Thursday, May 21, 2015
Service of court process on companies and the inconsistencies of our Caselaw
The Companies and Allied Matters Act, LFN 2004 (CAMA) principally regulates service of process on companies registered under it. Section 74 of the Act makes service of processes on companies as opposed to service of mere documents subject to the relevant domestic rules of court where the suit is filed.
From the cases reviewed hereunder, it would be seen that the rules of court nationwide regarding service of processes on corporate bodies are to a large extent, impari material, except for some trivial variations here and there but surprisingly, their judicial interpretations have varied irrespective of similarities in their factual realities.
Service of court process at Branch or Liaison Office
Over the years, the Supreme Court and Court of Appeal have delivered varying judgements on the propriety of mode of service of process on a company at its branch office. In 1992, the Court of Appeal was, in the case of Dr. Augustine Ani v. University (1992) 5 NWLR (Pt. 240) 217, faced with the task of deciding whether service of process on the University’s liaison office in Lagos was proper.
The court had to interpret the intendment of Order 6 Rule 11 of the Oyo State High Court Civil Procedure Rules and upon due consideration of the said provision, the court per Achike, JCA (as he then was) concluded that “...object of service is to give ample notice to the other party on whom service is to be effected so that he may be aware of what is sought against him...service of process on the respondent at its Lagos office where it carries on business was proper service.”
The Benin division of the same court was also invited in the case of Palm Beach Insurance Co. v. Bruhns (1997) 9 NWLR (Pt. 519) 80 where respondent sued the appellant insurance company but served the process at the company’s branch office in Warri, Akpabio, JCA admonished the courts on propriety of such service as follows: “...on the basis of modern authorities...and provisions of CAMA, one cannot now be too fussy about where company was served with a court process. If a company has a branch office in the jurisdiction of court where it was served, it will be sufficient if the company is served in such a branch office and not necessarily in their head office.”
Also in FBN v. Njoku (1995) 3 NWLR (Pt. 384) 457, a writ of summons was served on First Bank at its Jos branch in spite of its head office being in Marina, Lagos. The Court of Appeal, per Orah, JCA held such service to be proper and valid. And in the more recent case of Daewoo Nig. Ltd. v. Uzoh (2008) All FWLR (Pt. 399) 456, the respondent served the processes on Daewoo at its project office. My Lord, Justice Owoade, JCA ruled that it is no longer mandatory that corporate bodies must be served court processes through their head office and/or their registered office.
The tenor of cases (all Court of Appeal decisions) cited above follows the school of thought that proper service can be effected on a company via its branch office. However, the following line of cases (also Court of Appeal decisions) are at loggerheads with the earlier position.
Conversely, in a latter case of NEPA v. Uruakpa (2010) 12 NWLR (Pt. 1208) 299, Owoade, JCA citing the Supreme Court cases of Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 and Kraus Thompson Organisation v. University of Calabar (2004) 9 NWLR (Pt. 879) 631 held that, service of processes at a company’s branch office is an irregularity. See also the Court of Appeal decision in C.R.B.R.D.A. v. Sule (2001) 6 NWLR (Pt. 708) 194 per Edozie, JCA (as he then was).
In the said Kraus Thompson’s case, the University of Calabar received service of processes at its Lagos liaison office but the Supreme Court in a unanimous judgement, after considering whether a liaison office can be regarded as a company’s residence ruled that “it is bad or ineffective to serve processes (on a company) at any branch office” For more cases on service of processes on a company, see generally Olumide Babalola, Casebook on Corporate law and practice, Noetico Repertum, Lagos, 2014, ISBN 978-978-939-599-6.
Service on a company’s employee(s)
Again, the decisions of varying divisions of the Court of Appeal on the propriety or otherwise of effecting service on a company’s employee are divergent and far between.
In Integrated builders v. Domzaq Ventures (2005) 2 NWLR (Pt. 909) 97, the Court of Appeal held that, a senior officer as opposed to a principal officer of a company cannot validly receive service of process on behalf of the company but in FBN v. Njoku (supra), Jos division of the court, per Orah, JCA approved service of process on a branch manager of First Bank as proper and sufficient service.
Also in Kenfrank Nig. Ltd. v. Union Bank (2002) 15 NWLR (Pt. 789) 46, a writ of summons was served on the appellant company via its employee (secretary) who in turn passed the process to the managing director. On appeal, the Port Harcourt division of the Court of Appeal held that the receipt of the process by the employee constituted good and proper service.
However in Kisari Investment v. La-Terminal (2001) All FWLR (Pt. 66) 766, court processes were served on the appellant company through an employee (described in the affidavit of service as ‘Solicitor Secretary’). On the propriety of such service, Calabar division of the court, per Ekpe, JCA held that “serving a writ of summons on a representative or servant or employee of a company who is not shown to be a director or secretary or principal officer of the company whether inside or outside the company’s office is improper service.”
Also in Panache Communications v. Aikhomu (1994) 2 NWLR (Pt. 327) 420, the processes were served on the appellant’s receptionist who forwarded it to the directors, the court held such as valid service. See also MTN Communications v. Bolingo Hotel (2004) 13 NWLR (Pt. 889) 117. However, the Supreme Court seemed to have cleared the air the case of in what seem to be the most recent pronouncement on the issue in Okoye v. Centre Point Merchant Bank (2008) 7-12 SC 1, per Tobi, JSC (as he then was) held that “As a corporate or artificial person does not exist as a human being, the law provides for service on a representative of the body, be he the chairman or the secretary or another person as the case may be.”
Conclusively, the Supreme Court remains the highest court of the land and this writer is unaware of any other conflicting decision(s) of the Apex Court on the issue of service of process on a company via its branch office or its employee(s). As much as one may opine that it is fair to serve a company at its branch office as far as the purpose of service is concerned, the Apex Court’s position on this issue cannot also be disregarded. That being said, can one now conclude that service of court processes on a company through its branch office is invalid? Your thoughts are as good as mine. Also, it is somewhat regrettable that there is a dearth of Supreme Court decisions on the issue of service of process on a company through its employees other than principal officers, but finding solace in the solitary case of Okoye (supra) one may safely opine that service of process on a company’s employee may ground effective and valid service.
Olumide Babalola, Esq. writes from Brickhouse Solicitors, Lagos
Tuesday, July 29, 2014
Prof. G. A. Olawoyin, SAN: An unsung erudite achiever at 75
In a country like ours where sycophancy and charlatanism are best sellers, it is rare to find an accomplished man who does everything to suppress praise-singing and cheap publicity in all forms.
However, at the risk of being labelled a praise-singer or his cohort, I shamelessly write this tribute to Nigeria’s first Professor of business law who has continued to unassumingly wax stronger in erudition and honour.
Born on the 31st day of July 1939 to a polygamous home, Gabriel Adesiyan Olawoyin lost his mother when he was just 8 years old, and this forced him to move in with his grandmother. He was inspired in 1959 to study law upon his visit to a court in Ile-Ife and on the 10th of August 1961, he sailed from Nigeria to the United Kingdom where he gained admission into the prestigious London School of Economic and Political Science (University of London) to study law.
Because he had to financially support himself, he combined studying with a part-time job as a Post and Telegraph Officer, which demanded his attention till 6pm, two hours behind his lecture schedule.
When he returned to Nigeria in 1966, he resumed work as an Assistant Lecturer 1 at the University of Ife but later returned to the UK to obtain his Ph.D in law. He however attended the Nigerian Law School between 1974 and 1975 where he won three of the four prizes available at that time.
By dint of hard work and God’s grace in 1978, G.A. Olawoyin became the first Professor of business law in Nigeria but he retired from teaching when he set up his law firm, Olaowin & Olawoyin and in 1998, he took silk. The firm is now managed by his son, Dr. Wale Olawoyin who also like his father, was also just conferred with the prestigious rank of Senior Advocate of Nigeria.
Like every success story, his was not without its down moments. One that readily comes to mind was his petition against the structural re-organisation of councils by the military administration of David Jemibewon which exercise was perceived as an unfair against the people of Ile Ife. When he subsequently travelled abroad on recruitment assignment for the University of Ife, reports reached him that would be arrested upon his return but on his return, he got an appointment rather than an arrest from the state government.
A devout Christian, Professor Olawoyin is the Chancellor of the Anglican Diocese of Ile-Ife and also the Pro-Chancellor and Chairman of governing Council of Osun State University. He loves watching football and tennis.
As the learned Professor of law, Senior Advocate of Nigeria and Elder Statesman quietly clocks 75, I gladly join his family and everyone who appreciates his uncommon virtues to celebrate Professor G.A. Olawoyin, SAN, who characteristically travels out of the country during his birthdays, on this milestone.
Olumide Babalola who practices in Lagos with Brickhouse Solicitors can be reached via olumidebabalolaesq@gmail.com.
Thursday, September 19, 2013
Tuesday, May 4, 2010
BETWEEN FRA AND GANI
BETWEEN GANI AND FRA WILLIAMS
*Olumide Babalola
The late Chiefs Frederick Rotimi Alade Williams (FRA) and Ganiyu Oyesola Fawehinmi (GANI) were two of a kind, whose names and acts will be repeatedly chanted whenever and wherever the History of our Legal Profession comes to the fore.
