And This is What Happens When a Leopard is Mistaken for a Cheetah (A Rebuttal to Sylvester Udemezue’s Surrejoinder.) – Bolaji Ramos

Introduction

This is the fourth write-up between my most respected Mr. Sylvester Udemezue and me on the issue of the social, legal, professional and grammatical appropriateness or otherwise of the use of the word “barrister” as a prefix before a lawyer’s name. It all started with the LPDC decision in NBA v. OFOMATA (2017) 5 NWLR (Pt. 1557) 128. Then, Mr. Udemezue came up with an article titled “On The Ruling In NBA v. Ofomata Banning Lawyers From Using The Title Barrister.

In the article, the learned Nigerian Law School lecturer, Mr. Udemezue, relying on the decision and section 22(1)(b) of the RPC articulated as follows:

1. The word “Mr.” is a title used before a surname or full name to address or refer to a man. It is awkward to say “Barrister Robert Smith”.
2. Using the word “Barrister” as a prefix before a lawyer’s name is unfortunate, unnecessary and amounts to touting and showing off, in that it is socially and professionally childish and it is an inappropriate behavior.
3. The word “Barrister” is a profession or an occupation. It is not a title or a honorific.
4. Using the word “Barrister” as a title makes a lawyer look like a “charge and bail” lawyer.

5. A lawyer that insists on using the word as title is engaging in brazen “advertising”, “soliciting” and even ‘touting”, all which are substantially unprofessional and demeaning.

In my rejoinder to his article titled “And What Is Wrong In Using The Title “Barrister”? (An Answer To Sylvester Udemezue)”, I have argued as follows:

1. There is nothing professionally untoward, legally objectionable and grammatically imbalance in using the word “barrister” as a prefix to a lawyer’s name.

2. An argument on the appropriateness or otherwise of the use of the word has a strong bearing on three areas of interests: (a) professional practice; (b) law; (c) grammar.

3. There is presently nothing in the Rules of Professional Conduct (RPC) 2007 and the Legal Practitioners Act LFN 2004 prohibiting a lawyer either expressly or impliedly from taking or using the word “barrister” as a prefix to a lawyer’s name.

4. Rule 40 of the RPC 2007 may operate as an authority for using the word “barrister” as a prefix to a lawyer’s name to show his professional qualification on his notes, envelopes, cards and others.

5. Negative references such as ‘unfortunate’, ‘childish’, and ‘demeaning’ by Udemezue, Esq. to fellow colleagues who chose to use “barrister” before their names run afoul of the provision of Rule 26 of the RPC 2007.

6. Udemezue’s submission that the word “barrister” is a profession or occupation, and as such cannot be used as a title or prefix before a lawyer’s name lacks grammatical support.

In response to my rejoinder, the learned Law School lecturer handed down a lengthy surrejoinder titled “Indeed, Everything Is Wrong With Use of “Barrister” As An Honorific Title Before A Lawyer’s Name ( A Surrejoinder By Sylvester Udemezue)” He has argued as follows:

1. The entirety of Ramos’s arguments are misplaced and lacking any legal, moral, professional, grammatical or social foundation.

2. Ramos completely left out section 22(1)(b) of the LPA which is the legal provision on the matter at hand, and he forgot that courts of law in reaching their decisions are guided by provisions of statutes. Once a court has interpreted a statute, one is no longer entitled to interpret such statute without recourse to the decision of the court thereon.

3. The LPDC has given a decision that the use of “barrister” as a title before a lawyer’s name is unprofessional and improper. As far as the correct position of law in Nigeria today is concerned, it remains the law.

4. Application of literal interpretation of Rule 40 (b) of the RPC 2007 shows that the rule does not authorize the use of “barrister” as a prefix before a lawyer’s name. No section of the LPA or RPC supports that proposition whether expressly or impliedly.

5. Relying on http://en.wikipedia.org/wiki/Barrister#United_Kingdom , the word “barrister” in England and Wales also refer to a profession.

6. The word “barrister” as an English word is a noun, not an adjective and must never be used as an adjective. To say or write Barrister Bolaji Ramos means to commit a grammatical gaffe. Therefore, it is grammatically wrong, childish and awkward.

7. There is hardly any lawyer in England today that goes about using “barrister” or “solicitor” as a prefix before his name.

8. Citing examples such as “professor” and “engineer” to rationalize the use of “barrister” is incongruent, incoherent and incompatible.

9. It is wrong legally, contemptible professionally, inappropriate grammatically, unsuitable socially and inacceptable formally, demeaning and downright childish to use “barrister” as a prefix to a lawyer’s name.

