most severe. As a result of globalisation corporations expand or relocate frequently.The effect of this is that corporate counsel is often required to move with them to other jurisdiction to provide legal services. If not required to actually move, counsel is often required to handle the many global matters facing the modern day corporation…

    The fundamental question this raises is whether this set of counsel can practice law in such foreign jurisdictions. For instance if a Company in England moves to Nigeria can the in-house Counsel practice law in whatever form in Nigeria having not been enrolled to practice in Nigeria…

  • Involve local govts in war against corruption, says don

    Involve local govts in war against corruption, says don

    Former Dean, Faculty of Law of the University of Lagos (UNILAG), Professor Oyelowo Oyewo, has said that there was need for local governments in the country  to be involved in the fight against corruption.

    He gave this suggestion while delivering a lecture entitled: Promoting Transparency and Accountability at the Local Government/Community level’, at a one-day training/interactive seminar, on the role of local government in the fight against corruption. It was  organised by Socio-Economic Rights and Accountability Project (SERAP) in collaboration with Open Society Initiative for West Africa (OSIWA).

    Prof. Oyewo argued that the local government system is not immuned from the system of bad governance, a phenomenon which he noted  has been entrenched in the system.

    “Transparency suggests that public office holders should be open while carrying out the business of governance. It is sad, that government officials spend money on things that are irrelevant.

    “The Lagos State government remains a model in the aspect of transparency and accountability. It has even passed what it termed the public finance law. But what is not clear is whether the state government has begun implementation of same at other levels.

    “The legislative regime in existence today is counterproductive to the Nigerian political process,” he noted.

    The Professor of law however urged Chairman of the Independent National Electoral Commission (INEC), Professor Attahiru Jega, to ensure the use of card readers in the coming local government elections across the country.

    Also speaking on the role of local government in promoting citizens access to justice, a professor of public law from Unilag, Professor Ayo Atsenuwa expressed sadness that Nigerians have been ambushed by agents of government.

    She explained that the essence of the local government system is to get citizens to participate in government.

    Earlier in his remarks, former Chairman, House Committee on Judiciary of the Lagos State House of Assembly, Babatunde Ogala maintained that for every corrupt political office holder, there is a civil servant aiding him or her.

    He further maintained that corruption has eaten deep into the foundation of the country, just as he called on Nigerians to rise up and fight the manace to a standstill.

    In his welcome address, SERAP’S Executive Director, Adetokunbo Mumuni explained that the training/interactive seminar is aimed  at bringing together local government representatives, civil society, diplomatic missions and embassies, and most especially the Media to discuss the potential role of the local government and its citizens in promoting transparency and accountability and to advance citizens access to justice in the fight against corruption.

  • Buhari and the Igbo power-elites

    Two recent developments, make it necessary to pre-empt the relationship, between the in-coming administration of Gen. Muhammadu Buhari and the Igbo political-power-elites. First, was the heart-rending experience of theformer Minister of Power, Professor Barth Nnaji,with regards to his inspiring, but now dithering,Aba Integrated Power Project. An account he publicly rendered, recently. The other instance, was the GovernorOkorocha led visit, of Igbo members of the All Progressive Congress (APC), to the President-elect, and their half-hearted courage, to demand ‘for something’.

    To appreciate the challenge facing Professor Nnaji, as he battles his Igbo cousins, who have used their humongous resources to appropriate the exiting national bureaucracy, against his power project; there is the need to examine the two variants, of the Igbo power-elites. Interestingly also, it is the absence of thedominant faction of the Igbo power-elite in the APC;that made Governor Okorocha to lack the confidence, to specifically ask for political posts, from the President-elect, as is the case, with some other interest groups.

    As the President-elect, Gen. Buhari prepares to take over power in few weeks’ time, it will be interesting to see his preferences,from the variant Igbo power-elites, in the days ahead. Among that power-elites; there is the poorly educated, excessively rich and rambunctious faction, on one side. This group can be very useful to the President-elect, for carrying out duplicitous and unconscionable power-projects.  Here, I mean the real power, the source from which other powers, cometh –political power. While they may have little or no formal education, they are well heeled in power chicanery.

    If the President-elect will prefer the services of this group, he should consult former President Olusegun Obasanjo, under whose watch the group reached the apogee of their power in this republic. I bet he may have the master-list of candidates. I guess also that on that list, will be those, who years back, egregiously put the government of Anambra state to sword, under the watchful eyes of national security agencies. Well, if he prefers to consult a victim, he should call Senator Chris Ngige, for an eye-witness account. While Chris was the Governor of Anambra state, the leading lights of that faction, with the connivance of the federal power, choose to bring him to account. The macabre drama that followed that decision, can be better explained by the Senator.

    There is also the other group. They are the fecund, cerebral and highly gifted Igbo power-elites; who would have a lot to contribute, if there services are needed. Professor Barth Nnaji happens to be one of them. The erudite professor is perhaps the most knowledgeable Minister of Power (here, I mean electric power); that we have had since 1999. Interestingly, it was former President Obasanjo that also brought him and similar others into government. This group have been outstanding in their contribution to national development, and there are many others on the side-lines, awaiting opportunity.

    If the President-elect prefers the latter group, he could seek them out, and galvanise their God-given talents, to support his team from other parts of the country, to meet the great Nigeria expectation, from the APC. With little political IOUs in the South-East, since the dominant faction of the Igbo power-elites have been drowned with the Peoples Democratic Party (PDP); it will be a lot easier for the General and his Party leaders to choose only the very best from the Igbos, to serve in his government.Of course, this is not to discountenance the brave efforts of members of the APC, from the South-East.

    Some of the Igbo brave hearts that stood for change, even as the majority pushed for President Goodluck Jonathan, during the last general elections, joined Governor Rochas Okorocha to visit the President-elect. Apart from Governor Okorocha and Senator Chris Ngige, Dr. Ogbonnaya Onu also stood out, with Senator Osita Izunaso and a few others. No doubt, the highly educated Dr. Onu, deserves whatever promotion that may come his way in the APC, considering that he has showed great tenacity, all the way back to his days, at the All Nigeria Peoples Party (ANPP).As the leader of one of the legacy party that saw to the emergence of APC, it is expected that he would gain the necessary recognition and authority.

    In opening up the south-east to the APC, the party would need to invest some of the outstanding party members, with political influence and privileges. This column is hopeful that the APC would see the Igbos, as an important partner in their Nigerian project. While a majority of lawful Igbo votes no doubt went to the PDP, during the last elections; there was a lot of unlawful votes, appropriated by the PDP, which in a transparent contest, would have gone to the APC. So, I have implicit confidence that APC has potentials in the south-east. Giving a good deal to the region,would be in APC’s long-term interest.

    As for Professor Barth Nnaji and the potential beneficiaries of the Aba Integrated Power Project, their patriotic attempt to promote skill and ingenuity, for the greater good of our country, has been frustrated by the corruption and brusqueness of the alternate power elites. To appreciate what is at stake, Professor Nnaji, in his write-up said: “to date, we have invested over 500 million (dollars) or in today’s money over 100 billion (naira) in this project”. The reason why Aba was not excised from the concession granted to the Enugu Electricity Distribution Company,is because President Goodluck Jonathan,preferred to promote political expediency, over success in the power industry. Now, with a new government at the gate, those who orchestrated the sham of a power-privatisation across the country, have every reason to be jittery.

  • India- Nigeria Business Forum holds September 10

    A Lagos-based law firm, Perchstone & Graeys will hold the 2015 edition of  India- Nigeria Business Forum (INBF)  from September 10 to 11.

    The forum, which is the second in the series, is being organised in collaboration with the Federation of India Chamber of Commerce (FICCI).

    Briefing journalists last week  on the forthcoming event, scheduled for Mubi, India, Mr. Kunle Ajagbe and Mr. Olawale Adebambo, both Senior Partners at Perchstone & Graeys said it will focus on Information and Communication Technology (ICT) and how it can be harnessed to widen the space of commercial opportunities and deepen the exchange of best practices between Nigeria.

    Notable speakers slated for the forum include, Mr. Bismarck J. Rewane, one of Nigeria’s leading economists, and Managing Director, Financial Derivatives Company Limited. ‘’He is expected to speak to the financial architecture to support FCT”, Ajagbe stated.

    The conference is expected to serve as a platform to boost investment opportunities in ICT in Nigeria and raise the level of best practices operators, policy makers and the business communities.

    “This year’s theme takes account of the strides India has recorded in ICT and how it has established itself as a global ICT leader. This is, of course, coming at a time when Nigeria’s rebased GDP indicates that about 10 percent (or $50 billion) is attributed to ICT. In view of the fact that ICT is an indispensable enabler to all sectors of the economy, from all indications, its share contributions to national GDP is likely to witness a steady up-swing.