These two late Enigmas, among others, had in the last Century distinguished themselves on and off the Legal meadow, made History, wrote their names in Gold and consequently immortalized themselves and their household.
Though, they both bestrode our Legal firmament like behemoths; they did this in their own diverse but distinctive styles and trademarks. Therefore, a dispassionate comparison of these two cannot be penned-down without carefully x-raying their seemingly frontlines in their life times.
This bit however, should never be befuddled as a Rating or Assessment of the pair, rather a gratifying appraisal of their impact on the Nation during their spells.
Fame
Growing up and learning the ropes as a Law student, the very first master Advocate I heard of was, Chief F.R.A. Williams SAN. And reading through the various Law journals and loci classicus in the different subjects at the university, the name ‘FRA’ would not just stop resurfacing. Suffice it to ingeminate here, that Chief F.R.A. argued a large chunk of the high profile cases right from the 60s up to 90s, creating precedents all the way.
But reading through the Newspapers and Magazines right from my Secondary school days, the only Lawyer who time-after-time domineered the spot light was Chief Ganiyu Fawehinmi SAN. If he was not reported for suing the Government for a social or constitutional foul, it would be that he was locked up in one of our Prisons for criticising the Government or publicly condemning one of their loathsome policies or the other.
From these, it is overt that, the twosome was massively popular. While 'Timi de Law' was celebrated and revered more by his learned Contemporaries and Juniors, 'GANI' was adored, worshipped and crowned Champion of and by the Masses, who he endlessly and openly fought for.
Political Relevance
FRA's foray into the political scene dated as far back as the first Republic, when he joined the National Youth Movement becoming their Secretary General, from where he joined the Action Group in the 50s. He was elected into the Lagos Town Council in 1953 and subsequently made its Chairman. In 1957, he was appointed the Attorney General of the Western Region, and his headway in Politics strode along till Third Republic when he bowed out to concentrate fully on his legal practice.
GANI, of the other part, was never really interested in partisan Politics until he succumbed to the inveigle of the likes of Chief Femi Lanlehin and co. in 1994 when he founded the National Conscience Party in brazen defiance of military forbiddance of such. Though he contested but lost the Presidential election in 2007, GANI had been politically relevant before and even there after, as he was a ready-made torn in the flesh of every anti-masses Government.
He sought the Courts' interpretation on almost every dappled stir of the Policy Makers, and as such he did not only become an unofficial Stake- holder in governmental affairs, but different Regimes had him in contemplation before announcing their policies- ''what would GANI say?''
Men of many ‘firsts’
GANI and FRA have both at varying times taken the Nigerian Legal Profession by storm, by setting diverse nerve-racking Records, announcing them as Pioneers of such feats:
FRA was the First Nigerian to establish an indigenous Law firm, when in 1948 he started “Thomas, Williams & Kayode” alongside his friends-Bode Thomas and Remi Fani-Kayode, with the two leaving later to join Politics.
GANI was the first Nigerian individual to publish a Law Report, when in 1988 he started the Nigerian Weekly Law Reports (NWLR) - an essential Lawyers’ companion.
FRA was the first Nigerian Queen's Counsel and Senior Advocate when he was conferred in 1958 and 1975 respectively, while GANI was the first and only recipient of the rank ''Senior Advocate of the Masses'' when he was ‘turbaned’ in the early Eighties by the Students of Obafemi Awolowo University.
F.R.A. Williams was the first elected President of the NBA, first Solicitor to the Supreme Court, and first indigenous Attorney General in Nigeria, while GANI was the first Nigerian to receive the Bruno Kriesky (1993) and International Bar Association’s Bernard Simmons’s (1998) Awards.
Nation Building
These two distinguished Nigerians have immensely contributed to the development of our Nationhood; this, they did in their different capacities and within the confines of their Principles.
While Chief F.R.A Williams was involved in almost every Constitutional Drafting and Review Committee since 1976, up till the 1999 Constitution, he was a major Proponent of true Federalism for Nigeria
GANI was Social Crusader and freedom fighter who had the rule of Law, emancipation of the masses, Constitutionalism and Transparency as part of his “7 Point Agenda.” An Activist who relentlessly confronted, questioned, and fought all ‘anti Masses’ Administration to a stand still.
Both Men, though with different temperaments and modus operandi, were nonetheless able to achieve result in their bids to positively influence the running of our Polity.
Contributions to the development of our Lex.
The Nation is so fortunate that the two late Icons discovered their ultimate calling and fulfilled Destiny in their Career, as I hold no doubt in my mind that GANI and FRA would have lived and died in utter obscurity should they have studied and practiced something else.
FRA through his brilliance and astonishing advocacy skill succeeded in laying down several novel principles of Law especially in the grey areas. He had the reputation of advancing legal propositions and counter propositions which often made the Supreme Court to review its decision at his behest.
While FRA is commendable largely for his effort in the Court room, GANI is far and wide appreciated for his efficacious combination of the arts of advocacy and writing; he was not only a Law-Lord, he was equally an erudite and prolific writer.
All Nigerian Lawyers will be eternally grateful to this Giant, who ostensibly brought the Law to their doorsteps, by his widely read and valued Nigerian Weekly Law Report (NWLR) which started in the late Eighties when Law Reporting in Nigeria was gawky and in shambles.
The NWLR with over 780parts has by no less means improved the quality of Law Practice in the Country, as it has over time become a household name and a must-read for every Legal Practitioner who knows his onions.
GANI authored over twenty books on different areas of our Laws and handled over 5000 cases, a good percentage of which were pro bono cases.
Conclusively, GANI and FRA were two of Nigeria’s best Attorneys at Law, who will be fondly remembered not necessarily by the edifices, monuments or streets named after them, but by their lustrous footprints on the Legal and Socio- Political sands of time. They shared a measure of strength and weaknesses and cannot be perfectly weighed against each other as they were two distinct Personages:
While FRA was a consummate, robust, and Brilliant legal Positivist who along the austere line of professionalism, employed his skills and weaponry to promote the ethics and foothold of the Profession, GANI was a radical, energetic, and blunt Activist who through the instrumentation of the Law sought to protect, defend and emancipate the Masses, irrespective of whose ox is gored.
From whichever slant, one chooses to analyze them; the duo will go down in history as two of our very best in the Profession for Centuries to come, as their legacies would not cease to speak on their behalf even after their celebrated exits.
*Olumide Babalola writes from Bauchi
lordskentex@yahoo.com
*Olumide Babalola
The late Chiefs Frederick Rotimi Alade Williams (FRA) and Ganiyu Oyesola Fawehinmi (GANI) were two of a kind, whose names and acts will be repeatedly chanted whenever and wherever the History of our Legal Profession comes to the fore.
These two late Enigmas, among others, had in the last Century distinguished themselves on and off the Legal meadow, made History, wrote their names in Gold and consequently immortalized themselves and their household.
Though, they both bestrode our Legal firmament like behemoths; they did this in their own diverse but distinctive styles and trademarks. Therefore, a dispassionate comparison of these two cannot be penned-down without carefully x-raying their seemingly frontlines in their life times.
This bit however, should never be befuddled as a Rating or Assessment of the pair, rather a gratifying appraisal of their impact on the Nation during their spells.
Fame
Growing up and learning the ropes as a Law student, the very first master Advocate I heard of was, Chief F.R.A. Williams SAN. And reading through the various Law journals and loci classicus in the different subjects at the university, the name ‘FRA’ would not just stop resurfacing. Suffice it to ingeminate here, that Chief F.R.A. argued a large chunk of the high profile cases right from the 60s up to 90s, creating precedents all the way.
But reading through the Newspapers and Magazines right from my Secondary school days, the only Lawyer who time-after-time domineered the spot light was Chief Ganiyu Fawehinmi SAN. If he was not reported for suing the Government for a social or constitutional foul, it would be that he was locked up in one of our Prisons for criticising the Government or publicly condemning one of their loathsome policies or the other.
From these, it is overt that, the twosome was massively popular. While 'Timi de Law' was celebrated and revered more by his learned Contemporaries and Juniors, 'GANI' was adored, worshipped and crowned Champion of and by the Masses, who he endlessly and openly fought for.
Political Relevance
FRA's foray into the political scene dated as far back as the first Republic, when he joined the National Youth Movement becoming their Secretary General, from where he joined the Action Group in the 50s. He was elected into the Lagos Town Council in 1953 and subsequently made its Chairman. In 1957, he was appointed the Attorney General of the Western Region, and his headway in Politics strode along till Third Republic when he bowed out to concentrate fully on his legal practice.
GANI, of the other part, was never really interested in partisan Politics until he succumbed to the inveigle of the likes of Chief Femi Lanlehin and co. in 1994 when he founded the National Conscience Party in brazen defiance of military forbiddance of such. Though he contested but lost the Presidential election in 2007, GANI had been politically relevant before and even there after, as he was a ready-made torn in the flesh of every anti-masses Government.
He sought the Courts' interpretation on almost every dappled stir of the Policy Makers, and as such he did not only become an unofficial Stake- holder in governmental affairs, but different Regimes had him in contemplation before announcing their policies- ''what would GANI say?''