Having made all the nine points highlighted above, Mr. Udemezue is of the opinion that “the aforesaid has made this matter clearer and has shown that this ‘title’ debate is unnecessary”.  Yes, I believe very firmly that this ‘title’ debate is indeed unnecessary. However, for posterity, reference and record sake, we must always continue to put certain things in proper perspective. With utmost respect, Mr. Udemezue’s nine major submissions in the surrejoinder highlighted above together with all the secondary authorities called in aid to support them do not in any way make the matter clearer, as they further complicate a rather simple issue.

The crux of my position is very simple. I have submitted earlier in my rejoinder that colleagues in the legal profession who have elected to be addressed or write their names starting with the prefix “barrister” should not on that basis be called “charge and bail” lawyers or termed with negative adjectives such as ‘childish’, ‘unfortunate’, ‘unprofessional, ‘unnecessary, ‘inappropriate’ and ‘demeaning.’ Relying on Rule 26 of the RPC, I have argued that describing fellow colleagues in the legal profession in such manner is in itself unprofessional.  If I, as a legal practitioner, can publicly call my learned brother a ‘charge and bail’ lawyer or other disdaining adjectives solely on the ground that he elects to be addressed as “barrister” this or that, then I honestly wonder what is still noble about the legal profession or what is left to be respected in the legal profession in Nigeria by non-lawyers. Charity, they say, must begin at home.

I will now go into Mr. Udemezue’s submissions as handed down in his surrejoinder. I have rightly observed in my rejoinder (and Mr. Udemezue agreed with me) that an argument of this nature borders on professional practice, law and grammar. The overall conclusion reached by the learned lecturer is that it is wrong legally, contemptible professionally, inappropriate grammatically, unsuitable socially and inacceptable formally, demeaning and downright childish to use “barrister” as a prefix to a lawyer’s name. With respect, I wholeheartedly disagree.

Wrong Legally and Contemptible Professionally? 

Mr. Udemezue’s submission that using the word “barrister” as a prefix or an honorific is wrong legally and contemptible professionally was argued under the sub-heading The Position of Law With Particular Reference to the Legal Profession. He relied on section 22(1)(b) of the LPA; Rule 40(b) of the RPC 2007 and the case of NBA v. Ofomata. The learned lecturer, having concluded that the relevant legal provision on the matter, is section 22(1)(b) of the LPA merely argued that:

“While section 22 (1) (b) permits only lawyers to “take or use the title of legal practitioner,” it does not say the later should use the expression “legal practitioner” or “barrister” as a title before his names. The proper interpretation of that paragraph is that only a person duly qualified as a lawyer can hold himself out as a legal practitioner by using that title.”

An actual look at the provision of section 22(1)(b) of the LPA shows that it has no business whatsoever with whether or not a lawyer uses the word “barrister” as a prefix before his or her name. The section is merely talking about the fact that it is an offence for a person who is not qualified as a lawyer to refer to himself or herself a legal practitioner. What baffles me the most is why Mr. Udemezue (with utmost respect) brought in the word ‘permits’ in his assertion, having in mind the implication of using such word when it comes to interpretation of statutes. Not even all canons of interpretations combined as presently known in all jurisdictions in the world can read the wording of section 22(1)(b) of the LPA to  mean express or implied prohibition of a lawyer who has been called to be bar from using the prefix “barrister” before his or her name. This may explain why the provision of section 22(1)(b) was neither reproduced nor paraphrased in Mr. Udemezue’s main write-up and his surrejoinder . I am of the opinion that Mr. Udemezue misconstrued the purport of section 22(1)(b) so much so that not putting things in proper perspective through this medium will do a disservice to legal scholarship and advocacy.

I also, in strong terms, fault the counter argument canvassed by the learned lecturer in respect of Rule 40 of the RPC. His argued is that application of literal interpretation of Rule 40 (b) of the RPC 2007 shows that the rule does not authorize the use of “barrister” as a prefix before a lawyer’s name, and that no section of the LPA or RPC supports that proposition whether expressly or impliedly. If I may ask: Application of literal interpretation by who? While I attempted to explain in my rejoinder the purport of Rule 40 of the RPC and why it may include the use of “barrister’” as a prefix before a lawyer’s name, Mr. Udemezue did not make any attempt whatsoever to explain why Rule 40 will not include the use of “barrister” as a prefix before a lawyer’s name. He merely said literal interpretation of Rule 40(b) shows that the rule of not authorize the use of “barrister”.

