Sunday, 13 September 2020

 

THE PROPRIETY OF THE UNILATERAL AMENDMENT OF THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007

Kadijat Mojisola Ogunremi Esq., – Pupil State Counsel, Ministry of Justice, Lafia, Nasarawa State, Nigeria. Kadijatogunremi11@gmail.com

ABSTRACT

The Rules of Professional Conduct was made pursuant to Section 12(4) of the Legal Practitioners Act, Cap L11, LFN 2004. The said section confers the power on the BAR COUNCIL to make Rules regulating the professional conduct of the Legal Practitioners in Nigeria. However, in keeping to the tenet of the literal interpretation of the Preamble of the Legal Practitioners’ Rules of Professional Conduct of 2007, it has been argued that BAYO OJO, the Honourable Attorney General of the Federation (as he then was) unilaterally made the Rules of Professional Conducts for Legal Practitioners, upon which the current Honourable Attorney General of the Federation, Abubakar Malami (SAN) has acted. However, it has become a question for debate whether the AGF can single-handedly make/amend the Rules of Professional Conduct of 2007 for Legal Practitioners. This piece argues that by virtue of section 12(4) of the Legal Practitioners Acts Cap L11, LFN 2004, the HAGF does not have such power to so do. Following from the above, it has been argued that the AGF cannot amend the Rules of the RPC and cannot make any order to the effect that Legal Practitioners can sign or file processes or documents without the mandatory requirement of seal and stamp as provided in Rule 10(1) of the RPC 2007 because one cannot put anything on nothing and expect it to stand.

INTRODUCTION

The Headline ‘AGF Malami (SAN) Amends RPC, Deletes provision of NBA Stamp and Seal…’ dated 12th day of September, 2020 caught the members of the noble profession of law unawares. It was also reported that the Honourable Attorney General of the Federation justified his action by relying on the power which he asserted is conferred on him in the Preamble of the RPC. This piece would consider the propriety of the AGF’s action under the following heads, believing same to be the facts in issue:

Ø  Whether the AGF can unilaterally amend the Rules of Professional Conduct.

Ø  The relevance of the Seal and Stamp

Ø  The interpretation of the Preamble of the Rules of Professional Conduct.

 

Ø  WHETHER THE AGF CAN UNILATERALLY AMEND THE RULES OF PROFESSIONAL CONDUCT

Going by the provisions of section 1(1) of the Legal Practitioners Acts Cap L11, LFN 2004,

There shall be a body to be known as the General Council of the Bar (in this Act referred to as “the Bar Council”) which shall be charged with the functions conferred on the Council by the Act or the constitution of the Nigerian Bar Association (“the Association).

Also, by virtue of section of 1(2) of the Legal Practitioners Acts Cap L11, LFN 2004, the Bar Council shall consist of-

a.      The Attorney General of the Federation, who shall be the president of the council;

b.      The Attorney General of the States; and

c.       Twenty members of the Association.

Also, going by what constitutes a quorum in the regulation of the procedure of the council and provisions of such other orders, section of 1(4) of the Legal Practitioners Acts Cap L11, LFN 2004, provides thus:

The quorum of the Bar Council shall be eight and the Council may make standing orders regulating the procedure of the Council and subject to the provisions of any such orders, may regulate its own proceedings; and no proceedings of the Council, or by the fact that any took part in the proceedings who was not entitled to do so.

Following from the above, the AGF cannot unilaterally amend the RPC without other members of the Bar Council forming a quorum.

Ø  THE RELEVANCE OF SEAL AND STAMP

By the provision of Rule 10(1) Rules of Professional Conduct for Legal Practitioners 2007,

A lawyer acting in his capacity as a Legal Practitioner, legal officer or adviser of any governmental department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association.

Rule 10(2) Rules of Professional Conduct for Legal Practitioners 2007 states thus:

For the purpose of this rule, ‘Legal documents shall include pleadings, affidavits, dispositions, applications, instruments, agreements, deeds, letters memoranda, reports, legal opinions or any similar documents.