  • Lawyers laud Fashola’s aide for book on personal income tax

    For writing a book on Personal Income Tax (PIT), an aide to Governor Babatunde Fashola (SAN), Lanre Akinsola, has received commendation from lawyers.

    Akinsola,  who is SenoirSpecial Assistant to Governor Fashola on Justice Sector Reforms, presented his new book to the public last week.

    Among those who praised the author were the Lagos State Attorney- General and Commissioner for Jusyice, Ade Ipaye and his Ogun State counterpart Mrs. Abimbola Akeredolu

    The public presentation of the book, Personal Income Tax Act – Principles and Cases in Nigeria  held at the CITN Tax Professional Place, Alausa, Ikeja

    Speaking at the occasion, Abimbola , who chaired the event, praised the author’s dexterity and interest in administration of taxes in the country.

    Abimbola described the book as timely, noting that every organ of government was in search for avenues to shore up revenue base.

    She emphaised that the book will greatly impact taxation in the country.

    Also speaking, Ipaye said the book captured the author’s wide experience in court over personal income tax matters in the state.

    He recalled the key roles played by the author to ensure the success story of the state’s ministry of justice in the area of tax matters, adding that they were exceptional and commendable. Ipaye said the book is a response to recent developments in tax administration in Nigeria.

    “With various tiers of government reviewing their tax administration machineries for the purpose of maximising their internally generated revenue, taxation is gradually reclaiming its pride of place as the prime source of government revenue”, he stated. He added that the book is also an attempt to present the Personal Income Tax Act through the eyes of the courts.

  • N10m suit: court orders firm, landlord to maintain peace

    Justice Olamide Akinkugbe of a  Lagos State High Court sitting in Ikeja has ordered a travels and tourism firm, Peacock Travels and Tours Limited  and its landlord, Jude Ekwenife to ensure that  they maintain peace between them.

    Justice Akinkugbe last week  while adjourning  a suit between the parties for further hearing till May 19, 2015.

    She also ordered the counsels for both parties to advise their clients not to take any action that would amount to treating the court with contempt.

    The orders were issued after the applicant had told the court that the roof on its office was being removed thereby leaving  its properties opened up for destruction.

    The respondent on the other hand claimed before the court that the applicant had sent police after him.

    Peacock had dragged its landlord, Ekwenife, before the court  claiming N10million as damages over alleged harassment and damages of its properties.

    Sued alongside Ekwenife was Mrs. Yinka Igandan, who was said  to be the former landlady to Peacock before she sold her property and transferred ownership to Ekwenife.

    In the statement of claim, the applicant stated that after purchasing the property at No. 136, Awolowo Way, Ikeja, Lagos, the new landlord, Ekwenife, had allegedly refused to recognise Peacock as his tenant and had therefore ordered the firm to pack out even while its annual rent paid to its former landlady, was still subsisting.

    The firm alleged that on July 15, 2014, “suspected thugs and other hirelings in the company of the 1st respondents invaded the business premises of the applicant and proceeded to demolish parts of the structure and in the process destroyed the petitioner’s Internet connection hardware and water tanks.”

    The firm claimed that in a bid to forcefully eject it, the first defendant caused a tipper load of gravel to be offloaded right at its office entrance, thus humiliating the firm before its clients and making  difficult its daily business conduct.

    According to the firm’s Senior Human Resources Manager, Owoade Akinjide, efforts by the police to settle the matter failed after Ekwenife allegedly refused to cooperate with the police.

    The applicant said its workers had been working under the fear of being picked up by policemen from the Terrorism and Heinous Crime Unit because Ekwenife had gone to lodge a complaint against them and had allegedly misrepresented facts of the dispute.

    The travel agency is therefore  praying the court to restrain Ekwenife from ejecting it forcefully in addition to payment of  N10million as damages for its properties that were allegedly damaged by the first defendant.

    It is also  is seeking a declaration that there is a tenant-landlord agreement between it and Ekwenife.

    But Ekwenifin his response,  urged the court to decline jurisdiction over the matter and to declare that the applicant had no locus standi to institute the action.

    In a counter-affidavit deposed to by himself, Ekwenife denied being the purchaser of the property, and insisted that one Chief Segun Phillip, rather than Peacock was the recognized tenant on the property.

  • Appeal Court justice decries bad writing by lawyers

    Appeal Court justice decries bad writing by lawyers

    A Justice of the Court of Appeal, Abimbola Obaseki-Adejumo, has decried the quality of written materials filed by lawyers, saying most of them are difficult to understand.

    She said most lawyers need re-training and guidance in the art of brief writing to make the justices’ work easier.

    Justice Obaseki-Adejumo spoke in Lagos at a seminar organised by the Commercial Law Development Services (CLDS) Limited with the theme: Pleadings, Written Addresses and Legal Opinions – A Practical Approach.

    She said: “Quite frankly, the quality of briefs filed before the Court of Appeal leaves a lot to be desired. My experience has been that I mostly have to read and re-read, edit and then translate the contents in a manner that makes some sense to me, before I can proceed to write an opinion thereon.”

    According to her, the appellate justices have no choice than to struggle to consider such a brief “no matter how bad or inelegant a form it is written.

    “It must be said that the quality of briefs these days makes the work of the court doubly and unnecessarily difficult and cumbersome.

    “For improvement, I suggest in-house training and re-training of members of the Bar organised both by the local and national bodies of the Nigerian Bar Association (NBA).

    “Lawyers themselves should take it upon themselves to read literature on the preparation of briefs, and also seek help from their more experienced colleagues,” she said.

    She said written advocacy plays an important role in the judicial process, which is why nearly all superior court of record require parties to frontload their processes before hearing to save time.

    “This written argument contained therein is, therefore, the first opportunity a litigant has to persuade the court,” Justice Obaseki-Adejumo said.

    A Senior Advocate of Nigeria (SAN), Mr Sylva Ogwemoh, urged lawyers to limit the use of legal jargons in writing briefs, adding that they pay close attention to language, accuracy, brevity and order of their briefs.

    “To write a good brief entails ability to communicate one’s thought in very clear language for the judge to follow easily. A good modern brief writer must be able to teach and communicate,” Ogwemoh said.

    The organiser, Mrs Chioma Mordi, said the training was aimed at reducing the incidence of litigants losing cases due to bad presentation of arguments by their lawyers, adding that CLDS would hold similar trainings in the near future.

  • Treat corrupt judges like criminals

    Treat corrupt judges like criminals

    He was a Judge for 10 years. He practised as a lawyer for 19 years. Now in retirement, Justice Babasola Ogunade is into consultancy, which allows him more time for God’s work. Justice Ogunade is the Chancellor of the Diocese of Lagos West, Church of Nigeria (Anglican Communion). In this interview with JOSEPH JIBUEZE,  he speaks on what makes a great judge; life in retirement; why being a judge is challenging;  his expectations of the incoming Buhari administration and the need for more voter education to reduce ‘money politics’.

    Are you satisfied with your time on the Bench?

     If you have done your best while in service, in retirement you will feel happy that you have done your best. If you work according to your oath of office, then you should leave it better than you met it. That is my satisfaction.

     

    How did you join the Bench?

     

    A good number of us went to the Bench not because we aspired to. I was a full time legal practitioner from the first day of my call to the Bar until I was invited to come to the Bench. I did not apply. I did not lobby anybody. In actual fact it’s like I was dragged into it. I was first asked to come to the Bench in the mid 1980s but I didn’t take it, for two reasons. The way that judges were retired in 1975/76 by the Murtala/Obasanjo regime – I felt it was an unnecessary intrusion into the affairs of the temple of justice.

     

    What was wrong with how the judges were retired?

    I knew of two people who were retired in Lagos. One was in the limelight of the Bar when he was in practice. And on the Bench, he was someone that everyone was looking up to. The reason for his retirement was only made known to him after they had retired him. And when they heard him, they said: ‘We’re sorry, we didn’t have the facts.’ And most unfortunately, the Attorney-General at that time was a solicitor of the Supreme Court. In order to make up for it, they converted his compulsory retirement to voluntary retirement. It’s a long story. Because even though they knew the facts, one of those ones who played a prominent role in their retirement knowing all the facts came round to write a book to malign the character of that judge. So, when you have seen that kind of treatment, how are you encouraged to go to the Bench?

     

    So, what convinced you to go to the Bench?

     

    The first time I was asked, I said I was satisfied with what I was doing; I didn’t want it. But you realise that it is a position of honour. No matter what anybody says, the highest point you can reach as a lawyer is for you to become a judge. It’s the other way round in this country. In England I do know that a number of the High Court judges there are Queens Counsel (QCs), and they always regard it as an honour when they are invited to the Bench. But it’s not the same thing here. In the end, I had to surrender and I accepted to go to the Bench.

     

    Did your earning increase while on the Bench?

