Thursday, 31 January 2019

Rules of legislative drafting (Professional Ethics)

RULES OF LEGISLATIVE DRAFTING
BY C.J. OKOYE ESQ.

RULES OF INTERPRETATION OF STATUTES


An important role of the courts is the interpretation of statutes and documents.
The object of interpretation of statute is to discover the intention of the framers of the law, which is always found in the language used in the statute.

Once the meaning of a statute is clear, the courts are to give effect to it.  See OJUKWU V. OBASANJO (2004) ALL FWLR (PT. 222) 166.

The exercise of interpreting statute is a question of law and not of facts.  The courts have formulated some rules and principles in the construction of statutes, which are referred to as “canons of construction”.

In interpreting the law, the court is not permitted to invite the lawmakers to explain what the provisions of any law mean.  The court must find the intention of the lawmakers through the medium of the words used.  Oftentimes, there is no precision in the words used.  For some reasons, some words tend to have two or more meanings.  Some words used in statutes appear vague such that the task of interpreting them may be likened to that of making a subsidiary legislation.  Examples of such words are as follows: “reasonable time”, “inordinate delay”.  When the words of a statute are clear, there is little problem of interpretation.  A statute, which is ambiguous or not clear, may be difficult to interpret.

Sometimes, there are mistakes made through the use of wrong words.  Such mistakes must be corrected by the Legislature.

COMPLETION OF GAPS IN LEGISLATION
Again, there may be gaps or lacuna(e) in statutes.
 But the courts are not expected to fill such gaps in statutes.  The legislature only can fill gaps in statutes by a subsequent enactment.  The court cannot guess the intention of the legislature but must discover because this is a primary object of interpretation. In interpreting statutes, the courts must first interpret the meaning of the words used in the statute before construing their legal effects or consequences.

The majority of the cases on appeal to the superior courts are on interpretation and construction of legal documents.  Hardly can there be any perfect legislative formula.  Therefore, the problem of interpretation persists.

It must be noted that there is no single fixed effective rule of interpretation that is applicable in all cases relating to construction of statutes.

THE TOOLS NEEDED TO SOLVE THE PROBLEM OF INTERPRETATION INCLUDE:

1) The Interpretation Act.
2) The Definition Clauses.
3) Law dictionaries and
4) Decisions of superior courts defining certain words and clauses.

There are some general Common Law principles and the statutory rules applied by the courts in interpreting statutes.  Although they are regarded as rules, yet they are mere guiding principles.

THE LITERAL OR PRIMARY RULE OF INTERPRETATION
This rule is also known as the “ordinary and natural meaning” rule.  It is also known as the “plain meaning” rule or the “grammatical approach”.  The rule says that in interpreting statutes, the words in a statute should be given ordinary or literal or primary or plain meaning once the meanings are clear and unambiguous.

Accordingly, the duty of the courts is to interpret the words of the statutes and they are not to resort to any external aid.

See the following cases:

1) AKINTOLA V. ADEGBENRO (1963) AC 61.

2) In AWOLOWO V. SHAGARI (1979) 6-9 SC 51, an Election Petition presented to the Presidential Election Tribunal sitting in Lagos, Chief Obafemi Awolowo contested the declaration of Alhaji Shehu Shagari as the duly elected President of the Federal Republic of Nigeria in an election held on the 11th day of August 1979.  The centrepiece of the contention was that Alhaji Shagari had less then one quarter of the votes casts at the election in each of at least two-thirds of the States in the Federation, contrary to Section 34(A) subsection (1)(c) (ii) of the Electoral Decree, 1977 which had been inserted by Section 7 of the Electoral (Amendment) Decree, 1978.

The respondent denied all the issues raised in the appeal.  Both the petitioner and Counsel to the 1st Respondent addressed the tribunal at length as to the interpretation which should be ascribed to the words:

“Not less than one quarter of the votes casts at the Election in each of at least two-thirds of the States in the Federation”.

It was held inter alia per Hon. Justice Fatai Williams, the then CJN, at pages 63 to 64 that:

“A statute should always be looked at as a whole; words used in a statute are to be read according to their meaning as popularly understood at the time the statute became law.  A statute is presumed not to alter existing law beyond that necessarily required by the statute”

The Hon. CJN went further at page 65 to 66:

“It is also relevant to point out that anybody called upon to interpret any kind of statute should not for any reason attach to its statutory provision a meaning which the words of the statute cannot reasonably bear.  If the words used are capable of more than one meaning, then the person interpreting the statute can choose between these meanings but beyond that, he must not go”.

The advocates of the Literal rule of interpretation believe that the legislature has said what it means and means what it said.  When the words of a statute are clear and unambiguous, it is unnecessary to travel beyond the statute for the purpose of construing them.

In IDEHEN V. IDEHEN (1991) 6 NWLR (PT. 198) 382, the Supreme Court held that the first and most elementary rule of construction is the Literal rule.


THE GOLDEN OR PURPOSIVE RULE
This is also called “the purposive rule”.
The rule stems from the assumption that every legislation has some underlying purpose and that in construing the words of the legislation, the courts must give effect to the purpose of the legislation.

In effect, the rule states that where the words used would lead to absurdity, then they should be modified so as to get the intention of Parliament or the legislature.

The Golden Rule was formulated in BECK V. SMITH (1836) 2 M AND W 191, particularly at page 195; 150 ER 724, particularly at page 726.  It states:

“It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used and the grammatical construction unless it is at variance with the intention of the legislature to be collected from the statute itself or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience but no further.

It has been said that where the application of plain, grammatical meaning of the language of the enactment would lead to manifest absurdity or repugnance, the language may be varied or modified so as to avoid such inconvenience.”  BECK V. SMITH (SUPRA), per Parke, B.

See also the following cases:

2. LEE V. KNAPP (1967) 2 QBD 442.
3. BRONIK MOTORS V. WEMA BANK (1983) 1 SC 296; (1983) NSCC 226.  In Bronik Motors case, the issue was the interpretation of the expression “as may be prescribed” used in Section 230(1)(a) and (b) of the 1979 Constitution.

With regard to this expression, Hon. Justice Idigbe JSC stated:

“Therefore, where a judge is of the opinion that the application of the words of an enactment in their ordinary meaning would produce an absurd result which cannot be reasonably supposed to have been the intention of the legislature, he may apply the words in any secondary meaning which they are capable of bearing”.

Lord Denning, in the case of MAGOR AND ST. MELLONS RURAL DIST. COUNCIL V. NEWPORT CORPORATION (1950) 2 ALL ER 1226 particularly at page 1236 stated:

“We sit here to find the intention of parliament and of ministers and carry it out and we do this better by filling in the gaps and making sense of the enactment, then opening it up to destructive analysis”.

It is important to note that this rule has been criticised in that some say that it is not the function of any judge to fill in what he conceives to be the gap in the Act of Parliament.  If the judge does so, he usurps the function of the legislature.

Suffice it to say that in many cases, the courts in Nigeria have applied the Golden Rule without necessarily expressly mentioning it.

In ADAMOLEKUN V. COUNCIL OF THE UNIVERSITY OF IBADAN (1967) ALL NLR 40, (1958) NMLR 253, in applying the Golden Rule, the courts sometimes construe the word “or” as “and” in such a way as to avoid absurdity.  However, the primary object of the court in adopting such construction is to give effect to the intention of the legislature.

See R. V. EZE (1950) 19 NMLR 110.

THE MISCHIEF RULE
In the construction of the provisions of a statute, the history of the legislation and the mischief it was designed to prevent must be considered since the purpose of every interpretation is to discover the intention of the legislature from the words used.

In a simple form, the Mischief Rule is a rule of interpretation that states that in construing the words in a statute, the court should look at the circumstances leading to the enactment of that statute.  In doing so, the courts must be guided by the principle laid down in HEYDON’s case. (1584) 3 CO REP 76.  Four tests are laid down in Heydon’s case.

1. What was the Common Law before the statute was enacted?
2. What was the defect or mischief, which the Common Law did not provide for?
3. What is the remedy proposed by the legislature?
4. What is the true reason for the remedy?

This principle was restated in ABIOYE V. YAKUBU (1991) 5 NWLR (PT. 190) 130.  The argument is that unless there is a problem, the literal words should be applied.

See also SMITH V. HUGHES (1960) 1 WLR 830; (1960) 2 ALL ER 839.

See also AWOLOWO V. SHAGARI (SUPRA).

Note that this principle is only applicable where the meaning of a statutory provision is ambiguous.
Illustration:In a situation whereby students are asked to come early for lectures, and decide to come late for tutorial. He will not be held liable.
QUESTION
Spot the difference between the Golden Rule and the Mischief Rule?

ANSWER
The golden rule of interpretation states that where the words used in a statute would lead to absurdity, then they should be modified so as to get the intention of the Legislature whereas the Mischief Rule is a rule of interpretation that states that in construing the words in a statute, the court should look at the circumstances leading to the enactment of that statute and in doing so, the court must be guided by the four tests laid down in HEYDON’s case as follows:

1. What was the Common Law before the statute was enacted?
2. What was the mischief which the Common Law did not provide for?
3. What is the remedy proposed by the Legislature?
4. What is the true reason for the remedy?

See the following cases:

1. ABIOYE V. YAKUBU.
2. SMITH V. HUGHES.
3. AWOLOWO V. SHAGARI.

EJUSDEM GENERIS RULE
It has been said that ejusdem generis simply means “birds of the same feather”.  It also means “of the same kind or genus”.  This rule means that where particular words of the same class or genus are followed by a general word (a generis), the meaning of the general word will be limited to things similar to the class of things earlier enumerated.

In other words, the rule says that where a specific class of things or a particular class of things are mentioned followed by general words, the specific class should be interpreted as comprehensive and the general words interpreted as ejusdem, that is, of the same kind with the specific or particular class.

The courts have said that this doctrine should be applied with caution and that it should be applied only where the application will be consistent with the intention of the legislature.