However, by virtue of the provision of Rule 10(3) Rules of Professional Conduct for Legal Practitioners 2007, it is provided that:

If without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule 2 of this Rule, and in any of the capacities mentioned in sub-rule (1), the documents so signed or filed shall be deemed not to have been properly signed and filed.

Committing on the relevance and rationale of the stamp and seal the court said in the case of Sen. Bello Sarkin Yaki v. Sen. Atiku Abubakar Bagudu (2015) LPELR 25721 (SC) that the stamp and seal show authentication and responsibility. In a similar vein, the Court of Appeal in Today’s Cars Ltd v. LASACO Assurance Plc (2016) LPELR 41260 stated that:

It is pertinent to add that the rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession, but more importantly, to ensure that legal practitioners fulfill their financial obligations in that regard to the Nigerian Bar Association.

Although judicial authorities are replete on the fact that a failure to affix stamp and seal on a document does no render same null and void. The Supreme Court in Wike Ezenwo Nyesom & Anor vs. Hon (DR) Dakuku Adol Peterside & Ors (2016) 1NWLR (pt. 1492) SC 71 held that failure to affix the approved seal and stamp of the Nigerian Bar Association on the process does not render the process null and void. It is only an irregularity that can be cured by an application for extension of time and deeming order. See also the case of Gen. Bello Sarkin Yarki vs. Senator Abubakar Atiku Bagudu (supra).

The above judicial attitude should not be construed as giving impetus to conclude that since failure to affix stamp and seal is an irregularity there should not be much fuss about it and it should therefore be allowed to go for good in a bid to probably end applications for striking out processes for failure to affix stamp and seal. This judicial attitude stems from the provision of Rule 10 (3) of the RPC, 2007.

Notwithstanding the above judicial attitude, failure to affix stamp and seal on any legal document prepared by a lawyer in his capacity as such could be devastating as it is not a toothless bull-dog. Thus the court has admonished that a document could be rendered “worthless” where a seal and stamp is not affixed on such document and when no application to regularise the irregularity is made. See Mainstreet Bank (Nigeria) Limited v. Alhaji Saka Hammed (2018) LPELR 45557 (CA). The relevance of the stamp and seal is further bolstered by the fact that where the seal is not available or has expired, a legal Practitioner must attach evidence of payment for same or a new one.

The seal and stamp is a symbol per se issued by the Nigerian Bar Association, upon payment of the prescribed fees, to Legal Practitioners entitled to practice law in Nigeria. It describes which legal practitioner has prepared any particular document. Hence, the amendment of the rule which provides for the seal and stamp negates the intention of the law to forestall impersonation by non-lawyers personating as lawyers to prepare any document.

Therefore, the provision of the Rules that makes provision for a seal and stamp is a good law and equally instructive. It is lofty, speaks more volume than it appears, discourages impersonation and garners financial benefit to the Association. It should therefore not be amended.

Ø  THE INTERPRETATION OF THE PREAMBLE OF THE RULES OF PROFESSIONAL CONDUCTS FOR LEGAL PRACTIONERS 2007

The preamble of the RPC for Legal Practitioners 2007 reads thus:

In exercise of the power conferred on me by section 12(4) of the Legal Practitioners Act 1990,as amended, and of all other powers enabling ,me in that behalf, I, BAYO OJO, Attorney-General of the Federation and Minister of Justice/Chairman, General Council of the Bar hereby make the following rules;

The interpretation of this preamble is very subjective and welcomes various dimensions of interpretative debates. The AGF being the president of the Bar Council have been conferred with the power to preside and give directives in any meeting of the Bar Council as the President/Chairman of the Bar Council. He is therefore the spokesperson of the Bar Council in the drafting of the preamble.

