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Ripples over AGF’s amendment to lawyers’ rule of practice

By Bridget Chiedu Onochie, Abuja
22 September 2020   |   4:24 am
The ripples caused by the recent action by the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) are yet to settle.

Attorney-General of the Federation, Abubakar Malami

The ripples caused by the recent action by the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) are yet to settle.

In fact, it appeared to be deepening the division among lawyers, especially as some members of Nigerian Bar Association have accused the Minister of using the purported amendment to the Rules of Professional Conducts (RPC) to facilitate alleged plans by Northern Muslim to break away from the national body and create a factional body known as the New NBA.

It was also alleged that the said group of lawyers had already submitted its proposals to the AGF, and had purportedly gone ahead to demand his endorsement and recognition of the new factional body.

The timing of the amendment fueled the speculation. It coincided with the move the new leadership of NBA was making to settle grievances generated during the bar election.

Also, not only was the AGF accused of lacking the powers to effect such amendment, the fact that such action was executed without consultation earned him serious tongue lashing by some lawyers who felt that he acted unilaterally and beyond the limit of his powers.

The gazette marked S.I N0.15 of 2020 and issued by the AGF read in part: “In exercise of the powers conferred on me by section 12(4) of the Legal Practitioners Act Cap L11, LFN 2004, and of all other powers enabling me in that behalf, I, Abubakar Malami (SAN), Attorney General of the Federation and Minister of Justice, and President, General Council of the Bar, make the following rules:

“The Rules of Professional Conduct for Legal Practitioners 2007 is amended by deleting the following rules, namely: 9(2), 10, 11, 12 and 13.

“These rules may be cited as the Rules of Professional Conduct for Legal Practitioners (Amendment) Rules, 2020.”

While rule 9(2) relates to the default in payment of practicing fees, rule 10 relates to the issue of stamp and seal for legal practitioners.

Rule 11 relates to the mandatory continuing professional development, rule 12 relates to annual practicing certificate for legal practitioners, while rule 13 has to do with the obligation to give notice of the commencement of legal practice to the branch of NBA responsible for the jurisdiction in which the practice is located.

The implications of the amendment include the fact that the requirement for NBA stamp and seal on court processes has been deleted. The payment of annual practice fees by government lawyers has also been abolished.

Jibril S. Okutepa

Most lawyers were enraged by the purported amendment and have consequently vowed to see that he is stripped of his Senior Advocate of Nigeria’s title.

However, the fact that such action was coming at a time when the leadership of NBA is besieged with the burden of resolving the cold war elicited by the recent election of new executives gave credence to speculations that the amendment had some religious and ethnic undertone.

Recall that until the said amendment, membership of NBA was compulsory for all lawyers. Meanwhile, the stamps and seals were sold at N4, 000 for 72 pieces and were issued upon payment of annual NBA dues.

With the compulsory requirement of stamp and seal on court process or any other document, lawyers were compelled to pay annual dues as the only means for obtaining the stamps and seals.

But with the recent amendment by Malami, the need for stamps is subsequently defeated. No doubt, the amendment will have serious financial implication on the revenue base of the association if allowed to stand.

Expectantly, lawyers are divided over the issue. While some have thrown their weights solidly behind the AGF, others felt it was an outright abuse of his office and as such, the Minister should as a matter of honour, resign his position as the AGF.

Meanwhile, those who could not wait for him to resign have already petitioned the Privileges Committee headed by the Chief Justice of Nigeria (CJN), praying the Committee to strip him of the title of SAN, which was conferred on him in 2008.

A Port Harcourt-based lawyer, Chief Festus Oguche was among those who believed that the AGF lacked the power to unilaterally amend the rules, even as the head of Nigerian Bar.

“He said: I know he is the head of Nigerian Bar but that headship is cosmetics. It is mere ceremonial comparable to what Nnamdi Azikiwe was in the First Republic. There is nothing there that gave him the power to amend the rules of professional conducts.

“Those rules are set up under the approval of the General Council of the Bar of which he is the chairman and which also involves the intervention of all attorneys general in the federation and other prominent lawyers and the body of benchers. His action is symptomatic of the fact that the man does not know when he goes beyond his powers.”

He added: “This one is a very straight forward matter and it goes to show that the AGF has a terrible ambition for which he has to be called to order. The other time, he announced plan to set up another anti-corruption body.

“Now, he has come to touch the tiger by the tail by trying to fragment or tinker with the rules of professional conducts, which is a sacred bible for which lawyers regulate themselves and advance their courses as professionals,” Oguche said.