It may be indicated in a clause or a document, the clear intentions to exclude the application of the rule.  In other words, you will find some documents specifically indicating that the rule does not apply.

See the following cases:

1. TILLMANNS AND CO. V. KNUTSFORD (1908) AC 406.  In Tillmann’s case, a ship, which was to be relieved of liability in the port, was inaccessible as a result of war, disturbances or any other cause.  It was held that inaccessibility of the port caused by ice makes the rule inapplicable in this case.

2. JAMMAL STEELS STRUCTURE V. ACB (1973) ANLR 823.  The Supreme Court in this case had to decide the issue whether the ejusdem generis rule applies to the interpretation of Section 7(1)(b)(iii) of the Federal Revenue Court Decree, 1973 that provides “banking, foreign exchange, currency or other fiscal measures”.  The court held that the rule applies.

3. OJUKWU V. OBASANJO (SUPRA).  Ojukwu’s case concerns the interpretation to be given to Section 137(1)(b) of the 1999 Constitution which says that:

“A person shall not be qualified for elections to the Office of the President if he has been elected to such office at any two previous elections”.

The Supreme Court held that the expression “such office” which comes after the words “to the Office of the President” is comparable to the office which can be filled through electoral processes.  It excludes an office to which one is appointed by the Supreme Military Council (SMC).

For the ejusdem generis rule to apply the specific words must constitute a class or a genus and the general words must exclude themselves from the class or the genus.  The ejusdem generis rule does not apply where there is only one word which does not form a genus.  See QUAZI V. QUAZI (1980) AC 744.

To exclude the ejusdem generis rule, you may adopt any of the following devices:

1. “including but not limited to”.
2. “without prejudice to the generality of the following”.

OTHER GENERAL PRINCIPLES OF INTERPRETATION
a. Lex non logit ad impossiblia, that is, “the law does not compel the doing of impossibilities”.  In other words, a statute is to be construed in such a manner as not to command what is impossible.  See the case of OHUKA V. STATE (1988) 1 NWLR (PT. 72) 539.

Where specific provisions of a statute are opposed to the general provisions, the specific provisions will prevail.  See the case of SCHRODER AND CO V. MAJOR AND CO. LTD. (1989) 3 NWLR (PT. 101) 1.

b. Ut res magis valeat quam pereat, that is, “that it is better for a thing to have effect than to be made void.  See ROE V. TRANMARR (1757) WILLES 682.  This rule portends that the legislature itself intends the interpreter of an enactment to construe the enactment in such a way as to implement rather than defeat the legislative intention.

Where there are two possible interpretations to a document, the court is expected to adopt that interpretation which will aid the smooth running of the system rather than that which creates confusion.  This rule of construction is the basis of the liberal and broad approach to the construction of the Constitution.  See NAFIU RABIU V. STATE (1980) 8-11 SC 130; (1981) 2 NCLR 293.

c. Expressio unius est exclussio alterius means, “the express mention of one thing is the exclusion of another”.
Where an enactment enumerates the things upon which to operate, everything else (not enumerated) must necessarily and by implication be excluded from its operation and effect.  See the case of ATTORNEY GENERAL OF BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 188) 646.

d. Statutes ousting Jurisdiction of the court or derogating from individual rights are strictly construed.  See ATTORNEY GENERAL OF THE FEDERATION V. SHODE (1990) 1 NWLR (PT. 128) 500.

e. The Constitution is interpreted broadly and liberally.  See NAFIU RABIU V. STATE (SUPRA).  See the case of ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION AND ORS. (1980) 10 SC 1; (1981) NSCC 314.

f. Noscitur a sosiis, meaning, “words should be used as they are”.  This postulates that the company it keeps knows a word.  In other words, the meaning of a word can be gathered from the context.  For example:

“Council shall provide further directives regarding the legal training at the Nigerian Law School”.

Which training?  Is it Area Council or Legal Aid Council?  No, it refers to Council of Legal Education.  See the case of GARBA V. THE FEDERAL CIVIL SERVICE (1988) 1 NWLR (PT. 71) 429.
g. Contra proferentem Rule.  This means that when you are construing a word or phrase in a document, which is capable of more than one interpretation, it should be construed against the person who made it.  It is usually in use in Insurance transactions and commercial transactions generally.
h. Generalibus specialia Derogant
The maxim literally means special things derogate from general things.  It entails that general provisions in a statute cannot override special provisions.  See SHROEDER V. MAJOR (1989) 2 NWLR (PT. 101 1.  In the case of ATTORNEY GENERAL OF OGUN STATE V. ATTORNEY GENERAL OF THE FEDERATION (2003) FWLR (PT. 143) 206, the Supreme Court held that the provisions of Section 162(1) and (10) of the 1999 Constitution are general in nature while Section 163(b) are specific.  Therefore, Capital Gains Tax and Stamp Duties, which are provided in Section 163(b), are exceptions to the revenue, required to be paid into the Federation Account, pursuant to Section 162(1) of the 1999 Constitution.

THE BENEFICIAL RULE OF CONSTRUCTION
This is the approach of the courts when they are faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully and a narrow meaning which carries it out less fully or not at all.  The courts are then enjoined to choose the first approach.

See the following cases:

1) SAVANNAH BANK V. AJILO (SUPRA)
2) FORSDIKE V. COLKULOUN (1883) 2 QBD 71.

CONSTRUCTION OF LEGISLATIONS THAT OUSTS THE JURISDICTION OF THE COURTS OR DEROGATES FROM THE RIGHTS OF CITIZENS
Where a legislation ousts the jurisdiction of the courts or fetters the rights of citizens or deprive citizens of their inherent rights, the courts should adopt a very strict approach to the construction of such statutes.

See the following cases:

1. ATTORNEY GENERAL V. SHODE (SUPRA)
2. UDO V. OHMB (SUPRA)
3. KOTOYE V. SARKI (SUPRA)



QUESTIONS
1. Draft five headings of the principal matters of a Bill on Environment Protection.
2. Suppose in the process of preparing the draft, you discovered that there is an existing law “Clean Environment Act”, CAP C.07, LFN which is saddled with ensuring that Nigeria is a clean and healthy environment:

a. What advice will you give the Minister?
b. What will you do if the Minister insists that the draft Bill must be prepared?

ASSIGNMENT
Find out a law having “a purpose Clause”.  It will start with the objective of this legislation; it is not very common.

DRAFTMAN LANGUAGE TO BE AVOIDED.
The legal lang is ancient and archaic. Also d technique of drafting have also been traditional perculiar. The lang has evolved over the years transiting d usage of several other lang.
In ancient times ,lawyer triumphant in d use of archaic and latinic phrases and expressions which only lawyers, literay dons and men of letters can understand . This is becos d tradition approach to legal writing and lawyer were conservative and dry.
The modern approach to writing has been described as d “plain English approach”. Plain,simply and short sentence bring home intending means and messages faster dn long twisted
The following wld act as guides to d
1. Unfamiliar and uncommon words. A good draftman

Friday, 25 January 2019

CJN ONNOGHEN THE PUNISHMENT FOR YESTERDAY'S ERROR

[1/19, 4:19 AM] ‪+234 803 716 5047‬: Nigerians, know it today that these names are the SANs who went to represent  a self confessed corrupt CJN
The most annoying aspect of it all is the fact that these parents who went out to dance shamefully in the name of supporting their own own confessed law breaker are parents who want their Children to thrive and blossom in a in another saner society where such can never happen yet they wants to destroy the nation we only have to ourselves.
My prayer henceforth is to wish them all what they wished Nigeria which by his grace will never come to be.
See them....

👇

CHIEF WOLE OLANIPEKUN SAN
2 CHIEF ADEGBOYEGA AWOMOLO SAN
3 KANU AGABI SAN
4 YUSUF ALI SAN
5 CHIEF BAYO OJO SAN
6 DR. ALEX IZIYON SAN
7 CHIEF CHRIS UCHE SAN
8 LUCIUS O. NWOSU SAN
9 CHIEF ASSAM ASSAM SAN
10 ADEBAYO ADELODUN
11 PAUL EROKORO SAN
12 S.I. AMEH SAN
13 R.A. LAWAL-RABANA SAN
14 CHARLES AJUYAH SAN
15 CHIEF SEBASTINE HON SAN
16 NELLA ANDEM-RABANA SAN
17 CHIEF CHUKWUMA EKOMARU SAN
18 OKON EFUT SAN
19 J.U.K. IGWE SAN
20 J.S. OKUTEPA SAN
21 ROTIMI OGUNESO SAN
22 MOGAJI A. MAHMOUD SAN
23 OGWU JAMES ONOJA SAN
24 AKINLOLU KEHINDE SAN
25 JOE ABRAHAM SAN
26 CHUKWUMA MACHUKWU H SAN
27 CHIEF MRS. VICTORIA AWOMOLO SAN
28 TAWO E. TAWO SAN
29 SILVA OGWEMOH SAN
30 ADEDEJI ADERIBIGBE SAN
31 GORDY UHCE SAN
32 CHIEF EDWARD KUNAV ASHIEKAA SAN
33 P.O. OKOLO SAN
34 MUYIWA AKINBORO SAN
35 DR. VALERIE AZINGE SAN
36 OLA OLANIPEKUN SAN
37 WILCOX ABERETON SAN
38 ABDUL IBRAHIM SAN
39 DR. J.Y. MUSA SAN
40 KEHINDE OGUNWUMIJU SAN
41 OBA MADUABUCHI SAN
42 OLUBOWALE TAIWO SAN
43 STEPHEN ADEHI SAN
44 DR. GARBA YEYENKI SAN
45 CHIEF SOLO AKUMA SAN
46 BERY IGWILLO SAN
47 CHIEF OFFIONG OFFIONG SAN

Source - Premiumtimes
[1/19, 4:19 AM] ‪+234 803 716 5047‬: Copied from a friend on Facebook @Dare Taiwo.
THE SANs v. THE JUDGES

What are the allegations against CJ Onnoghen?
Many don't know.