This is however the case when the Bar Council has acted as a body. Where, like in the instant case, the Bar Council did not meet over the same issue as a body the AGF cannot unilaterally make or amend the RPC. It may, arguably, be different if the Bar Council had met and the AGF had been asked to amplify the deliberations of the Bar Council. It does not necessarily mean that the AGF has always been the one drafting the Legal Practitioners’ Rules of Professional Conduct or has the power to so do.

Assuming but not conceding that the above was the case then the Bar Council would have been wrong to do so because being a delegate of power it cannot further transfer same to a single /individual member of the Council.

For the avoidance of doubt, Section 12(4) of the Legal Practitioners Act postulates that:

It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession and cause such rules to be published in the Gazette and distributed to all the branches of the Association.

A careful study of this section lends credence to our position that the said section does not confer any power on the president/chairman of the Bar Council in the person of the Honourable Attorney General of the Federation but vests power on the Bar Council acting as same. Therefore, we can confidently say that the said section 12(4) of the LPA cited in the preamble on which the AGF based his authority betrays the interpretation ascribed to it. The said section does not by any length of the imagination confer any power on any singular person than the Bar Council.

Ø  RECOMMENDATIONS/CONCLUSION

This piece hereby suggests as follows:

·         That the AGF should exercise the Rule of Law by carrying other members of the Bar Council along and all should collectively amend the Legal Practitioners’ Rules of Professional Conduct where they see the need to so do.

·         That the seal and stamp should not be pulled out as a requirement in preparing legal documents.

·         That the preamble of the Rules of Professional Conduct upon which the AGF places his power should be made unequivocal and unambiguous.

·         That the purported amendment is null and void and should be disconcerted.

 

 

 

THE LEGALITY OF THE PURPORTED AMENDMENT OF THE RULES OF PROFESSIONAL CONDUCT BY THE ATTORNEY GENERAL OF THE FEDERATION

Ndubuisi Samuel Okochi Esq., – Pupil State Counsel, Ministry of Justice, Lafia, Nasarawa State, Nigeria. Ndubuisiokochi@gmail.com

INTRODUCTION

The provisions of Rules 9(2), 10, 11, 12 and 13 of the Rules of Professional Conduct for Legal Practitioners, 2007 (RPC) were allegedly unilaterally amended on the 3rd September, 2020 by virtue of a Notice with Serial Number S.1 No. 15 of 2020.

There is no gain saying that the provisions of the RPC purportedly amended are germane and pivotal to legal practice in Nigeria.

This work shall examine the legality of the purported unilateral amendment of the RPC by the Attorney General of the Federation.

THE LEGALITY OF THE EXERCISE OF THE POWER OF UNILATERAL AMENDMENT OF THE RPC BY THE ATTORNEY GENERAL OF THE FEDERATION

The Rules of Professional Conduct for Legal Practitioners, 2007 was made on the 2nd January, 2007 pursuant to powers conferred by Section 12(4) of the Legal Practitioners Act CAP L11 Laws of the Federation of Nigeria, 2004.

The rules were made to regulate the professional conduct of legal practitioners. There are fifty-seven rules in the RPC divided into seven parts of A-G.

On the face of it, the rules purports to have been made by the then Attorney General of the Federation and Chairman of the General Council of the Bar, Mr. Bayo Ojo. This is true when one makes a quick gloss over the Preamble of the RPC without bothering to consider the Section of the Legal Practitioners Act cited therein. It is submitted that the preamble of the RPC was inelegantly drafted and in that inelegant draft lays the genesis of the present interpretation. It is important that statutes should be elegantly drafted so as to leave no room for ambiguity and engender an environment where a person may be able to hold onto the literal words of a statute on the face of it without referring to several other sections especially, like in the present case, when a statute purports to vest power on a group or an individual; such statute should be amenable to being taken for it professes without much ado.

