By Innocent Anaba and Abdulwahab Abdulah
The first reaction to the suspension of former Attorney General and Minister of Justice, Chief Michael Aondoakaa, Senior Advocate of Nigeria, from using the title of SAN by Nigerians were sight of relief, as many felt that nemesis has finally caught up with him. Aondoakaa is seen as one of the most controversial AGF the country ever have. But while his critics were quick to rejoice, others sat back to wonder, if actual, the Legal Practitioners’ Privileges Committee, LPPC, has the power to do what it had done.
It will be recalled that the suspension was as a result of a petition against him by the Committee for the Defence of Human Rights, CDHR, which accused him (Aondoakaa) of weakening anti corruption institutions in the country for corrupt advantage. Former President of the Nigerian Bar Association, NBA, Chief O.C.J Okocha, SAN, had in an online message, while reacting to the news, queried, “is it right and just to penalize any person, while a petition against that person is still being investigated?”
Mr Nimi Walson-Jack, former NBA, Secretary General, in his one page reaction, asked “could a Nigerian lawyer tell me under which law or Act the LPPC (not the Legal Practitioner Disciplinary Committee, LPDC, took this decision? The section of the Legal Practitioners Act that establishes the LPPC is reproduced below: 5. (1) Subject to subsection (2) of this section, the Legal Practitioners’ Privileges Committee established under subsection (3) of this section may by instrument confer on a legal practitioner the rank of Senior Advocate of Nigeria.
“(2) A person shall not be conferred with the rank of Senior Advocate of Nigeria unless he has been qualified to practice as a legal practitioner in Nigeria for not less than ten years and has achieved distinction in the legal profession in such manner as the committee may from time to time determine. (3) There shall be a committee to be called the Legal Practitioners’ Privileges Committee which shall consist of the following – (a) the Chief Justice who shall be chairman; (b) the Attorney-General of the Federation; (c) one Justice of the Supreme Court; (d) the President of the Court of Appeal; (e) five of the Chief Judges of the States; (f) the Chief Judge of the Federal High Court; and (g) five legal practitioners who are Senior Advocates of Nigeria.
“(4) The members of the committee under paragraphs (c), (e), and (g) of subsection (3) of this section shall be appointed by the Chief Justice in consultation with the ttorney-General of the Federation. (5) Members of the committee under paragraphs (c), (e) and (g) of subsection (3) of this section shall hold office for two years after which they shall be eligible for reappointment for one further term of two years only. (6) The Legal Practitioners’ Privileges Committee may act notwithstanding any vacancy in its membership.
“(7) The Legal Practitioners’ Privileges Committee may, with the approval of the National Council of Ministers, make rules as to the privileges to be accorded to Senior Advocates of Nigeria, as to the functions of a legal practitioner, which are not to be performed by a Senior Advocate of Nigeria, as to the mode of appearance before courts by a Senior Advocate of Nigeria, and generally, but without prejudice to the foregoing, for ensuring the dignity of the rank of Senior Advocate of Nigeria.
“(8) Until the first rules made in pursuance of subsection (7) of this section come into force, a Senior Advocate of Nigeria shall not be entitled to engage in practice as a member of the legal profession otherwise than as a barrister, but nothing in this subsection shall be construed as precluding a Senior Advocate of Nigeria from entering into, or continuing in partnership with a legal practitioner who is not a Senior Advocate of Nigeria. Could someone who knows more than we are told, kindly educate the rest of us?”
, he asked.
The issues raised by Chief Okocha and Walson-Jack were not really addressed by anybody or group, other than the fact that more concerns were further raised.
Anthony Oka, another lawyer, still added to the controversy, pointing out the failure to strike names of some lawyers, who had been convicted of criminal offence, while many more are still standing trial over serious criminal charges. Oka noted that Mr Tarfa Balogun, former Inspector General of Police, who had been convicted and sentenced to six months imprisonment for an offence involving fraud, still has his name on the list of lawyers, practicing in the country.
But Chief Richard Akinjide, SAN, it was reported, supported the suspension, arguing that LPPC action was not hasty, adding that the action was normal. CDHR had said in the petition, that “the allegations against the former AGF constitute acts of gross professional misconduct, ethical shamelessness, corruption, incompetence and abuse of office by which Mr Aondoakaa has desecrated the office of the AGF and Minister for Justice and brought the Legal profession and the rank of SAN to disrepute and ridicule. Most, if not all his actions in office are not in the interest of justice. Neither are they in the public interest.”
According to the body, “we suspect that all the acts listed in the petition were not done by Aondoakaa, as the AGF without gratification. This is why most of his activities are targeted at the anti-corruption institutions and corrupt persons in Nigeria and the general perception in the public arena is that Mr. Aondoakaa, is corrupt.