Our judiciary is corrupt. The judges pervert justice. There are many judges that are on the payrolls of the known SANs. The senior lawyers have the retired judges on retainership as consultants.

Before 2016, cash and cheque exchange were done like a normal transactions.

But since the DSS search of the houses of some senior judges in 2016, the parties have learnt to move under the radar.
Exchange is now done offshore.
The allegations against the CJ showed that before the raid on some Justices, Justice Onnoghen did not declare his assets.

NOTE: It was after the raid that the fear of DSS made him to declare 2011 and 2015 Assets in 2016 and on the same day. Can you imagine that?

When you see a thousand SANs in Court, they are not just there for the CJN, many of them are there to protect themselves too. Transaction trail will lead to many of them if the government decides to trace the sources of funds.

While we know of Jerry Rawlings exploits of executing all living  Ghanaian ex- leaders  in 1981, what history often omit is that he executed some corrupt judges too.

Two or three years ago, Anas, a journalist, carried out sting operations on the Ghanaian judiciary. When Anas was done, there were videos of many judges collecting bribes in Dollars to pervert the cause of justice.

Anas helped to sanitise Ghanaian judiciary.

Many of our judges are available to the highest bidders. The SANs are the lords and masters in the Temple of Justice.
They earn millions for court appearances while the judges earn mere thousands as monthly salaries.

The judges and the senior lawyers are the reasons corruption war will never be won:

1. The politicians and civil servants steal money in hundreds of million and they set aside some of their booties to hire the best criminal lawyers, who often times, have senior judges at their beck and call to help them keep their cases in court for decades.

2. Corrupt judiciary are the reasons politicians will brazenly rig elections and unabashedly tell their opponents to go to court if they feel dissatisfied. They know that it will be more difficult for their opponents to get justice than for a camel to pass through the eye of the needle.

3. Corrupt judiciary is the reason foreign investors will think twice before investing in Nigeria or partnering with Nigerian businesses. They know they will never get justice if the relationship goes south.

It is either Nigerians kill corruption or corruption will keep destroying Nigeria.

At the end of the day, Nigerians themselves - those same defenders of corruption, are the victims of the desecration of the Temple of Justice.

The sad thing is that Stockholm Syndrome cannot be cured by medicine. It is mental.
[1/19, 4:19 AM] ‪+234 803 716 5047‬: This is about the best piece I have read since the tongue wagging began about the alleged crimes of a 'roguish' CJN. Well done Prof Dejo Olowu.

Prof Dejo Olowu wrote:

ONNOGHEN: THE CACOPHONY OF JUSTICE AND THE FATE OF NIGERIA

My little contribution is to assist the non-lawyers and independent watchers of current proceedings to distill the issues beyond the muddy waters being thrown up and about to achieve political ends.

By virtue of Nigeria's colonial legal heritage, judicial precedents (decisions of the higher courts made on earlier cases) take a prime position in the determination of new cases on similar or related facts. The courts therefore rely heavily on the settled principles of the law in arriving at their decisions in subsequent cases.

There has been so much hullabaloo about and around the indictment of the eminent occupant of the office of the Chief Justice of Nigeria (CJN), in person of Mr Justice Walter Onnoghen. Understandably, the indictment occurring at a politically volatile period (less than 40 days to a vital presidential election) in Nigeria was bound to generate rowdy and opportunistic responses from legal minds and non-legal minds alike.

However, to help our objective understanding and analysis of the state of the law in Nigeria, recourse must be made to the causa celebre, that epic piece of judicial precedent from which all subsequent extrapolations should be made on the present scenario. That point of reference is NGANJIWA v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR 43391 (Court of Appeal).

The Honourable Justice A.O. Obaseki-Adejumo, Justice of the Court of Appeal (JCA) formulated the following principle in the Ngangiwa Case:
"It must be expressly stated that if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes,...WHICH ARE CRIMES COMMITTED OUTSIDE THE SCOPE OF THE PERFORMANCE OF HIS OFFICIAL FUNCTIONS [emphasis mine], he may be arrested, interrogated and prosecuted accordingly by the State DIRECTLY without recourse to the NJC (National Judicial Commission).
.. These classes of criminal acts are not envisaged and captured by the provisions of PARAGRAPH 21, PART 1 OF THE THIRD SCHEDULE (to the Constitution).
On the other hand, if any Judicial Officer COMMITS A PROFESSIONAL MISCONDUCT WITHIN THE SCOPE OF HIS DUTY and is investigated, arrested and.......subsequently prosecuted by security agents without a formal complaint/report to the NJC, it will be a usurpation of the latter's constitutionally guaranteed powers under Section 158 and Paragraph 21 Part 1 of the Third Schedule, thereby inhibiting, and interfering with and...... obstructing the NJC from carrying out its disciplinary control over erring judicial officers as clearly provided by the Constitution.''

The simple question that all honest people of clean conscience must ask the coterie of Onnoghen's Amen corner is: what is the category of Onnoghen's wrongdoing?

Failure to declare his personal fiscal assets  as statutorily required is a wrongful act OUTSIDE the performance of his duties as a judicial officer. His wrongful act was and remains a criminal offence for which the apparatus of State must act. The NJC has no role in dealing with that.

However, as I already mentioned, these are highly volatile and flammable times. Every action or omission of the Federal Government of Nigeria headed by Mohammadu Buhari will be turned into a weapon of mudslinging against Buhari’s electoral chances. That is the reason for all the pandemonium that has been unleashed on Nigerians these past few days.

Of course, the high volume of count-me-in SANs supporting the CJN will most likely sway the minds of innocent watchers into believing that there is indeed a vendetta against the CJN. There is none and there can be none.

The same Buhari confirmed Onnoghen as CJN despite all the opposing forces that felt he lacked the moral uprightness and integrity required for that office.

But we cannot be shocked or surprised by the outrage and outbursts of those opposed to the trial of a roguish CJN for his roguish act(s): they need him and his roguish system to perpetuate the distribution of judicial largesse and crooked elevations to the Bench and Bar in Nigeria. That is the way the Nigerian judicial and legal architecture now works in the larger part. Corruption oils the system...for those who run by it!

What more? The same judicial system created and nurtured by Onnoghen is the very one that will handle his indictment. Throw up a knife a thousand times and it will come down resting on its flat side. Why so much chaos when Onnoghen will carry the day in his own judicial system? What will however not go away is the moral albatross that will hang on his neck for the rest of his natural life. He'll remain a tainted CJN regardless of how he ends his career.
[1/19, 4:19 AM] ‪+234 803 716 5047‬: 1994 or so Justice Kayode Eso recommended some judges for dismissal or compulsory retirement. The names of those judges were sent to NJC which approved the recommendations of the Eso panel and sent the names of the judges to General Abacha for action. General Abacha died without taking action. General Abdusalami became head of  state and set up another panel to review the matter. Most of the judges were absolved because due process was not followed. And what was that due process? The NJC before sending the names of the judges to General Abacha was supposed to have first sent the recommendations of the Eso's panel to the affected judges for their comments. That was not done and on that basis judges who were described as "corruptible" and had appeared before the Eso's  panel escaped. Some of those judges were then High Court judges and somehow they rose to the supreme court. If you lay your hands on one of the News Magazine of 2000 it carried the headline, "105 corrupt judges in Nigeria" or something to that effect. None of the affected judges sued the magazine for libel. One of those judges is the present CJN. This is the price we pay for due process.

NLS LAGOS ETHICS TASK AND ANSWER (GROUP 7 ) Week 8


PROFESSIONAL ETHICS AND SKILL
WEEK 8
ADVERTISEMENT AND IMPROPER ATTRACTION OF BUSINESS;
(ii) CORRUPTION ISSUES


CONTENTS
Advertisement and Soliciting and other illegal means of attracting business by a lawyer.
Use of agents and touts to attract business
Involvement in corruption by lawyers

OUTCOMES
At the end of the lesson, students will be able to:
Explain the meanings of advertisement and soliciting and other illegal means of attracting business by a lawyer.
Identify and discuss specifically what aspects of the legal system are affected by corruption and how these encourage or influence lawyers to behave in corrupt or unethical ways;
Suggest specifically what lawyers could do to make the legal system to be free from corruption








Professional Ethics and Skills
Advertisement and Improper Attraction of Business

Task
Donald Henshaw was called to the Nigerian Bar in 2007. He practised in the Law firm of Banigo and Associates. Five years later, he believed he had paid his dues and decided to set up his own practice. He majored in Oil and Gas Law practice and ran his firm successfully until the recent crash in oil prices. Donald has now branched into Corporate Law Practice. He is quite desperate and needs to build his clientele in this area of Law. He remembers that at the time he was in the Law School, the RPC 2007 was introduced and the position of the law regarding advertising and improper attraction of business had changed. He recalled that under the 2007 rules, advertisement was now allowed.
With this knowledge, Donald has asked one of his juniors in chambers to go to Abacus TV station, his cousin’s TV house, to book a slot so that he can discuss issues involving Corporate Governance. He requested persons to call in to ask any questions to which he responded for free.  In the course of responding to questions, he casted aspersions on Nigerian lawyers stating that 99.9% were bribe-takers and givers and were haters of Nigeria. He said he belonged to the 0.1% who were free from corrupt practice. He appealed to many of the viewers to come to his office, the address of which he stated on air and promised to give them a discount on their visit. He stated the location of his office describing it as a palace even bigger than the size of the Windsor Castle, belonging to the Queen of England. He told the listeners that he currently employs over 50 lawyers, 20 of whom hold a PhD degree and the rest, an LL.M. He said they were so good at handling corporate matters which caused the three major telecommunications companies to become their clients. He expressed to his cousin his wish to grant these interviews at least twice every week, which the cousin agreed to. Donald now grants interviews twice a week on Abacus station. Onyinye, your friend’s daughter thinks he is beginning to sound like a broken record. 
For those that attended his office, he distributed flyers to them and on the flyers were inscribed “The God’s chosen chambers with the most brilliant and professionally qualified Lawyers in town. These clients confirmed that the office was very easy to locate as a result of the large and rainbow-coloured signpost placed at the main road three streets away from Donald’s Law firm. The inscriptions on the signpost read “Donaldson Chambers, Solicitors and Advocates, University of Swansea Graduate, Member of the IBA”

Now answer the questions that follow.

