The Senior Advocate of Nigeria: Pillar or Predator?

INTRODUCTION 

1. The rank of the Senior Advocate of Nigeria (to be simply called “senior advocate” throughout this lecture) is about 43 years old, in the sense that the first two lawyers to be conferred with the rank, Dr. N B Graham-Douglas (then the Hon. Attorney-General of the Federation( AGF) and Chief Rotimi Williams were so appointed in April 1975. The groundwork for the appointment of these great legal titans was laid in the promulgation of the Legal Practitioners (Amendment) Decree No. 25 of 1974 which for the first time in the legal history of Nigeria empowered the military Head of State as the Head of the Federal Military Government to confer on a legal practitioner in Nigeria by letters patent, the rank of senior advocate.[1] The military Head of State, in conferring the rank, may consult with a body created under the said Decree called the Legal Practitioners Privileges Committee. The Committee (LPPC) consisted of the Chief Justice of the Federation (CJN), as the Chairman, the AGF, and three other “members of the legal profession” two of whom shall be a Justice of the Supreme Court, a Chief Judge of a State or the President of the Federal Revenue Court.[2] It may be stated in passing that in the next year, 1975, a new Legal Practitioners Decree was promulgated which still stands , without major amendments, as the extant Legal Practitioners Act Cap L11 LFN 2004. With regard to the conferment of the rank of senior advocate, however, there have been some necessary amendments, ALL of which, significantly, were effected under the military regime from 1977 to May 1999.

2. The rank of senior advocate is conferred on a person who has been qualified to practise as a legal practitioner in Nigeria for not less than 10 years.  Such a person must, in addition, have achieved distinction in the legal profession in such manner as the LPPC may from time to time determine.[3] The generally accepted opinion is that the creation of the rank of senior advocate in 1974 by a Decree was done for the purpose of replacing the British legal rank of Queen’s Counsel (QC)[4] with an equivalent rank indigenous to Nigeria. In the exercise of its powers to confer the rank of senior advocate, the LPPC has published regularly, since 1993, guidelines for the conferment of the award. The most recent is the 2018 guidelines dated 31st August 2018. By the guidelines, the award of the rank is described as ‘a privilege awarded as a mark of excellence’ primarily to members of the legal profession who (i) are in full time legal practice, (ii) have distinguished themselves as advocates and (iii) have made significant contribution to the development of the legal profession in Nigeria.[5] The award ‘shall be an independent indication of excellence in the legal profession’. It is also aimed at providing ‘a public identification of advocates whose standing and achievement would justify an expectation on the part of clients, the judiciary and the public that these advocates can provide outstanding services as advocates and advisers in the overall best interest of administration of justice’.[6]

3. The award was first made in 1975 and has been made annually since 1978 except for 1994 and 2010, although the 2011 award was deemed to have been made for both 2010 and 2011 with the result that of the 30 senior advocates that were sworn in on 26th August, 2011, 15 were deemed to have been conferred with the rank in 2010 whilst the remaining 15 were deemed to have received the award in 2011. There are now 509 senior advocates, dead and alive, appointed since 1975. As against the over 120, 000 lawyers on the roll of legal practitioners in Nigeria, the Nigerian legal system has a ratio of 1 senior advocate to about 200 lawyers. This is a rough math but my hunch is that it may even be worse, something closer to 1: 300. The LPPC has lately increased the number of awardees. Out of 103 applicants in 2018, 30 were successful, about 30%. In the past, success rate had varied from 10-15%. This brief survey has been done in order to emphasise the highly competitive nature of the award. It is an accepted fact that becoming a senior advocate is like the camel passing through the eye of the needle. Some legal practitioners succeed only at the 10th attempt, some at their 15th. It is viewed as a project, to which a great deal of time and resources must be devoted. Many trips must be made to Abuja. The compilation, photocopying and binding of transcripts of judgments to be relied on cost a lot of money. References must be obtained from judges and other colleagues, many of whom may live in towns and cities separated by hundreds of kilometres. However presentable one’s office may be, thousands, if not millions of naira may be required to refurbish and update it in preparation for chambers’ inspection.