In my analysis and conclusion that Rule 40 may be an authority for a lawyer to use the word “barrister” as a prefix before his or her name, I cited three decisions of the Supreme Court on how the word “include” or “including” has always been interpreted. And I concluded that “reliance may be placed, by stretch of argument, on Rule 40 as an authority for using the word “barrister” as a prefix to a lawyer’s name to show his professional qualification on his notes, envelopes, cards and others”. Mr. Udemezue obviously (and deliberately) shied away from this point and he refused to offer his own analysis of or authority on Rule 40.

Finally, the learned lecturer put all his weight on the decision of the LPDC in NBA v. Ofomata  to dismiss all the submissions in my rejoinder. Mr. Udemuzue has said in his surrejoinder that I ‘did not bother to read the judgment of the LPDC in the case before I hastily ventured into my rejoinder’. With due respect, sir, that is not correct. I have read and perfectly understood the decision of the LPDC in the case, and what I see is a failed attempt by Mr. Udemezue to portray to the public what My Noble Lords did not decide or intend in the case. I would think that explains why in both the main article and the surrejoinder written by Mr. Udemezue, he  has failed to sufficiently quote the Honourble Members of the LPDC on the issue.  I am not only going to quote them here, but I am also going to give the background, the issue and the decision in the case so that the public may be better informed.

(I) The Facts— 

A lawyer (the Petitioner) was approached by his corporate client to help it purchase a piece of land. The Petitioner approached his long-time friend who is also a lawyer (the Respondent). The Respondent fraudulently procured the title documents of another person and misrepresented to the Petitioner that he was the owner of the land. As a result, the Petitioner paid Respondent the sum of N5,940,000.00, and a deed of assignment was executed between the Respondent and the Petitioner’s client. When the Petitioner’s client started working on the land, it was intercepted by the original owner of the land who said that she only gave her title documents to the Respondent for safe-keeping. After the Petitioner discovered that the Respondent had defrauded him and his client, the Petitioner asked for return of his money, but the Respondent did not pay it back. The Petitioner eventually placed a complaint before the NBA against the Respondent. From there, the complaint got to the Legal Practitioners Disciplinary Committee (LPDC) after the NBA had found a prima facie case against the Respondent.

(II) The Issue for Determination—

A three-count charge was filed by the NBA against the Respondent before the LPDC. The singular issue before the LPDC for determination was  “whether or not the Respondent by his conduct with the Petitioner violated the provisions of the Rules 1, 10, 21, 24, 49, 52 and 55 of the RPC and thereby guilty of infamous conduct.”

At this point, it is instructive to note the following:

(a) Rule 22(1)(b) which Mr. Udemuzue asserted affirmatively to be ‘the relevant legal provision on the matter at hand’ both in his main article and his surrjoinder was never in issue and was never interpreted by the LPDC.

(b)The use or otherwise of the word “barrister” as a prefix before a lawyer’s name was never in issue in the case.

(c) None of Rules 1, 10, 21, 24, 49, 52 and 55 of the RPC which the LPDC considered prohibits or borders on the use or otherwise of the word ‘barrister’ as a prefix before a lawyer’s name.

(III) The Decision—

The decision of the LPDC was (and rightly so) based only on the issue before it. The decision is that the Respondent is guilty of infamous conduct and his name was struck off the roll of legal practitioners in Nigeria.

(IV) Mere Observation or The Ratio—

Now, one may ask that where exactly did the issue of the title “barrister’ come in in all of this. While the judgment of the LPDC was being delivered by J.B Daudu (SAN), he said on page 133 that:

“We observed that in the 3 counts, the Complainant referred to a legal practitioner by name ‘Ikenna C. Ofoma’…as ‘Barrister Ikenna C. Ofoma’. The appellation of ‘Barrister’ as a title before the name of a legal practitioner is unprofessional and improper; we therefore struck out the title ‘Barrister’ in each of the 3 counts whenever it was meant to describe the said Ikenna C. Ofoma ESQ.”

The law is settled that mere observations by the court of law or a tribunal like the LPDC cannot constitute a binding ratio decidendi of the court. Such observations made by the court can only operate as obiter dicta. The Supreme Court has continued to reiterate this point, even in its 2017 decisions. In Onofowokan v. Weman Bank Plc (2011) NSCQLR vol. 45, 181 S.C.pp.45-46, paras. F-B, the Supreme Court, defining an obiter dictum and its effect held that:

“What is then an obiter dictum? This question has been answered by my learned brother Edozie JSC in the case of AIC Ltd v. NNPC (2005) 11 NWLR (pt. 937) 563 at 589, when his Lordship held as follows:- “obiter dicta reflect, inter alia, the opinion of the judgment of the Judge which does not embody the resolution of the court. The expression of judge in a judgment must be taken with reference to the facts of the case which he is deciding the issues calling for decision and answers to those issues“. 