Comment on Donald’s position that advertising is allowed under the present Rules.
Discuss all the ethical issues that arise in the above scenario stating the general principles of law and exceptions to these where necessary.


All groups are to answer all questions and to submit task (hard and soft copies) by 9 a.m. Friday morning.


QUESTION 1
The issue bothers on advertising by a Lawyer under the Rules of Professional Conduct 2007 (referred to as RPC henceforth). Prior to the making of the RPC advertising was prohibited in the legal profession under the Old Rules.
In LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V GANI FAWEHINMI, the Late Chief Gani Fawehinmi after editing a book advertised it in a newspaper known as ‘West Africa’ in the following words, “A New Book on Nigerian Constitutional Law titled Nigerian Constitutional Law Reports 1981 Vol One Edited by Chief Gani Fawehinmi the famous, reputable and controversial Nigerian Lawyer.” The office of the Attorney General of the Federation brought a two count charge of professional misconduct against Chief Fawehinmi on the grounds of contravention of the rules of advertisement under Rules 33 and 34 of the Rules of Professional Conduct 1979. The matter was however struck out but on the successful challenge of the composition of the tribunal, which had offended the rule of natural justice and fair hearing.
It was after then, that the RPC was made and, a lawyer may now engage in any advertising or promotion in connection with the practice of law so far as it is fair and proper in all circumstance; and complies with the provisions of the Rules. Rule 39(1) RPC 2007
The Rules in RULE 39 (2) then provides the circumstances where advertisement is prohibited as follows. A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which is inaccurate or likely to mislead; is likely to diminish public confidence in the legal profession or the Administration of Justice, or otherwise bring the legal profession into disrepute, makes comparison with or criticises other lawyers or other professions or professionals,  includes statement about the quality of the lawyer’s work, the size or success of his practice or his success rate; or is so frequent or obstructive as to cause annoyance to those to whom it is directed.
Rule 39(3) RPC a lawyer shall not advertise his services or solicit professional employment either directly or indirectly by;
(a) Circulars, handbills, advertisement, through touts or by personal communication or interview;
(b) By furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of the law
(c) by procuring his photograph to be published in connection with matters in which he has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved or the importance of the lawyer’s position;
(d) By permitting or inspiring sound recordings in relation to his practice of law; or
(e) Such similar self-aggrandisement.

The Rules of professional conduct also provides for circumstances in which a lawyer may be permitted to advertise and they include
Publishing in a reputable law list or Law Directory, a brief biographical or informative data of himself
print on his note papers, envelopes and business cards his:
(a) Name and address;
(b) Academic and professional qualifications and title including the words
“Barrister-at-Law”, “Barrister and Solicitor”, “Solicitor and Advocate”, “Legal Practitioner”,
(c) Any National Honours.
Display in front of his law office a sign or notice board which should be of reasonable and sober design.
A lawyer who has written a book or an article for publication may include his name and academic professional qualifications in the publication. Rule 42 RPC
A lawyer may publish in a newspaper or other periodical a notice of the change of his office address, phone number or other information relating to his office or practice. Also permissible to send to a client notice of a change of address or telephone number or other circumstances relating to his practice.
Where a lawyer is available to act as an associate of other lawyers either generally or in a particular branch of the law or legal service, he may send to lawyers in his locality only and publish in his local journal, if any, a brief and dignified announcement of his availability to serve other lawyers in that connection as long as the announcement is not designed to attract employment from the public. Rule 44 RPC
 A lawyer to write articles for publications, or participate in radio and television programmes in which he gives information on the law, but he shall not accept employment from any such publication or programme to advice on inquires in respect of their individual rights. Rule 46(1) RPC.
Thus, Roberts’s assertion that advertisement is now permitted in the legal profession is not totally right as advertisement in the legal profession in Nigeria is allowed only to the extent to which the rules of professional conduct 2007 permits.
QUESTION 2
There are ethical issues arising from the scenario. These issues are:
Whether a lawyer can discuss details and answer questions of his legal practice on a television station
Whether a lawyer can give a derogatory opinion about fellow lawyers in comparison to himself on a television station
Whether a lawyer by means of a television station can advertise his services in order to invite clients to his office with promise of a discount
Whether a lawyer is allowed to appeal to his listeners by elevating the status of his office or himself
Whether a lawyer is allowed to grant frequent interviews on a television station on a frequent basis
Whether a lawyer can distribute flyers which advertise his services
Whether a lawyer can use loud colours and very large sizes for his signposts and the nature of information with regards to him that should be on the signpost
With regard to the first issue on whether a lawyer can discuss details of his legal practice on a television station the general principle of law is that a lawyer can engage in advertising where it is fair, proper and in accordance with the Rules of Professional Conduct. Rule 1, 39 (1), Rules of Professional Conduct (hereinafter referred to as RPC). In the scenario where Donald discusses issues concerning Corporate Governance and answered questions for free he has not breached any Rules of professional conduct. This is because it was fair and proper and did not breach any Rules of Professional Conduct.
In answer to the second issue as to whether a lawyer can give a derogatory opinion about fellow lawyers in comparison to himself on a television station the general principle is that a lawyer can engage in advertising where it is fair and within the rules. Some exceptions are that a lawyer should not make misleading statements, make statements that bring the legal profession into disrepute and affect the due administration of justice or make comparison with or criticise other lawyers. Rule 1, 39 (1), (2)(a)-(c)RPC. In the above scenario where Donald accused 99.9%(ninety-nine point nine per cent) of lawyers were bribe takers and haters of Nigeria and he was of the 0.1% of lawyers who were free from corrupt practice he made a misleading statement that brought the legal profession into disrepute, could affect the due administration of justice and he also made comparison between himself and other lawyers. Donald has breached these Rules of Professional conduct.
As to the third issue whether a lawyer can invite clients to his office by means of television advertisements the general principle is that a lawyer can engage in advertising where it is fair and within the rules. An exception to this is that a lawyer is not allowed to use television or radio interviews and comments in relation to his practice to solicit services. Also a promise to give discounts as a form of incentive also breaches the Rules of professional conduct. Rule 1, 39 (1), (3)(a),(b) RPC. In the scenario Donald, inviting clients to his office during television interviews and promising to give discounts amounts to a breach of the rule on the need to maintain a high standard of legal practice and a breach of the rule not to use interviews and comments to solicit for services.
On whether a lawyer is allowed to appeal to his listeners by elevating the status of his office or himself the general principle of law is that a lawyer can engage in advertising where it is fair and within the rules. However, an exception is that a lawyer is not is not allowed to make statements about his success rate, the quality of his work or success of his practice. Rule 39 (1), (2) (d) RPC. In the scenario, Donald stating that his office is like a palace even bigger than that of the Queen of England, and making boasts about his law firm employing a number of lawyers who hold either an LL.M or Ph.D and who were very good at handling corporate matters breaches the rule that lawyers should not make statements about their success rate.
In regard to the issue whether a lawyer is allowed to make frequent interviews the general principle of law is that a lawyer can engage in advertising where it is fair and within the rules. However, a lawyer is not allowed by the rules to advertise his services by interviews and it would not be fair and within the rules where it is frequent or obstructive as to cause annoyances to those to whom it is directed. Rule 39 (1), (2)(e), (3)(a) RPC. In the scenario because of the frequency of his interviews which he did twice a week my friend’s daughter Onyinye is annoyed and feels he is sounding like a broken record. Donald in this scenario has breached this Rule of Professional Conduct.
On whether a lawyer can distribute flyers which advertise his services the general principle is that a lawyer can engage in advertising where it is fair and within the rules. However, an exception to this general rule is that a lawyer cannot use circulars, touts or handbills to advertise his services. Also a lawyer is not supposed to boast about his success rate or quality of his work. Rule 39 (1), (2)(d), (3)(a) RPC. In the scenario the use of flyers which by Donald which contained statements about the quality of his work breached the Rules of Professional Conduct.
On whether a lawyer can use loud colours for his signpost and the nature of the information that should be on such signposts the general principle is that a lawyer or a firm may display at the entrance of or outside any buildings or offices in which he or it carries on practices a sign or signpost containing his or its professional qualifications. One exception to this general principle is that the signpost must be of reasonable size and sober design. Rule 41, RPC. In the scenario the signpost of Donald is referred to as being large and rainbow coloured. This does not correlate with sobriety as required under the Rules. The information as to qualification given however hinges on and is within the Rules of Professional Conduct.