Men of many ‘firsts’
GANI and FRA have both at varying times taken the Nigerian Legal Profession by storm, by setting diverse nerve-racking Records, announcing them as Pioneers of such feats:
FRA was the First Nigerian to establish an indigenous Law firm, when in 1948 he started “Thomas, Williams & Kayode” alongside his friends-Bode Thomas and Remi Fani-Kayode, with the two leaving later to join Politics.
GANI was the first Nigerian individual to publish a Law Report, when in 1988 he started the Nigerian Weekly Law Reports (NWLR) - an essential Lawyers’ companion.
FRA was the first Nigerian Queen's Counsel and Senior Advocate when he was conferred in 1958 and 1975 respectively, while GANI was the first and only recipient of the rank ''Senior Advocate of the Masses'' when he was ‘turbaned’ in the early Eighties by the Students of Obafemi Awolowo University.
F.R.A. Williams was the first elected President of the NBA, first Solicitor to the Supreme Court, and first indigenous Attorney General in Nigeria, while GANI was the first Nigerian to receive the Bruno Kriesky (1993) and International Bar Association’s Bernard Simmons’s (1998) Awards.
Nation Building
These two distinguished Nigerians have immensely contributed to the development of our Nationhood; this, they did in their different capacities and within the confines of their Principles.
While Chief F.R.A Williams was involved in almost every Constitutional Drafting and Review Committee since 1976, up till the 1999 Constitution, he was a major Proponent of true Federalism for Nigeria
GANI was Social Crusader and freedom fighter who had the rule of Law, emancipation of the masses, Constitutionalism and Transparency as part of his “7 Point Agenda.” An Activist who relentlessly confronted, questioned, and fought all ‘anti Masses’ Administration to a stand still.
Both Men, though with different temperaments and modus operandi, were nonetheless able to achieve result in their bids to positively influence the running of our Polity.
Contributions to the development of our Lex.
The Nation is so fortunate that the two late Icons discovered their ultimate calling and fulfilled Destiny in their Career, as I hold no doubt in my mind that GANI and FRA would have lived and died in utter obscurity should they have studied and practiced something else.
FRA through his brilliance and astonishing advocacy skill succeeded in laying down several novel principles of Law especially in the grey areas. He had the reputation of advancing legal propositions and counter propositions which often made the Supreme Court to review its decision at his behest.
While FRA is commendable largely for his effort in the Court room, GANI is far and wide appreciated for his efficacious combination of the arts of advocacy and writing; he was not only a Law-Lord, he was equally an erudite and prolific writer.
All Nigerian Lawyers will be eternally grateful to this Giant, who ostensibly brought the Law to their doorsteps, by his widely read and valued Nigerian Weekly Law Report (NWLR) which started in the late Eighties when Law Reporting in Nigeria was gawky and in shambles.
The NWLR with over 780parts has by no less means improved the quality of Law Practice in the Country, as it has over time become a household name and a must-read for every Legal Practitioner who knows his onions.
GANI authored over twenty books on different areas of our Laws and handled over 5000 cases, a good percentage of which were pro bono cases.
Conclusively, GANI and FRA were two of Nigeria’s best Attorneys at Law, who will be fondly remembered not necessarily by the edifices, monuments or streets named after them, but by their lustrous footprints on the Legal and Socio- Political sands of time. They shared a measure of strength and weaknesses and cannot be perfectly weighed against each other as they were two distinct Personages:
While FRA was a consummate, robust, and Brilliant legal Positivist who along the austere line of professionalism, employed his skills and weaponry to promote the ethics and foothold of the Profession, GANI was a radical, energetic, and blunt Activist who through the instrumentation of the Law sought to protect, defend and emancipate the Masses, irrespective of whose ox is gored.
From whichever slant, one chooses to analyze them; the duo will go down in history as two of our very best in the Profession for Centuries to come, as their legacies would not cease to speak on their behalf even after their celebrated exits.
*Olumide Babalola writes from Bauchi
lordskentex@yahoo.com
NIGERIAN LAW DRAMA SERIES
THE NIGERIAN LAW DRAMA SERIES
*Olumide Babalola
I was pinched to pen down this bit on the heels of the recent strange, maddening, upsetting and unethical happenings in the legal Profession as a whole.
The spate of these untoward awkward series started at the last NBA conference in Lagos, when a sect of Lawyers generaled by an Octogenarian, fervidly pushed for the abolition of the rank of SAN - the highest height attainable by any Practitioner in the country, citing economic oppression, corruption, lack of transparency, favoritism, Nepotism, and professional mediocrity, among others as their reasons.
Though the ‘Applicants’ wanted the matter resolved there and then, the NBA President, Chief Rotimi Akeredolu SAN, informed the house that such a highly inflammable issue should not be dealt with shoddily, he then recommended it for the onward review and decision of the NEC at their next meeting. A resolution it was, which seemed to have temporarily quenched the furnace on the Conference ground except for the ‘Aggrieved’s continued circulation of protest leaflets and handbills.
As if that was not enough, barely a month after the conclusion of the Conference, a fight broke out between the NBA President and his General Secretary, Ibrahim Eddy Mark Esq., over allegation of corruption and abuse of office, with the duo accusing and counter accusing each other of fraudulent and unbecoming practices.
This consequently led to a desperate move spearheaded by the third Vice President, Mr. Bath Okoye Aniche, supported by National Welfare Secretary and the Assistant Financial Secretary to sack the President at the NEC Meeting held in Enugu in December 2009 over serious indictable allegations.
The hostility between the President and some of his Officers which had almost grown a verbis ad verbera, was elderly resolved by Chief T.J. Okpoko SAN and his fellow Elders-in-Council
The dust had barely settled, when the NBA President wrote to the immediate past CJN, Justice Kutigi on behalf of the Body, advising the latter to stay all actions on the conferment of new SANs as a result of the brewing controversies trailing the previous conferments pending an amicable and acceptable settlement of the issues, and in a sharp contrast, the General Secretary of the same body openly refuted and denied any connection between the NBA's position and that of the Akeredolu's letter and that same should be treated as the latter's personal opinion.
In December 2009, the NBA drama series was happily but momentarily sidetracked by the National anxiety anchored by President’s Yaradua’s protracted vacation, as it tasked Lawyers with the duty to come forth with varying interpretations for Sections 144 and 145 of the 1999 Constitution.
All other scenes that took place during the “commercial break” were not as intriguing as the December 30th ‘Party’ at the Supreme Court where the outgoing Chief Justice of the Federation, Justice Idris Kutigi swore-in his Successor, Justice Aloysius Katsina-Alu.
Putting the Records straight, Kutigi CJN (as he then was) clocked 75, the statutory retirement age for Apex Justices on 31st day of December 2009- the day he was supposed to vacate the exalted seat, but with his swearing-in of his learned brother Justice on the eve of his birthday, two substantive CJNs were foisted on the Country.
Trust Lawyers for who they were trained to be, several explications and counter explications poured in large flow, supporting and condemning the act: while the ‘Judicial Activists' cited the Oaths Act 1990 as the oracle from which the act drew its legal rachis, the 'Conservatives' counter argued that there was no emergency that necessitated the sharp deviation from a legal convention.
Whichever way one sees it, I honestly think the office of the Chief Justice of this Country is too venerated and highly placed for its occupant to have his ascendancy shrouded in controversy and dissension.
It was neither surprising nor unexpected that, after much noise from everyone who felt like flexing his constitutional muscle of expression, the matter characteristically vacated the Air and 'Print' waves quietly.
Not also forgetting the intervallic outrageous, embarrassing and disgraceful stunts arrogantly filmed from the Office of the Ex-Attorney General of the Federation and Minister of Justice in the Classic under review.
Life in the Judiciary seemed to have continued expectedly until a certain time in February 2010 when the Court of Appeal sitting in Sokoto, hearing the Governorship' election Petition of Alh. Aliyu Wammako (the incumbent) and the DPP Aspirant, was estopped from delivering its ripe judgment on account of a Petition written to the National Judicial Council by Wamako imputing likelihood of bias and corruption to the Panel.
My concern here is not the propriety or otherwise of the imputation, but the episode that ensued between the CJN and the President of Court of Appeal, in what seemed to me, a needless and avoidable rift, were all cards laid straight.
And came the 12th Day of April 2010, at the main bowl of the Supreme Court, situate at Three-Arms zone, Garki, Abuja, the sensitivity of the whole community of Nigerian Lawyers was yet again insulted, when, in the course of inducting of the new Senior Advocates of Nigeria, the number One Lawyer in Nigeria, Chief Oluwarotimi Odunayo Akeredolu SAN and the Chief Law Officer of the Country, Chief Mohammed Bello Adoke SAN were both barred from making their earlier scheduled speeches at the event.
Reportedly, the Bar President was asked by the CJN to expunge certain paragraphs from his speech, to which the later refused and he paid the embarrassing price of being officially listed in the programme but not called upon to perform. Though, the CJN was reported to have apologized to the Bar Chief, I am sorry to feel that, such apologies could safely pass for, medicine after death.
Enough is Enough!
