By Awa Kalu, SAN
There is a dark and ominous cloud hanging over the affairs of the Nigerian Bar Association which has led several eminent and “not so eminent” legal practitioners to offer explanations that either confound the situation or render some arguments quite inefficacious.
Prior to taking our substantive law courses in those days, the curriculum enabled us to have a bird’s eye view of other fields such as Basic Logic, General Studies and Element of the Social Sciences.
We had a course called Use of English. Overall, even the process of socialization made it possible for altruism to be implanted in most young Lawyers as well as other students. I have not been a fan of the denigration of young Lawyers and I do not disdain what their generation stands for. What is surprising though is that what sociologists typify as generation gap is presently creating a real gap between the youthful bar and their older colleagues. What is more, there is now an appreciable disenchantment between the “SANs” and “non-SANs.”
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The dichotomy became more manifest before, during and after the recently concluded elections into key offices across the hierarchy of the Nigerian Bar Association, NBA. Anyone in doubt ought to get affiliated to one or two platforms where Lawyers vent their spleen on topical issues. Some positions on the law or other national issues are contested on tendentious or spurious grounds- at times- devoid of logic or even common sense.
I was brought up in the tradition that required an argument to be marshalled in order to be understood then dissected and repudiated if need be but without the imputation of improper motive(s). These days, an argument is mutilated if you do not belong to the perceived ethnic group of the person whose contention is under scrutiny. The differences of opinion do not necessarily arise from ideology or the failure to persuade. You may simply be lampooned for one reason or another, not warranted by the topic or the opinion expressed.
I have taken the pain to offer the background above in order to explain the current brouhaha arising from the purported amendment of the protocol guiding the practice of Lawyers in this country. Prior to the instant ‘amendment’, what prevailed was a legal instrument made in 2007 and which remained in force until now.
The most prominent part of the instrument was the one that required a legal practitioner to affix his/her stamp or seal to a certain class of documents meant for the conduct of litigation and other sundry matters. The rule came to be contentious when some Lawyers sought to use it as a “trump card,” a “destroyer”, and the massive technicality to dislodge even a meritorious case.
The Supreme Court as the apex Court, brooking no nonsense, put a halt to the deployment of such boobytrap to obstruct the cause of justice. In Yaki&Anor V. Bagudu& others (2015) LPELR- 25721 (SC) the Supreme Court affirmed with finality that a document filed without a legal practitioner’s stamp and seal is not thereby rendered null and void or even incompetent.
The failure occasions a mere irregularity capable of being remedied. That case has been followed in the other recent case of Wike V. Peterside where Kekere-Ekun J.S.C emphasized that, “with regard to the lack of NBA stamp and seal on the petition, I refer to the recent decision of this Court….. where this Court held that the failure to affix the approved seal ad stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order”.
Having regard to the decision of the Supreme Court indicating that heavy weather ought not be made of the failure to attach or affix the stamp and seal of a legal practitioner to Court processes or other transactional documents, can an amendment to the Rules of Professional Conduct by deleting this and kindred itemsbe a ground for the vehemence which it has occasioned?
I cannot personally fault the argument of those who have cited the relevant enabling instrument and came to the irrefutable conclusion that the Learned Attorney-General lacks the vires to alter our Rules of Professional Conduct all by himself. For the avoidance of doubt, it is within the Province of the General Council of the Bar to add or subtract from the Rules.
Consequently, those who have argued that the Learned Attorney-General is “right” because, he replicated what Chief Bayo Ojo, SAN, did in 2007 (by allegedly amending the Rules unilaterally) have missed the point. By the way, I am aware that a past Secretary-General of the NBA has affirmed that no such unilateral alteration took place. What ought to be done is for the NBA Secretariat (or the office of the Attorney-General) to publish the minutes of that meeting from the archives so that this matter may be put to bed, let Lawyers not hang themselves because of a matter which ought to be in record.
Furthermore, there are yet other members of the profession who have without proof, argued that the Learned Attorney-General simply wants to “assist” his “kinsmen” to entrench the “New Nigerian Bar Association”!Let it be made clear that what the Supreme Court has held time and again is that the Nigerian Bar Association is not a creature of statutes and thus, is not a juristic person.
This conclusion was first reached by the Supreme Court in 1989 in Fawehinmi V. NBA (No. 2) (1989) 2 NWLR (pt. 105). It was affirmed very recently in Moses Esq. V. Nigerian Bar Association (2019) LPELR- 46918 (SC). Can it then be doubted that an association formed by Lawyers does not need the imprimatur of the Attorney-General or his office to stand? Do we not at this time have the association exclusive to Muslim as well as Christian Lawyers? Do we not also have an Association of Female Lawyers just as Female Judges? In some states, we still have vestiges of “Judges Wives Association!” what about the Body of Senior Advocates of Nigeria (BOSAN)?
I know of families accommodating multiple wives and children including households which peacefully accommodate Christians, Muslims, Atheists etc, at the same time. The inevitable conclusion is that we as Lawyers, who are deemed to be Learned, and indeed Learned, have developed a penchant for obfuscating “threadbare matters” in the words of Professor Montrose.
None of us can deny that Lawyers have always stood for the defence of a right recognised and entrenched in the Constitution namely, Freedom of Association. Lawyers should also be able to imbibe the Mantra (live and lets live) and not succumb to Chinua Achebe’s reference to the Falcon which cannot hear the Falconer, “Things Fall Apart”, for that reason, the centre cannot hold.
The question at this point is whether we can tread softly on the destructive part that some of us have chosen in order to persuade rather than lampoon one another. There are larger associations of Lawyers than ours but we can argue vigorously, even doggedly but intelligently without being pedantic and obdurately dogmatic.
In the words of Senator Ben Bruce, ”I just want to make common sense.