For the avoidance of doubt, the preamble of the RPC is set out hereunder:

In exercise of the powers conferred on me by section 12 (4) of the Legal Practitioners Act 1990, as amended, and of all other powers enabling me in that behalf, I, BAYO OJO, Attorney-General of the Federation and Minister of Justice/Chairman, General Council of the Bar hereby make the following Rules:.[Emphasis ours]

On the face of it this preamble says that the RPC was made by the then Attorney-General of the Federation, Mr. Bayo Ojo. However, upon consideration of the provision of the said section 12 (4) of the Legal Practitioners Act the defect in the draft of the preamble of the RPC is revealed.

To be doubly sure, the provision of Section 12 (4) of the Legal Practitioners Act is provided below:

It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession and cause such rules to be published in the Gazette and distributed to all the branches of the Association.[Emphasis ours].

A dispassionate and conjunctive reading of the above section of the LPA reveals that the said section cited as authority for the making of the RPC, 2007 never conferred any personal, sole or lone power to the Attorney General of the Federation to make rules of professional conduct for the legal practitioners.

The said section clearly vests the duty of making rules of professional conduct for legal practitioners on the General Council of the Bar. It is on this background that it is strongly submitted that the preamble of the RPC is in itself contradictory. The framers of the preamble purport to derive personal authority to make the rules from a section that vests collective responsibility. This is more like putting something on nothing and expecting it to stand.

What is more, the introductory part of the said section provides that:

It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession …

The simple literal interpretation of the part of the said section cited above shows that if at all rules are to be made for the conduct of legal practitioners that such rules must be mandatorily made by the Bar Council sitting as such and for such purpose and this duty cannot be delegated to any person or member of the council, not even by the council itself. In effect, the use of ‘shall’ in the said section connotes a command but the command, it is submitted, is not that the Bar Council must make rules for the legal profession in Nigeria but that when rules are to be made on the conduct of legal practitioners it must be made by the Bar Council.

Flowing from the mandatory nature of who the enacting authority shall be in section 12 (4) of the LPA, the Bar Council, body empowered to make rules of professional conduct cannot even delegate the power section 12 (4) of the LPA vests on it. This is in line with the elementary principle of law that delegatus non poteste delegare (a delegate cannot further delegate power).

The Bar Council is established by section 1 of the Legal Practitioners Act. By the provision of section 1 (2) of the LPA the body has fifty-seven members consisting of the Attorney General of the Federation, who is the President of the Council, the Attorneys-General of the States; and twenty members of the Association. The quorum of the Bar Council shall be eight by virtue of section 1 (4) of the said law.

Therefore, though the Attorney-General of the Federation is the president and head of the Bar Council the relevant provision of the law, that is section 12 (4) of the LPA, that has been cited as conferring authority on him does not in fact do that. Consequently, being head of the council is not sufficient authority to act alone in making or amending rules when the act envisions collectivism is doing so.

It is therefore submitted, based on the interpretation we have given above of section 12 (4) LPA, that section 12 (4) LPA cannot be relied on as authority for the Attorney-General of the Federation to make or amend the provisions of the RPC. That being the case, the Attorney-General of the Federation could not have derived his power from the said section of the LPA.

Moving away from the above, the question that now bugs the mind is whether aside from the said section 12 (4) of the LPA the Preamble of the RPC can be relied on as authority to make or amend the RPC.

Our answer to the above issue is in the negative. The Rules of Professional Conduct made in 2007 is a subsidiary legislation and to be efficacious must draw life and force from its parent statute. Where it decides to claim superiority over the parent statute it becomes null and void to the extent of such shoulders it tried to rob with the parent statute. Therefore, the RPC made by virtue of power conferred by the LPA cannot be relied on.

Furthermore, the said preamble cannot be solely relied on in exception of a statute as authority to make or amend the RPC. This is because a preamble is

CONCLUSION

In conclusion, the AGF cannot unilaterally amend the RPC. The body with authority to amend or amend the RPC is the General Council of the Bar and the Bar Council can do when it feels it is appropriate to so do.