Thursday, 24 January 2019

Advertisement and solicitation

ADVERTISEMENT AND SOLICITATION
BY OLU ODUDBEMI ESQ
Advertisement is a notice or display advertising a thing or something whilst
solicitation is to accost someone and offer one’s services.
Before the making of the Legal Practitioner’s Rules 1964, advertising was generally
prohibited in the legal profession under Rule 33 of the Old Rules. In LPDC v Gani
Fawehinmi (1985) 2 NSCC 998, the Late Chief Gani Fawehinmi after editing a book,
advertised it in a newspaper known as ‘West Africa’ in the following words, “A New
Book on Nigerian Constitutional Law titled Nigerian Constitutional Law Reports 1981
Vol One Edited by Chief Gani Fawehinmi the famous, reputable and controversial
Nigerian Lawyer.”
The office of the Attorney General of the Federation brought a two count charge of
professional misconduct against Chief Fawehinmi on the grounds of contravention
of the rules of advertisement under Rules 33 and 34 of the RPC 1979. The matter
was however struck out but on the successful challenge of the composition of the
tribunal, which had offended the rule of natural justice and fair hearing.
Under Rule 39(1) of the Rules of Professional Conduct, 2007 however, a lawyer
may engage in any advertising or promotion in connection with the practice of law
so far as it is fair and proper in all circumstance; and complies with the Rules. The
rule expressly provides:
39.(1) Subject to paragraphs (2) and (3) of this rule a lawyer may
engage in any advertising or promotion in connection with his
practice of the law, provided:
(a) it is fair and proper in all the circumstances
(b) it complies with the provisions of these Rules.
The Rules in Section 39 (2) then provides the circumstances where advertisement
is prohibited as follows.
39 (2)A lawyer shall not engage or be involved in any advertising or
promotion of his practice of the law which -
(a) is inaccurate or likely to mislead;
(b) is likely to diminish public confidence in the legal profession, or
the Administration of Justice, or otherwise bring the legal profession
into disrepute;
(c) makes comparison with or criticises other lawyers or other
professions or professionals;
(d) includes statement about the quality of the lawyer’s work, the size
or success of his practice or his success rate; or
(e) is so frequent or obstructive as to cause annoyance to those to
whom it is directed.
Soliciting is similar to advertising. Soliciting relates to a statement or conduct by a
lawyer which is calculated to lure a particular person or group of persons to engage
the lawyer
Rule 39(3) RPC 2007: Specifically, a lawyer shall not advertise his services or
solicit professional employment either directly or indirectly by (a) circulars,
handbills, advertisement, through touts or by personal communication or interview;
(b) by furnishing, permitting or inspiring newspaper, radio or television comments
in relation to his practice of the law (c) by procuring his photograph to be published
in connection with matters in which he has been or is engaged or concerning the
manner of their conduct, the magnitude of the interest involved or the importance of
the lawyer’s position; (d) by permitting or inspiring sound recordings in relation to
his practice of law; or (e) by such similar self-aggrandisement.
The most infamous reported case on improper attraction of business, albeit not in
the legal profession was the locus classicus case of Allison v General Council of
Medical Education and Registration (1894) 1 QB 750. In that case, the Plaintiff, a
medical practitioner published a great number of advertisements in several
newspapers which contained reflections upon his medical colleagues generally and
their methods of treating their patients, the plaintiff after castigating them, advised
the public to have nothing to do with his colleagues and their drugs. The
advertisements also recommended to the public to apply to the plaintiff for medical
advice and stated his address and the amount of fees, which he charged. The General
Council found him guilty of infamous misconduct in a professional respect and
directed that his name be erased from the register of medical practitioners and his
challenge of that decision was dismissed.
Rule 39(4) states some forms of advertisement that are allowed.
Nothing in this rule shall preclude a lawyer from publishing in a reputable law list or
Law Directory, a brief biographical or informative data of himself, including all or
any of the following matters
(a) his name or names of his professional association; (b) his address, telephone
number, telex number, e-mail address, etc ;(c) the school, colleges, or other
institutions attended with dates of graduation, degree and other educational or
academic qualifications or distinctions; (d) date and place of birth and admission to
practice law; (e) any public or quasi-public office, post of honour, legal authority,
etc;(f) any legal teaching position;(g) any national Honours ;(h) membership and
office in the Bar Association and duties thereon; and (i) any position held in legal
scientific societies.
Rule 40 RPC permits the printing of business cards (also his note-paper, envelopes
and visiting cards) containing his (a) name and address; (b) academic and
professional qualifications and title including the words “Barrister-at-Law”,
“Barrister and Solicitor”, “Solicitor and Advocate”, “Legal Practitioner”, “Attorney –
at-Law”, and (c) any National Honours.
Also permissible to send to a client notice of a change of address or telephone
number or other circumstances relating to his practice, a lawyer may send to his
clients notice of the change and may insert an advertisement of such change in a
newspaper or journal: Rule 43 RPC.
Also having the word “Barrister and Solicitor” or “Solicitors and Advocate” written
after the lawyer’s name or a sign or notice containing his or firm name and
professional qualifications displayed at the entrance or outside in building where
his chambers is situated is permissible. However, the sign and notice must be of
reasonable size and the design must be sober: Rule 41 RPC
A lawyer’s degree may also appear after his name. If he is a notary public, it could
also be included but it does not include specialist qualification. For example,
Commercial Land consultants, experts in family issues, divorce, custody, welfare, etc.
Such advert is unethical.
Rule 42 RPC permits a lawyer who writes a book or an article for publication in
which he gives information on the law, to add his professional qualification after his
name while Rule 46(1) RPC permits a lawyer to write articles for publications, or
participate in radio and television programmes in which he gives information on the
law, but he shall not accept employment from any such publication or programme to
advise on inquires in respect of their individual rights. Rule 46(2): A lawyer shall
also not (a) insert in any newspaper, periodical or any other publication, an
advertisement offering as a lawyer, to undertake confidential enquiries or (b) write
for publication or otherwise cause or permit to be published except in a legal
periodical, any particulars of his practice or earnings in the Courts or cases where
the time for appeal has not expired on any matter in which he has been engaged as a
lawyer; or (c) take steps to procure the publication of his photograph as a lawyer in
the press or any periodical. Section 46(3) RPC: Where a lawyer is instructed by a
client to publish an advertisement or notice, the lawyer may put his name, address
and his academic professional qualifications.
Rule 44 RPC: Where a lawyer is available to act as an associate of other lawyers
either generally or in a particular branch of the law or legal service, he may send to
lawyers in his locality only and publish in his local journal, if any, a brief and
dignified announcement of his availability to serve other lawyers in that connection
as long as the announcement is not designed to attract improperly.
Soliciting for instructions and employment is probably the most common and
degrading example of unfair attraction of business. It lowers the prestige and
reputation of the lawyer involved and the profession as a whole. In includes the
following:
1. Solicitation for employment in Court premises.
2. Solicitation for conveyancing business.
3. Conducting search at the Land Registry to detect defects with a view to
employment in litigation.
4. Instigating litigation.
5. Ambulance chasing.
6. Under association. This is an indirect form of touting; and could also be
referred to as “class touting”.
7. Pasting circulars, handbills and advertisement through touts or by personal
communication or interview
8. Furnishing, permitting or inspiring Newspaper Radio or TV comments in
relation to his Law practice
9. Procuring his photograph to be published in connection with matters he has
handled or the manner of their conduct
10. Permitting inspiring sound recording in relation to his practice of Law.
11. Similar self-aggrandisement.
Finally, it is desirable for a legal practitioner to meet with people in clubs,
restaurants and other social gatherings, but not where the aim of such gathering is
for a legal practitioner to associate unduly with other persons who are in a special
position to assist him to obtain employment. It is very dishonourable for a legal
practitioner to distribute his cards in social gatherings to gain employment. This is
very degrading and unethical.

Professional discipline of legal Practitioners

PROFESSIONAL DISCIPLINE OF LEGAL PRACTITIONERS

Lawyers play an essential role in the economic, social and political life of any nation and its citizenry.  More often than not, other professionals require the services of a lawyer at one point in time.  Against this background, to ensure that the legal practitioners perform their duties effectively, there is need to have a system of maintaining discipline in the profession.

In addition, the legal profession is a noble and honourable profession which places a high standard of responsibility and dignity on legal practitioners.  As much as they enjoy certain rights and privileges, they are also expected to obey the rules of professional conduct.  See Section 12 of the LPA. 

SPECIFIC ACTS THAT CAN BE PUNISHED
See Section 11 of the Legal Practitioners Act, 2004 which provides as follows:

PENALTIES FOR UNPROFESSIONAL CONDUCT, ETC
1. Where –
a) A person whose name is on the Roll is adjudged by the Disciplinary Committee to be guilty of infamous conduct in any professional respect; or

b) A person whose name is on the Roll is convicted by any Court in Nigeria having power to award imprisonment of an offence (whether or not an offence punishable with imprisonment) which in the opinion of the Disciplinary Committee is incompatible with the status of a legal practitioner; or

c) The Disciplinary Committee is satisfied that the home of any person has been fraudulently enrolled,

the Disciplinary Committee may, if it thinks fit, give a direction –

i. Ordering the Registrar to strike that person’s name off the Roll; or

ii. Suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or

iii. Admonishing (i.e. indict) that person, and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing as the circumstances of the case may require.

(2) Where a person whose name is on the Roll is adjudged by the Disciplinary Committee to be guilty of misconduct not amounting to infamous conduct which, in the opinion of the Disciplinary Committee, is incompatible with the status of a legal practitioner, the Disciplinary Committee may, if it thinks fit, give such a direction as is authorised by paragraph (c) (ii) or (iii) of subsection (1) of this section and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing, as the circumstances of the case may require.

(3) The Disciplinary Committee may, if it thinks fit, defer or further defer its decision as to the giving of a direction under subsections (1) and (2) of this section until a subsequent meeting of the Committee, but no person shall be a member of the Disciplinary Committee for the purposes of reaching a decision which has been deferred or further deferred unless he was present as a member of the Committee when the decision was deferred.

(4) It shall be the duty of the Bar Council to prepare and from time to time revise a statement as to the kind of conduct which the Council considers to be infamous conduct in a professional respect and the Registrar shall send to each person whose name is on the Roll and whose address is shown in the records of the Supreme Court relating to legal practitioners by post to that address, a copy of the statement as for the time being revised but the fact that any matters are not mentioned in such a statement shall not preclude the Supreme Court or the Disciplinary Committee from adjudging a person to be guilty of infamous conduct in a professional respect by reference to such matters.

(5) For the purposes of subsection (1) of this section, a person shall not be treated as convicted as mentioned in paragraph (b) of that subsection unless the conviction stands at a time when no appeal or further appeal is pending or may (without extension of time) be brought in connection with the conviction.