This view is also shared by the generality of Nigerian lawyers, including SANs. “Based on the totality of the foregoing, the CDHR, finds it imperative in the public interest and in the interest of maintaining the nobility and integrity of the rank of SAN to ask the LPPC to withdraw the rank of SAN from Aondoakaa in order to keep the high esteem that is accorded the rank and the legal profession in Nigeria,” the group added.
But worried by the controversy the matter had generated and considering its expected role in the matter, the NBA, early in the week, took a definite position, insisting that LPPC erred in its hasty action of passing judgement even before considering the merit of the petition.
The association further argued that LPPC has no powers to withdraw the rank of SAN from its recipient. Mr Joseph Daudu, SAN, NBA President, in a statement, urged the LPPC to reverse itself, saying that due process was not followed. He said, “a few days ago, it was announced by the LPPC that Aondoakaa, SAN, has been stripped of the said rank for a period of 6 months pending the determination of a petition lodged, which alleged, misconduct on the part of his part, whilst occupying the office of AGF between 2007-2009. The rank of SAN occupies a central position in the professional career ladder of legal practitioners,’ hence any issue relating to the rank usually attracts intense debate among stakeholders and even curious observers. “Before proceeding further, it is necessary to state that the following facts are not in dispute.
The LPPC is chaired by the Chief Justice of Nigeria, it is a creature of section 5 of the Legal Practitioners Act, which specifies the way and manner a legal practitioner can be conferred with the rank of SAN. Aondoakaa was formerly AGF and not particularly liked by members of the Bar and outsiders because he was seen as exceedingly partisan in the discharge of the functions of his office.
There is at the moment a petition, which has led in the interim to the suspension of Aondoakaa’s use of the rank of SAN for six months until the petition is resolved one way or the other.
“The issue here is not whether Aondoakaa is guilty of the allegations contained in the petition, the basis of the suspension of the rank of SAN which he wears. It is (1) whether the LPPC has ab initio the powers to strip him of the said rank? (2) Whether the LPPC has in the present circumstances the powers to suspend Aondoakaa SAN of the said rank?
“It has been argued by those who support the actions of the LPPC that anybody that is empowered to appoint expressly possess implicit powers to remove its appointees from office, see section 11-(1)-(a)-(c) of the Interpretation Act. However, the Legal Practitioners Act under the maxim Generalia Specialibus non derogant (the special provision displaces the general) does not envisage a withdrawal, removal or suspension of the rank of SAN. See section 5-(1)-(8) and 6 of the Legal Practitioners Act. Except in circumstances set out in sections 10, 11 and 12 of the Legal Practitioners Act.
The long and short of the foregoing is that from its conception the rank of SAN is a leadership position. It is conferred only on persons, who have shown exemplary character as well as distinction in advocacy. Consequently it can only be taken away where another statutory body, the LPPC adjudges the person accused of infamous conduct or breach of any of the rules of professional conduct (which the petition alleges that Aondoakaa has breached in this case) guilty.
“The LPPC notwithstanding its eminent membership cannot and is not equipped to deal with matters of discipline. It’s present foray in looking at matters of the discipline of a lawyer under the guise of suspending a person of the rank of SAN is ultra vires, illegal, unconstitutional and therefore null and void. By way of illustration. The privileges Committee has never considered a petition alleging indiscipline made against prospective candidates for the conferment of SAN. It recognises its lack of powers to do so. What it does is to forward such petitions to the Disciplinary Committee for actions.
On the second issue, the NBA regrets that the action of the LPPC herein, is fundamentally flawed. A petition is a mere allegation which carries with it the presumption that the object is presumed innocent until proven guilty. It is condemnable to punish a person with the full weight of the law i.e. suspension or temporary stripping of the rank of SAN and public odium attached to it and at the same time admit that the petition has not been proved.
“NBA is appalled that elementary principles of law and procedure have been bypassed in this instance. We stand for the promotion of the Rule of Law and regardless of the personality of the person involved herein, we cannot acquiesce to a situation where a person, legal practitioner and senior advocate is punished even before the allegations are established against him, more so, by a body that clearly has no jurisdiction to inquire into matters of alleged breach of professional ethics. The danger here, if not confronted, is that every senior advocate is now subject to the purported disciplinary jurisdiction of the LPPC.
“Unless and until the laws are changed, the power to discipline a legal practitioner, silk and non silk alike, is vested exclusively in the LPDC. We advise the LPPC to have a second look at the matter and to reverse itself on the steps it has taken so far. From all indication, the personality, subject matter of the LPPC’s actions is not loved by most legal practitioners and Nigerians, but whether saint or villain, the Rule of Law is constant and on this occasion as with others, we chooses to err on the side of the Rule of Law,” NBA added.
In view of the questions raised by individual lawyers and the NBA, it will better serve the interest of justice, if these issues are cleared.