By Sylvester Udemezue
A) STATUS OF THE NIGERIAN BAR ASSOCIATION (NBA)
The NBA was registered on April 08, 1983 under the under the Land (Perpetual Succession) Ordinance 1924, as “Registered Trustees of Nigerian Bar Association”,[i] by virtue of which registration, under the Companies and Allied Matters Act (CAMA),[ii] the Registered Trustees of NBA became a juristic, corporate personality,[iii] with perpetual succession, common seal, power to hold property and to sue and be sued in its corporate name.[iv] Thus, the NBA is not a creation of any specific statute, but it is severally recognized by Acts of the National Assembly and some other subsidiary legislation made pursuant to the Acts. It is respectfully submitted that in order to be a regulator, such a body as the NBA need not be specifically created by a statute. Additionally, by statute, NBA has been assigned numerous regulatory powers in/for the legal profession, especially in respect of the bar. Further, the Constitution of the NBA has been severeally endorsed or recognised by statute as a subsidiary legislation or by-law[v] within the legal profession, for regulation of conduct of legal practitioners in Nigeria[vi] Accordingly, NBA plays vital statutory regulatory roles within the legal profession. Aside statutes, the courts[vii] have acknowledged and reemphasized NBA’s status as the only umbrella association of all lawyers in Nigeria and a prominent regulator of the Nigerian bar, an aspect of the legal profession; this affirms that NBA is both a regulator of the legal profession and a regulator in the profession. In NB.A. v. Kehinde,[viii] the Court of Appeal stated that “The Nigerian Bar Association (NBA) was established for the purpose of regulating the affairs and conduct of all legal practitioners in Nigeria and upon being called to the Nigerian bar, there is automatic membership to the NBA on a lawyer…”[ix] Continuing, the Court observed:[x]
I agree with the arguments of appellant’s counsel to the extent that the NBA is statutorily recognized by the Legal Practitioners Act. This was why my Lord Hon.Justice Obaseki,(JSC) in the case of Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (No.2) (1989) LPELR-1259( SC)PP. 92-93,paras. C-E, (1989)2 NWLR (pt.105) 558 at p.628, paras. G-H while commenting on the status of the Nigerian Bar Association stated thus: ‘The Constitution of the Nigerian Bar Association … was accorded its due superior position by the Legal Practitioners Act, 1975 in the conduct of the affairs of the Nigerian Bar Association by the General Council of the Bar’
This position was buttressed in the case of Chinwo v. Owhonda,[xi] where Court of Appeal declared that “The appellant was not compelled to take up the profession of law and its attendant compulsory membership of the Nigerian Bar Association. However, once he made the choice to study and practice law and thereby placing his name on the roll of honour of belonging to the profession, he stands bound by the internal rules and regulations of the Association. There would therefore be no issue of a breach of the Constitution of the country if the rules demand of him, undivided loyalty”.
B) NBA AS A REGULATOR OF THE LEGAL PROFESSION IN NIGERIA
According to the Organisation for Economic Co-operation and Development (OECD) in its “Glossary of Statistical Terms”[1] the term “regulation” means “…imposition of rules by government, backed by the use of penalties that are intended specifically to modify the economic behaviour of individuals and firms in the private sector…Not all forms of regulation have to be mandated or imposed by government. Many professions adopt self-regulation, i.e., develop and self-enforce rules commonly arrived at for the mutual benefit of members. Self-regulation may be adopted in order to maintain professional reputation, education and ethical standards. They may also act as a vehicle to set prices, restrict entry and ban certain practices”. As the OECD has noted, and with which this author agrees, an aspect of professional regulation may be self-regulation, that is, developing and self-enforcing rules commonly arrived at for the mutual benefit of members, mainly in order to maintain professional reputation, education and ethical standards or as a vehicle to set prices, restrict entry and ban certain practices. Specific Regulatory Powers of the NBA for the Legal Profession include:
1. Bar Practicing Fee (BPF)
The LPA[xii] provides that no legal practitioner[xiii] shall be accorded the right of audience in any court in Nigeria in any year, unless the legal practitioner has in respect of that year, paid to the Registrar of the Supreme Court of Nigeria[xiv] Bar Practicing Fees (BPF)[xv] as may be prescribed from time to time in accordance with the provision of this section. Although the Body of Benchers is listed to be responsible for prescribing/fixing the BPF “after consultation with the NBA”[xvi] it appears that in practice, the Hon Attorney-General of the Federation (AGF) fixes the BPF in consultation with the NBA.[xvii] Whichever way, there is a clear indication that the NBA is an integral part of the decision-making process regarding prescription and fixing of the BPF. Additionally, the LPA[xviii] directs the Registrar to pay to the Nigerian Bar Association (NBA) “as soon as maybe after the end of each year a sum equal to nine-tenths (90 percent) of the aggregate amount of the bar practicing fees received by the Registrar as BPF during the year. The NBA is mandated to manage the money for the purpose of promoting its objectives as set out in the NBA Constitution.[xix]