     

    The way I met the Bench wasn’t anything to write home about. One, my income was reduced by almost 75 per cent. But I didn’t complain because I knew what I was going into. I felt satisfied with what I had done in practice. And I was sure I could manage with whatever I earned. So the usual temptation that people have, to want to cut corners – I didn’t have it, maybe because of my family background. I’m satisfied that I gave of my best.

     

    Are you satisfied with the way retired judges are treated?

    My view is that having done your best for the Bench, you shouldn’t be among those going cap in hand to ask for your pension. And I think it’s worse here because your earning is tied to the apron string of state executives. They are the ones who will pay you if you have served in the states. I think they are trying to improve upon that now. Most of the time it’s for the governor to say: ‘I don’t have money for pension. We’re struggling to have money’. Without being partisan, the present governor of Ogun State has been doing his best for retired judges until last September when he had to confess that the income of the state had been drastically reduced to the extent they had to look for money through internally generated revenue.

     

    How can this anomaly  be rectified?

     

    I think effort should be made to totally separate both serving and retired judges’ emolument from the apron strings of whether federal or state administration. I understand that the emolument and remuneration of judges rarely comes under First Charge on revenue. They have managed to relegate it to this stage that judges have almost become beggars. Those who are serving will have their own story to tell. You’re left under the whims and caprices of whoever becomes the governor. It’s just not right, particularly for a person who believes that he has given of his best and has not for any time soiled his hands and is satisfied with the sacrifices he made. And when you retire, you’re going to be left short of funds. Even that which has been given to you, you may not be having it on time. I don’t think it’s the best.

     

    What do you make of allegations of corruption on the Bench?

     

    Today you talk about corruption in the judiciary. I don’t really know what it is. There may be some (who are corrupt) because of human failings, but it’s not as all embracing as it’s made to appear by politicians and unfortunately even by the media. They expect judges to be prosecutors. For instance, someone has stolen. Those who are going to prosecute will not bring evidence, and when the judge gives judgment according to the evidence before him, he will then be the one who has done ill.

     

    What do you miss  most about the Bench?

     

    I miss the regular interaction with lawyers in the court. Any practitioner who had enjoyed his practice will always appreciate what it is, especially when you have lawyers who know their onions. You miss all that. Unfortunately as a judge, you have more or less been secluded from society. Many of your friends would have deserted you when you are on the Bench. And when you leave, before they start coming back to you, it takes some time. I remember I was at a party. One of my childhood friends who I grew up with and went to school with, a reputable professional in his own right – he sarcastically said: ‘You’re the learned people, we’re not learned.’ This is the sort of attitude that people have generally. That’s the fate that we suffer. You’re there but your friends don’t come to you anymore. And when they see you, the attention is rather cursory. It’s not as cordial as it used to be. So it takes a while to start warming yourself into their embrace again.

     

    Would you say the life of a judge is challenging?

     

    It is challenging. As a lawyer, friends come to you. The moment you are appointed a judge, your friends and clients keep you at arm’s length. It’s for good reason because I had done that to my friends who became judges. The moment they are appointed judges, I keep my distance from them, because of the society in which we live. And you sort of suffer that isolation. What is worse is that you are isolated from your friends, even from your extended family. It becomes such that you are restricted to your immediate family, because you never know the reason people would be coming to look for you in the house.

     

    Do you see that as good or bad for a judge?

     

    Well, it’s a mixed bag. There are a few lawyers who have not been quite helpful. They say all sorts of things to their clients. ‘We’re friends, I know him, I’ll go and see him for you’. He would come towards your chambers, perhaps speak to your clerk, and he would go back and say: ‘It’s all done; it’s finished.’ So the client believes when he gets to the court, he’s going to get judgment, whether rightly or wrongly. If he doesn’t get it, he turns around and says: ‘That judge is corrupt; he took money from me.’ Sometimes it’s better for you to minimise your association with people. It’s not too much of an advantage on the other hand, because there are times you would want someone to share a burden with, not necessarily with your wife, but it’s an immediate burden you feel you want to share with someone. You could think X is your friend, then you caution yourself. ‘Do I know what advantage he will take of my discussion with him?’ So, it’s challenging.

     

    How about working conditions?

     

    What is worse is the atmosphere under which judges work. Lagos is an exception. For a quite a while, the state has been taken care of their judges. Wherever they have designated as judges quarters are judges quarters. It’s not the same in other states. If you go to some states now, what used to be judges’ quarters had been sold or shared among other people, except the judge had come from that area and has his own house, which in itself is not helpful. There is no longer that atmosphere of serenity or privacy.

     

    Did you have any such experience?

     

    There was a time during my career on the Bench when I had to live in hired accommodation. That is bad enough, because everybody you see is a potential litigant. What is worse? At some point, my landlord and his son had a controversial case in my court. I didn’t know anything about it. I saw the papers in the office, and thought: ‘This surname sounds like that of my landlord, but it doesn’t matter.’ You have taken oath to do justice to all manner of people irrespective of their relationship with you. A week after I started the case, bingo came an anonymous letter from someone saying: ‘Yes, you live in his house. We know you have compromised your position. You’ve taken a bribe of N1million  from him. But don’t forget, we know your father and your mother. They are good people. Don’t soil their name.’ You could see the danger. Then in the town, it’s all over the place. ‘What justice are you expecting? They live together.’ The young man whose case was before me lived directly opposite my house. I didn’t know it until this case started. When his father was going to his house, he passed by mine. So you can really see the danger to which you are exposed. The judges before me in that jurisdiction had been living in that house. When I was transferred to the place, which happened to be my hometown, the house was in a shambles. Sometimes I’d receive anonymous letters. Some would say: ‘We know the way you take to Lagos; we’re coming to double-cross you on the road.’ These are the challenges you have in an effort to do your work.

     

    Are judges more at risk?

     

    The way I see the position of a judge, particularly a judge of first instance – magistrates and judges – they are the ones who will see the litigants take evidence, write judgments, and be seen by the litigants everyday. On appeal, the appellate justices look at records. They don’t need to know anybody. In fact it’s sufficient for them for the lawyer to just come. But the judge is the one seeing the litigants. They know you, they can ask questions about you. So you can see that it’s a sacred job, but at the same time one that endangers your life. But quite a number of us, because we believe in God that you’re not going to do what is wrong, so no matter what effort you make, one is not afraid.

     

    Was there a particular judgment you regretted giving?

     

    I cannot remember one. This is not really self-praise. I am human and fallible, but I have not deliberately gone out of my way to give judgment in favour of anybody who by my own judgment does not deserve it. I had not.

     

    Was there any particular challenging case you handled?

     

    This particular one was a chieftaincy dispute. I did it as I thought would bring peace to the town. Both sides appealed. Both sides accused me, saying I did it to just push them away. I gave judgment in 1997 but the case is still lingering in court till today. There was an appeal from 1997. It took 13 years before judgment was delivered. After 13 years they went to the Supreme Court. It’s been lying there for about three years. Unfortunately I would go into the town; nobody would come to me, but they would tell my friends that I was the one who had prevented them from having an oba in their town. But as far as I’m concerned I’ve done my best. I didn’t invite anybody to bring a case to me. They brought it and I gave judgment according to evidence. Having done that I have no apologies.

     

    What can be done to limit interlocutory appeals?

     

    By the various reforms being done, I think they are trying to find a way of limiting interlocutory appeals. But the instance I gave you, it was not a problem of interlocutory appeal. It’s the final judgment that they appealed against. Then a lot of things came into it. Again if I may suggest, serving judges are made to do a lot of other things, which eat into their judicial time. There may be a tribunal of enquiry, but they won’t trust a retired judge to handle it. They will ask a serving judge to do it. Speaking for myself – myself alone – I don’t see how we should inundate the highest court of the land, the appellate courts and the High Courts with election matters. You can imagine how long election matters take.

     

    So who should handle such cases?

     

    There are judges who are retired. You can make enquiries about them. And you can use those of them who will not compromise under any ground. Why can’t you ask them to handle some of these things instead of dragging serving judges into it, and in the course of it, they are maligned? There were a lot of unproven cases of bribery after the 2007 and 2011 elections. There were even cases where judges were retired because of allegations of collecting bribe. If their excuse is that if a retired judge collects bribe, he cannot be disciplined, has bribery stopped being a criminal offence? If a person has committed a criminal offence, why can’t you prosecute him? If a person who has a public duty to perform collects bribe, and you’re able to prove it that he collected bribe, why can’t you prosecute him? Prosecute him and send him to jail! Even if you say you cannot discipline him internally, you let the law take its course.

     

    Why does NJC not allow serving judges accused of corruption to be tried rather retiring them?

     

    I don’t know. Speaking for myself, I wouldn’t know why. Look at what happens in other climes. You do anything that people believe is scandalous, or is criminal, you get arrested. Investigations will be done. If they find that you’re culpable, you’re prosecuted. If they’re able to prove their case, you go to jail – just as it happens to politicians and the rest of them. Nobody is above the law as far as I know.