In LAWAL (Obobahin of Ihima) V. OHIDA (2009) LPELR-CA/A/181/06, pp.71-72, paras G-A, it was held that:

There is a distinction between a ”ratio decidendi” and an ”obiter dictum”. The ”ratio decidendi” of a case represents the reasoning or principle or ground upon which a case is decided. An ”obiter” simply means, in passing or incidental or cursory. An “obiter dictum’ reflects, “inter alia’; the opinions of the Judge, which do not embody the resolutions of the court. See the cases of: (1) Osafile V. Odi (No.1) 0990 3 NWLR (pt. 137) p. 130; (2) A.I.C Ltd V. NNPC (2005) 11 NWLR (Pt. 937) P. 563 and (3) Awakunle V. NEPA (2007) 15 NWLR (Pt. 10.57) p. 340.”

In a very recent case decided in 2017, the Supreme Court again in AG Kwara State v. Lawal (2017) LPELR-42347(SC), p.11, paras D-F reiterated again that:

“An obiter dictum is just a mere side talk or remark made or expressed by a Judge in his decision upon a case which side talk, remark or opinion is just by the way or is merely collateral or incidental and not really directly upon the question or issue before the Court for decision. See ONAFOWOKAN & ORS. v. WEMA BANK PLC. & ORS. (2011) 5 SC. [pt. II); BAMIGBOYE v. UNIVERSITY OF ILORIN (1999) 6 SCN 324.” Per EKO, J.S.C. (P. 11, Paras. D-F) 

Further, making a distinction between ratio decidendi and  obiter dictum, the Supreme Court came out very emphatic in a very recent decision that observations will constitute nothing but an obita dictum. In Atanda v. Hon. Commissioner for Lands and Housing, Kwara State (2017) LPELR-42346(SC), pp.9-19, paras D-D, the Apex Court held that:

The decision of the lower Court was not linked with the remarks of the learned justice of the Court below at all. That is to say, it is not ratio decidendi of the decision which is the subject matter of this appeal. On the other hand, “ratio decidendi” is the reason on which the Court based its judgment or it is the principle of the decision, unlike obiter dictum. The latter simply entails comments or passing remarks by a judge or Court or its observation(s) which is certainly not meant to be the principle or the basis upon which the decision of the Court was based or hinged on. It is simply an observation or mere passing remarks or comment. Such remarks, comment or observation(s) is no doubt not meant to play any part in the decision the Court arrived at in its judgment.“Per SANUSI, J.S.C. (Pp. 9-10, Paras. D-D)

In line with all the authorities of the Apex court cited above, it is more than clear that the observation and comment made by the LPDC on the use of “barrister” before the name of the lawyer in question is nothing but an obita dictum which does not form part of the judgment of the LPDC for the following reasons:

(a)The use or otherwise of the word ‘barrister’ was never an issue before the LPDC. 

(b) None of the parties brought it up before the LPDC as an issue for determination and it was never raised as an issue by the LPDC suo motu. 

(c) The use or otherwise of the word ‘barrister’ has no weight on the judgment of the LPDC neither does it affect the judgment of the LPDC in anyway. It is not the reason on which the LPDC based its judgment.

 (d) The use or otherwise of the word ‘barrister’ is not the principle upon which the judgment was based. Even the LPDC confirmed that it was an observation.

(e) Parties were never called to address the LPDC on its appropriateness or otherwise under the RPC. None of all the rules of RPC relied on by the LPDC to determine the case prohibits the use of the word ‘barrister’ either directly or impliedly.

(f) The observation of the LPDC on the issue of “barrister” cannot be appealed, as it is settled law that only opinions emanating from the ratio decidendi or the issues before the court may be appealed against.

I state, with due respect, that Mr. Udemezue’s entire submission to the effect that the case of NBA v. Ofomata decided by the LPDC represents the current legal position in Nigeria that a lawyer cannot use the word ‘barrister’ before his or her name is incurably misconceived and capable of misleading unsuspecting members of the public, especially non-lawyers. The correct position is that there is presently no law, judgment or rules of practice in Nigeria prohibiting a lawyer from using the word “barrister” as a prefix before his or her name. 