THE 2007 REFORM 

4. In 2007, the procedure for determining eligibility and competence for the rank of senior advocate was overhauled as a result new guidelines were published in that year. A non- refundable fee of N200, 000 was payable by every applicant as processing fee. Currently, the Guidelines now stipulate the sum of N600, 000. Successful candidates are required to pay an additional sum of N200, 000. There have been some senior advocates that were successful at the first attempt. The truth, in reality is that such success at the first attempt is the exception rather than the rule. It would not be surprising to discover that only about 5-10% of all senior advocates fall into this category. The criteria for the award appear to get tougher every year. Up till about 11 years ago, an applicant for the rank only needed to present just one case conducted by him in the Supreme Court, four at the Court of Appeal and six at the High Court. By the current Guidelines, four judgements of the Supreme Court are now required, together with five judgements of the Court of Appeal and twenty judgments of the High Court.[7] When one considers that it takes an average period of seven years to conclude a case in the Supreme Court, then meeting the requirements for the award is a herculean task indeed.

5. There are also civic, ethical and moral requirements. An applicant must be a consistent taxpayer showing proof of income tax payment as and when due for a period of three years preceding the application.[8] An applicant must be of good character, not connected with bad behaviour in or out of court. Such a person would be considered ineligible if he has a poor temperament or propensity to insult or assault people. A person who is addicted to drugs, alcohol or other similar substances, or found liable for abuse of legal trust, or who indulges in blatant self-seeking praise or advertisement through sponsored songs or print or electronic media would also be deemed ineligible to apply.[9] A candidate must also demonstrate a high level of understanding of cultural and social diversity characteristic of the Nigerian society. An applicant must have also provided legal services pro bono in at least three cases and must present proper documentation of such services by attaching them to his application.[10]

6. In summary, the hurdles placed before an applicant for the rank, in my view, are more than just an evaluation of professional competence. The LPPC actually intends that a successful application for the rank will not just produce an outstanding lawyer but a person of such high standard of integrity and character as to be likened to a statesman in Nigeria. An examination of the statutory provisions in the LPA may appear to belie this assertion. The main function of the LPPA as provided by section 5(2) of the LPA is to confer the rank of senior advocate on a person who has achieved distinction in the legal profession. However, the rigorous process of selection, the high professional, civic, ethical and character requirements for attaining the rank have resulted in the situation where simply being an excellent advocate and even being a honest and easy-going lawyer would just not be enough. It appears that the eligibility test is as daunting if not more than the competence test. Aside from the eligibility and the competence tests, there is also the reputation test. I prefer to call it the “public-standing” test. Paragraph 12 (1) and (2) of the Guidelines is important in this respect.“The list of candidates that have scaled the first and second filters shall be sent to the Chief Justice of Nigeria, Justices of Supreme Court, President of the Court of Appeal, the Attorney General of the Federation, Chief Judges of States and Federal High Court, other Heads of Superior Court of Records and the National Secretariat of the Nigerian Bar Association or the Candidate’s local branch of the  Nigerian Bar Association who shall be requested to comment confidentially on the integrity, competence and repatriation of the candidates.

   Any complaint/petition presented to the Chief Justice of Nigeria/Chairman of the Legal Practitioners’ Privileges Committee must be in writing and filed within twenty-one days after the publication of the list of candidates short listed for the conferment of the award of Senior Advocate of Nigeria in identified National Dailies, Media or any other form the Legal Practitioners’ Privileges Committee may prescribe from time to time.[11] 

7. By this provision, there is not just an opportunity for peer-group opinion on the integrity, competence and reputation of an applicant, members of the public also have a role to play in the appointment of a senior advocate. All applicants would be in the public spotlight for a period of twenty one days and any one of them who has committed any wrongdoing or conducted himself in a socially unacceptable manner would be subject to public scrutiny. I am not familiar with the process of appointment of an Associate or a Fellow in many of the other professions in Nigeria. However I cannot recall any time in the last twenty years or more that the names of those to be appointed Associate of the Institute of Chartered Accountants (ACA) or even FCA has been published in the print or electronic media in Nigeria requesting for comments from members of the public as to their character or integrity. This also applies to architects, doctors, engineers, psychologists etc. In the case of the rank of senior advocate, unlike the other professions, it appears the public interest that the appointments has generated extends beyond the clients of the lawyers involved. This probably accounts for the publication being made twice: the first, after the first and second filters and the second, after the final appointment is made before the official swearing-in. There have been instances of a final appointment being made and a successful objection to the said appointment preventing the conferment of the rank. The rank is therefore of utmost importance not just to the legal profession in Nigeria but also to the general public. A successful appointee becomes a community leader, if not a city and national leader. 