     

    How would you rate the standard of judgments today compared to your time?

     

    Without really intending to denigrate anybody, standards generally are falling. The tool of a judge are books. You have to give them books. A judge is supposed to have a library. Ask any judge to show you their library, even library in the court and look at what is there. I am saying this because I know. It has happened to me. As a practitioner, anywhere I had gone I was carrying my own books. I was carrying my entire library with me everywhere I went. The judiciary is badly funded. Regular law reports that should be made available to you are not there. I do believe they’re improving on that now. I understand that some allowances are being given for you to buy books and things like that. I can say that of Lagos. I’m not a judge in Lagos but I see what they do.

     

    How can the problem be addressed?

     

    It could be better. If you don’t equip a man, how do you expect him to produce? You ask a man to go and till a farm and you give him a dead hoe, what do you expect him to produce? Regular training is needed. There is the National Judicial Institute where judges undergo periodic training, but they should intensify that. You live on computer now. You should have a situation in which you equip the courts, put in sufficient power, so that they can use the electronic devices that you give them. Before I left practice, I remember the many efforts that were made to put electronics in the courts. But the thing would not just work. You could be making use of them and suddenly you have a power surge and it wipes away all your records. That’s worse than using my long hand to write. I wrote in long hand for 10 years. I do know of judge who was advised by a doctor that if he’s not going to lose the use of his hands, he should retire. That is why occasionally when judges retire, you will be wondering what happened to them. Three or four years after retirement, he’s a ghost of himself. A man will be about 70 and he will appear like an 80-year-old. And it’s because of the atmosphere in which they had been working. All these things could be better.

     

    You mentioned that you were invited to the bench. Is it not better to ask people to apply to be judges?

     

    I tell you this. That is what makes it beautiful. In England, nobody ever applies to be a judge. You don’t apply to be a judge. The Attorney-General would have done some enquires. He would ask for some names to be shortlisted. Many judges were practitioners. If you were a treasury lawyer, you would begin your career there and end it there. You won’t assume that the next position is to be a judge, unlike what you have here. People from the department of justice of those days, the moment you become a Director of Public Prosecution (DPP), the next thing you’re looking forward to is to be made a judge. When you have looked at the quality of practice, even in the official Bar, and they found that one is a good material, there is nothing wrong with an appointment being made that way.

     

    What do you think is wrong with advertising it?

     

    The moment you start asking people to apply, you know what happens? There is going to be lobbying. It’s going to be about who knows who. I think it’s much more dignifying to be invited. A man will appear in court, and the Chief Judge will say: ‘When you’re going please see me….I’m considering including your name in the next list of appointments. Go and think about it.’ Sometimes they don’t have to ask you. If they find that what you’re doing is good, they will put your name and inform you that you have been appointed a judge. If the environment is good, nobody will be told that he is appointed a judge and he will refuse it. But due to poor earning, poor treatment, that is why you find that if you offer people who are in the inner bar (SANs) judgeship, they will say: ‘What, I’m not going to touch it.’ But in other areas, QCs (Queens Counsel) take such offers with open arms.

     

    Do you agree with suggestions that the Chief Justice of Nigeria (CJN) be appointed from outside of the Supreme Court?

     

    What is he coming to do there? Practicing as a lawyer is not the same thing as having gone through the hierarchy as a judge. An advocate looks at his clients. Whether his case is right or wrong, he takes it, although ethically you’re expected to advise your client. Many practitioners don’t look at the ethics of the profession. If the money is right, they will look for the law. An eminent jurist once said: ‘When I’m in practice, I don’t care whether I’m right or wrong. You pay me the right money, and I’m going to find the law to deal with it. When I became a judge, I started looking for where I can do justice.’ If there is a case before him in which he finds that ordinarily, someone should be given judgment, if he is able to find a law that will support him, he will use it. That is not the concern of a Senior Advocate. They (SANs) are industrious; they are supposed to be hard working. But for you to skip the High Court, the Court of Appeal, and the Supreme Court – I know they are agitating for it, but speaking for myself, I pray that day will not come. Those who had been there (Supreme Court), do they lack knowledge? You only need to be more selective in your appointment. Forget about Federal Character. Look for the best. This Federal Character is what is killing all our institutions. Look for the best and put the best there.

     

    What about the argument that it’s been done before?

     

    I must admit we have had two instances. One of them rose to become the CJN – that is Justice Teslim Elias. But that is an exceptional case. He was not practicing, and was more of an academic lawyer, but he had world reputation. Then we had Justice Nnamani who was Attorney-General and then became a justice of the Supreme Court. Those are very exceptional cases. Don’t make it a norm. There could be exceptional cases. But it’s not to make those outside to rank pari-pasu with those who are already there. Look for the best. For all I know it’s not just about mere advocacy. I was a practitioner. I got to the Bench and found it was different. I found that I had to look at the cases with detached mind. So it’s not the same.

     

    What is your advice on how to do justice?

     

    My advice simply is this: Always remember your judicial oath. Be industrious. There is no need for you to sit late. Your training at the Law School enjoins you to be prompt. If you’re a practitioner and you’re late in going to court, your client one day will go and look for another lawyer. Sit on time; do your best when you’re there; always remember your judicial oath. Minimise your social outings because the work is so demanding. You’re not going to look at the case of one side; you’re going to look at the two cases, and on your own, look at similar cases that had happened in the past that could assist you in what you’re doing. So really, the time for socialisation is so little. Take it that you’re handling something that is sacred. If the remuneration is not as high as you expected, God is your paymaster, he will pay you. Since I retired 14 years ago, I’ve not looked over my shoulder. God has always provided for me. I’m not stupendously rich, but I’m not poor. If I want to eat, I have money to buy food. I have a car in which I ride. And if I need to satisfy family needs, I’m able to do it within my income. Live within your income. Don’t let people look at you and your status and say ‘Ah, how will they say he’s a judge and he cannot do this?’ If you’re unable to do it, you’re unable to do it. That’s the way I look at it. So, the temptation of having to add a little bit unjustly to what you’re earning may not be there.

     

     

    What are your expectations of the Muhammadu Buhari administration?

     

    The president-elect has put on the toga of a democrat. We only pray he will be able to live his word. The vice-president-elect, I believe is God’s doing. From the little that I know of Prof. Osinbajo, he is not a politician although he served in Lagos State Government as Attorney-General. He served professionally, as a technocrat. I’m not saying that any man who puts on the toga of a pastor is a pious man.  But we could really see some of them who by their calling will bring it to bear on their office. If we’re able to have them to live according to their word, maybe we’re into something good in this country.

     

    How can ‘money-politics’ be stopped?

     

    But for goodness sake, let us stop all this money-taking. We need political education in this country. Tell the man who is expecting me to give him N2 that he’s only selling himself. When I give N2 in 20 places, when I’m elected, I’m going to see that I double what I have spent. Many of them don’t see it. We need a great deal of political orientation in this country. If the National Orientation Agency is working hard, what people see in this country would have been different. This last election, God has taken care. God has taken control of it. I think we should really educate ourselves the more. Any politician wanting office and comes to offer you money – some will say: ‘I’ll take his money; after all it’s my money.’ You’re encouraging what you should not encourage; you’ll pay for it. They might give four people money, out of which three will vote for him and he will get there. So let people be told that if you collect money from politicians, you will pay for it and you’re mortgaging the future of even your own children. I think someone should tell them that.

     

     

     

     

     

     

  • Only a party’s leadership can determine existence or proof of division

    The appellant contested and won the Akure North/South Federal constituency seat on the platform of the Labour Party. He abandoned the party and defected to the Action Congress of Nigeria (ACN). He asserts that the factionalization or division in the Ondo State Chapter of the Labour Party accounts for his defection to the Action Congress of Nigeria. By an originating summons filed on the 26th January, 2012, the Appellant as Plaintiff commenced Suit No. FHC/AK/CS/31/2012 at the Federal High Court, hereinafter referred to as the trial Court, seeking the interpretation of Section 68(1) (a) and (g) of the 1999 Constitution as amended and a declaration thereon that by virtue of the proviso to the Section he is entitled to remain the elected member for Akure North/South Federal constituency inspite of his defection from the Labour Party that sponsored him to the Action Congress of Nigeria, (ACN). Appellant also urges that the Defendants, the Respondents herein, be restrained from howsoever tampering with his right to the Federal seat.