Borrowing a leaf from my learned Brother, Chude Jideonwo, Esq., and his Associates, I think we have had, heard and seen enough of this overplus of judicial ignominies both at the Bar and on our Bench.
The Judiciary, which is expected to be the hope of the common Man, can not afford to be a stop shop of slapstick. Enough is Enough! Even as I prayerfully hope that there wouldn’t be a concluding Part to the tiresome series.
Olumide Babalola, writes from Bauchi
Olumidey@in.com
*Olumide Babalola
I was pinched to pen down this bit on the heels of the recent strange, maddening, upsetting and unethical happenings in the legal Profession as a whole.
The spate of these untoward awkward series started at the last NBA conference in Lagos, when a sect of Lawyers generaled by an Octogenarian, fervidly pushed for the abolition of the rank of SAN - the highest height attainable by any Practitioner in the country, citing economic oppression, corruption, lack of transparency, favoritism, Nepotism, and professional mediocrity, among others as their reasons.
Though the ‘Applicants’ wanted the matter resolved there and then, the NBA President, Chief Rotimi Akeredolu SAN, informed the house that such a highly inflammable issue should not be dealt with shoddily, he then recommended it for the onward review and decision of the NEC at their next meeting. A resolution it was, which seemed to have temporarily quenched the furnace on the Conference ground except for the ‘Aggrieved’s continued circulation of protest leaflets and handbills.
As if that was not enough, barely a month after the conclusion of the Conference, a fight broke out between the NBA President and his General Secretary, Ibrahim Eddy Mark Esq., over allegation of corruption and abuse of office, with the duo accusing and counter accusing each other of fraudulent and unbecoming practices.
This consequently led to a desperate move spearheaded by the third Vice President, Mr. Bath Okoye Aniche, supported by National Welfare Secretary and the Assistant Financial Secretary to sack the President at the NEC Meeting held in Enugu in December 2009 over serious indictable allegations.
The hostility between the President and some of his Officers which had almost grown a verbis ad verbera, was elderly resolved by Chief T.J. Okpoko SAN and his fellow Elders-in-Council
The dust had barely settled, when the NBA President wrote to the immediate past CJN, Justice Kutigi on behalf of the Body, advising the latter to stay all actions on the conferment of new SANs as a result of the brewing controversies trailing the previous conferments pending an amicable and acceptable settlement of the issues, and in a sharp contrast, the General Secretary of the same body openly refuted and denied any connection between the NBA's position and that of the Akeredolu's letter and that same should be treated as the latter's personal opinion.
In December 2009, the NBA drama series was happily but momentarily sidetracked by the National anxiety anchored by President’s Yaradua’s protracted vacation, as it tasked Lawyers with the duty to come forth with varying interpretations for Sections 144 and 145 of the 1999 Constitution.
All other scenes that took place during the “commercial break” were not as intriguing as the December 30th ‘Party’ at the Supreme Court where the outgoing Chief Justice of the Federation, Justice Idris Kutigi swore-in his Successor, Justice Aloysius Katsina-Alu.
Putting the Records straight, Kutigi CJN (as he then was) clocked 75, the statutory retirement age for Apex Justices on 31st day of December 2009- the day he was supposed to vacate the exalted seat, but with his swearing-in of his learned brother Justice on the eve of his birthday, two substantive CJNs were foisted on the Country.
Trust Lawyers for who they were trained to be, several explications and counter explications poured in large flow, supporting and condemning the act: while the ‘Judicial Activists' cited the Oaths Act 1990 as the oracle from which the act drew its legal rachis, the 'Conservatives' counter argued that there was no emergency that necessitated the sharp deviation from a legal convention.
Whichever way one sees it, I honestly think the office of the Chief Justice of this Country is too venerated and highly placed for its occupant to have his ascendancy shrouded in controversy and dissension.
It was neither surprising nor unexpected that, after much noise from everyone who felt like flexing his constitutional muscle of expression, the matter characteristically vacated the Air and 'Print' waves quietly.
Not also forgetting the intervallic outrageous, embarrassing and disgraceful stunts arrogantly filmed from the Office of the Ex-Attorney General of the Federation and Minister of Justice in the Classic under review.
Life in the Judiciary seemed to have continued expectedly until a certain time in February 2010 when the Court of Appeal sitting in Sokoto, hearing the Governorship' election Petition of Alh. Aliyu Wammako (the incumbent) and the DPP Aspirant, was estopped from delivering its ripe judgment on account of a Petition written to the National Judicial Council by Wamako imputing likelihood of bias and corruption to the Panel.
My concern here is not the propriety or otherwise of the imputation, but the episode that ensued between the CJN and the President of Court of Appeal, in what seemed to me, a needless and avoidable rift, were all cards laid straight.
And came the 12th Day of April 2010, at the main bowl of the Supreme Court, situate at Three-Arms zone, Garki, Abuja, the sensitivity of the whole community of Nigerian Lawyers was yet again insulted, when, in the course of inducting of the new Senior Advocates of Nigeria, the number One Lawyer in Nigeria, Chief Oluwarotimi Odunayo Akeredolu SAN and the Chief Law Officer of the Country, Chief Mohammed Bello Adoke SAN were both barred from making their earlier scheduled speeches at the event.
Reportedly, the Bar President was asked by the CJN to expunge certain paragraphs from his speech, to which the later refused and he paid the embarrassing price of being officially listed in the programme but not called upon to perform. Though, the CJN was reported to have apologized to the Bar Chief, I am sorry to feel that, such apologies could safely pass for, medicine after death.
Enough is Enough!
Borrowing a leaf from my learned Brother, Chude Jideonwo, Esq., and his Associates, I think we have had, heard and seen enough of this overplus of judicial ignominies both at the Bar and on our Bench.
The Judiciary, which is expected to be the hope of the common Man, can not afford to be a stop shop of slapstick. Enough is Enough! Even as I prayerfully hope that there wouldn’t be a concluding Part to the tiresome series.
Olumide Babalola, writes from Bauchi
Olumidey@in.com
Friday, January 22, 2010
The Legal Profession: an art or a business?
THE LEGAL PROFESSION: AN ART OR A BUSINESS? – BY EBUN O. SOFUNDE, S.A.N.
Introduction: The topic for discussion is “The Legal Profession an art or a business?” Although we are all well aware of the meaning of the words “art” and “business”, I think that, for a proper appreciation of this paper, it would not be out of place to start with a definition of these two words. The word “art” in so far as it is relevant to the topic under discussion has been defined as “an ability or a skill that you can develop with training and practice.”[1] It has also been defined as “the practical application of knowledge or natural ability; skilled workmanship; mastery; dexterity.”[2] Therefore, in examining whether the legal profession is an art, I will consider whether ability and skill or the practical application of knowledge or natural ability form a part of the practice of the profession and if so, within time constraints, to what extent. The word “business” has been defined as “the activity of making, buying, selling or supplying goods or services for money.”[3] It has also been defined as “a commercial organisation such as a company, shop/store or factory.”[4] Another definition of the word “business” is “a pursuit or occupation; trade; profession; calling.”[5] It has also been defined as “a commercial enterprise or establishment.”[6] In examining whether the legal profession is a business I will consider the fact that it is an established profession, whether legal services are supplied for money and whether law firms are structured as commercial enterprises.
I intend to treat the topic starting with the origin of the legal profession and its progression through the stages to the modern day legal profession as it exists in Nigeria.
The Origin Of Legal Practice: History has it that the first lawyers were orators of ancient Athens . They could not organise themselves, and were not organised as a business because there was a rule that individuals were supposed to plead their own cases. The way found round this obstacle was for individuals to ask an orator, supposedly as a friend, for assistance. Secondly, orators were not allowed to charge a fee although this ban was disregarded. The result of the foregoing is that these orators could never organise into a real profession.[7]
In early ancient Rome , the early advocates were not trained in law but in rhetoric and the judges before whom they appeared were also not trained in law. In 204 BC a law was enacted banning these advocates from charging fees but, again, the ban was widely ignored until Emperor Claudius legalised advocacy as a profession and the Roman advocates became the first lawyers who could practice openly, although a fee ceiling was imposed and the popular view was that there was not much money to be made from the practice of the profession.[8]
Prior to the legalisation of legal practice as a profession in Rome, there had developed a separate body of men from the advocates who were trained only in rhetoric. They were learned in the law and were known as jurisconsults. They were wealthy amateurs who engaged in law as an intellectual hobby and they did not make their primary living from it. They gave legal opinions to all and sundry and Roman judges and governors routinely consulted with an advisory panel of jurisconsults before giving decisions. Even advocates not learned in the law sought legal opinion from them.[9]
In late ancient Rome, however, the legal profession had become well regulated and organised and advocates had to be enrolled at the bar of a court to argue before it. Also, advocates were then studying law in addition to rhetoric. As a result, the use of jurisconsults went into decline.[10]
In the middle ages, there had developed over Western Europe a small number of men who had become experts in canon law but this expertise was put to use mainly serving the Roman Catholic Church as priests. Subsequently, however, people began to practice canon law as a profession in itself.[11]
In England, the legal profession had similar origins as those of Athens and Rome. The first set of people to practice the profession in England was known as professional pleaders known as narrators who appeared before the courts because of the complexity of the common law and the procedure in courts. From the ranks of these narrators eventually came the barristers who were people trained in the various Inns of Courts.[12]
The origin of these barristers in England was from the Inns of Courts which are the societies of Lincoln’s Inn, the Inner Temple, the Middle Temple and the Gray’s Inn. Apprentices learned in these Inns before being allowed to appear in court. Their course of study included the study of the common law, readings on statutes and moots or arguments on points of law.[13]
It is interesting to contrast the origins of solicitors. The first solicitors appeared in the late Roman Empire . They were known as notaries and they were responsible for drafting wills, conveyances and contracts. They were considered to be inferior to advocates and jurisconsults. They were not law trained and were barely literate. The simplest transactions were wrapped in mountains of legal jargon since they were paid by the line.[14]
In England, it appears that historically, attorneys were the forerunners of the modern solicitors and they appeared as agents of litigants who appointed them to so appear so that they would not have to appear personally.[15]
From this brief history, it will be seen that legal practice did not start as a business. There was no legal profession. Practice was not organised and the practitioners were not allowed to charge a fee. Some even practised as amateurs for the pleasure of it. It is safe to conclude, therefore, that it started as a vocation where all that happened was a show of ability, knowledge and skills. It, therefore, started as an art although, at some point in time, the business element was introduced when fees were legitimately charged and there came into existence a profession that was properly regulated.