(6) When the Disciplinary Committee gives a direction under subsection (1) or subsection (2) of this section, the Disciplinary Committee shall cause notice of the direction to be served on the person to whom it relates.

(7) The person to whom such a direction relates may, at any time within 28 days from the date of service on him of notice of the direction, appeal against the direction to the Appeal Committee of the Body of Benchers established under Section 12 of this Act; and the Disciplinary Committee may appear as respondent to the appeal and for the purpose of enabling directions to be given as to the costs of the appeal and of proceedings before the Disciplinary Committee, shall be deemed to be a party thereto whether or not it appears on the hearing of the appeal.

(8) A direction of the Disciplinary Committee under subsection (1) or (2) of this Section shall take effect -

a) Where no appeal under this section is brought against the direction within the time limited for the appeal, on the expiration of that time;

b) Where such an appeal is brought and is withdrawn or struck out for want of prosecution, on the withdrawal or striking out of the appeal;

c) Where such an appeal is brought and is not withdrawn or struck out as aforesaid, if and when the appeal is dismissed, and shall not take effect except in accordance with the foregoing provisions of this subsection.

(9) Where a direction is given under subsection (1) or (2) of this section for the refund of moneys paid or the handing over of documents or any other thing and within 28 days of the date of the direction (or where an appeal is brought, on the dismissal of the appeal) the legal practitioner fails to comply with the direction, the Disciplinary Committee may deal with the case as one involving misconduct by the legal practitioner in his professional capacity.





1ST GROUND
INFAMOUS CONDUCT IN ANY PROFESSIONAL RESPECT
The Legal Practitioners Act did not define acts which constitute infamous conduct.  However, under the English Law, in the case of ALLISON V. GENERAL COUNCIL OF MEDICAL EDUCATION AND REGISTRATION (1894) 1 QBD 750, the phrase was defined as:

“Where a medical man in pursuit of his profession has done something with regard to it, which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competence.”

What constitutes infamous conduct depends on the profession and the facts of each case.  There are some instances where such conduct applies to all profession.  Others differ in the professional requirements of the profession. 

For instance, it is infamous conduct for a doctor to have adulterous relationship with his client.

For a legal practitioner, misappropriation of clients’ money amounts to infamous conduct.  See ONITIRI V. FADIPE, Charge No. LPDC (LEGAL PRACTITIONERS DISCIPLINARY COUNCIL)/IP/82.

Also obtaining secret commission out of purchase money payable by a client would amount to infamous conduct.  For example, dishonesty.  No profession encourages dishonesty. 

Where the facts constituting infamous conduct also constitute a criminal offence, it may not be allowed to institute professional disciplinary procedure against the offender unless criminal prosecution has been brought against him. 

In DENLOYE V. MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 ALL NLR 298, particularly at 306, the defendant was found guilty by a Tribunal for infamous conduct in professional respect and ordered the removal of his name from the Medical Register.  On appeal, the decision was set aside and the order of direction striking the name of the appellant off the Medical Register was quashed, the appellate Court holding that the decision was contrary to the audi alteram partem principle of natural justice.

In GARBA & ORS. V. UNIVERSITY OF MAIDUGURI (1986) 1 ALL NLR 140, Garba and some other students testified before a University of Maiduguri Investigation Panel as witnesses and their submissions formed the basis of their expulsion from the institution, without any respect for the rules of natural justice.  Reversing the decision of the university, the Court held:

“The Courts have always drawn a vital and necessary difference and distinction between hearing a man as a witness in an administrative Inquiry and hearing him in defence of his good name, his integrity or his conduct.  A witness may be found guilty of perjury if he lies he may be believed or disbelieved as the case may be but the central issue of liability or guilt does not attach to witness.

Breach of any of the rules of professional conduct in the Legal profession could be held to constitute infamous conduct in professional respect.  See ONITIRI V. FADIPE (SUPRA). 

QUALIFICATIONS
Where an infamous act was not done in professional respect, it would not come within the provisions of Section 11(a) of the LPA but may come under Section 11(2) of the same Act.  See RE: G. IDOWU, LEGAL PRACTITIONER (1971) 1 ALL NLR 126.  It was held here that in interpreting these provisions, the infamous conduct must be such arising out or pertaining to his profession. 

Where a person who has been convicted of an offence which also constitutes infamous conduct in a professional respect has that conviction reversed on appeal purely on technical ground, he could still be proceeded against professionally for infamous conduct in professional respect.  That was the decision in RE: KING (1845) 8 QB 129.









2ND GROUND
CONVICTION BY ANY COURT IN NIGERIA HAVING POWER
TO AWARD IMPRISONMENT FOR AN OFFENCE WHICH IS
INCOMPATIBLE WITH THE STATUS OF A LEGAL PRACTITIONER
That is the provision of Section 11(1)(b) of the LPA.
The difference between the first and the second ground is that in the first one, it is infamous conduct in professional respect.  Those are acts that go to the core of the profession while the second is conviction by any Court of law.

It should be noted that it is not all convictions that is incompatible with the status of a legal practitioner.  For example, sedition, bigamy and all other matrimonial offences are examples that attract conviction but are not incompatible with the status of a legal practitioner. 

But acts like assault and stealing have been regarded as incompatible with the status of a legal practitioner.  See the following cases:

1. R. V. SAGOE (1963) 1 ALL NLR 297.
2. R. V. ABUAH (1962) 1 ALL NLR 278.

Offences which may pose serious danger to life or society generally could also be considered to be incompatible with the status of the legal practitioner.  For instance, possession and distribution of Indian hemp, cocaine etc.

On the other hand, however, political offences like treason or treasonable felony are not within the contemplation of this provision. 

The concern of this provision is whether the offence for which the legal practitioner is punished violates the tenets, honour and respectability of the profession.  See: WEARE (1893) 2 QB 439.  See also RE: VALANCE (1889) LJ 638.

Necessarily under this provision, a Court in Nigeria with jurisdiction to award imprisonment must have tried the offence and subsequently convicted the legal practitioner.  For this provision to be relied upon, the time within which to appeal must have elapsed and no appeal is pending against the conviction.  See Section 11(5) of the LPA which provides that a person shall not be treated as convicted unless the conviction stands at a time when no appeal or further appeal is pending or may (without extension of time) be brought in connection with the conviction.

3RD GROUND
OBTAINING ENROLMENT BY FRAUD
This is provided in Section 11(1)(c) of the LPA. 

Section 4(1) of the LPA prescribes the conditions that entitle a person to be enrolled as a legal practitioner in Nigeria.  In deciding whether or not a person has obtained enrolment by fraud, the essential facts to consider is misrepresentation of the essential ingredients.  This would cover any of the conditions that must be fulfilled to be called to the Bar since this is a condition precedent to enrolment.

These are:

1. Citizenship 
This no longer applies by virtue of Legal Education (Consolidation etc) Amendment Decree No. 8 of 1992 and LPA (Amendment) Decree No. 9 of 1992.
2. Possession of a qualifying certificate from the Nigerian Law School
3. Good character

This provision should also cover cases where a person obtained admission to the Nigerian Law School by fraudulent misrepresentation of academic status, for example, producing forged law Degree certificate or representing that he possessed a law degree when he did not.

4TH GROUND
CONDUCT INCOMPABLE WITH THE STATUS OF A LEGAL PRACTITIONER – SECTION 11(2) OF THE LPA
This is where a person whose name is on the Roll is judged by the Disciplinary Committee to be guilty of misconduct not amounting to infamous conduct but which in the opinion of the Disciplinary Committee is incompatible with the status of a legal practitioner.  This provision seeks to promote certain standards that must be kept in the legal profession in order for it to continue to command the respect of the members of the public. 

Furthermore, it is an omnibus provision that covers all residual cases where the conduct complained of could prejudice members of the public against the profession.  Cases like seduction of a clients’ wife, habitual drunkenness in public, employment of very foul language in public and taking part in street brawl would appear likely to bring the profession into dishonour and disrepute.

PROCEDURE BEFORE THE LEGAL PRACTITIONERS
DISCIPLINARY COMMITTEE
The complainant or aggrieved party forwards his written complaints to the Secretary to the Committee stating his name and address and also the name and address of the Legal Practitioner against whom the complaint is made and the substance of the complaint which must be briefly and clearly stated.

This complaint can be made to any of the following persons:

i. The Chief Justice of Nigeria (CJN).
ii. The Federal Attorney General.
iii. The President of the Court of Appeal or any Presiding Justice of the Court of Appeal.
iv. The Chief Judge of the High Court of a State or the Chief Judge of the FCT.
v. The Attorney General of the State.
vi. The Chairman, Body of Benchers.
vii. The Chairman of the Nigerian Bar Association or the Chairman of a State Branch of NBA.

See Section 3(1) of the Legal Practitioners Disciplinary Committee (LPDC) Rules. 

Upon receipt of the complaint, the Secretary shall cause a copy of the complaint to be served on the legal practitioner requesting him to put in his response within 21 days of service on him. 

Service could be personally on him or by registered post.  The address would be his place of business or the address he gave when last he paid his practising fee.

If, after the expiration of 21 days, the legal practitioner puts in a reply or fails to reply, the Committee shall, after a notice to the legal practitioner, forward the complaint to NBA to conduct preliminary investigations. 

If a prima facie case is made out, the NBA shall forward such report to the Secretary together with all the documents considered and a copy of the charges on which the NBA is of the opinion that a prima facie case is shown.  See Section of the LPDC Rules.

If no prima facie case is made out, the complaint shall be terminated.  Where charges are formulated, the legal practitioner shall be served with a notice of the charges against him stating the time, date and place of hearing.

There shall be at least 30 days between the date of service and date of hearing. 

The Committee shall appoint a legal practitioner to prosecute on its behalf and the erring legal practitioner shall be entitled to defend himself in person or by another legal practitioner of his choice.

It should be noted that none of the Committee members can represent any of the parties. 