2. Mandatory Continuing Legal Education
NBA has regulatory roles with respect to Mandatory Continuing Legal Education under the Rules of Professional Conduct for Legal Practitioners (RPC), 2007.[xx] Any lawyer in Nigeria who wishes to carry on law practice in Nigeria must participate in, and satisfy the requirements of, the mandatory Continuing Professional Development (CPD) Programme operated by the NBA. The NBA is expected to establish a Continuing Professional Development Department in its office for the operation of the programme[xxi] and to make rules for regulating the operation of the programme.[xxii]
3. Issuing Stamp and Seal for Law Practice
NBA has the exclusive power to prescribe stamp and seal which gives an insignia of validity to any legal document prepared by a lawyer in Nigeria.[xxiii] The RPC[xxiv] requires that a legal practitioner acting as such legal practitioner, or as a legal officer or adviser of any Government Department, ministry or any corporation, who signs or files a legal document must affix on any such document his seal and stamp approved by the NBA. The requirement of stamp and seal applies to all legal documents prepared by a lawyer. Legal documents evisaged include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any other similar documents.[xxv] This exclusive regulatory powers of the NBA to prescribe stamp and seal has been judicially endorsed.[xxvi] The Nigerian Supreme Court has ruled that any processes filed in court by a lawyer in Nigeria without affixing the Stamp and Seal prescribed and approved by the NBA is deemed to be not properly filed.[xxvii]
4. Issuance of Bar Practicing Certificates
NBA has the exclusive statutory regulatory role of issuing bar practicing certificates to lawyers in Nigeria. The RPC[xxviii] requires the NBA, in each year to publish a list[xxix] of legal practitioners who have complied with the requirements of the Continuing Professional Development (CPD) Programme and have paid their practicing fees and are, therefore entitled to practice as legal practitioners in that year, and to issue a practicing certificate to all legal practitioners whose names are on the list, in order to certify that they have paid their practicing fee and participated in the programme for that year. Only lawyers who hold the Annual Practicing Certificate issued by the NBA, shall in that year apppear in court as lawyers, or sign any legal documents or processes, or file any such legal documents as legal practitioners, legal officers, or advisers of any Government Department or Ministry or any company or corporation.[xxx]
5. Establishment and Dissolution of Law Firms in Nigeria
Under the RPC 2007,[xxxi] the NBA has the statutory regulatory role of supervising and regulating establishment and dissolution of law firms by lawyers in Nigeria. Every lawyer or lawyers who set up private legal practice of any type shall, not later than thirty (30) days after commencement of such legal practice, deliver a notice in the prescribed form to the relevant NBA Branch[xxxii] which branch shall enter the particulars in the notice in a register or database kept for that purpose.[xxxiii] The same applies to change of name or address for legal practice.[xxxiv]
6. Role in Legal Education for Aspirants to the Bar
Apart from that the NBA is represented in the Council of Legal Education by the NBA President[xxxv] and 15 (fifteen) other lawyers of not less than ten years standing, selected or elected by the NBA,[xxxvi] the NBA President doubles as the Alternate Chairman of the Council of Legal Education (CLE). The Council of Legal Education is the body with exclusive responsibility for the legal education of persons seeking to become members of the legal profession in Nigeria.[xxxvii] The Council shall in addition to the function conferred on it by section 1 (2) of this Act have responsibility for Continuing Legal Education in Nigeria.[xxxviii]
7. Makes Rules for the Continuing Professional Development Program[xxxix]
The program shall be operated under the rules made for the purpose by the NBA.[xl]
8. Statutory Representation In Other Regulatory Bodies and In Some Government Parastatals
By requirement of extant law, the NBA is represented by members of the NBA nominated by the NBA to repesent the NBA in all the other regulatory institutions and bodies in the legal profession as well as in many other statutory and government agencies, including but not limited to the following: (1) the National Judicial Institute (NJ I); (2) the Council of Legal Education (CLE);[xli] (3) the Board of the Corporate Affairs Commission (CAC);[xlii](4) the National Judicial Council (NJC);[xliii] (5) the Body of Benchers (BOB)[xliv] (6) the General Council of the Bar (GCB);[xlv] (7) the Legal Practitioners Privileges Committee (LPPC);[xlvi] (8) the Legal Practitioners Disciplinary Committee (LPDC);[xlvii] (9) the Legal Practitioners Remuneration Committee (LPRC);[xlviii] and (10) the Judicial Service Commission.[xlix] to name but a few.