    The 1st – 3rd Respondents not only contested Appellant’s claim, they counter-claimed against him. They assert that by virtue of the very proviso to Section 68(1) (g) of the 1999 Constitution as amended, the Appellant who, on the basis of the factionalization or division in the Ondo State Chapter of the Labour Party alone, defected to the Action Congress of Nigeria, automatically ceases to be the elected member for the Akure North/South Constituency. It was Defendants’ prayers that the seat be declared vacant and the Independent National Electoral Commission ordered to conduct a bye election for the vacant seat. Appellant’s claim as contained in his originating summons and the 1st – 3rd Respondents’ counter-claim were taken together. The trial Court in a considered judgment while dismissing Appellant’s claim granted the 1st – 3rd Respondents’ counter-claim. Dissatisfied with the trial Court’s decision, the Appellant appealed to the Court of Appeal, Akure Division, hereinafter referred to as the Court below. The Court in a well considered judgment dismissed the appeal decision and affirmed the trial Court’s decision. Still aggrieved, the Appellant appealed to the Supreme Court. The 5th and 7th Respondents also cross-appealed against the Lower Court’s judgment. The sole issue distilled by the Appellant in his brief of argument which the Respondents to the appeal, except the 5th and 7th, seem to adopt as having arisen for the determination of the appeal, reads:-

    “Whether the Lower Court’s interpretation and application of Sections 68(1) (a) (g) and 222(a) (e) and (f) of the Constitution of Federal Republic of Nigeria 1999 (as amended) is valid, when it affirmed the trial Court’s decision, that a dispute at the state level does not warrant the Appellant’s defection and consequently arrived at the conclusion that the National leadership of a political party determine the existence or proof of division in a political party.”

     On their sole issue, learned Appellant’s counsel contended that the trial Court’s interpretation of Section 68(1) (a) and (e) of the 1999 Constitution and the Lower Court’s affirmation of same are wrong in law. The position of the two Courts that it is only a dispute or crisis which consumes the national leadership of a political party that entitles the Appellant who had defected from the party that sponsored him because of the crisis to retain his seat, is not what Section 68(1) (a) and (g) of the 1999 Constitution envisages. A political party, it was contended, exists at various levels, to wit, ward, local government, state and national levels. Crisis at any of these levels, not necessarily at the national level of the party alone, submitted learned Appellant counsel, fits the division Section 68(1) (a) (g) contemplates as justifying a defection from the political party that sponsored the defector as well as the retention by the defector of his seat. The Appellant, it was further submitted, was justified to retain his seat having abandoned the Labour Party that sponsored him because the state chapter of the party is factionalized and divided. Further arguing the issue, learned counsel contended that the rules of statutory interpretation require the two Courts to ascribe to the words that make up Section 68(1) (a) and (e) they are asked to interprete their ordinary literal meaning without more. Section 222(a) and (f) of the Constitution which the Courts relied upon to interprete Section 68(1) (a) and (g) only outlines conditions for the eligibility of an association to operate as a political party in Nigeria. It does not, as wrongly held by the Courts, in any way help in defining the type of division provided under Section 68(1) (a) and (e). By erroneously imputing the word “faction” at the national level of the political party and cross-referencing the word into Section 222 of the 1999 Constitution, the Courts stand liable for reading into the Constitution what the legislature does not intend. Further relying on Imah V. Okogbe (1993) 9 NWLR (Pt.316) 159 at 173; (1993) LPELR-1497(SC), AG Federation V. AG Lagos State (2013) 16 NWLR (Pt 1380) 249 at 317; LPELR-SC.340/2010 and Agwuna V. AG Federation (1995) LPELR -258 (SC), learned counsel urged that the Lower Court’s circumscribed statutory interpretation rather than the liberal one be discountenanced. Concluding, learned counsel submitted that the Lower Court’s wrong resort to the decisions of the Court in Fedeco V. Goni (1983) LPELR-1256 (SC) and Abubakar V. AG Federation (2007) 10 NWLR (Pt 1041) 178; LPELR-SC.7/2007 does not save its judgment.  Learned counsel urged that the issue be resolved in their favour and the appeal allowed.

    Responding, learned counsel to the 1st – 3rd Respondents submitted that the facts on the basis of which the Appellant sought his reliefs and the 1st – 3rd Respondents counter-claimed against him are not in dispute. The resolution of the dispute created by the facts, learned counsel submitted, requires the communal interpretation and application of Sections 68(1)(g), 221, 222(a)(e) and (f) and 229 of the 1999 Constitution (as amended). The Lower Court in determining whether and how the meaning of these Sections relate to these ascertained facts, learned counsel further submitted, must be guided by certain rules. Basic among these rules, it was submitted, is the duty on the Court to consider the Constitution from which the particular sections emanate as a whole and ascribe to the clear and unambiguous words which make up the Sections their ordinary literal meaning. The two Courts have dutifully applied the relevant principles correctly and rightly concluded that the type of division envisaged under Section 68(1) (e) of the Constitution is one that affects the entire structure of the political party.

    The narrow interpretation suggested by learned Appellant counsel, it was contended, is legally infeasible. Learned counsel inter-alia relied on Victor Adegoke Adewunmi Anor v.

     The Attorney General of Ekiti State & 6 Ors (2002) 1 SCNJ 27 at 49, Mobil Oil Nig (Ltd) V. Federal Board of Internal Revenue (1977) 3535; (1977) LPELR-SC.488/75, and Nafiu Rabiu V. Kano State (1980) 8-11 SC 130; (1980) LPELR-2936(SC) inemphasizing that the Appellant does not come within the exception created under Section 68(1) (g) of the Constitution.

    The Court stated that the narrow issue to determine in the appeal, is whether or not the two Courts below are right in holding that, by virtue of Section 68(1) (a) and (g) and 222(a) (e) and (f) of the 1999 Constitution as amended, the division at the State level the Appellant relies upon indeed entitles him to abandon the party that sponsored him, the Labour Party, for another, the Action Congress of Nigeria, (ACN) and retain his seat inspite of the defection. The Court further stated that both lower Courts answered this overriding question in the negative. They are said to be concurrent in their findings. Given the facts available to the two Courts and the law applicable to these facts, it their decision that Appellant’s defection to the Action Congress of Nigeria does not come within the purview of the law. the Court held that Learned counsel to the Respondents are correct that the Supreme Court remains hesitant to interfere with such concurrent findings of fact and does so only if same are shown, notwithstanding their being concurrent, to be perverse. See UBN Plc V. Chimaeze (2014) LPELR-SC 204/2006, Atolagbe V. Shorun (1985) LPELR-592(SC). The Court held that theAppellant can succeed only if he demonstrates that the two Courts below have, in arriving at theirconcurrent decisions, either ignored facts,incorrectly applied any principle to correctlyascertained facts, took into consideration irrelevantmatters or excluded such other matters which arerelevant to their findings and, in addition, theinjustice the concurrent decisions in thecircumstance occasion.

    The Court noted that the determination of the dispute the trial Court was approached to resolve turns decisively on the meaning of the word “division” as used by the framers of the proviso to Section 68(1)(g) of the 1999 Constitution as amended. Whereas learned Appellant’s counsel contended that “any division”, in the political party would entitle a person who contested and won an election on the platform of that party to defect to another party and inspite of the defection to retain his seat. Learned counsel to the Respondents’, except the 5th & 7th, on the other hand, argued that the “division” in the State structure of the Labour Party only does not entitle the Appellant to abandone the Labour Party for the (ACN). Not being the kind of “division” that affects the national structures and therefore the corporate existence of the party, learned counsel insisted that the Appellant’s defection does not come within the proviso to Section 68(1) (g) to entitle him to retain his seat in the House of Representatives inspite of his defection to the (ACN) from the Labour Party on which platform he contested and won the seat. The Court held that the position of the Respondents is unassailable. Citing the case of Fedeco V. Goni (1983) LPELR-SC.54/1983

    The Court further held that the principles enunciated by the Supreme Court in the cases of Fedeco V. Goni (1983) LPELR-SC.54/1983 and Abubakar V. AG Federation (2007) 10 NWLR (Pt 1041) 178; LPELR-SC.7/2007, is to the effect that only such factionalisation, fragmentation, splintering or “division” that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1) (g), justify a person’s defection to another party and the retention of his seat for the unexpired term in the house inspite of the defection. Otherwise, as rightly held by the Courts below, the defector automatically loses his seat. The Court held that in the instant case, the two Courts are right that the Labour Party that has continued to function as a political party by meeting the conditions associations by virtue of Section 221 and 222 of the Constitutions must necessarily meet, cannot be said to have been so factionalised, fragmented, split or divided to justify the defection of the Appellant to another party and retention of his seat inspite of the defection.

    On the whole the Court found the appeal unmeritorious on the 19th March, 2015 and dismissed same.

