A Critique of the New Supreme Court Rules and Sundry Legal Anomalies (Part 2)

Introduction 

The first part of this intervention, examined the constitutional authority for enacting the new Supreme Court Rules. It then asked what difference the new Rules made, with specific reference to the issues of costs, right of audience, conditions of appeal, its prohibition of stay of proceedings in interlocutory appeals and elections. In this week’s feature, we shall discuss other anomalies of the enabling statute of the Supreme Court Rules vis-à-vis the 1999 Constitution, as well as related statutes such as the Notaries Public Act. I then questioned the legitimacy of legal practitioners acting as Receivers/Managers. Is it proper or does it constitute a prohibited trade or business under Order 7 of the Legal Practitioners Rule of Professional Conduct, 2023. To find out, please read on. 

Other Anomalies

Beyond the foregoing, it does appear that even the enabling statute of the Apex Court (apart from the Constitution, that is) the Supreme Court Act, Cap. S. 15, LFN 2004, also contains at least one provision which appears to be somewhat at odds with the Constitution. That provision is Section 11 of the Supreme Court Act which provides that “a single Justice of the Supreme Court may exercise any power vested in that court other than the final determination of any cause or matter, provided that- 

a) In criminal cause or matter, if any Justice refuses an application for the exercise of any such power, the person making the application shall be entitled to have his application determined by the Supreme Court; and

b) In civil causes or matters, any order, direction or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the Supreme Court”.  

It seems that this provision contradicts those of Section 234 of the 1999 Constitution which provide that “for the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five Justices of the Supreme Court; provided that where the Supreme Court is sitting to consider an appeal brought under Section 232(2)(b) or (c) of this Constitution, or to exercise its original jurisdiction in accordance with Section 232 of the 1999 Constitution, the Court shall be constituted by seven Justices”.

However, apart from Section 11 of the Supreme Court Act, yet another anomalous provision, vis-à-vis those of Section 232 of the 1999 Constitution as aforesaid, in my view, is constituted by Section 14 of the Notaries Public Act, 2023, which stipulates as follows, inter alia: 

“When inquiring into a complaint against a Notary Public, the Supreme Court, by the powers vested it in accordance with the provisions of this Act, shall be duly constituted when exercised by any three Justices of that Court present and sitting together;

The decision of the majority of the three Justices shall be taken to be the decision of the Supreme Court”.

In this particular case (that is, the Notaries Public Act), it does appear that the anomalies inherent therein are more fundamental, as it is not at all clear where the National Assembly acquired the authority to empower the Chief Justice to ‘anoint’ (the Act uses the word ‘appoint’) a legal practitioner as a Notary Public. The Constitution is certainly silent on it, and I don’t think it can be reasonably inferred from the provisions of Item 68 of its Exclusive Legislative List.

One would have thought that such ‘ennoblements’ ought to be within the purview (or scope) of the powers of the Legal Practitioners Privileges Committee, which as its name suggests, is a multi-member body, instead of the case with Notaries Public, whose appointment is at the sole discretion of the Chief Justice. This is certainly odd. 

Be that as it may, however, as I previously submitted, the anomalies in the Notaries Public Act extends beyond the forgoing. They include the oaths which newly-appointed Notaries Public are obliged to take, as contained in the First Schedule to the Act. The anomaly in this provision is that once again, the Constitution is silent on any power or authority (express or implied) of the National Assembly, to enact any provision requiring the taking of oaths, either by Notaries Public or any other person whosoever.

This is because, the Constitution appears to have covered that field vide the Seventh Schedule thereto. Needles to say, if this view is correct, it means that the Oaths Act is invalid, null and void, as it would be ultra vires the National Assembly. In other words, the only oath which persons occupying (or about to occupy) official positions other than those mentioned in that Schedule are obliged to take, is the Oath of Allegiance contained therein. I hope I am wrong.  

Can Legal Practitioners be Receivers? 

Yet another ominous legal anomaly, is the age-long practice of Legal Practitioners acting as Receiver/Managers (usually appointed by Banks) to manage the business and assets of their debtors and to recover debts owed to such Banks, for a fee (usually a percentage of any debts actually recovered by the Receiver). Such appointments are usually made pursuant to specific clauses in Mortgage Debentures, All-Assets Debentures or Debenture Trust Deeds. Many (if not all) such legal practitioners so appointed, are invariably engaged in active legal practice and they happily combine both occupations, having the best of both worlds and smiling all the way to the Bank to such an extent that they are the envy of many of their professional colleagues who are not so privileged to wear two hats, as it were.

I believe that, to the extent that such legal practitioners are remunerated for rendering or performing such services as Receivers/ Managers, their status is somewhat ambiguous, as they are operating in what is, at best, ‘uncharted territory’. This is because the express (if not implied) provisions of Order 7 of the Legal Practitioners Rules of Professional Conduct, 2023 (and its previous iterations) appear to preclude them from combining the two. For ease of reference, they are set out below, vis:

“7(1) Unless permitted by the General Council of the Bar (hereinafter referred to as the “Bar Council”), a Lawyer shall not practice as a legal practitioner at the same time as his practice any other profession.

(2) A Lawyer shall not practice as a legal practitioner while personally engaged in –

(a) The business of buying and selling commodities;

(b) The business of a commission agent;

(c) Such other trade or business which the Bar Council may from time to time declare to be incompatible with practice as a Lawyer or as tending to undermine the high standing of the profession.

(3) For the purpose of this rule, “trade or business” includes all forms of participation in any trade or business, but does not include –

(a) Membership of the Board of Directors of a company which does not involve executive, administrative or clerical functions;

(b) Being secretary of a company; or

(c) Being a shareholder in a company”.    

Conclusion

Well-intentioned as the innovations of the new Supreme Court Rules undoubtedly are, it ought not to blind us to their inherent anomalies, some of which are outlined above. It is in this light that one cannot but observe that the new Rules (particularly, its prescriptions for the summary termination of appeals by the court (suo motu) for non-compliance with conditions of appeals, as well as denial of right of audience to Counsel who fail to pay costs awarded against them) appear to elevate the Rules above the need to do substantial justice. 

This is worrisome, as it is something of a throwback to the days of old when justice was often sacrificed on the altar of rule-backed technicality and is rather unfortunate, as it bears remembering that, as the Apex Court has repeatedly held:

“(Although) Rules of court are meant to be complied with, (however) the principal object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with those rights . . . Rules of court are made to help the court in its primary duty and objective, namely, to do justice to the parties by deciding on the merits of their case. Those Rules are mere hand-maids to justice, and inflexibility of the Rules will only serve to render justice grotesque. It will therefore, be undesirable to (enact) Rules which will merely enable one party to score, not a victory on the merits, but a technical knockout at the expense of a hearing on the merits… If strict observance of a rule of practice will produce injustice, then a court of justice will naturally prefer doing justice to obeying a rule which is no longer an aid to justice”.

See NNEJI v CHUKWU (Supra) at Pg. 207 per Oputa, JSC. I need say no more. 

Pointing out the foregoing anomalies is our bounden duty as Counsel, because, as observed by the Supreme Court in IFEZUE v MBADUGHA (1984) 1 SCNLR 427 (quoting, with approval, from ST. JOHN SHIPPING CORP v J. RANK LTD (1975) 1 & B 267 at 282) “One must not be deterred from enunciating the correct principle of law, simply because it may have startling or even calamitous results”.  (The End)

THOUGHT FOR THE WEEK

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds, or violates the rights of individuals. But, the Court must also recognise the limits on itself, and respect the choices made by the American people.” (Elena Kagan[.