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
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
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.