9. Regulation of the General Council of the Bar (GCB)
In some way, the NBA regulates the GCB in that the NBA prescribes functions for the GCB. The LPA provides that “There shall be a body to be known as the General Council of the Bar (hereinafter in this Act referred to as “the Bar Council”) which shall be charged with the functions conferred on the Council by this Act or the Constitution of the Nigerian Bar Association (the “Association”).[l] Accordingly, the Bar Council has two categories of powers under the LPA, namely — (1) powers reserved for it under the LPA, and (2) those reserved for it in the NBA Constitution.[li] But there is a third category: powers reserved forthe GCB by the RPC.[lii]
10. Role in Appointment of Judicial Officers in Nigeria
NBA plays some statutory role in the process of appointment of judicial officers in Nigeria.[liii]
11. Other Duties, Powers and Functions of the NBA
These are seen in the prescribed[liv] aims and objectives of the NBA which include: Maintenance and defence of the integrity and independence of the Bar and the Bench; Promotion of Legal Education, Continuing Legal Education, Advocacy and Jurisprudence; Improvement of administration of justice and regular law reporting; Proving Legal Aid for indigent citizens; Promotion of law reform; Maintenance of professional conduct, etiquette and discipline; Promotion of good relations among NBA members and lawyers of other countries; Promotion of co-operation between the NBA and other National or International Law Organizations; Encouragement and protection of the right of access to justice; Encouragement of the establishment of a National Law Library; Promotion of the rule of law and fundamental human and people’s rights; Creating empowerment schemes for new members, members living with disabilities, and aged members; Promoting the welfare, security, and economic advancement of NBA members; Creating and Maintaining an Endowment Fund for the proper discharge of any of these aims and objects.
Sylvester Udemezue (Udems) 08109024556. mrudems@yahoo.com.
SOURCE:
Sylvester Udemezue, ‘Resolving Conundrums Regarding Regulation of the Legal Profession in Nigeria (The Bar)’ (SSRN, December 25, 2022). <https://ssrn.com/abstract=4313297> or <http://dx.doi.org/10.2139/ssrn.4313297> accessed 5 January 2023
[1] OECD, ‘Glossary of Statistical Terms’ ( stats.oecd.org January 3, 2002) < https://stats.oecd.org/glossary/detail.asp?ID=3295> accessed 22 December 2022
[i] under the Land (Perpetual Succession) Ordinance 1924, contained in CAP 98, LFN and Lagos 1958. By virtue of this registration on 8th of April 1983. Note that CAP 98, LFN 1958 became Part C, CAP 59, CAMA 1990 (later called CAMA, CAP C20, VOL III, Laws of the Federation 2004).
[ii] 1990, section 695 of (later S.612, CAP C20 CAMA, LFN 2004) and 679 (1) CAMA 1990 (whicn later became S.596, CAP C20, CAMA, LFN 2004)
[iii] powers to acquire, own, dispose of property and to enter into a contract and to sue or be sued in its own name
[iv] Please note that Cap C20, LFN 2004 has now been repealed and replaced by the Companies & Allied Matters (Repeal & Reenactment) Act, 2020. The relevant sections in CAMA 2020 may be found in Part F (dealing with Incorporated Trustees); see for example sections 823, 825, 830, 836, 837, etc., of CAMA, 2020.