POSITIONAL AND CULTURAL PRIVILEGES 

8. If it is true that a recipient of the rank becomes not just a person of eminence within the legal profession but also a leader in the Nigerian society, it is expected that there is in place proper guidelines for the role of a senior advocate both within and outside the legal profession. In a comprehensive and seminal paper delivered recently by Prof. Fidelis Oditah SAN[12], he identified the privileges of being a senior advocate thus:“In Nigeria, the privileges attached to being a senior advocate are largely statutory rather than conventional. They derive in part from section 5 (7) of the Legal Practitioners Act 1975 and in part from the Senior Advocate of Nigeria (Functions and Privileges) Rules 1979. Three privileges are conferred: the right to wear a silk gown; the right to sit at the inner bar or front row; and the right to mention cases out of turn. Apart from the obligation to appear with a junior counsel which appears to derive from convention rather than statute and the restriction from practicing other than as a barrister (section 5 (8) of the Legal Practitioners Act 1975), there appear to be no restrictions on a senior advocate – they routinely sign and draft evidence.”[13]

   Whilst it is true that the privileges enjoyed by a senior advocate are ‘largely statutory rather than being conventional’ as opined by Professor Oditah, I make bold to say that culture has done what statute or convention could not do. As pointed out earlier in this paper, the total number of senior advocates dead and alive, including those sworn in on September 24, 2018 is just above 500. In truth, those who are alive and are still in current active practice may just be in the region of 350, if not less. There are many States in Nigeria that do not have any senior advocate practising there. What that may mean is that in such States, no senior advocate resides there. Such States are not less than 15. A group of professional leaders numbering between 350-400 in a population of about 160 million is an elite group indeed, an aristocratic class. Politically, it is not expected that a senior advocate would aspire to any other position than a Senator, Governor, Minister or President. The Nigerian society would consider a member of a class of 350-400 struggling to be a Special Assistant or even Special Adviser as degrading the rank. It is expected that as a State government official, there are only a few positions a senior advocate should occupy. If he agrees to be a Commissioner, it is to occupy the position of the State Attorney-General.

9. Socially, a senior advocate is regarded as deserving “recognition” when he turns up at a Saturday social event, whether it is a wedding, a birthday, funeral or any such event. The attendance of the event by a senior advocate is taken as a boost for the organisers. The senior advocate is regularly announced as Chairperson at many events, Presidents of Community Development Associations, Parent-Teacher Associations, chief launchers at fundraising events, church “bazaar” events and many other ceremonies. These social privileges are not stipulated in any law neither can we say that they are now established by convention. The rank of ACA, FCA, FNIA, FNSE, FRCP are all very prestigious, but none of them is known to the butcher or tomato seller in Sandgrouse or Mile 12 markets. However, when the acronym S.A.N is mentioned, not as S…A… N, but simply as “SAN” pronounced as one word, five out of ten of these everyday people know who is being introduced. The ‘okada’ driver, factory worker, artisan, market woman and ‘danfo’ driver has at one time or another had to make a contribution to a general purse to fund a litigation on behalf of a trade union handled for the workers or drivers by a ‘SAN’ who is introduced by the labour leaders as the prestigious lawyer who can help the union workers secure a positive result in court by virtue of his legal skills and competence. At one time or the other, one of them has seen from afar a ‘SAN’ who just won an election petition that made a Governor or Senator kept his office. The ‘ SAN’ is therefore a person who has operated in the economic, political and social space of the lowest and the highest classes of the Nigerian society.