Inappropriate Grammatically? 

The learned lecturer’s submission on this point is the word “barrister” as an English word is a noun, not an adjective and must never be used as an adjective. He argued further that to say or write Barrister Bolaji Ramos means to commit a grammatical gaffe. He concluded that it is, therefore, grammatically wrong, childish and awkward.

I have said in my rejoinder that “an argument on the appropriateness or otherwise of the use of the word “barrister” before the name of a lawyer has a bearing on three areas of interests: professional practice, law and grammar. This is the grammar part. A good knowledge of English Grammar is a hydra headed weapon in the hands of a lawyer, and now is the time to put it to use. In English Grammar, there are nine (9) parts of speech, namely: article, noun, pronounce, adjective, verb, adverb, conjunction, preposition and determiner.

 It is very wrong to assume that an English word must belong only to one of the nine parts of speech. By their nature, certain English words may belong to two or more parts of speech. I believe this is trite, but we still must talk about it since we have joined issues on it. It normally happens that the English words that belong to two or more parts of speech usually do so under two circumstances:

(a) Those that naturally belong to two or more parts of speech by their dictionary meanings. Examples include: water (noun & verb), plant (noun & verb) etc.

(b)Those that belong to two or more parts of speech by usage or coinage. Examples include: animal (when used as an adjective to qualify a noun that follows it— as in Animal farm, Animal feed, Animal areas etc). Under this grammatical principle, nouns may be used as adjectives to qualify other nouns. Other examples in this regards include: Doctor Smith, Justice Smith, Apostle Smith, Captain Smith, Professor Smith, Barrister Smith, Chief Smith, Stomach pains and leg

If one checks the parts of speech that the words ‘Doctor’, ‘Justice’, ‘Apostle’, ‘Captain’, ‘Professor’, ‘Barrister’, ‘Chief,’ ‘leg’ and ‘Stomach’ belong to in reputable dictionary like Oxford Dictionary and Cambridge Diction, one will discover that all of them are tagged ‘nouns’. The question is: does it mean using them as adjectives is grammatically wrong? The answer is an echoing NO! On this strength of this, I say respectfully that Mr. Udemezue’s submission that word “barrister” as an English word is a noun, not an adjective and must never be used as an adjective is grammatically misconceived. The word ‘barrister’ as a noun may be used as an adjective to qualify another noun. 

Unsuitable Socially? 

Relying on about five informal online articles, (four of which are of American origins and addressing issues that are not directly related to whether a Nigerian lawyer cannot use the word “barrister” before his name) learned Mr. Udemezue has opined that  using the word “barrister” as a title or honorific before the name of a lawyer is unsuitable socially. The honest question I will ask is: In whose society or country is it socially unsuitable to refer to a lawyer as ‘Barrister Lagbaja or Barrister Tamedu?’ In the USA, England or Nigeria?

The uses and norms of a society are determined by the people that live in that society, not the people that live in another society. There might be cultural universals on certain things, but societal reference to people of a particular class is something that is often culture-specific and determined by the people in the society in question. The larger percentage of the peoples in the Nigerian society refer to people in medical profession as Dr. This; the people in legal profession as Barr. That; the people in nursing profession as Nurse This; and the people in the engineering profession as Engr. That. In line with this elementary sociological principle, equating social specifics in Nigeria to what is obtainable in the US is incongruent, incoherent and incompatible.

Conclusion 

While it is clear, as I have endeavoured to show here, that the comments and observations made by the LPDC in NBA v. Ofomata on the use or otherwise of the word ‘barrister’ before a lawyer’s name constitute nothing but obita dicta. There is presently no law (statutory, judicial or regulatory) in Nigeria prohibiting a lawyer from using “barrister’ as a, prefix, title or honorific to his or her name. I restate my position that is wrong and unprofessional to refer to lawyers that choose to use the word “barrister” before their name as ‘charge and bail’, childish, demeaning and unfortunate. I rest my case for now by stating (with the greatest respect) that Mr. Udemezue’s position is misplaced and lacks legal, moral, professional, grammatical and social foundations in Nigeria.

Send your press release/articles to: info@dnlpartners.com ,Follow us on Twitter at @dnlpartners and Facebook at Facebook.com/Dnl-partners

 

 

 

 

© Copyright DNL Legal & Style 2017.

This piece may only be copied on the condition that DNL Legal & Style is duly acknowledged in this manner: “Source: DNL Legal & Style. View the original piece on: (insert Hyperlink)