     

    •Edited by Law Pavilion

    LawPavilion Citation: (2015) LPELR-24588(SC)

     

  • How to practice in multi-jurisdictions

    How to practice in multi-jurisdictions

    Introduction

    According to the American Bar Association’s Report of the Commission of Multijurisdictional Practice, multijurisdictional practice is defined as “the legal work of a lawyer in a jurisdiction in which the lawyer is not admitted to practice law. Mobility of lawyers on the other hand refers to the ability of legal practitioners trained and certified to practice law in one jurisdiction to practice in other jurisdictions without running afoul of the regulatory provisions in those other jurisdictions. This phenomenon is brought about by the fact that the world has shrunk since the advent of globalization. The combination of cheap and safe air travel and the internet have made places which seemed so far away half a century ago to be accessible to trans-national businesses. The implication is that these conglomerates prefer to approach business from the stand of using legal services that they are accustomed to and readily available. This preference usually excludes the use of counsel practicing in the place where the business is to be conducted. The importation of legal services by the foreign business outfit into a country where its lawyers are not licensed to practice brings about its complications and conflicts in (1) the authority of nation-states to regulate multi-jurisdictional practice, (2) the law to be applied to regulate the conduct of such counsel in the event of a breach of the rules of ethics and (3) the consequences of unregulated multi-jurisdictional legal practice.

    This discourse will consider the basis/origin and implications of multi jurisdictional law practice from the African stand-point. How has cross-border legal services fared under the dispensation of globalization and what is the response of African nations especially the emerging economic power blocs to the practice by foreign lawyers in their own territories especially as viewed from the stand point of competition with local counsel. It is hoped to conclude with suggestions and or recommendations for the removal of conflicts and frictions going forward.  The writer naturally, expresses these views from the prism of Nigerian law. However, a comparative approach from the position of other African nations will be attempted from time to time in the course of the paper.

     

    Globalisation and cross-border legal practice- Nigerian perspective

     

    The view was once widely held in Nigeria that globalization is a journey to utopia1, a lotus-eater kind of world far away from reality. However, this is not the view of the major players who control the economic resources of the world. That this situation is taken seriously by the people who control the resources of the world has been succinctly captured by Guobadia2 in his paper Globalization of Legal Services- What should Nigeria do? Thus; – ‘A globalised economy could be defined as one in which neither distance or national borders impede economic transactions. This would be a world where the costs of transport and communication would be zero and the barriers created by differing national jurisdictions had vanished. The driving force of trade liberalisation is the World Trade Organisation, a creature of the 1994 Uruguay Round Trade negotiations. The WTO works on a single undertaking principle so that once a country signs and takes up membership it becomes a party to all related agreements including those reached before it joined. In other words, it is very unlike GATT, where a nation can pick and choose which agreements it intends to be bound by’.

     

    The general agreement on trade in service

     

    One of the achievements of the Uruguay negotiations is the General Agreement on Trade in Services (GATS), which came into force in January 1995. The GATS, a multi-lateral treaty based agreement was inspired by essentially the same objectives as its counterpart in merchandise trade, the General Agreement on Tariffs and Trade (GATT) The only major distinction was that GATS dealt with services as opposed to trade and merchandise. Legal Services comes within the purview of GATS. One important characteristic of GATS is that countries that appended their signatures to it had committed themselves to periodic negotiations to progressively eliminate barriers to international trade in services without requiring further approval from other member states as evidenced in Article 19 of the agreement which compels members to enter in negotiation of specific commitments “directed to the reduction or elimination of the adverse effects on trade in services of measures as a means of providing effective market access.  However this process shall only take place with a view to promoting the interests of all participants on a mutually advantageous basis and to securing an overall balance of rights and obligations.  (Please note the underlined passage as this defines the scope of liberalisation of legal services.) Essentially the agreement comprises of legally binding rules set for trade in all commercial services, the intention being to spur economic growth by removing barriers limiting trade in services and enabling countries to attract foreign investment by opening highly regulated services to international competition. GATS therefore takes into consideration (i) The National Policy Objectives of each member and (ii) their respective levels of Development.

    It is therefore obvious that the requirements of liberalisation are not as frightful as they are made out. To the uninitiated, the impression given is that developing countries must open their markets in trade and services including legal services to the unrestricted participation of the developed world. It cannot be so for the following reasons. Firstly, while it has been agreed that no discriminatory measures will be meted out to service suppliers of member states in favour of domestic suppliers, it is also agreed that liberalisation will be gradual based on the national policy objectives of each member and the respective levels of development. These factors, it is submitted are complex platforms upon which to base any such agreements on. It is therefore more of phantom which cannot in practical terms negatively affect the local legal service market of any country. In my considered opinion, flowing from the foregoing that the market access in legal services as conceptualised by GATS was not expected to be universal or overwhelming in all spheres of legal services. It is clear that the interest of the WTO is to have legal services of such quality and delivery commensurate to and in tandem with the speed and efficiency with which modern international/cross border financial transactions are concluded.

    There are so many areas of local national economies whereby legal services have inexorably acquired international flavour and there appears to be nothing that domestic legal practitioners or systems can do about it. They include but are not limited to (i) Oil and Gas, (ii) Aviation, (iii) Shipping, (iv) communications, (v) Internationally financed construction, (vi) equipment leasing, (viii) Mining and mineral exploration, (ix) Privatisation by way of mergers, acquisition  etc. It must be noted at this stage that in the past, the excuse for bringing foreign counsel was that local counsel were not equipped technically to deal with the demands of clients in those sectors. But this pretext has waned considerably as (taking Nigeria for example) local counsel have gone in droves to acquire requisite expertise and experience in the afore-enumerated areas. However such recourse to the excuse of lack of local expertise was unnecessary in view of the express provisions of the GATS.

     

    Summary of the criteria for legal practice in selected african countries i.e Nigeria, south Africa East African states and Ghana Nigeria

     

    Item 49 of the exclusive legislative list in Part 1 of the 2nd Schedule to the 1999 Constitution of the Federal Republic of Nigeria lists ‘Professional occupations as may be designated by the National Assembly’. This means that only the National Assembly as opposed to the legislative house of the 36 States of the Federation can legislate on all issues pertaining to the practice of law in Nigeria as a profession. The Legal Practitioners Act3 prescribes the qualification of a person qualified to practice law in Nigeria4 and it includes (a) persons whose names are on the Roll of legal practitioners, (b) persons who apply to the Chief Justice of Nigeria  and are entitled to practice as advocates from countries where the legal system is similar to to that of Nigeria and the CJN is of the opinion that it is expedient for that person to practice as a Barrister for the purpose of the proceedings described in the application.

    The LPA also sets out the disciplinary regime/procedure for erring members of the profession. It is to be noted at this point in time that the LPDC can only discipline lawyers who have been called to the Nigerian Bar. This raises the question of how foreign counsel whose professional conduct impact badly on the ethics of the profession while working in Nigeria can or should be disciplined. This aspect will be dealt with in due course.

    Indeed, there is no move to instant liberalisation of legal services; that is not the concept in GATS. Article 19, which calls for a progressive move towards liberalisation is therefore relevant, let individual nations readiness be reviewed as required by the treaty every 5 years and at the next Round Nigerian stakeholders such as the NBA and its specialised sections must be ready with facts and figures to justify the state of readiness of Nigeria to liberalise and whether it is indeed feasible owing to the conduct of our partners so to do. The NBA position on multi-jurisdictional practice as last reviewed in the year 2012 is therefore clear from the foregoing. That in the long run liberalisation of legal services is foreseeable but not imminent. Nigeria should however not include legal services in its schedule until bilateral and multilateral issues of market access and discriminatory practices are resolved. Furthermore, there is a need for the Governments of Nigeria (Federal and States) to rapidly industrialise. The absence of viable industries in the required number denies Nigerian lawyers of the necessary enabling platform to practice modern international commercial practice. No foreign counsel is expected to involve him or herself in land, chieftaincy, election and other local indigenous legal disputes of customary status. Any Initiative that will promote local content in the rendering of legal services is being encouraged and supported. However, this is not to justify tardiness in our preparations to join the five African nations that have opened their doors to foreign legal counsel.

     

    South Africa

    No doubt the legal services sector has experienced several changes as a consequence of the growth in international trade. All over the world lawyers are required to provide services and advice to their clients who do business across borders. Businesses and organizations involved in international transactions need reliable, up to date and integrated services covering all aspects of such transactions.

    The Legal Profession in South Africa is divided into Advocates and Attorneys and they are regulated by the General Council of the Bar of South Africa and the Law Society of South Africa respectively. No dual practice is allowed. Legal practitioners are regulated by different laws and each has its own set of admission requirements. In 1995, South Africa made legally binding commitments to liberalize legal services under the WTO General Agreement on Trade in Services. The commitments allow, foreign legal practitioners to establish, a commercial presence in and transfer personnel, including legal practitioners, to South Africa.

    South Africa made specific commitments on the establishment of a commercial presence (mode 3) and the temporary transfer of personnel (mode 4) to South Africa. The commitments are limited to the supply of legal advisory services in foreign international and domestic law and legal representation services in domestic law by a locally established entity. Such an entity must be owned or controlled by natural or legal persons of any other WTO member state.5 Please note that to practice local law, a foreign lawyer must requalify as a South African attorney.