The Committee may hear witnesses, receive documents and the rules of Evidence under the Evidence Act shall strictly apply.  See DENLOYE V. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (SUPRA).

The Committee shall also observe rules of natural justice, equity and good conscience.  See LPDC V. FAWEHINMI (1985) NWLR (PT. 7) 300.  LPDC proceedings shall be held in private but the findings and directions shall be published in the Federal Gazette.

Appeal lies from the LPDC to the Supreme Court. 
See LEGAL PRACTITIONERS AMENDMENT DECREE, 1993.  Section 10(c) replaces Section 12.  This procedure must be stated seriatim.







PUNISHMENT
Four types of punishment are provided under Section 11(1).

1. STRIKING OFF THE NAME OF THE PERSON FROM THE ROLL
This punishment is meant for serious offences especially those stipulated in Section 11(1).  This punishment has been equated with capital punishment and consequently where the offence does not deserve capital punishment, the decision may be reversed on appeal.  Where a legal practitioner whose name has been struck off the list purges himself of his iniquity and becomes repentant, he may apply for reinstatement.  This is not automatic.  See A.C. ABUAH (SUPRA).

2. OFFENCES CONSIDERED NOT TOO SERIOUS TO JUSTIFY STRIKING OFF THE NAME OF THE LEGAL PRACTITIONERS FROM THE ROLL
Where the Committee deems fit, it may suspend any erring legal practitioner from practice for a specified period in the direction.  See ONITIRI V. FADIPE (SUPRA).

Usually, where striking off is quashed or reversed, it may be substituted with suspension.

3. ADMONITION
Admonition may be required for offences which are not serious.  See Rule 51(b).  Other punishment available could be restitution.  In certain cases, the legal practitioner may be asked to pay costs to his client but note that this last two is not in the Act.















THE DUTY OF COUNSEL TO CLIENT
Counsel owe many duties to client and these include:


1. THE DUTY TO ACCEPT BRIEF
Rule 23 of the Rules of Professional Conduct (RPC) provides that counsel is bound to accept any brief in the Court in which he professes to practice at a proper professional fee depending on the length of the case.  However, special circumstances may justify his refusal.  The duty to accept a brief is known as “the Cab rank Rule”. 

In accordance with this rule, even if a notorious armed robber comes to brief a counsel, he must accept the brief.  The essence of the rule is to protect reputation of counsel in the course of performing their duties.  The rule, however, recognises that special circumstances may justify refusal to accept a brief.  For example:

a) Personal interest;
b) Conflicting interest;
c) Religious ground
                        d)     when a brief is illegal                                                                         NOTE RULE 20 LPA.
Refusal on other grounds may be unprofessional conduct.  See ONEYGOCHA’s case.  In this case, counsel refused to appear for an accused person because a lawyer was murdered.  The Court held that by the provisions of Rule 23 of RPC, counsel was under a duty to accept the brief and defend the accused until the conclusion of the case.

See also Rule 9(a) which enjoins lawyers to undertake the defence of an accused person regardless of his personal opinion as to the guilt of the accused person; otherwise innocent persons who are victims of auspicious circumstances might be denied proper defence.  Counsel must not only accept the brief, he must also show commitment to the case above his personal engagement.  Failure to do this may result in denying such accused his right to fair trial and possibly an order by the appellate Court setting aside the conviction of such accused by the trial judge. See the following cases:

1. UDOFIA V. STATE (1998) 2 NSCC 111.
2. OKOSI V. STATE (1989) 1 NWLR (PT 100) 642.
3. QUEEN V. JOHN UZOCHUKWU (1958) 3 FSC 14.

2. DUTY TO TAKE INSTRUCTIONS IN CHAMBERS OR LAW OFFICE
Rule 22 of the RPC provides that counsel should always be briefed in his Chambers and not in the clients’ house or place of business. 
EXCEPTION
However, in special circumstances, for example, illness or infirmity of client or a client who is in detention or some other reason which may prevent a client from coming to the law office, counsel may go to clients’ home to take instructions or accept brief.  For example, to draft a Will for a dying client.

3. DUTY TO TAKE FULL INSTRUCTIONS
A lawyer must always take full instructions from clients and must also obtain full knowledge of his clients’ cause as well as ascertain all the facts before advising thereon. 
He should also avoid giving bold and confident assurances to the client more so where his employment depends on such assurances.  See Rule 14(2)a of RPC

Note that there are situations where counsel may have to ask his client to put his instructions in writing.  This will enable counsel to be in a better position to ask questions and ascertain the accuracy of the clients’ story. 

Although the mode of taking instructions may be oral, written or both, it is, however, advisable that lawyers should take instructions in writing.  In GRIFFITH V. EVANS (1953) ALL ER 1346, Lord Denning said:

“The duty of a solicitor depends, of course, very much on what he is employed to do.  In this case, the solicitor said that he was employed solely for the purpose of claim under the Workmen’s Compensation Acts, and therefore, he was under no duty to consider the possibility of a Common Law claim, whereas the workman said that he employed the solicitor to conduct his case for compensation without specifying whether it was under the Act or not, leaving it to the solicitor to do the best he could for him, and therefore, the solicitor ought to have considered the possibility of a claim at Common Law.  On this question of retainer, I would observe that where there is a difference between a solicitor and his client, the Court has said for the last one hundred years or more that the words of the client is to be preferred to the words of the solicitor or at any rate, more weight is to be given to it.”

4. DUTY TO APPEAR IN A LITIGATION ON BEHALF OF HIS CLIENT UNTIL THE CONCLUSION OF THE CASE
See Rule 21 of the RPC. 
A lawyer can only withdraw from employment for good cause and after reasonable notice has been given to the client. 
This is provided for in Rule 21 of the RPC.  What is good cause will depend on the facts and circumstances of each case and may include:

1. where the client insists upon an unjust or immoral cause in the conduct of the case.
2. If he persists in presenting a frivolous defence in spite of the lawyer’s remonstrance (i.e. protest or complaint in that regard).
3. He deliberately disregards an agreement or obligation as to fees and expenses and
4. Where there are conflicting interests in conducting the case.  For example, where the defendant is your uncle or aunt or relative.  Upon withdrawal, the lawyer should refund that part of retainer to the client which he has not earned.

Note that the client has the right to terminate a brief if he has no confidence in the lawyer anymore.  In fact, he may change counsel whether or not for good reasons.  The lawyer can, however, sue him to recover his unpaid fees.  See ABUREME V. NPA (1978) 4 SC 111.

A client must also terminate his brief with one counsel before briefing another and the second counsel coming into the matter should give notice to the previous counsel.  A counsel who is debriefed, that is, if the brief has been taken away from him, can make a final appearance in Court for a formal withdrawal).  See OKONEDO EGHAREGBAMI V. JULIUS BERGER (1995) 5 NWLR (PT. 398) 679, particularly at page 699.

Please, note Rule 11(c) which says a counsel should not encroach upon the professional employment of another lawyer and Rule 11(e) which says a second counsel coming into a matter should inform the previous counsel.

5. DUTY TO PRESERVE CONFIDENTIAL COMMUNICATION (PROFESSIONAL SECRECY AND PRIVILEGE)
Rules 19 of the RPC provide that it is the duty of a legal practitioner to preserve his clients’ confidence. 
This duty outlasts his employment and it extends to his employees. 
None of them should accept employment which involves disclosure or use of these confidences either for the private advantage of the lawyer and his employees or to the disadvantage of the client without the clients’ knowledge and consent. This duty subsists even though there are other available sources of such information.

The basis of the rule is the relationship of confidence between the legal practitioner and his client.  See Section 192 of the Evidence Act. 

In HORNE V. RICKARD (1963) NNLR 67, the Court held:

“Every client is entitled to feel safe when making disclosures to his solicitor or counsel and there are cases establishing firmly that counsel cannot be called to give evidence which would infringe the clients’ privilege of secrecy.”

See the following cases:

1. R. V. EGUABOR (1962) 1 ALL NLR 289. –that every client should feel safe giving information to his lawyer.                                                                                                                                                           

2. In HORN V. RICHARD (1963) NNLR 67, Holden, J. stated inter alia:

Note that the duty not to disclose confidential information continues even after the employment has ceased. 




There are, however, five main exceptions:

EXCEPTIONS TO THE RULE
1. If the fact is a notorious one.
2. If the information is one that can be disclosed to a third party.
3. Where the legal practitioner is acting for several clients in a particular matter.
4. If during the employment of the legal practitioner the legal practitioner’s client is about to commit illegalities.

6.   DUTY TO FOLLOW CLIENTS’ LAWFUL INSTRUCTIONS 
Rules 21 
It is the duty of the lawyer to follow clients’ lawful instructions and he will be held responsible for any loss which may occur as a result of disobeying them.  Where a client issues instructions which a lawyer, in the proper exercise of his professional judgement cannot accept, the lawyer must terminate the brief.  See Rule 29 of the RPC.  See ADEWUNMI V. PLASTEK NIGERIA LTD. (1986) 2 NSCC 852.
See Rule 19 which gives right to a lawyer to disclose the privileged communication to the Disciplinary Committee investigating his conduct. 
For example, a communication in furtherance of an illegal purpose or any fact observed by the legal practitioner in the course of his employment which shows that a crime or fraud is about to be committed.  See the following cases:

1. ANNESLEY V. EARL OF ANGLESSEA (1743) LR 5 QB 317.
2. R. V. COX (1884) 14 QB 153.
   NATURE OF RELATIONSHIP BETWEEN CLIENT AND COUNSEL.
The relationship between the client and his counsel is that of an independent contractor.   See ADEWUNMI V. PLASTEK NIGERIA LTD (SUPRA).  In this case, the Court held that the client cannot tell the counsel how to go about his duty.  Once he has given instructions, he should leave the counsel to do his duty.  In this case, the counsel withdrew an appeal and the party was not satisfied and sued his counsel.  The Court held that as a legal practitioner has a discretion to withdraw an appeal.  Under Rule 24, and in the absence of express limitation, an instruction to a lawyer confers upon him the power to do all such things, as he considers necessary within the scope of his instructions to obtain the most favourable result for the client.  Thus, he can compromise a suit or withdraw an appeal without further reference to his client.

