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May 21, 2018

THE BAR AND THE BENCH UNDER SCRUTINY

The Emergence and Proscription of the Indigenous People of Biafra
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“The law cannot make your enemy to love you but it can keep him from lynching you” Late Amaechi Nwaiwu SAN.
The legal profession is in a state of flux since the invigoration of democracy in the last two decades inspite of the economic hardship, emasculating diseconomy and climate of social injustice in Nigeria.
The legal profession has continued to strive and make remarkable leap forward but the anticipated progress towards a more generalized systemic social justice and public confidence in the administration of justice remains seemly an illusion to be pursued but never attained in so far as corruption remains endemic in the judiciary and the bar continues to suffer from falling standards of professionalism and ethics.
This has led to growing disillusionment within the rank of lawyers. After two decades and half in the profession in which I worked with two notable SANS; Dr.TC Osanakpo SAN and Chief Rotimi Williams SAN (Eastern Office) there has been hardly any change in the way things are done and the system still does not work. Lawyers are doing quite better in politics, the academia and in corporate practice. However the generality of lawyers are just managing to stay an inch from starvation and learning to comport their selves in dignity in the face of enlarging gulf of poverty.

The Bar as we know it
The origin of the term bar is from the barring furniture dividing a medieval European courtroom, The area in front of the barrage is restricted to participants in the trial: the judge, other court officials, the jury (if any), the lawyers for each party, the parties to the case, and witnesses giving testimony. This restriction is enforced in nearly all courts. In most courts, the bar is represented by a physical partition:

License and certification
The bar may also refer to the qualifying procedure by which a lawyer is licensed to practice law in a given jurisdiction.

A lawyer whose license to practice law is revoked is said to be disbarred.
In the UK, the practice of law is divided between Barristers and solicitors. It is the former who appear in court. In Scotland Barristers are referred to as advocates. In Nigeria they are referred to as either Barristers or advocates. The proper nomenclature is; “Barristers of the supreme court of Nigeria.’.
When a lawyer in Nigeria becomes an advocate or barrister, he is said to have been called to the bar.