    Unless a person is from a designated country (at present Swaziland, Namibia, Lesotho and the former TBVC states) a person must complete a South African LLB degree and comply with the other requirements with regard to articles or community service, practical legal training and the admission examination. A person who intends to be admitted in the Republic of South Africa, can submit his/her degree to a South African university for an indication of whether any credit by such university would be given with regard to any part of the foreign law degree.

    Further requirements with regard to admission are provided in the Attorneys Act, 1979 as amended6. A person must be a South African citizen or permanent resident and be otherwise fit and proper in the opinion of the court to be admitted as an attorney. The current qualification requirements for the admission and enrolment of attorneys and advocates present an insurmountable barrier to foreign legal practitioners wanting to practice in South Africa.

     

     

     

    In the case of professional qualification requirements, any division of the Bar in the country may admit a legal professional practicing outside the country to practice in South Africa provided the person has been admitted as an advocate in a designated country, resides and practices as an advocate in that country, is fit and proper to be admitted, and, has no disciplinary proceedings pending or contemplated against him or her. Namibia, Nigeria, Zimbabwe and Lesotho are the only countries that have been designated countries in terms of this particular provision.8 Advocates from these countries may be allowed to practice across border in South Africa. It is pertinent to note that this provision constitutes a violation to MFN treatment obligation because it is not applied in a non-discriminatory manner to all other WTO member states and has not been listed as an exemption.

     

    EAST AFRICAN COMMUNITY STATES [EAC]

     

    As regards the EAC partner states, they have agreed that the opening of their service sectors within the common market would be progressive. Burundi has agreed to liberalise its legal services by eliminating all market access restrictions by 2015; Kenya agreed to liberalise only the legal advisory and representation services in judicial procedures concerning other fields of law; Rwanda agreed to liberalise its legal sector by 2010; Uganda agreed to fully liberalize its legal sector by 2015 while Tanzania didn’t make any commitment with regard to legal services.9

     

    At the moment, the East Africans are debating the EAC Cross Border Legal Practice Bill, 2014 at the East African Legislative Assembly as at March, 26, 2015. According to the report, the East African Law Society and National Law Societies in the EAC acknowledge the need for the enactment of an EAC Cross Border Legal Practice law to facilitate provision of cross border legal services within EAC, to harmonize legal training and certification, provide common standards and rules to regulate cross border legal practice and facilitate free movement of legal services. Presently, in EAC lawyers are confined to practising within their countries, a situation that hampers them from taking advantage of cross-border opportunities even in instances where there are shortages of skills.

     

     

    GHANA

     

    In Ghana the legal profession allows a qualified lawyer to practice as either a Solicitor or a barrister. Foreign Lawyers are permitted to practice in Ghana provided they have the required qualifications from their home jurisdiction, a letter of good – standing from their home bar which must be certified by the General Legal Council. The foreign lawyer must also pass the required exam in Ghanaian Constitutional law and the customary law of Ghana. Non – Ghanaian citizens are also required to demonstrate seven years post qualified experience (PQE) in a country with a compatible legal system.

     

    THE QUALIFIED LAWYERS TRANSFER SCHEME (QLTS)

     

    A recent innovation to enhance cross border practice is the Qualified Lawyers Transfer Scheme. The Qualified Lawyers Transfer Scheme (QLTS) allows lawyers qualified in foreign jurisdictions to requalify as solicitors of England and Wales. This is a fast-track route to qualification with no experience or training contract requirement. There are now numerous important business centers around the world in which many of the negotiations and transactions are governed by English law. Consequently there is an increasing demand for locally based, dual-qualified lawyers who can provide English cross jurisdictional as well as local legal advice.10

     

    ISSUES ARISING FROM MOBILITY OF LAWYERS /CROSS BORDER PRACTICE

     

    When lawyers practice law in countries in which they are not licensed, problems of varying degrees and magnitude are bound to arise. It is intended to examine some of those problems as they apply to the African continent. By way of a preface, it has been argued in some quarters that it is a violation of the rules of ethics and that the reason why many lawyers do not consider it risky to engage in some or all of this conduct is that the rules prohibiting multijurisdictional practice are not well defined and is almost entirely unenforced. However, since multi-jurisdictional practice is now a reality the tendency of foreign counsel is at times to operate in host countries outside his home jurisdiction very freely.

     

    Since the practice of law is not confined to litigation, but extends to activities in other fields which entail specialised legal knowledge and ability, there is usually an encroachment into the provision of legal services by other professions i.e. Estate Surveyors, Accountants. Etc.  Now, the line between such activities and permissible business conducted by non-attorneys is unclear.  Because of this ambiguity, what is, and what is not, the authorized practice of law is best decided in the context of an actual case or controversy.

     

    Again, new areas of law and regulations have created whole new fields for legal services, many transactions have become significantly more complex, the effects of which are not in the contemplation of existing laws of jurisdictions that act as host to foreign lawyers not licensed to practice there. There is therefore a need for a constant revision of local domestic laws so as to keep pace with developmental advances in the legal profession brought about by the rapid advances propelled by globalization.

     

    There is therefore a need to admit that there are indeed problems posed by or associated with multi-jurisdictional practice in Africa. The most apparent being the uncertainty of legal rules governing the process. Equally engaging are incidences of professional misconduct committed by foreign counsel while operating outside the jurisdiction that ordinarily has the power to discipline them. Proffering solutions to the issue, American contributors to the issue11 suggested the European Union solution to the discipline of lawyers engaged in unethical practice outside their own shores and identified the issues thus:

     

    “In thinking of solutions to problems posed by multi-jurisdictional practice in this country, it is instructive to consider the approach taken by another large federal system. The European Union consists of fifteen countries bound together by a series of treaties. (It styles itself a “union” and avoids use of the word “federal”.) The EU nations, of course, are highly developed economically with much cross-border activity, and the problems of multi-jurisdictional practice by attorneys are quite familiar there. Each country, of course, regulates practice within its borders and some of them in the past did much to hinder the cross-border practice of law; this hindrance closely resembled the practice of states in this country. Because those cross-border restrictions were inconsistent with the EU’s strong commitments to open markets and the free movement of workers, the EU authorities, backed by the European Court of Justice, whittled away at them. Finally, in 1998, the EU adopted Directive 98/5 (OJ 1998 L77/36) to deal with the situation directly.”

     

    The manner in which the EU dealt with the problem is best expressed in the words of the learned contributors thus:

     

    “Under that Directive, an attorney licensed to practice in one member state is entitled to practice law in any other member state. He may do this on a permanent basis, although he must practice under his home-state title ( e.g., “solicitor”) and register with the host-state authorities. The attorney may give advice on both host and home state law, international law, and on EU law. Attorneys so practicing are subject to the disciplinary rules of both the home and host authorities. An EU attorney who practices continuously in a host state for at least three years can gain admission to its bar without further examination and use the proper host-state title for his practice. The benefits of the new EU process are quite apparent to clients and attorneys alike. What is interesting to an American observer is the belief by the EU lawmakers that, when it comes to regulating the practice of law, the fifteen member states have much more in common than their sometimes quite different legal systems would suggest. Thus, the benefits to clients in terms of better service and the benefits to attorneys that come with increased mobility significantly outweigh the possible costs of not being sufficiently grounded in a particular legal culture. It may be time for Americans to consider emulating the lawyers of Europe.”

     

    THE NEED TO ADDRESS ALL CATEGORIES OF LAWYERS

     

    ALTERTANATIVE DISPUTE RESOLUTION

     

    There is a raging controversy as to whether alternative dispute resolution actually constitutes the practice of law. The writer holds the preliminary view that it does, notwithstanding the fact that ADR is engaged in by persons from other professions i.e. Engineers, Accountants, Valuers etc. This is because the advocates who participate with their clients in a form of ADR in seats or venues outside their home jurisdictions for purposes of neutrality are actually engaged in the practice of law in the multi-jurisdictional sense. This is so as ADR has a positive effect on the legal profession and its success in promoting peaceful settlement of claims impacting on rights qualifies it as multijurisdictional practice of law.

     

    As regards professional misconduct of lawyers in International Arbitration some of the potential 12disciplinary measures as prescribed by local jurisdictions include issuing an admonition, reprimand or other type of warning. Fines and occupational bans have also been suggested.13 In some jurisdictions counsel assume civil liability towards the client in case counsel is guilty of a breach of the contract between it and the client and if such breach caused a loss to the client. While most countries observe that the breach of an ethical rule may not per se qualify as a breach of contract. In France ethical misconduct is likely to constitute breach of contract. These by admission are remedies provided by different nations in the exercise of their individual legislative control over the profession. The IBA has made model recommendations, which can be adopted by willing stakeholders although it has been argued that Guideline 26 of the IBA Guidelines might enhance liability risks for counsel, as it allows the Arbitral Tribunal to sanction a party for ethical misconduct of its counsel.