10. This may be the reason why the senior advocate is regarded as a “money man”: the election petition lawyer who receives hundreds of millions of naira in professional fees for representing a Governor or a gubernatorial candidate in an election petition. The senior advocate, by reason of being the lawyer of such high class politicians, is seen as having access to the hotlines of politicians. This makes him highly sought after as he is perceived as powerful enough to influence political appointments, secure high profile contracts and put in a word in the corridors of power. In a country like Nigeria, where influence peddling plays a great role in who gets what, it is not difficult to see why the rank is not just a professional rank. The rank affects the high and the low, the private and public sectors, the socio-economic and political spheres of Nigeria. A practical demonstration of that is the fact that a senior advocate is the Vice President, another, a super Minister holding three ministerial positions together and yet another a State Governor. It does not appear as if a lawyer who has not attained the rank can be considered for the position of the Federal Attorney-General. The position of the President of the Nigeria Bar Association seems to have also been reserved for holders of the rank. Thus, within and outside the legal profession, the rank has far more than the few privileges outlined by Prof. Oditah. However, since these unwritten privileges are cultural, there is the danger of losing almost all of them once there is a shift in cultural perspectives. I believe the time has come to critically examine the rank in its ramifications.

11. Without a doubt, as Prof. Oditah has noted, to whom much is given, much is expected. The bearer of the rank, as has been shown, enjoys many privileges. It is therefore to be expected that there ought to be corresponding obligations and responsibilities to be performed by a senior advocate to justify the privileges enjoyed by him. Prof Oditah identified five. The first four revolve around leadership. I therefore take the duty of leadership as the first responsibility of a senior advocate. The fifth is that the senior advocate should provide a pool from which judges of the superior courts in Nigeria can and should be appointed. The second duty in my view therefore is the duty of (mandatory readiness) for judicial appointment. The point has been made earlier of the political and social influence that senior advocates have in Nigeria. The third obligation therefore is the duty to assist in bringing about good governance in Nigeria.

THE DUTY OF LEADERSHIP

12. John Maxwell has written many great and useful books on leadership.  In one of his recent books[14], he defined leadership, quoting James Georges, as the ability to obtain followers. Maxwell identified ten essentials for developing oneself as a leader. These are influence,(which he calls the definition of leadership) priorities,(the key to leadership), character(the foundation of leadership), creating positive change(the ultimate test of leadership), problem solving( the quickest way to gain leadership), attitude(the extra plus in leadership), serving people( the heart of leadership), vision ( the indispensable quality of leadership), self-discipline( the  price tag of leadership) and personal growth( the expansion of leadership). I cannot better what Maxwell has identified in his book as the essentials for developing oneself as a leader. I can only add that when a senior advocate accepts these ten essentials and begins to work on them, he would become a pillar indeed; a pillar of the machinery of justice in Nigeria, a pillar of good governance, a pillar of economic development and social progress. He would be a tower of strength for the weak and defenceless, a voice of the voiceless, a torchbearer of the legal profession and a bulwark against tyranny and oppression. I do not in the least believe that the rank of senior advocate simply makes the recipient to wear the silk gown, sit in the front row in the courtrooms, mention cases out of turn and wear the ceremonial gown and full bottomed wig at special legal ceremonies. The legal profession and the Nigerian society expect a great deal more from a senior advocate.

13. It’s now time to look at the reality. Regrettably, it does not look good. The first point to note is what happens immediately after the elevation to the rank of senior advocate. Many recipients first change the name of their firms from “XYZ & Co.” to “XYZ (SAN) & Co.” Some still have the names of their firms in that way till today. I am at a loss as to how this is achieved. Whether a new name is registered at the Corporate Affairs Commission after the conferment or the old name is retained but the acronym ” SAN” is added without a formal change of name, I would not know. This act of change of business name by reason of the conferment of the rank may appear innocuous, but it reflects a fundamental error in the perception of the person who did it as to what the elevation to the rank of senior advocate represents. Such persons are no more than what Maxwell calls “positional leaders”. Applying Maxwell’s principle, an undue emphasis on the rank looks for security based more on title than on talent. Such persons take offence when the acronym SAN is omitted at anytime or anywhere their names are called. They are more likely to insist on sitting alone in the front row even when courtrooms are crowded and other lawyers are standing. There have been stories of juniors who have no cars having to go back to chambers by public transportation whilst their seniors who are senior advocates go back alone in their cars as they consider it beneath them for juniors to ride in the same car with a senior advocate. Such senior advocates can no longer be regarded as pillars. They have become predators. A predatory person, in relation to another, oppresses, humiliates, and dehumanises. It is highly unlikely that a senior advocate who places undue emphasis on the rank would be capable of being a leader in and out of court, as Prof. Oditah has suggested. There are some senior advocates that are presently in that category.