Regulatory Control Of The Legal Profession In Nigeria: Legal practice in Nigeria derives its roots from legal practice in England at the stage where it had been structured and regulated and it had properly so called become a profession. In line with such regulations that exist in England, the legal profession in Nigeria is also regulated..[16] The enactment which regulates it prescribes the criteria for eligibility to practice as barristers and solicitors. It also regulates the practice and makes provision for the Legal Practitioners Remuneration Committee to make orders regulating generally the charges of legal practitioners. The enactment also empowers the General Council of the Bar known as the Bar Council to make rules as to the opening and keeping by legal practitioners of accounts at banks for clients’ moneys. Indeed, subsidiary legislation has also been made regulating fees to be charged by legal practitioners with regard to legal documentation[17] as well as guiding practitioners with regard to fees in respect of litigation.[18] Further, rules of professional conduct do exist which regulate the legal practitioner in his practice.[19] These rules also stipulate the amount of practising fees to be paid by practitioners annually.
The regulatory control over the legal profession spelt out coupled with the fact that a legal practitioner is expected to charge fees makes it clear, without any doubt in my mind, that the legal profession is currently meant to be engaged in as a properly organised business.
Modern Day Organisation: Apart from the regulatory control that exists, there is a trend within the profession whereby partnerships are entered into. Although the old generation of lawyers, most of whom are no longer in practice, did engage in partnerships, they did not seem to thrive much in that era. Partnerships now seem to have become very popular within the ranks of the more junior lawyers. A partnership, as it is understood in this day and age, brings with it equity participation and the structuring of the law firm in such a way as to have departments or divisions headed by partners for its more efficient running. And within this partnership structure, it is also a growing trend to have partners whose major role is to procure work for the firm. All these trappings of partnership make it very clear that the legal profession is indeed structured and run as a business.
In the past, most of the clientele of Nigerian legal practitioners were individuals and those were the times when court room drama had its pride of place and it was usual for practitioners with such court room success to have a large client base. The days when the ability of the legal practitioner in the court room alone won clients for him appear to be a thing of the past. These days, there has been a large shift towards patronage by corporate clients of the top law firms particularly in places like Lagos. Corporate clients, especially foreign corporate clients, usually feel more comfortable to instruct and deal with law firms that appear to be properly organised as a business venture and have a good office setting. A very senior colleague confided in me that his law firm changed offices to a better environment because some prospective American client came all the way from the United States of America on appointment to see him. Food vendors were selling food on the street that his office was located and in fact in front of his office. The prospective client met with him, left and never returned. The foregoing again emphasises how much the legal profession has become a business.
The Skill Of The Practitioner: Even though so much has been said by me to indicate that the legal profession is a business, we cannot escape from the fact that it started as an art and it still retains those trappings. There can be no gainsaying the fact that what makes a great lawyer are industry and skill. With regard to the barrister who is probably more on centre stage than the solicitor, his skills come to play in so many ways.
First, in drawing up his pleading, that is the document by which he outlines the substance of his client’s case which he intends to present before the court, counsel must make sure he says enough in it to be able to put across his client’s case to the fullest. This is because, in civil cases, we have rules which do not permit a party to present a case, no matter how true and cogent it may be, which has not been presented in his pleading. The rationale for this is that the other party to the litigation should not be taken by surprise. There is a solution to not pleading one’s client’s case fully. This is to amend the pleading to plead what has been omitted. But it is not always that this solution is available because there is a body of rules governing when an amendment may be granted. Bearing in mind the fact that an amendment may not necessarily be available as a solution, it takes a lot of skill, ability and judgment to correctly determine how much should be pleaded in order not to prevent one’s client from presenting his case fully whilst at the same time ensuring that one does not plead unnecessary facts. The danger of pleading unnecessary facts is that if such facts which are unnecessary to be pleaded on the state of the law for a party to succeed in the case are introduced, the parties and the judge may get drawn into controversy over these unnecessary facts and the case may be decided on those facts. For instance, although for a contract to be valid in law, there must be consideration moving from one party to another, a plaintiff who is suing for breach of contract need not plead that he offered consideration as the law assumes that he did offer it. All he needs to plead is the existence of the contract and its breach. If he does not plead that he offered consideration and the defence does not raise his failure to offer it as a defence, it would not become an issue to be decided in the case. If, however, the plaintiff pleads that he offered consideration, it might occur to the defendant to contest what the plaintiff claims he offered as consideration and in this tussle the judge would have to pronounce on whether consideration as required by law was offered or not. If he comes to the conclusion that it was not offered the plaintiff’s action would be lost by the unnecessary introduction of the issue of consideration. It is the skilful lawyer who would know better than to plead that the plaintiff offered consideration.
Sometimes counsel is faced with a situation where he has to file an action in court promptly to obtain an interlocutory injunction for his client in order to avert some imminent mishap to him. In this situation, it is possible that, because of time constraint, counsel has been unable to obtain full instructions from the client. Given the imminent danger, counsel has to exercise great skill to decide whether to file the action and application promptly without having been provided with all the material. This decision would entail his having a balanced judgment as to whether:
a) on the facts so far available, a triable case has been made out;
b) it might turn out that material facts were withheld which might result in the discharge of the injunction if it was granted in the first place; and
c) it might become necessary to amend the processes filed and this is important because this may weaken the plaintiff’s claim to an entitlement to an interlocutory injunction which should normally be considered on the basis of the case presented at the time the application was filed.
After going beyond the stage of settling the pleadings, counsel still has to exercise great skill in determining how much of his hand he will show by seeking interlocutory reliefs vis-a-vis how such reliefs will affect the fortunes of the main case. In other words, counsel has to consider what is to be gained by his presenting a case for that interlocutory relief when weighed against what might be lost at the trial by having shown his hand. A good example is where counsel representing a defendant examines a statement of claim and feels that there is a fair chance of moving the court successfully to have the case terminated without going to trial because the action discloses no reasonable cause of action. In other words, even if everything the plaintiff alleges is true, on the state of the law, the action should fail. In this situation, counsel needs to ask himself the question: is there a strong chance that the action may be saved by an amendment of the plaintiff’s case? This is because if the plaintiff applies to amend his statement of claim after the application to dismiss the action has been filed and even argued, in so far as that amendment would introduce a fact which would make his case sustainable as a matter of law, the court would grant such an amendment and that would defeat the application and maybe lead to the plaintiff winning the case upon trial. Counsel would need to further ask himself, therefore, if it would be better for him to wait until the conclusion of trial when all the evidence would have been taken and it would be more difficult for the plaintiff to obtain an amendment at that stage, to make it one of the grounds for contending that the action should fail in that it discloses no reasonable cause of action.
Another example of the skill that is demonstrated by a barrister with regard to whether or not to bring an interlocutory application to terminate the case is this. A sues B in the Lagos State High Court with regard to title to land which he claims lies within the Lagos State of Nigeria but close to the border with Ogun State. In addition to claiming that the plaintiff has no valid title to the parcel of land, the defendant instructs his counsel that the parcel of land actually lies within Ogun State. Counsel therefore files a defence denying the plaintiff’s title and also alleging that the land falls within Ogun State. Procedurally, counsel may request that the judge decide whether the land lies within Lagos State or Ogun State as a preliminary point at that juncture. If the judge decides that it lies within Ogun State as a preliminary point he would terminate the action and leave the plaintiff with his remedy of filing it afresh before the proper court, the Ogun State High Court. On the other hand, if counsel for the defence does not seek to have this issue determined first, it is quite possible that the case might be tried to conclusion upon which the judge would then decide both issues before him as to whether the parcel of land lies within Lagos State and who has better title. The law of limitation which prescribes that any right of action with regard to title to land shall be extinguished within a certain period of time after the cause of action has accrued stipulates within most, if not all, jurisdictions that the period of time is twelve years. If the action in question was brought within one year of the cause of action having accrued, counsel for the defence would exercise his skill and judgment to raise the issue of the location of the land for immediate determination because his client would have nothing to gain by the case lasting till after a full trial. If, however, the action was filed in the twelfth year, it would be exercising great skill to opt to go through the whole trial and have the issue about the location of the land tried together with the merits of the case in the hope that by the time judgment is delivered the twelve years would have elapsed. This would be a strategy which would bear fruit if the defendant were to succeed on the contention that the land is located in Ogun State because any fresh action filed in Ogun State thereafter would be met with a plea that it is statute barred, that is, that twelve years have run since the act complained of and so the plaintiff has lost his right of action.