The legal profession
The Bar commonly refers to the legal profession as a whole. In conjunction with bench, bar may differentiate lawyers who represent clients (the bar), from judges, the bench or members of the Judiciary and in this sense, the bar advocates and the bench adjudicates. Yet, judges commonly remain members of the bar; and lawyers are commonly referenced as Officers of the Court.
Oftentimes, when we refer to members of the bar, we actually mean the legal profession which has deep and rich roots in colonial administration of Nigeria. Decades of military adventurism in politics has however created a chasm of decay and poverty in which the primary casualty are the professional ethics and standards without which the profession is ordinary and suspect.
Inspite of this seemly gloomy picture painted of the profession in the backdrop of professional destandardization, many lawyers have made great accomplishments in the practice of law at the Bar and few of them can be found at the Bench.
Thus the compendium of the Nationwide listing of 100 preeminent lawyers edited by Emeka Nwandioke featuring leading litigators, transactional lawyers, academic lawyers who have impacted and helped to shape the legal history of Nigeria was instructive.
According to Justice George Oguntade, the compendium was “rigorously researched dispassionately and factually presented with lucid simplicity fine tone of prose devoid of ostentatious and patronizing language” The learned Justice of the Supreme court however voiced my concern freely when he stated in his own voice, ”I am not unmindful that lists of this nature invariably engender debate.”
There are many erudite Attorneys in the south east and particularly in Owerri who did not make the list and for that alone I think Emeka is poor in counting.
What is paramount however as the NBA 2015 general conference comes to a close is to resolve the problems facing the profession.
A major problem remains the low standard of professionalism in the realm of practice whether private or corporate. This cannot be disassociated with the need to provide adequate incentives and cushioning for young and aging lawyers facing the challenges of professional poverty. There is the need to make adequate provision for lawyers’ welfare beyond the usual solidarity of deaths and court sessions in which the colleague remains stiff and unconcerned throughout the processes.
Indeed according to the presiding Justice of the court of Appeal, Lagos, Amina Augie delivering the opening address of the 2015 NBA Lagos Bar week held at the Muson centre, the falling standards of professionalism and lack of adequate provision for the welfare of lawyers may account for the state of the legal practice in Nigeria.
This view was reinforced by Dr, Fabian Ajogwu SAN who urged the NBA to fashion out policies to encourage professionalism and aid the welfare of young lawyers and better position the profession for the future.
The learned senior advocate opined that the profession has become very competitive in his address titled “The Legal profession protection from exploitation.”
The learned SAN challenged lawyers to be more responsible and noted the growing poverty in the profession.
According to him there was lack of local content in the petroleum industry in which the juicy legal documentations for transactional lawyers were being ceded to foreign firms in contravention of the local content Act.
This stand strikes a responsive chord in my earlier articulations in LAW and SOCIETY in which I brought to fore the issue of illegal practice of law by unauthorized persons and by lawyers in corporate employment. It is also not untrue that 90% of the positions for legal advisers in political parties are filled by non lawyers. This trend has exacerbated the poverty in the profession which requires adequate and monitored intervention by the NBA and the governments of the day.
Infact, the history of lawyers in Nigeria shows that they have never really taken their places in the scheme of politics and the legislatures of the federation and states to improve their profession.
The lack of diversification of portfolios meant that lawyers are crowded into private legal practice which created new competitive challenges and the resultant falling ethical infrastructures. Fewer lawyers have made it in the corporate world and it is not unlikely that the legal departments of large companies are concentrated in Lagos and administer legal advisory by remote control to other states.
This is more so with Banks which have been known to charge their customers for legal services that they are not competent to provide.
This raises the issue of touting in the profession and mostly by non lawyers which accounts for the falling standards and poverty of the profession. In many land registries, non lawyers and employees of governments insist on rewriting deeds prepared by lawyers in their own forms when they are presented for registration.
Perhaps, this is why the new NBA stamps provided for sealing, franking and validation of legal documents, deeds, pleadings, transactions in a frenzy of enforcement by lands Registries, CAC, Banks, and government bodies is timely.
This stamp is issued only to verified lawyers on the rolls of lawyers and database of the NBA and are mandatory for the execution of these documents. According to a notice signed by the secretary General of the NBA pursuant to section 10 of the Rules of professional conduct, the stamps with security features, and names of the applicant lawyer are prepared on the receipt of application by a lawyer within 72 hours for each year upon the payment of the annual practice fee(you can see this notice on ‘Nigerian Bar Imo/facebook’ .
This practice entails the issuance of practice certificates to all lawyers who are accordingly verified. Once affixed any attempt to remove it will lead to disintegration.
The use of the legal stamps carries with it onerous responsibility for lawyers to keep track of the stamps.
Where a stamp is lost you must report this as it may surface on a fraudulent documentation or land transaction with dizzying consequences for the affected attorney which may give rise to legal liability.
The use of these stamps will also ensure that legal documentations especially with respect to the preparation of deeds by touts are discouraged.
It is however yet to be seen whether the NBA can meet demand with timely supply as many of us who paid for the stamps are yet to get them as the year comes to a close. What happens in cases of defaults? Can the NBA be sued where a transactional lawyer is unable to get his stamps as at when due leading to the loss of a contract?
As the legal profession adds 21 new more senior Advocates to the already existing 408 to the exclusion of festus keyamo for appropriate reasons, we need to reexamine the issues of integrity at the Bar. Lawyers are indeed the priesthood in the temple of Justice which requires that we must shun the idolatry of ethical corruption. Much as I disagree on the indices for choosing a SAN, I do opine that the selection of judges from the Bar must be done with great caution as a judge who does not know the law as he should is like a pilot without an idea of landing an airborne plane with hundreds aboard on their way to the land of Justice. A crash should be anticipated and a natural expectation. Indeed the Bench , distinct and independent of the Bar should not be allowed to control it by nominating or approving those who are to be benched. There should however exist a credible system of nomination, selection, and installation of judges beyond the control of ‘societies’ and corporate influences.
There should be appropriate qualifying exams for Judges to determine their real character. A person who seeks to be a judge should exercise a level of decorum and appearance in public although cognizance must be given to the harsh terrain which makes being gentle in Nigeria, a difficult nature especially if you have challenging means.

Indeed, it is trite that lawyers are generally feared respected and admired in their society which nonetheless views them as liars as characterized by the misnomer ‘lawyers are liars’ .
Such irrationalisations are wont to make many, to be lynched by the lay mob but for the law. Indeed the law cannot make the mob to love you but keep it from lynching you. -We must like TOS Benson said in 1990 call to the Bar, ‘lawyers must strive always to be relevant in their society.’

 

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