[v] A bylaw is a regulation made by a local authority or a corporation; a rule made by a society/body to control the actions of its members
[vi] See for example section 1, LPA, CAL L11, LFN, 2004
[vii] See the most recent decision: SuIt No. Ob/27/2020: Ben Oloko v. The Incorporated Trustees of Nigeria Bar Association, judgment was delivered On Friday, 29 July 2022, by Hon. Justice R.O. Odugu, Enugu State High Court
[viii] (2017) 11 NWLR (PT 1576) 225
[ix] @250 -251 paras H- A, His lordship, Nimpar.JCA
[x] @246, per Tukur, JCA)
[xi] (2008) 3 NWLR (Pt. 1074) 341, at 361
[xii] Section 8(2)
[xiii] other than such a person as is mentioned in section 2(3) of the Act.
[xiv] LPA, section 24
[xv] Subscription/membership fee paid annually by lawyers in Nigeria
[xvi] LPA, section 10 (1) (d)
[xvii] By virtue of the Legal Practitioners (Amendment) Act No 31, 1999
[xviii] section 8 (3)(c)
[xix] Section 3
[xx] Rule 11. As a subsidiary legislation made pursuant to the Legal Practitioners Act, RPC is an existing law in Nigeria;
[xxi] RPC, Rule 11(5)
[xxii] Op Cit, Rule 11(6)
[xxiii] Rule 10, RPC 2007
[xxiv] Rule 10 (1)
[xxv] See Rule 10(2) RPC.
[xxvi] See: All Progressive Congress (APC) v. General Bello SarkinYaki SC/722/15 (reported as Senator Bello SarkinYaki v. Senator Atiku BubakarBaguduOrs (2015) LPELR-25721 SC); ), (2015) 18 N.W.L.R (Pt. 1491) 288; ADEWALE & ANOR V. ADEOLA & ORS (2015) LPELR-25972(CA), the Court of Appeal (Per AGIM, J.C.A. (Pp. 16-17, Paras. D-A; 19-20, Paras. A- B, P 20, Para C-E)
[xxvii] See also: Josiah Cornelius Ltd and Ors v. Ezenwa (1996) LPELR-1632 (SC) and In Re: Osibakoro D. Otuedon (1995) LPELR-1506 (SC).”
[xxviii] Rule 12 (1)
[xxix] the Annual Practicing List by virtue of Rule 12, RPC
[xxx] Rule 12(2)
[xxxi] Rule 13
[xxxii] Rule 13(1)
[xxxiii] Rule 13(3)
[xxxiv] Rule 13(4)
[xxxv] Legal Education (Consolidation, etc) Act, section 2(1)(e)
[xxxvi] Op Cit., section 2(1)(f)
[xxxvii] Op Cit., section 1(2)
[xxxviii] Section 3. Note that the NBA currently performs this role pursuant to Rule 11 of the RPC, 2007.
[xxxix] See Rule 12, RPC, 2007
[xl] Rule 12(1) RPC
[xli] Legal Education (Consolidation, etc) Act, section 2(1)(e) &(f)
[xlii] Companies and Allied Matters Act (CAMA), 2020, section 2(2)(b)(ii).
[xliii] the Constitution of the Federal Republic of Nigeria, 1999, Item 20(i) of Para I in Part 1 of the 3rd Schedule, provides: “The National Judicial Council shall comprise the following members -(i) five members of the Nigerian Bar Association who have been qualified to practice for a period of not less than fifteen years, at least one of whom shall be a Senior Advocate of Nigeria, appointed by the Chief Justice of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment”
[xliv] By 30 lawyers nominated by the NBA. See sSection 3(1)(k), LPA.
[xlv] Section 1(1)(c) LPA
[xlvi] Section 5(3)(g)
[xlvii] Section 10(2)(c) LPA
[xlviii] Section 15(1)(c) LPA.
[xlix] the Constitution of the Federal Republic of Nigeria, 1999, para E, Item 12(e) of Para E in Part 1 of the 3rd Schedule: “The Federal Judicial Service Commission shall comprise the following members ((e) two persons, each of whom has been qualified to practice as a legal practitioner in Nigeria for a period of not less than fifteen years, from a list of not less than four persons so qualified and recommended by the Nigerian Bar Association”
[l] Section 1(1) LPA
[li] See the NBA Constitution, Scetion 7(2) and (3). <https://thenigerialawyer.com/wp-content/uploads/2022/01/The-NBA-Constitution-2021-Approved-by-AGM-on-29-10-2021-TheNigeriaLawyer.pdf> accessed 23 December 2022.
[lii] See for example, Rule 7 of the RPC.
[liii] See the Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers, made on December 03, 2014, Rule 3(4)(iii).
[liv] See section 3 of the Constitution of the NBA, 2015.