14. The next point to consider is how senior advocates engage in legal issues of public interest, many of which are political. A case in point is the just concluded gubernatorial election in Osun State, which INEC declared to be inconclusive. Within a few days of INEC’s decision, not less than 15 senior advocates publicly expressed legal opinions in the media, many of which were conflicting and all relying on decisions of the Supreme Court to come to such conflicting opinions. I am not as worried about the expression of conflicting opinions as I am about the haste in airing the opinions publicly. I cannot easily recall whether the legal titans of the past, Chief Rotimi Williams, Chief GOK Ajayi, Dr Mudiaga Odje, GRI Egonu or Alhaji Abdulrazaq were quick at grabbing the next available journalist to grant interviews and express conflicting opinions in the print and electronic media. Our fathers-in-the-Law, if I may so refer to them, were grave, solemn and reticent. They carried themselves with dignity and were conscious of the weight of their opinions on any matter, let alone a serious legal issue. An election petition in Nigeria is not just a case in court. It is like a war. It has generated a lot of distrust and violence, resulting in loss of lives and property. Election petitions, more than any other form of litigation has contributed in no small measure in bringing the administration of justice in Nigeria into infamy and disrepute. It has led to a senior advocate having his rank withdrawn and his name struck off the roll of legal practitioners. Some judges have been dismissed as a result of handling election petitions. One would have thought that all these should make a senior advocate to be very cautious before airing an opinion on the legal implications of the declaration of election results.

15. Maxwell makes a point about how words hold more weight than actions at the beginning of a relationship. People first rely on what you say before they see you act. If one’s actions matches his words consistently, then trust is built. If this conclusion is true, then the contradictory opinions by senior advocates on an issue of public interest like an election result, particularly when such contradictory views are being purportedly supported by judgments of the highest court in Nigeria, creates a very dangerous situation. Before an action is even filed, both the likely winner and loser already seem to have the law on its side, courtesy of the rash and often misguided opinions of some senior advocates. By their immature conduct, they put every judge that will participate in the adjudication of the election petition in an awkward, if not a precarious position. One of the ways by which the publicity-addicted senior advocates have done a great harm to the democratic process by the hasty and ill-judged media comments on on-going elections is the ultimate public distrust in any subsequent decision handed down by the courts. The reason that many have given for these gratuitous interviews and comments is that these senior advocates desire to put themselves in a position of eventually handling the litigations that may arise therefrom or give themselves undue public attention. I am not in a position to come to any opinion on that but it is obvious that the time has come for the Body of Senior Advocates of Nigeria (BOSAN) and the LPPC to take decisive steps to prevent the judiciary from being brought into public ridicule by the acts of these attention-seeking senior advocates. Prof Oditah aptly described the role of the senior advocate in the political development of Nigeria in this way.“As senior advocates, we can define and enforce democratic principles and standards. We must protect the democratic infrastructure, in particular, the pillars of every meaningful democracy – the rule of law, a strong and independent judiciary and a free but responsible press. We must play an active role in ensuring that those who claim to represent us or to rule us do in fact have our mandate to do so. In short, we must be sensitive to and uphold the integrity of the electoral process.”[15]

    This view may be a goal, but the reality is that the reverse is the case. Many senior advocates do not understand the importance of their rank and that they are the ‘vanguards of civil societies’. They are voluble and too eager to join a public debate even in sensitive legal issues. “Let your words be few” is an age-long maxim of wisdom in public discourse. It is time to take this maxim seriously.