At the commencement of trial so many issues arise which require skill to manoeuvre one’s way through. I was privileged to have worked for over eleven years in the chambers of the late Chief F. R. A. Williams (who is perhaps the greatest advocate Nigeria has ever produced and who was incidentally the father of the person being honoured today). My experience was enriched by witnessing his court room practice and by listening to stories he told us of various court room dramas some of which brought to life the cold print of some of those cases reported. He once told us a story of how he represented a client who was the defendant in a case before the trial court. The case had been set down for the defence to be conducted but witnesses for the defence were not available. Chief Williams said that he had sensed that if he asked for an adjournment because the defence witnesses were not available, the defence case would probably have been closed by the judge that day without the opportunity of defence witnesses testifying. Chief Williams said that, in order to avert the situation, on the spur of the moment he announced to the court that he intended to call the plaintiff as a witness for the defendant. As Chief Williams anticipated, this application was opposed as unheard of and the judge ruled against him that he could not do such a thing. Chief Williams obtained a stay of further proceedings in the case on the basis of his intention to appeal against that decision. The decision was appealed, the effect of which was that Chief Williams was, after all, able to obtain the adjournment he wanted and eventually, the Supreme Court ruled in his favour to the effect that a plaintiff is a compellable witness to be called by the defendant[20]
In another case, a tremendous show of skill was again exhibited by Chief Williams. He had been instructed by a client who was indebted to a bank which was about to foreclose and sell the properties that had been mortgaged to secure the loan. The client was clearly not disputing that he owed the bank. However, he disputed the figure. He was also uncomfortable that the bank wanted to sell his properties. He wanted to resolve this dispute over the amount owed and buy time to be able to repay the amount he claimed he owed. Chief Williams promptly filed an action for a declaration as to the amount the client claimed he owed. The mortgages entered into were also challenged on various grounds and reliefs were sought to nullify them. After pleadings had been exchanged, the case was set down for hearing. Typically, Nigerian practitioners approach the issue of who starts calling evidence during trial as if it invariably is the plaintiff. Although in most cases the plaintiff would be the one to start calling evidence, the rule is that it is whoever will lose if no evidence is called on either side given the state of the pleadings and the presumptions of law that apply that starts. Chief Williams was, as usual, skilful enough to realise that, on the state of the pleadings he had a reasonably good chance to contend that the defendant was to start in that case. This sparked off argument which led to a decision against Chief Williams as a result of which the trial was stayed pending the determination of appeals on the point to both the Court of Appeal and the Supreme Court one after the other. The final decision by the Supreme Court was that the plaintiff should start which in effect meant that Chief Williams lost the contention but the Supreme Court pointed out that the issue raised by Chief Williams was not frivolous.[21] The ingenuity of Chief Williams bought time for the client to be able to gather funds to pay off what he claimed he actually owed if he was so minded to do.
During the trial, a lot of skill and judgment is again called for. Counsel has to know what questions to ask of his witness and exactly where to stop such that the witness would have said enough to prove the case and at the same time would not have ventured into areas of the case where his knowledge is shaky such as would prompt opposing counsel as to his line of useful cross-examination. As a cross-examiner, counsel also has to exercise skill to determine which particular witness not to cross-examine because it would be dangerous to do so. He must also know where to stop cross-examining a witness and what questions not to ask. One question too many may undo all the good work. I witnessed counsel cross-examining once where the evidence-in-chief in criminal proceedings was to the effect that the witness saw a group of people running away after a gunshot had been fired following which the deceased died. During cross-examination, counsel to the accused person suggested that the witness did not see the accused person in the group of people that ran away. The witness promptly replied that it was the accused person who was holding the gun during the chase. Counsel also suggested to the witness that the incident was at night and there was no electricity in the area to which the witness responded that this was correct. Counsel then asked how the witness was able to identify the accused person and the reply was that there was moonlight.[22]
During trial in one of the cases that I was privileged to appear with Chief Williams, a witness had produced in evidence the statement of the 1st defendant’s account kept by the bank to establish its indebtedness after having first established the necessary facts that needed to be established. Chief Williams started a line of cross-examination of that witness seeking to establish whether the bank records were kept as loose leaves or ledger cards or the books of account were bound and inseparable.[23] I was convinced that the line of cross-examination was a waste of time because, on the state of the law, it made no difference to the case whether the records of the bank were kept as loose leaves or ledgers or books of account that were inseparable.[24] I was also convinced that Chief Williams knew this. On our way back to chambers, therefore, I asked Chief Williams for confirmation that it did not matter whether the accounts were kept as loose leaves or ledgers and he confirmed that this was correct. I then asked him why he had engaged himself in the line of cross-examination which he had done. The answer to me was that it was deliberate to send opposing counsel on a wild goose chase: to direct his mind towards researching the law in that area to the detriment of the real substance of the case. It is important to note that that line of cross-examination was pursued in such a manner that the trial judge was merely recording the proceedings without the questions provoking any reaction from him that they were irrelevant and a waste of the court’s time. This is an element of skill during cross-examination.
A prominent bank was interested in renting the premises of a landlord. It wanted to use it as one of its branches. By exchange of correspondence, the bank requested and the landlord agreed, that several changes be made to the premises to make it suitable for use as a banking premises. These changes were made to the premises by the landlord at his expense. At the end of it all, the bank did an about turn and said that it no longer wanted the premises. The landlord sued for damages which had been suffered as a result of the breach. Chief Williams raised the defence that there was no valid contract to sue for a breach thereof because an essential term thereof, the commencement date, was never agreed upon. This defence did not find favour with the High Court and the Court of Appeal. The Supreme Court, however, reluctantly found for the bank on that ground.[25] The reluctance of the Supreme Court to find for the bank is captured in its advice to the bank that:
“It is unfortunate that the Plaintiff in conducting negotiations in a matter involving such a heavy sum of money as indicated by the evidence in this case acted without the assistance of a lawyer. It will appear that the Plaintiff at all stages of negotiations for the lease with which we are concerned in this appeal acted for itself. It is doubtful if it ever sought, let alone obtained, the advice of a legal practitioner in the matter. Perhaps if it had done the latter, it would have been warned of the risk of meeting demand after demand from the Defendant in the absence of a conclusive agreement for a lease. It turned out that the Plaintiff unwittingly took this risk which eventually materialised, as this judgment has shown, with the Plaintiff incurring losses for which the Defendant cannot be made legally liable. The stage at which the negotiations for an agreement for a lease had reached in this case raised high hopes in the Plaintiff that a concluded agreement would finally be arrived at.. That one was not reached is not because of any default on the part of the Plaintiff. In fact it was when all of the objections raised by the Defendant had been disposed of by the Plaintiff at some considerable cost that the Defendant called off the negotiations. The law says the Defendant can do so with impunity. But I do not think it will be too much to expect if the Defendant having regard to all the circumstances of this case decided to absorb exgratia some of the losses which the Plaintiff undoubtedly suffered in the transactions.”[26]
The passage quoted shows how much skill Chief Williams must have demonstrated to persuade the Supreme Court to find for the defendant bank in spite of their strong feeling of sympathy for the plaintiff.
The skill of the barrister also comes to play when he is addressing the court. A barrister goes to court prepared to address the court along certain lines. The judge in many cases would have seen certain aspects of the case from another perspective different to the perspective being presented by counsel. In such cases the judge would ask questions of counsel on issues counsel may not have considered at all or in great depth. The situation is even compounded where counsel is before the Court of Appeal or the Supreme Court where the bench could comprise three, five or seven justices all firing such questions one after the other. It takes tremendous skill to marshal all relevant residual knowledge on the spot and put it across to the judge or judges in such persuasive manner that, in spite of the fact that counsel never before prepared for that issue, the judge or judges would be persuaded on the point.
Sometimes an address is prolonged in order to obtain an adjournment that it might not be appropriate to seek. It takes a lot of skill to present the address in a drawn out manner without irritating the court with repetition or irrelevant matter until such a time as, because the time is far spent, the court would on its own volition, adjourn the case. This is known as filibustering, a practice more commonly associated with legislators attempting to delay the passage of a bill into law. No less a jurist than the Honourable Justice Kayode Eso acknowledged filibustering as an art when he said:
“A counsel who has been briefed and has accepted the brief and also has indicated to the court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment.
Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the court.”[27]
The manner in which the sentences are constructed and inflections of counsel do have a measure of relevance in determining how much of counsel’s address he is able to get across to the judge. No matter how correct he is in the analysis of the law and the facts of the case, if he is boring he might not carry the judge along with him. In the United states of America, advocacy usually goes one stage further with the involvement of theatrical gestures like pacing up and down the court room and choosing an appropriate moment to stop, or demonstrating an act that was supposed to have happened in order to emphasise a point or induce the members of the jury to believe the story being put across.
Though solicitors are not as much on the centre stage as barristers, their practice is not without the element of skill. In the writing of a legal opinion, it is an art to present it to the client in such simple language and as briefly as possible so he will not become bored and confused. At the same time, he is expected to ensure that no essential point that should be explained to the client which might be of vital importance in his decision making is omitted. With regard to drafting documents, although originally, solicitors who started as men who were barely literate wrapped the simplest transactions in mountains of legal jargon since they were paid by the line, the trend these days is to simplify these documents whilst at the same time ensuring that the essence of the agreement is captured. This is a skill.
Legal draftsmen also exercise a lot of skill in drafting statutes and legal instruments. In drafting these documents, it is an art to capture what the legislators meant to say having regard to all sorts of rules that the courts usually resort to in the event of an enquiry into the meaning of the said legislation. It is usual for the courts, of course ably assisted by counsel, whilst purporting to be finding out the true intention of parliament, to resort to various canons of interpretation in order to give the statute the meaning they prefer. A legal draftsman has to be very skilful to ensure that parliament’s true intentions are not scuttled by legal practitioners and the courts.
Conclusion: It is my opinion that it cannot be gainsaid that the legal profession, in this day and age, is not both an art and a business. Is it, however, more of one than the other? I will attempt to answer this question hereafter.
There are many legal practitioners who are very skilful but who have been unable to show such skills because they do not operate from a properly functioning business setting and as such they don’t get much patronage. Alternatively, the type of patronage they get is from clients who cannot pay much. On the other hand, a number of practitioners who have the opportunity to show their skills are getting more disillusioned with the idea of showing such skills because they are not convinced that these skills now play a significant role in their ability to attract good legal business and, accordingly, seek to attract legal business by other means.
Recent trends in our courts are killing some, if not all, elements of the artistic aspects of practice and they are:
(a) cases don’t get heard on time so barristers have fewer opportunities to sharpen their skills; and
(b) since the introduction of brief writing, the courts, particularly the High Courts and the Court of Appeal, are less patient in permitting oral advocacy which is perhaps the high point of the skills of a barrister.
The solicitors are also affected by this malaise. The fact that cases don’t get heard on time has a rippling effect. Commercial people use the courts less to settle their disputes and the ones who do wait for ages before such disputes are settled. The solicitor, therefore, no longer sees any paramount importance in putting in all his skills in drafting documents which may never be tested for their efficacy or which, by the time they are tested, may have lost their importance to the clients.
The same decline may be observed with regard to the legal draftsman. Legislators do not pass bills into law at the rate that it was done in the past. They are, these days, more concerned with other matters. As a result, the drafting skills of the legal draftsman are dulled.
For a long time now, the orientation has shifted greatly, from one where although a professional practised his profession to make money, it was not to the detriment of job satisfaction and the attainment of high standards, to one where he practises it solely or mainly to make money. This also applies to the legal profession. That being the case, legal practitioners are not, these days, very particular about skills but more about packaging practice as a business to attract as much financial success as possible.
The end result, in my opinion, is that whilst legal practice started as an art, the legal profession, as it exists today, is both an art and a business. These days, however, it has become more of a business in Nigeria. The better organised a law firm is as a business without necessarily portraying the skills and ability of a lawyer to the fullest, the more positioned it is to attract the best briefs and the best junior lawyers who in turn become more comfortable with this mode of practice
Dated the 3rd day of July 2008
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[1] Oxford Advanced Learner’s Dictionary 6th edition.
[2] The New International Webster’s Comprehensive Dictionary of The English Language Encyclopaedic Edition..
[3] Oxford Advanced Learner’s Dictionary 6th edition.
[4] Oxford Advanced Learners Dictionary 6th edition.
[5] The New International Webster’s Comprehensive Dictionary of The English Language Encyclopaedic Edition..
[6] The New International Webster’s Comprehensive Dictionary of The English Language Encyclopaedic Edition..
[7] Robert J. Bonner, Lawyers and Litigants in Ancient Athens: The Genesis of the Legal Profession.
[8] John A. Crook, Law and Life of Ancient Rome.
[9] John A. Crook, Law and Life of Ancient Rome.
[10] A. H. M. Jones, The Later Roman Empire: A Social, Economic, and Administrative Survey, vol 1.
[11] James A. Brundage, The Rise of the Professional Jurist in the Thirteenth Century.
[12] Professional Conduct of Legal Practitioners in Nigeria, J. Olakunle Orojo.
[13] Halsburys Laws of England 3rd edition.
[14] A. H. M. Jones, The Later Roman Empire: A Social, Economic, and Administrative Survey, vol 1.
[15] Professional Conduct of Legal Practitioners in Nigeria, J. Olakunle Orojo.
[16] The Legal Practitioners Act Cap L 11 Laws of the Federal Republic of Nigeria 2004..
[17] Legal Practitioners (Remuneration For Legal Documentation And Other Land Matters) Order S. I. 7 of 1991.
[18] S. I. No 6 of 2007.
[19] S. I. No 6 of 2007.
[20] Elias v. Disu & Ors (1962) All N.L.R. Part 1 (Reprint) 215.
[21] Bakare v. A.C.B. Ltd (1986) 3 N.W..L.R. Part 26 47.
[22] The case ended in the Supreme Court and it is reported as Ishola (Alias Ejigbadero) v. The State (1978) 11 N..S.C.C. 499 although the judgment of the Supreme Court did not deal with the issue.
[23] The case ended in the Supreme Court and it is reported as Bronik Motors Ltd & Anor v. Wema Bank Ltd (1983) 1 S.C.N.L.R. 296.
[24] Esso West Africa Inc v. Oyegbola (1969) Vol. 6 N.S.C.C. 350 at 3549 to 3553.
[25] U.B.A. Limited v.Tejumola & Sons Limited (1988) 2 N.W.L.R. Part 79 662.
[26] U.B.A. Limited v.Tejumola & Sons Limited (1988) 2 N.W.L.R. Part 79 662 at 684F-H.
[27] Mosheshe General Merchants Ltd v. Nigeria Steel Products Limited (1987) 2 N.W.L.R. Part 55 110 at 121D
Introduction: The topic for discussion is “The Legal Profession an art or a business?” Although we are all well aware of the meaning of the words “art” and “business”, I think that, for a proper appreciation of this paper, it would not be out of place to start with a definition of these two words. The word “art” in so far as it is relevant to the topic under discussion has been defined as “an ability or a skill that you can develop with training and practice.”[1] It has also been defined as “the practical application of knowledge or natural ability; skilled workmanship; mastery; dexterity.”[2] Therefore, in examining whether the legal profession is an art, I will consider whether ability and skill or the practical application of knowledge or natural ability form a part of the practice of the profession and if so, within time constraints, to what extent. The word “business” has been defined as “the activity of making, buying, selling or supplying goods or services for money.”[3] It has also been defined as “a commercial organisation such as a company, shop/store or factory.”[4] Another definition of the word “business” is “a pursuit or occupation; trade; profession; calling.”[5] It has also been defined as “a commercial enterprise or establishment.”[6] In examining whether the legal profession is a business I will consider the fact that it is an established profession, whether legal services are supplied for money and whether law firms are structured as commercial enterprises.
I intend to treat the topic starting with the origin of the legal profession and its progression through the stages to the modern day legal profession as it exists in Nigeria.
