Law Reform in Nigeria is Now An Imperative

Background

Barely a fortnight ago, three of Nigeria’s leading and most eminent Senior Advocates surviving from what now appears to be the golden age of legal practice here in Nigeria, had cause to write the Chief Justice of the Federation and Chairman of the Legal Practitioners Privileges Committee (LPPC), Hon. Justice Ibrahim Tanko Muhammad, expressing concern over the way and manner Lawyers were being elevated to the prestigious rank of Senior Advocate of Nigeria (SAN) in recent years. Writing under the auspices of the Body of Senior Advocates (BOSAN), Professor Ben Nwabueze, SAN (foremost constitutional Lawyer and Nigeria’s leading Senior Advocate) , Professor AB Kasunmu, SAN (Nigeria’s most senior courtroom advocate) and Chief Folake Solanke, SAN (Nigeria’s foremost female Senior Advocate), asked the LPPC to consider suspending elevation to the rank of SAN for three years. The letter which was also signed by Seyi Sowemimo, SAN, BOSAN’s long standing Secretary, pointed out that the number of SAN’s appointed in the year 2020 in particular (totalling 72 in number) were far too many, and that this was contrary to the practice and standards established over the years.

To be candid, it is all very well for those who have already been conferred with the rank to want to protect their prestigious, exalted and celebrated status out of self interest, but the problems facing the legal profession today, runs far deeper than just the annual application process to become a SAN. Over the years, there has been an almost complete disregard and neglect for law and justice sector reform, and BOSAN has to accept its own fair share of responsibility for this impasse.

When I was called to the Bar about 40 years ago, there were only about 6 or 7 Universities that had Law Faculties in the entire country. This enabled the Council of Legal Education to monitor and gauge the standards of the various Faculties of Law, across the country. No more than about 500 were called to the Bar in any given year, and there wasn’t a need to have more than one Law School for the entire country. Today, our various Law Faculties across the country churn out close to, if not in excess of 5,000 graduate Lawyers annually. Many of these Lawyers will be qualified to apply and become SANs in about 10 years time, if they meet the criteria. Considering the number of legal practitioners Nigeria now produces annually, what justification is there for denying applicants the title, if they satisfy the necessary criteria? Some applicants have even had to apply as many as ten times, before eventually being conferred with the rank.

Determination of Leading Advocates

Every country needs to be able to determine, and know its leading advocates. That’s a given in my view, but the real question is, what is the basis for determining this criteria? For years now, advocacy has been placed on the back burner in place of written briefs/addresses, and this is a real tragedy. Instead of us finding a way to relieve our Judges of the burden of having to hand-write court proceedings, we have instead adopted the written briefs/address in place of advocacy. Many of these written briefs/addresses are written by Lawyers unknown to the courts, but adopted by a Lawyer desirous of becoming a SAN, without the court in most instances scrutinising, assessing or asking questions about the written brief/address. Should this be the accepted criteria and procedure, to determine our best advocates? What benefit does this practice bring to advocacy in the long term? It simply makes it easier for Lawyers to circumvent the system, and apply to become SANs.

Secondly, the rank of SAN has developed into a cartel. It’s become a means to make vast and huge sums of money. As a consequence, almost every Lawyer is pursuing the rank not out of ability, talent, capability or capacity to develop the law, but as an avenue to amass a fortune. This has placed overbearing pressure on the application process for SAN, but on the flip side of the coin is, can we really blame the applicants? As far as they are concerned, once you qualify, you are qualified. Why should anyone be denied elevation, if they meet the necessary criteria? The focus now needs to be on improving our administration of justice system, and possibly creating another cadre of elevation for the legal practitioner which would not only aid the administration of justice system, but also make it easier for our courts to scrutinise and determine our best advocates.

Various Cadre of Elevation

In the UK which was cited as an example by the eminent SANs in their letter, various cadres of elevation in the profession exists other than the QC (Queens Counsel) equivalent of our SAN. Many of these other cadres of elevation such as the Recorder and Master but to mention a few, contribute to the smooth effective and efficient running of the administration of justice system. Ideally, another rank needs to be created that will not only relieve pressure on the application process to become SAN, but also aid the administration of justice system.

In my opinion, the purple robed Circuit Judge would ease such pressure. Lawyers of at least ten years standing who are prepared to devote three months of the legal year to sit as a circuit Judge on interlocutory matters, would be extremely valuable. What are the immediate benefits, this new rank could bring to our legal system? It would aid the substantive Judge in the smooth administration of justice, in that they would now be able to focus on trials which are the bedrock of justice delivery in any society. That’s good for justice administration. The Judges from trials, would get to know our best Lawyers. Corruption will equally become less, because the substantive Judge is no longer handling interlocutory matters and the circuit Judge is not known – this is because, ideally, a circuit Judge will operate in a State outside where he or she has their main practice. It would be wonderful if Nigerian case law could be cited in other Commonwealth jurisdiction once again but our Courts need to deliver judgments on substantive issues of law and not technicalities, many of which emanate from our Constitution. Judges need to be known for handing down good, well researched and written judgements. There is too much emphasis these days on the SAN. How many of us remember Sapara Williams or Akitoye Ajasa? Lawyers are usually the flavour of a particular generation, but a good well researched and written judgement will withstand the test of time, and be talked about for years to come.

The Road to Law Reform

Once again, it all centres on law reform. It is a shame that we haven’t kept abreast with significant reforms to the English Common Law, and as a consequence, a lot of it is no longer relevant in these climes. Another significant reform in my view, would be to take out a lot of the judicature provisions in the 1999 Constitution (as amended) and place them into an Administration of Justice Act, thereby allowing the judicial and legal authorities to reform and amend legislation when it’s prudent to do so, without the need for a constitutional amendment. It would also enable us to shadow and keep an eye on significant developments of the English Common Law, and other Commonwealth jurisdictions. One thing is absolutely clear; we have the knowledge and personnel to implement the sort of reforms suggested. It is the desire and determination, that is questionable.

We have SANs who double up as QCs such as Professor Fidelis Oditah QC, SAN and Oba Nsugbe QC, SAN, their experience practicing abroad could be invaluable in aiding law reform. The Chairman of the Council for Legal Education, Emeka Ngige, SAN and Professor Epiphany Azinge, SAN, a former Director General of of the Nigerian Institute of Advanced Legal Studies, Abuja are both very amenable. Some other leading Lawyers spearheaded by Yemi Candide- Johnson, SAN, have equally set up the Justice Reform Project. We also have many accomplished academics at home and abroad too many to mention. If we engage and consult the numerous talented professionals in both the legal and judicial sectors, and find a means of coordinating their ideas within a short period of time, we will be able to come up with a satisfactory blue print for legal and justice sector reform to move us forward.

Finally, it is worth pointing out that many at the Bar would feel a lot more appreciative of our senior and leading advocates, if they could find time to devote more effort to significant law reform so as to improve the daily practice of law, and aid the smooth and efficient running of our administration of justice system. They owe this to their junior colleagues at the Bar and to future generation of Lawyers, in the hope that, in the long run, they will be able to do better for themselves in the general practice of law than the golden generation of the legal profession were ever able to do for them.