APPOINTMENT OF SENIOR ADVOCATES AS JUDGES 

16. I come now to the role of the senior advocate in providing a pool from which judges of the superior courts in Nigeria can and should be appointed. Michael Blackwell, in a well-researched paper[16] observed that of 2,553 barristers from private practice appointed Queen’s Counsel between 1980 and 2015, less than 1% were over 35 years call and  less than 1% were under 12 years call. In Nigeria, age is an important factor to bear in mind since all judges of the High Court’s must compulsorily retire at the age of 65 whilst Justices of the appellate courts must do the same at the age of 70. My little research has revealed that from all the legal practitioners conferred with the rank of senior advocate since 2008(meaning those who have practised as senior advocates for 10 years) there is a pool of at least 40 lawyers aged 55 or less. The rank of senior advocate therefore has created a great opportunity for the overhauling of the appointment process in the judiciary to enhance competence and excellence. However there is a problem. That problem has to do with the entry point into the judiciary. Some senior advocates are of the view that the entry point should be the Supreme Court. They argue that having already been elevated to the rank of senior advocate after a process more rigorous than that leading to the appointment of a High Court judge, it is not proper for a senior advocate to begin a judicial career at the same entry point with a lawyer who has not taken silk and practised at that level. There are some other underlying matters, chief of which appears to be historical. The proponents of the view that the entry point of a senior advocate into the judiciary should be the Supreme Court point to the precedent set in 1979 when Dr Augustine Nnamani SAN was elevated directly to the Supreme Court when he was the Attorney-General of the Federation. Before then, Prof Taslim Elias QC was also appointed in 1972 as the Chief Justice of Nigeria. Both of them had no previous judicial experience. This appears to reinforce the opinion that a senior advocate is higher in rank to a High Court judge and the appointment of a senior advocate as such is a demotion and a diminution of the rank.

17. Before I examine the merits or demerits of this argument, it is necessary to look at a comparative issue: that of the appointment of a Professor of Law as a judge. That has occurred on a number of occasions and I may just refer to three: Prof Niki Tobi, Prof Okay Achike and Prof Mojeed Owoade. All of them began at the High Court, although Profs Tobi and Achike eventually rose to the Supreme Court. The question to answer then is this: Is the rank of senior advocate superior to that of a Professor of Law? Any answer given, I concede, will be highly controversial. I am not interested in the answer but in the point that it will not also be acceptable to all that a senior advocate is too eminent to be appointed a High Court judge. Some will say that if it is not demeaning to make a Professor of Law a High Court judge, then a senior advocate must also begin from there. Much of the controversy that this debate has engendered stems from how the typical senior advocate views the rank. The rank of senior advocate is termed a privilege and not a right. It is necessary to briefly examine the import of this statement.

18. Privilege is generally in law understood to mean “a legal advantage, allowance or permission” such as a benefit or exemption. This benefit or exemption is conferred by law on a class of persons as a result of which such class of persons, are exempted from a duty or burden or liability to which others are subject^[17]. Such class of persons may also by the privilege enjoy benefits that others are denied. Privilege allows a legislator to say on the floor of the House what may be defamatory if spoken elsewhere or by some other person. It is for such situations that legislative privileges whether absolute or qualified are created by statute. A lawyer may also by virtue of rank enjoy privileges.^[18] Privilege permits some persons in a bankruptcy action to recoup their debts before other non-privileged creditors.Hohfeld, in his highly insightful and analytical paper^[19] distinguished between a right and a privilege thus,

    “As indicated in the above scheme of jural relations, a privilege is the opposite of a duty, and the correlative of a “no right”. In the example last put, whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or in the equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off”^[20]

    One of the most useful lessons in the distinction made by Hohfeld between a right and a privilege is to help us note that when we say “X is a privilege and not a right” we do not mean that just because X is a privilege, it cannot be enforced as a right against other persons. X can be so enforced for as long as the conditions for enforcing the privilege are met. It is in the enjoyment of X that we call it a privilege since X is enjoyed as a benefit or exemption conferred by law, which others have a duty to respect. Hohfeld shows this distinction in his use of what he calls jural opposites and jural correlatives;

    “……If further evidence be needed as to the fundamental and important difference between a right (or claim) and a privilege, surely it is found in the fact that the correlative of the latter relation is a “no-right,” there being no single term available to express the latter conception. Thus, the correlative of X’s right that Y shall not enter on the land is Y’s duty not to enter; but the correlative of X’s privilege of entering himself is manifestly Y’s “no-right” that X shall not enter”^[21]