NBA’s President, Olumide Akpata

Earlier, NBA President, Olumide Akpata, had asked lawyers to shun Malami’s directive as according to him, “it is only the resolution of the Bar Council comprising the AGF, Attorneys General of the 36 states of the federation and 20 members of the NBA that can issue or amend rules of professional conducts for legal practitioners.

Apata maintained that Malami simply usurped the power inherent in the Bar Council.

In a statement he issued on September 13, Apata said: “I have seen and read statutory instruments No. 15 of 2020 (The Instrument) making the rounds on social media and which purports to amend certain provisions of the 2007 Rules of Professional Conducts for Legal Practitioners.

“Since the instrument was released, I have received numerous calls and messages from lawyers across the country seeking clarification and guidance on the purport of the instrument.”

But according to the explanatory note to the instrument issued by Malami, the move was done to bring the RPC into conformity with the provisions of the Legal Practitioners Act, the Law Officers Act, as well as the 1999 Constitution.

“For the avoidance of doubt, the Legal Practitioners Act (as amended) confers the power to issue rules of professional conducts for legal practitioners, and any amendment thereto on the General Council of the Bar (the Bar Council)”, Apata stated.

The position of the leadership of NBA was that it was not carried along in the said amendment and as such, it would ensure it was reversed.

“We just woke up to the news of the amendment like every other person. We are consulting with stakeholders and we will make a decision on the next step,” the body held.

For others, the issuance of stamp and seal did not only serve as a means of generating revenue for the association, it was also a way of checkmating activities of fake lawyers

Recall also that in the heat of the threat to divide the NBA, some Northern lawyers loyal to Apata had immediately after his inauguration exonerated themselves from any faction and pledged their allegiance to the national body and its leadership.

The group known as Northern Branches of NBA held that they have unanimously agreed to support the leadership of NBA and “we hereby restate our true allegiance to the NBA and disassociate ourselves from the “New NBA” or any splinter group whatsoever making the waves in recent weeks as a new association/body of lawyers in Nigeria.”

Adding” “We understand that the NBA has historically and in recent times, been fraught with several challenges but we are indeed assured that the NBA under the leadership of Mr. Olumide Akpata will surmount these challenges and birth an all-inclusive Bar that will work for all Lawyers in Nigeria regardless of any part of the divide one may belong.

“We were gratified to hear the NBA President during his inaugural address restate that the Bar that he wants to lead henceforth is one that is united on all fronts and which recognizes that our diversity is our greatest strength,” they stated.

So, the implication is that even among northern members, there is also division along religious lines. But whichever way, some senior lawyers have vowed not to relent until the said amendment was reversed.

For instance, former Chairman, National Human Rights Commission, Professor Chidi Odinkalu in his twitter handle said the amendment is as “dud as a bounced cheque and as such, should be disregarded.”

He added: “Nigeria’s AGF claims to have amended Rules of Professional Conduct (RPC) in the Legal Profession under powers conferred by Section 12(4l) of Legal Practitioners Act. There are no such powers. We have an AGF that cannot do basic due diligence.”

Professor Ondinkalu held that the only way to go was to totally disregard and ignore the alleged amendment. According to him, “it does not exist and did not happen.”

For some others however, it was uncharitable to crucify Malami over the purported amendment.

Although Chief Femi Falana (SAN), considered Malami’s action illegal since the amendment was not enacted by the General Council of the Bar, he however said NBA is only reaping from the impunity it birthed. To him, the stamp and seal only served to restrict access to justice.

He said: “NBA is a victim of impunity it nurtured to grow and develop. I have always opposed the stamp and seal because it was meant to restrict access to the temple of justice.

“Why must every court process be stamped by a lawyer when litigants have the constitutional rights to either appear for themselves or be defended by legal practitioners of their choice? He asked.

Falana cited instance with the late Professor Ayodele Awojobi, a mechanical engineer, who in the Second Republic was the leading public litigator in the country.

“As a layman, he prepared and argued his own cases from the High Court up to the Supreme Court.”

Also exonerating Malami of wrongdoing was an Abuja-based Senior Advocate of Nigeria, Jubril Okutepa.

He had referred to condemnation of the amendment as belated and not rooted in good faith.

Okutepa’s argument was based on the fact that when the 2007 rule was made by the former AGF, the association failed to correct the usurpation of power of the Minister then, simply because the rule was in its favour.

He therefore urged his colleagues to be consistent in their positions.