Note that the basis of the counsel’s right to control incidents of trial is the presumption of the clients’ confidence in the counsel.  See EDOZIEN V. EDOZIEN (1993) 1 NWLR (PT. 272) 678, particularly at page 693.

In OSUN V. ANWAN (1947) 18 NLR 144, the plaintiff instructed his counsel to suit for libel.  He gave him certain facts to plead but the counsel thought it was not necessary to plead them and he also did not tender certain documents.  The case did not end in favour of the plaintiff and he sued the counsel.  It was discovered, however, that even if counsel had tender the documents, it would not have made any difference to the outcome of the case.

See also ORISHARINU V. MEFUN (1937) 13 NLR 187.

The wide scope of the power conferred on counsel to control incidence of trial is, however, limited to technical matters and not admission of facts.  You cannot, for instance, come to the Court and admit facts when your client did not tell you he wants to admit those facts.  It is left for him whether or not to admit those facts.  See the following cases:

1. MOSESE GENERAL MERCHANTS V. NIGERIA STEEL PRODUCTS LTD (1987) 1 NWLR (PT. 55) 110.
2. ELIKE V. NWAKWOALA (1984) ANLR 505.
3. STRAEWS V. FRANCIS (1866) LR1 QB 379.
NB- R.24 (4-6)- WHITTLED DOWN COUNSELS POWER IN THIS REGARD

7. THE DUTY TO THOROUGHLY INVESTIGATE FACTS WHICH HAVE BEEN COMMUNICATED BY YOUR CLIENTS.
Rule 20 provides that a lawyer should investigate and marshal the facts subject to the rule dealing with communications with the opposite party.  He may interview any witness or prospective witness for the opposing without the consent of the opposing counsel or party.

Note that it is not advisable to meet and interview your witness for the first time in Court.

8. YOU SHOULD ADVISE YOUR CLIENT CANDIDLY AND HONESTLY
A lawyer should endeavour to obtain full knowledge of his clients’ case by advising thereon and he is bound to give a candid opinion of the merits and probable result of pending or contemplated litigation.  If he fails in his duty, he may be penalised.  For example, if he fails to advise against bringing an action which is statute barred or purely speculative and devoid of merit, he may find himself damnified.  See COCOTTOMEOULOS V. PZ AND CO. LTD. (1965) LLR 170.  Lambo J, stressed the need for counsel to warn his counsel against bringing an action which is speculative and devoid of merit.  He ordered the counsel to pay the cost personally by refunding the filing fees to the client and also that the client was at liberty “to demand from the lawyer the repayment in fill of all professional fees he might have paid on account of the case.

Please note Order 4 Rule 17 of the Abuja High Court Civil Procedure Rules.

If a case is a bad or poor one, counsel must tell the client so.  Counsel must not prosecute a case which he knows is bound to fail or defend a matter which he knows is indefensible.  See BELLO RAJI’s case (1946) 18 NLR 74.  Counsel may be liable for damages in negligence for dereliction of duty.  He may be ordered to pay costs personally in part or whole.  See AJENIFUJA V. SALAKO (UNREPORTED) FSC 337 1959

9. DUTY TO DISCLOSE CONFLICTING INTEREST
Rule14(2) (b).  A lawyer has a duty at the time of retainer, that is, at the time your client is giving you instructions to disclose to your client any interest in or close connection with any person or the subject of retainer which might influence the client in the selection of counsel. 
Note Rule17 & Rule 49

It is unprofessional conduct to represent conflicting interest except by express consent of all concerned and given after a full disclose of the fact.  However, note that in some cases of conflict, the brief must be refused. 

CONFLICT MAY ARISE IN ANY OF THE FOLLOWING WAYS:

1. Personal interest.
2. Acting against a close relationship.
3. Acting against a former client where the counsel has obtained confidential information while acting for him which will be improper and prejudicial to use against him in acting for his adversaries.

See ONIGBONGBO COMMUNITY V. MINISTER OF LAGOS AFFAIRS AND 31 ORS. (1972) 2 UILR 235.

If, however, a former client is not prejudiced by the lawyer acting against him, then it is permissible.

10. A lawyer should not accept instructions which involves advising or arguing against the interests of the special retainer client.  If the retainer is general, it is unprofessional conduct for a lawyer to advise or appear in any proceedings detrimental to the interests of the client paying retainer during the period of the retainer.  Rule 41.

11. If the counsel has received and read briefs from both parties, then he cannot accept any of them.  See Halsbury’s Laws of England 4th Edition, Vol. 3, page 1143.

12. Counsel should not accept to act in a case in which he previously adjudicated on, advised on or dealt with while in public office.  Rule 39 and Section 292(1) of the 1999 Constitution.  See the following cases:

1. ADEWUYI V. ISHOLA (1958) WRNLR 110.
2. ARUWAJOYE V. DADA IN RE: ADEREMI (1973) 5 WACA 51.

Please note that on the other hand, a judge should not preside over a case he previously was engaged in as a counsel or advised on unless he fully discloses this to the party.  See OLVE V. ENENWALE (1976) 2 SC 23.

Although parties do appear in person to conduct their personal cases, the Supreme Court has advised against it.  See EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47).  Oputa, JSC stated:

“…A lawyer who represent himself in Court can hardly be detached or dispassionate.”

13. Rule 19.  Counsel should not act in a case where he may be required to give evidence.  Even though he may be competent to testify under Section 155 of the Evidence Act.

However, as a rule of practice, it is improper that he should both be counsel and witness in the same case.  See HORN V. RICHARD. 

See also OBADARA V. PRESIDENT, IBADAN WEST DISTRICT COUNSEL GRADE B CUSTOMARY COURT (1965) NMLR 39. 

If a counsel gives evidence, he should withdraw from the case.  If he knows ab initio that he will be a necessary witness, neither he nor his firm should conduct the trial except if the evidence he gives is as regards formal matters, that is, things that do not affect the merits of the case.  See Rule 19.

14. FIDUCIARY RELATIONSHIP
Counsel should not buy his clients’ property as well as act as solicitor in the case.  He should disclose his interest to his client, ask him to retain another solicitor for the transaction and ensure that the price paid is fair.  See WILLIAM V. FRANKLIN (1961) ALL NLR 218. 

See also ADUKE V. OYENUBI (1968) NMLR 447.

15. Rule 46.  A legal practitioner should not accept any compensation, commission, rebates or other advantages from a person against whom he has been retained without the knowledge and consent of his client after full disclosure. 

A lawyer must be seen to be honest; he must disclose compensation received for his client and he must disburse only on the instruction of his client.  See JOHN DADA IKABALA AND ORS. V. J. O. OJOSIPE (1972) 4 SC 82.

16. Counsel should not stand as a surety for his client because if he jumps bail, it may be embarrassing.

17. Counsel must not act for two or more clients at the same time whose interest conflicts with one another.  See ROGERS WRIGHT’s case.  See also ADEWUYI V. ISHOLA (SUPRA). 

18. Counsel cannot accept a retainer or brief if he has previously advised or dealt with another person in connection with the same matter.  In ODOGWU V. BADAWI SERVICES AGENCIES LTD per Odesanya, J said that if an advocate places himself in the position where he betrays or must betray his past clients’ interest, the Court should act.  In other words, the Court must stop him.  See also ONIGBONGBO V. MINISTER OF LAGOS AFFAIRS (SUPRA).

Please note that if there is no conflict between the previous matter and the new case, then counsel can act for successive clients.

In some cases of conflicting interest, the brief must be refused.  A lawyer will not be permitted to act again his former client when he has obtained confidential information while acting for him which would be improper and prejudicial to use against him in the service of an adversary.  Otherwise, there is no rule that a lawyer cannot act against his former client. 
19. Duty in fixing fees- RULE50,52,53:contingent fee arrangement, fixing the amount of the fee,                                   
Division of fees respectively.


DUTY IN CRIMINAL CASES
a) Duty of prosecuting Counsel – (Rule 9(d) of the RPC)
The Primary duty of a lawyer engaged in public prosecution is not to convict but to ensure that justice is done.  The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is unethical and savours of unprofessional conduct.  This is provided in Rule 9(d) of the Rules of Professional Conduct.

According to Sir Malcom Hilbery:

“As a prosecutor, it is his duty to see to it that every material point is made which supports the prosecution’s case or destroys the case put forward for the defence.  But as prosecution counsel he should not regard his task as one of winning the case.  He is not to make merely forensic points or debating scores.  There is, perhaps, no occasion when the Barrister is called upon to exhibit a nicer sense of his responsibilities than when prosecuting.”

The Criminal Appeal Court in England in the case of R. V. SUGARMAN, emphasised that:

“The business of the State Counsel is fairly and impartially to exhibit all the facts to the jury.  The Crown has no interest in procuring the conviction but that the right person be convicted.” 

The Court warned that where counsel relies on the real strength of this case and thinks he can strengthen it by things collateral in a manner contrary to the law, he only weakens his case and may prevent a verdict which ought to be obtained.  Where a prosecuting counsel is aware of any decision of the Court favourable to the accused, it is impropriety in him to hide it from the Court.  He can, however, legitimately do any of the following:

i. If the decision is by a lower Court, he may invite the Court to overrule it.
ii. If by a Court of coordinate jurisdiction, he can either distinguish it from the case in hand or invite the Court to depart from the decision by overruling same.  See R. V. ANANI 13 WACA 196.
                    NOTE IN SPECIAL CIRCUMSTANCES, THE DUTY OF COUNSEL TO FELLOW LAWYERS:
                   1) To avoid sharp pratices.

                    2) Equality of lawyers.

                    3)Duty not to covet clients.
                     4)Duty to appointment.