19. It is worthy of note that the privileges that the senior advocate enjoys are more than what the law gives. There are also ‘cultural’ privileges that have been granted by the Nigerian society which have made them society leaders. In performing his duty as a leader by serving the people, it is my view that the senior advocate does it better by being a judge than an advocate. It is by the judgment of a court that a society is affected for good or for ill and not by the advocacy of a lawyer, no matter how brilliant. A competent judge can still, to a large extent, deliver a good judgment and advance the cause of justice even when confronted by an unskilled lawyer. However, an incompetent judge is a disaster, not just for the administration of justice, but for the safety and security of the nation. Those who should be in jail may walk away free. Business projects may be ruined. There would be mayhem and chaos if a bad judge climbs the throne of justice. A senior advocate therefore serves the national interest better as a judge than as an advocate. There has been concerns for the plight of judges brought about by poor remuneration, loss of dignity resulting from insulting and degrading treatment by the Executive and frequent disobedience of court orders. These are the reasons why lawyers of the rank of senior advocates should become High Court judges. I do not think that four or five senior advocates would become judges of the High Court and there would not be a big boost for the office of the High Court judge. They would have members of their class acting as counsel to Senators, Governors and even the President.

20. Having said that, I wish to put in a caveat. Before a senior advocate can be encouraged to begin a judicial career at the High Court, I suggest two important changes in our law. The first is a return to the days when judges were appointed in an acting capacity for a few years before being confirmed. If a senior advocate is appointed in an acting capacity for three to four years, a successful performance should result in an elevation to the Court of Appeal. This would also help to address the concern of those who believe that a senior advocate who has no judicial experience should not be elevated directly to the appellate court. The second change is to give a statutory assurance to a senior advocate who successfully completes the judicial probation that he would not wait for ten to fifteen years before been elevated to the appellate court. I am of the view that a period of five years, subject to competent performance, should be sufficient to bring about an elevation of a senior advocate to the Court of Appeal from the High Court. These are just my views but I think the time has come for the issue of the elevation of the senior advocate to the Bench to be taken seriously. The pool of senior advocates who were appointed when under 40 is growing. Many would still be under 50 even after practising as senior advocates for more than 10 years. It is my view that a senior advocate who practises as such from age 40 till his death at probably 75 or 80 years or even more, may have made a name for himself as an outstanding lawyer, but our country would have been a great loser indeed. Our nation has already been deprived of such great talent. Let us for a moment imagine the Nigerian judiciary without Kayode Eso, Muhammed Bello, Chukwudifu Oputa, Andrews Obaseki, Samson Uwaifo, Yinka Ayoola and many like them who, had they remained advocates, would have been wealthier and maybe more influential.

21. What these eminent jurists did was to sacrifice, to put at the disposal of justice the talents, skills, excellence and tact that could have been deployed against it. They turned their back to wealth, fame, acclaim and personal ambition to become part of the machinery of justice in Nigeria. Today, we remember Lord Denning, Lord Diplock, Lord Hailsham, great jurists who have helped in strengthening the English legal system. They were all KC and QC but knew that they were more useful to society as judges than as advocates. Do we as senior advocates actually believe that we are more useful to Nigeria as judges than as advocates? Do we have a mindset of sacrifice for our profession and our people. It is a well-known maxim that a man’s life consists not in the abundance of the things that he possesses. Maybe the desire to continue to exploit the privileges of the rank to earn mega bucks, add car to car and house to house and have one’s name announced at events appear more important. I will come to the question: Is a senior advocate who obtains the rank at 35 and practises till his death at 80 a pillar of the administration of justice in present -day Nigeria or a predator of it? I have no answer to the question but to present the problem as I see it. There is great discontent with the justice delivery system in Nigeria, particularly at the High Courts. Appeals to the Court of Appeal have risen considerably. At the Lagos Judicial Division alone, 8 justices have to battle with over 1000 appeals every year. It is time for both the Bar and the Bench to cooperate and bring the best of us to the Bench. As things stand, we would all be losers in the end. The senior advocate may think that by having the privilege to call his case out of turn, he is immune to delay in hearing of cases. That is not completely true. Even when he has his case expeditiously heard at the High Court, an appeal against it puts it back in the 1000 to be heard at the Court of Appeal.