He said: “As lawyers, we must be consistent in our stand and positions. I had said before that the appropriate organ saddled with the responsibility of issuing and making the Rules of Professional Conduct in the legal profession is the General Council of the Bar pursuant to section 12(4) of the Legal Practitioners Act as amended by law No 21 of 1994

“The 2007 Rules was issued by the Attorney General of the Federation then. Those who care to read the Rules can see the preamble to the Rules wherein it was expressly stated to have been issued by the Attorney General of the Federation.

“Because that Rules conferred more financial advantages on our association – NBA, nobody took my stand and few other lawyers were serious when we spoke that the Rules was not issued in accordance with the due process of law,” he stated.

Kayode Ajulo

For an Abuja-based lawyer, Dr. Kayode Ajulo, the entire scenario rocking the NBA including the formation of facsimile bodies of legal practitioners made it glaring that the association was going through a turbulent and unprecedented time.

He noted that what seemed to be the straw that broke the camel’s back was the said amendment to legal practitioners’ rules.

Admitting that though the air was thick with rage, reactions and reprimands, there was need to look at the powers conferred on the AGF by Sections 1 and 12(4) of the Legal Practitioners Act and other relevant provisions.

He said: “Section 1 of the Legal Practitioners Act 2004 as amended establishes the General Council of the Bar. By virtue of Section 1 of the Act, the quorum of the Bar Council shall be eight and the Council may make standing orders regulating procedure and proceedings of the Council.

“The composition of the General Council of the Bar includes the Attorney General of the Federation as the President, the Attorneys General of the States and 20 members of the Bar.”

According to Ajulo, functions of the General Council of the Bar as indicated in Section 12(4) of the Legal Practitioners Act, 2004, include making rules from time to time on professional conduct in the legal profession and causing such rules to be published in the Gazette and distributed to all the branches of the Association.

“Be that as it may, my attention has been drawn to the statements accredited to the President of the Nigerian Bar Association to the effect that there were no consultations or notice to the members of the Association by the AGF prior to the purported amendment of the Rules of the Professional Conduct.”

He also drew his colleagues’ attention to the correction made by Chief Niyi Akintola (SAN), a member of the General Council of the Bar.

Ajulo held that the senior silk had corrected the said notion when he affirmed that Malami duly made consultations prior to the amendment of the Rules.

“It is therefore obvious that the unfounded allegations that the lawful and exclusive authority and powers of the General Council of the Bar have been so unabashedly usurped by the unilateral action of the Attorney General have been duly faulted by the assertions and confirmation by the Learned Silk to the effect that consultations were made prior to the Amendment of the Rules.

Chidi Odinkalu

“For the sake of clarity and completeness, I must place on record, pronto, that as stated earlier, Section 1 of the Legal Practitioners Act provides that the quorum of the meeting of the General Council of the Bar shall be eight (8).

“It therefore presupposes that the only persons with the toga to fault the Attorney General’s decision, particularly the statements of Chief Akintola as to the failure of some members to attend meetings, are members of the General Council of the Bar present at the meeting.

“I also find it amusing and uncharitable that a lot of comments are mistaken and misled by speculations. It is no surprise the spectators and observers are mostly excited. Whereas the insiders know better, it is about politics and law as in perception and reality.”

Ajulo therefore aligned with the AGF’s position that the amendments were in line with the provisions of the constitution, which clearly guarantees freedom of association, “and there have been agitations for several decades on the need to disband the monopoly wielded by the NBA, which I strongly believe is a step in the right direction.”

Considering the duplication of groups under the NBA such as the Christian Lawyers Fellowship of Nigeria (CLASFON), Muslim Lawyers Association of Nigeria (MULAN), Egbe Amofin, the Nigerian Lawyers Association (NLA), Association of Lawyers with Disabilities in Nigeria and several others, Ajulo wondered the rationale behind attacks on the AGF for allegedly amending the Rules of Professional Conduct on the heel of tribalism and ethnic favouritism.

“I am compelled to admonish that as ministers in the temple of Justice and as members of this noble and sophisticated profession, lawyers are supposed to be bound by a code of conduct, embrace courtesy and chivalry, which are the founding tenets of this noble profession rather than raising arguments frivolously fritted on the altar of making needless point and raising banters like market women.

“Perhaps, we should look inward and strategize on ways to ensure the unity of the profession rather than allowing unfounded assumptions to pummel and pulverize the labours of our founding fathers”, Ajulo admonished.

As it stands, the body of lawyers is more divided than united and it appears the disunity is taking toll on the body’s sense of judgment. Unfortunately, it doesn’t appear as if the need to achieve a common stance for sake of posterity is a foot.