     

    LITIGATORS

     

    Litigators are the only set of lawyers that have explicit restrictions to practice law in other jurisdiction. For instance a Nigerian trained Barrister cannot litigate in a court of law in Scotland except he is authorized by the relevant domestic laws to practice law in Scotland. However, in the United States there are circumstances in which lawyers who are admitted only in one state may be admitted pro hac vice to conduct litigation in another State. A pro hac vice is a legal term usually referring to a lawyer who has not been admitted to practice in a certain jurisdiction but has been allowed to participate in a particular case in that jurisdiction. This process is helpful in two ways. On the one hand, it allows the client to use a particular lawyer of the client’s choice even if the lawyer is not admitted locally. On the other hand, it creates a safe harbor for the lawyer who is admitted pro hac vice and who therefore need not be concerned about engaging in unauthorized practice in the same manner as multi- state business transaction lawyers. Nonetheless, this does not mean that the present system is ideal or even adequate from the point of view of courts, clients, litigators or the public interest14.

     

    Corporate Counsel

     

    The problems facing in-house counsel are probably the most severe. As a result of globalization corporations expand or relocate frequently. The effect of this is that corporate counsel is often required to move with them to other jurisdiction to provide legal services. If not required to actually move, counsel is often required to handle the many global matters facing the modern day corporation. The fundamental question this raises is whether this set of counsel can practice law in such foreign jurisdictions. For instance if a Company in England moves to Nigeria can the in-house Counsel practice law in whatever form in Nigeria having not been enrolled to practice in Nigeria. Under Nigerian law, it is wrong in the circumstance for the in house counsel to practice law in Nigeria except permitted otherwise. Corporations or big global players are expected to employ only those who are qualified to practice law within jurisdiction. In Nigeria we have had instances in which UK law firms handle briefs for Nigerian Companies. Suffice to state that even though Nigeria is a member of the WTO and ECOWAS and is engaged in other bilateral and multilateral treaty arrangements with other countries, it has made no commitments to liberalise the legal service sector, hence currently, no special treaties exist in respect of legal services with other legal jurisdiction.

     

    Transactional Lawyer

     

    This part deals with transactional lawyers and other non-litigators in the context of multi-jurisdictional practice. While for the litigator permissible cross border practice is generally more easily defined and arguably more in the forefront of the attorney’s mind. The litigator knows he cannot appear in court or file pleadings in a jurisdiction in which he is not licensed, unless he has been admitted pro hac vice. What of transactional lawyers and multi-jurisdictional practice. The transactional lawyer, not representing a client before a Tribunal, may not give the unauthorized practice of law more than a passing thought, but what if that same transactional lawyer advertises in a jurisdiction in which he is not licensed, or opens an office outside his jurisdiction? Or a represents a client located outside the lawyers jurisdiction? Or perhaps represents a client located in his jurisdiction, but regarding a transaction, the focus of which is in another jurisdiction? And finally, what if the attorney needs to quickly relocate his practice to a new jurisdiction in which he is not presently licensed to practice law. These are some of the fundamental question the multi-jurisdictional practice of law raises in terms of a transactional lawyer, In the USA, the likelihood of a transactional lawyer falling victim of unauthorized practice of law is more pronounced. As for a litigator he can always apply pro hac vice to practice law within that jurisdiction. The Courts act as a goal keeper against unauthorized practice of law while a transactional lawyer lacks a similar goal keeper to assess or determine when the transactional lawyer has crossed his boundary of unauthorized practice of law.

     

    E-LAWYERING AND THE UNAUTHORIZED PRACTICE OF LAW

     

    One area that has caused a lot of controversy in recent time is the conflict between the practice of law over the internet and the statutes that prohibits the authorized practice of law. While the practice of law is properly regulated offline the same cannot be said of the online practice of law.  As the world and indeed the legal profession goes digital it is very difficult to draw a distinction between advertising and providing legal services to a client. The shift to a digital platform has forced lawyers to contemplate whether services provided online are simply furthering the use of the Internet as an advertising tool, or whether the services provided constitute actual legal advice. Indeed, this question has been characterized as “earth-shattering to a jurisdiction-centric profession.”15 The fundamental question this raises is that to what extent one can determine what amounts to authorized practice within a particular jurisdiction. Will the same laid down rules for multijurisdictional practice also apply to legal services provided online?  It has been argued that as lawyers and law firms increasingly depend on the Internet to both advertise and provide legal services, unless the standards of what constitutes giving actual legal advice are first clarified, lawyers will continue to face conflict wise the statutes that prohibit the unauthorized practice of law. And perhaps more importantly, clients that rely on such online legal advice will likely suffer serious consequences from utilizing unreliable and inaccurate legal advice provided online.

     

    CONCLUSION

     

    100 years down the road, the practice of law would probably be uniform and all lawyers regardless of jurisdiction may practice on a worldwide basis. The current problems associated with the mobility of practice will persist in the main time until steps are taken to streamline the training curriculum of lawyers on a universal basis. In the interim, there is a compelling need to set out model uniform Rules pertaining to lawyers wishing to practise outside their home jurisdictions. These Rules must encompass qualification and practice requirements such as the global standardization of qualifying certificates and disciplinary measures to be meted out to erring practitioners, operating outside their own jurisdiction. This task cannot be left to individual nations because of obvious shortcomings in that regard and the possibility of the projection of nationalistic self interest over and above the common good of the comity of nations. In this regard, Global Bar Associations like the IBA, CLA, and ABA must rally their troops and provide a uniform platform for the mobility of lawyers,

     

    Unless and until, some certainty is achieved as suggested above, seamless mobility is difficult to achieve because it requires harmonization of legal standards among countries with different legal systems and traditions.

     

    International law is increasing at much the same pace as multijurisdictional practice. International reform will require cooperation with various countries. For firms representing corporate clients, they now have no choice. Even small clients have activities that cross state lines. These clients should not be required to obtain separate legal assistance for each matter in separate states. If the ultimate purpose is to protect the consumer, then the consumer should be able to make the choice.

     

     

    Joseph Bodunrin Daudu SAN

    15th April 2015

     

    (Endnotes)

    1 Speech by the writer as President of the Nigerian Bar Association to the annual conference of the Section on Business Law on the 18

    th

    of June 2012.-Voice of the Bar Volume 4 Page 213 2012

    2 Desmond Guobadia is a partner in the law firm of the Law Union. Paper is available on the internet

    33 Cap L.11 LFN 2004 incorporates the Provisions of the Legal Practitioners (Amendment) Decree No 21 of 1994

    4 See section 2 of the Legal Practitioners Act

    5 Cronje, J.B

    ‘The admission of foreign Legal Practitioners in South Africa: a GATS perspective

    ’ Stellenbosch: tralac (2013) available at

    http://www.tralac.org/files/2013/10/S13WP112013-Cronje-Admission-of-foreign-legal-practitioners-in-SA-20131002-fin.pdf

    (accessed 4th April, 2015)

     

    6 Ibid

    7 Ibid

    8 Ibid

    9 John Seka

    ‘Implementing Cross Border Legal Practice within the EAC States: A Case of the Legal Profession in Tanzania

    ’ LL.M Dissertation. (available at

    http://www.academia.edu/7513670/IMPLEMENTING_CROSS_BORDER_LEGAL_PRACTICE_WITHIN_THE_EAC_STATES_-_A_CASE_OF_THE_LEGAL_PROFESSION_IN_TANZANIA

    ) (accessed 4

    th

    April, 2015)

     

    10 The Law Society of England and Wales

    ‘Taking a global view…Become a Solicitor

    ’ (2014) (available at

    http://communities.lawsociety.org.uk/Uploads/2015/02/05/k/x/k/QLTS-NEW-ENGLISH-JAN2014.pdf

    11 Reynolds and Rickman  in their paper

    ‘Multi-jurisdictional practice and the conflict of laws

    ’ published by the American Bar Association Center for Professional Responsibility

    12 Ibid

    13 General Report

    ‘Ethics and Role of Counsel in International Arbitration

    ’ (2014) (available at

    http://prague.aija.org/wp-content/uploads/2014/04/WS08-General-Report-Intational-Arbitration.pdf

    )

     

    14 Peter R. Jarvis, Where You Stand Depends on Where You Sit: One Litigator

    ’s View of Multijurisdictional Practice Issues and Related Policy Question available at

    http://www.americanbar.org/groups/professional_responsibility/committees_commissions/commission_on_multijurisditional_practice/mjp_pjarvis.html

    (accessed 12th February, 2015)

    15

    Allen W. Chiu “The ethical limits of elawyering: Resolving the multijurisdictional dilemma of internet practice through strict enforcement” available at

    http://www.lawtechjournal.com/notes/2004/01_040809_chiu.php

    (2004) (accessed on 10th of March 2015)