An Agent of Good Governance  

22. The basic step towards good governance in Nigeria is the fight against bribery and corruption. As a national leader, a senior advocate is expected to be at the forefront of the war. Beginning with his primary constituency, the legal profession, the senior advocate must be the symbol of probity in legal practice. There must not even be any suspicion of any attempt by him to influence the outcome of any litigation in any way. It does not appear as if there has been any outcry against senior advocates for doing anything to pervert the course of justice. Undoubtedly, there have been one or two instances where allegations of corruption against senior advocates have been proven. However it has not become widespread, thankfully. There is however a worrisome development which is the use to which senior advocates are putting the influence they have with the Nigerian political class. When have senior advocates as a class, protested against the jumbo salaries of senators or taken any decisive steps to do something about it? What of Governors who are their clients, paying out hundreds of millions as fees for handling election petitions but are owing salaries of civil servants? It may be convenient to say that a senior advocate is not expected to dictate to his client on how to conduct political business but I beg to differ. A senior advocate is a leader in his own right and receives so much honour and respect within the Nigerian society. If he remains quiet in the midst of bad governance, corruption and oppression, then he has failed in his duty of using his leadership to serve the people. If his voice can be heard when there is a perceived error in the declaration of election result, then he must not be quiet when politicians abuse their office embezzle public funds.

CONCLUSION 

23. Is the senior advocate of Nigeria taking more from Nigeria than he is giving back to it? Is he justifying the numerous privileges that he currently enjoys? Is there any known project being pursued by senior advocates as a class by which they are sharing their wealth of experience and riches with the common people? I have presented the present situation as I see it. I leave each one of us to come to our conclusion. I may add or state as a personal opinion that the picture does not look good. There are senior advocates that are in their own way playing a great leadership role within and outside the legal profession. However, as a class, it appears very little is being done. It is my hope that this cry of mine may trigger a little move in the right direction and prevent us from running helter-skelter when it may be too late to rescue the situation.

Oluwemimo Ogunde SAN – Principal Counsel, WEMIMO OGUNDE & Co. (Legal Practitioners)

[1] See section 2c( 1) of the Decree
[2] See section 2c ( 3) of the Decree
[3] See section 5(2) LPA CAP L11 2004)
[4] which was abolished in Nigeria by the Queens Counsel (Abolition) Act no. 12 of 1964
[5] Paragraph 1 of the Guidelines for the Conferment of the Rank of Senior Advocate of Nigeria 2018 (hereinafter called “Guidelines”).
[6] Paragraph 2 of the Guidelines
[7] Paragraph 14(5) of the Guidelines
[8] Paragraph 15 of the Guidelines
[9] Paragrah 22 of the Guidelines
[10] Paragrah 23 of the Guidelines
[11] Paragraph 12(1), (2) of the Guidelines
[12] The Evolving Role of Senior Advocates In The Administration Of Justice And Nation Building: Lecture delivered at the SAN Maiden Annual Lecture on 28th June 2018.
[13] page 3 of the paper.
[14] Developing the Leader Within You 2.0. By John Maxwell 2018.
[15] Page 8 of the paper
[16] Taking Silk: An Empirical Study of the Award of Queens Counsel Status 1981-2015. Modern Law Review, 78 (6). Pp. 971-1003.
[17]” New Brunswick Broadcasting Company Vs. Nova Scotia (1993) 1 SCR 319 (Canada)
[18] It is for this reason that the right to sit in the inner Bar, mention cases before other lawyers (some of whom may be seniors at the Bar) and wear silk gowns in court appearances which are permitted by law to Senior Advocates of Nigeria are called “privileges”
[19] Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as applied in Judicial reasoning. 23 Yale Law Journal 16
[20] Ibid page 32
[21] Ibid page 33

Lecture delivered on 1st October, 2018 of the occasion of the reception for Chief Wale Taiwo SAN on his elevation to the rank of Senior Advocate of Nigeria

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