The Origin Of Legal Practice: History has it that the first lawyers were orators of ancient Athens . They could not organise themselves, and were not organised as a business because there was a rule that individuals were supposed to plead their own cases. The way found round this obstacle was for individuals to ask an orator, supposedly as a friend, for assistance. Secondly, orators were not allowed to charge a fee although this ban was disregarded. The result of the foregoing is that these orators could never organise into a real profession.[7]
In early ancient Rome , the early advocates were not trained in law but in rhetoric and the judges before whom they appeared were also not trained in law. In 204 BC a law was enacted banning these advocates from charging fees but, again, the ban was widely ignored until Emperor Claudius legalised advocacy as a profession and the Roman advocates became the first lawyers who could practice openly, although a fee ceiling was imposed and the popular view was that there was not much money to be made from the practice of the profession.[8]
Prior to the legalisation of legal practice as a profession in Rome, there had developed a separate body of men from the advocates who were trained only in rhetoric. They were learned in the law and were known as jurisconsults. They were wealthy amateurs who engaged in law as an intellectual hobby and they did not make their primary living from it. They gave legal opinions to all and sundry and Roman judges and governors routinely consulted with an advisory panel of jurisconsults before giving decisions. Even advocates not learned in the law sought legal opinion from them.[9]
In late ancient Rome, however, the legal profession had become well regulated and organised and advocates had to be enrolled at the bar of a court to argue before it. Also, advocates were then studying law in addition to rhetoric. As a result, the use of jurisconsults went into decline.[10]
In the middle ages, there had developed over Western Europe a small number of men who had become experts in canon law but this expertise was put to use mainly serving the Roman Catholic Church as priests. Subsequently, however, people began to practice canon law as a profession in itself.[11]
In England, the legal profession had similar origins as those of Athens and Rome. The first set of people to practice the profession in England was known as professional pleaders known as narrators who appeared before the courts because of the complexity of the common law and the procedure in courts. From the ranks of these narrators eventually came the barristers who were people trained in the various Inns of Courts.[12]
The origin of these barristers in England was from the Inns of Courts which are the societies of Lincoln’s Inn, the Inner Temple, the Middle Temple and the Gray’s Inn. Apprentices learned in these Inns before being allowed to appear in court. Their course of study included the study of the common law, readings on statutes and moots or arguments on points of law.[13]
It is interesting to contrast the origins of solicitors. The first solicitors appeared in the late Roman Empire . They were known as notaries and they were responsible for drafting wills, conveyances and contracts. They were considered to be inferior to advocates and jurisconsults. They were not law trained and were barely literate. The simplest transactions were wrapped in mountains of legal jargon since they were paid by the line.[14]
In England, it appears that historically, attorneys were the forerunners of the modern solicitors and they appeared as agents of litigants who appointed them to so appear so that they would not have to appear personally.[15]
From this brief history, it will be seen that legal practice did not start as a business. There was no legal profession. Practice was not organised and the practitioners were not allowed to charge a fee. Some even practised as amateurs for the pleasure of it. It is safe to conclude, therefore, that it started as a vocation where all that happened was a show of ability, knowledge and skills. It, therefore, started as an art although, at some point in time, the business element was introduced when fees were legitimately charged and there came into existence a profession that was properly regulated.
Regulatory Control Of The Legal Profession In Nigeria: Legal practice in Nigeria derives its roots from legal practice in England at the stage where it had been structured and regulated and it had properly so called become a profession. In line with such regulations that exist in England, the legal profession in Nigeria is also regulated..[16] The enactment which regulates it prescribes the criteria for eligibility to practice as barristers and solicitors. It also regulates the practice and makes provision for the Legal Practitioners Remuneration Committee to make orders regulating generally the charges of legal practitioners. The enactment also empowers the General Council of the Bar known as the Bar Council to make rules as to the opening and keeping by legal practitioners of accounts at banks for clients’ moneys. Indeed, subsidiary legislation has also been made regulating fees to be charged by legal practitioners with regard to legal documentation[17] as well as guiding practitioners with regard to fees in respect of litigation.[18] Further, rules of professional conduct do exist which regulate the legal practitioner in his practice.[19] These rules also stipulate the amount of practising fees to be paid by practitioners annually.
The regulatory control over the legal profession spelt out coupled with the fact that a legal practitioner is expected to charge fees makes it clear, without any doubt in my mind, that the legal profession is currently meant to be engaged in as a properly organised business.
Modern Day Organisation: Apart from the regulatory control that exists, there is a trend within the profession whereby partnerships are entered into. Although the old generation of lawyers, most of whom are no longer in practice, did engage in partnerships, they did not seem to thrive much in that era. Partnerships now seem to have become very popular within the ranks of the more junior lawyers. A partnership, as it is understood in this day and age, brings with it equity participation and the structuring of the law firm in such a way as to have departments or divisions headed by partners for its more efficient running. And within this partnership structure, it is also a growing trend to have partners whose major role is to procure work for the firm. All these trappings of partnership make it very clear that the legal profession is indeed structured and run as a business.
In the past, most of the clientele of Nigerian legal practitioners were individuals and those were the times when court room drama had its pride of place and it was usual for practitioners with such court room success to have a large client base. The days when the ability of the legal practitioner in the court room alone won clients for him appear to be a thing of the past. These days, there has been a large shift towards patronage by corporate clients of the top law firms particularly in places like Lagos. Corporate clients, especially foreign corporate clients, usually feel more comfortable to instruct and deal with law firms that appear to be properly organised as a business venture and have a good office setting. A very senior colleague confided in me that his law firm changed offices to a better environment because some prospective American client came all the way from the United States of America on appointment to see him. Food vendors were selling food on the street that his office was located and in fact in front of his office. The prospective client met with him, left and never returned. The foregoing again emphasises how much the legal profession has become a business.
The Skill Of The Practitioner: Even though so much has been said by me to indicate that the legal profession is a business, we cannot escape from the fact that it started as an art and it still retains those trappings. There can be no gainsaying the fact that what makes a great lawyer are industry and skill. With regard to the barrister who is probably more on centre stage than the solicitor, his skills come to play in so many ways.
First, in drawing up his pleading, that is the document by which he outlines the substance of his client’s case which he intends to present before the court, counsel must make sure he says enough in it to be able to put across his client’s case to the fullest. This is because, in civil cases, we have rules which do not permit a party to present a case, no matter how true and cogent it may be, which has not been presented in his pleading. The rationale for this is that the other party to the litigation should not be taken by surprise. There is a solution to not pleading one’s client’s case fully. This is to amend the pleading to plead what has been omitted. But it is not always that this solution is available because there is a body of rules governing when an amendment may be granted. Bearing in mind the fact that an amendment may not necessarily be available as a solution, it takes a lot of skill, ability and judgment to correctly determine how much should be pleaded in order not to prevent one’s client from presenting his case fully whilst at the same time ensuring that one does not plead unnecessary facts. The danger of pleading unnecessary facts is that if such facts which are unnecessary to be pleaded on the state of the law for a party to succeed in the case are introduced, the parties and the judge may get drawn into controversy over these unnecessary facts and the case may be decided on those facts. For instance, although for a contract to be valid in law, there must be consideration moving from one party to another, a plaintiff who is suing for breach of contract need not plead that he offered consideration as the law assumes that he did offer it. All he needs to plead is the existence of the contract and its breach. If he does not plead that he offered consideration and the defence does not raise his failure to offer it as a defence, it would not become an issue to be decided in the case. If, however, the plaintiff pleads that he offered consideration, it might occur to the defendant to contest what the plaintiff claims he offered as consideration and in this tussle the judge would have to pronounce on whether consideration as required by law was offered or not. If he comes to the conclusion that it was not offered the plaintiff’s action would be lost by the unnecessary introduction of the issue of consideration. It is the skilful lawyer who would know better than to plead that the plaintiff offered consideration.
Sometimes counsel is faced with a situation where he has to file an action in court promptly to obtain an interlocutory injunction for his client in order to avert some imminent mishap to him. In this situation, it is possible that, because of time constraint, counsel has been unable to obtain full instructions from the client. Given the imminent danger, counsel has to exercise great skill to decide whether to file the action and application promptly without having been provided with all the material. This decision would entail his having a balanced judgment as to whether:
a) on the facts so far available, a triable case has been made out;
b) it might turn out that material facts were withheld which might result in the discharge of the injunction if it was granted in the first place; and
c) it might become necessary to amend the processes filed and this is important because this may weaken the plaintiff’s claim to an entitlement to an interlocutory injunction which should normally be considered on the basis of the case presented at the time the application was filed.
After going beyond the stage of settling the pleadings, counsel still has to exercise great skill in determining how much of his hand he will show by seeking interlocutory reliefs vis-a-vis how such reliefs will affect the fortunes of the main case. In other words, counsel has to consider what is to be gained by his presenting a case for that interlocutory relief when weighed against what might be lost at the trial by having shown his hand. A good example is where counsel representing a defendant examines a statement of claim and feels that there is a fair chance of moving the court successfully to have the case terminated without going to trial because the action discloses no reasonable cause of action. In other words, even if everything the plaintiff alleges is true, on the state of the law, the action should fail. In this situation, counsel needs to ask himself the question: is there a strong chance that the action may be saved by an amendment of the plaintiff’s case? This is because if the plaintiff applies to amend his statement of claim after the application to dismiss the action has been filed and even argued, in so far as that amendment would introduce a fact which would make his case sustainable as a matter of law, the court would grant such an amendment and that would defeat the application and maybe lead to the plaintiff winning the case upon trial. Counsel would need to further ask himself, therefore, if it would be better for him to wait until the conclusion of trial when all the evidence would have been taken and it would be more difficult for the plaintiff to obtain an amendment at that stage, to make it one of the grounds for contending that the action should fail in that it discloses no reasonable cause of action.
Another example of the skill that is demonstrated by a barrister with regard to whether or not to bring an interlocutory application to terminate the case is this. A sues B in the Lagos State High Court with regard to title to land which he claims lies within the Lagos State of Nigeria but close to the border with Ogun State. In addition to claiming that the plaintiff has no valid title to the parcel of land, the defendant instructs his counsel that the parcel of land actually lies within Ogun State. Counsel therefore files a defence denying the plaintiff’s title and also alleging that the land falls within Ogun State. Procedurally, counsel may request that the judge decide whether the land lies within Lagos State or Ogun State as a preliminary point at that juncture. If the judge decides that it lies within Ogun State as a preliminary point he would terminate the action and leave the plaintiff with his remedy of filing it afresh before the proper court, the Ogun State High Court. On the other hand, if counsel for the defence does not seek to have this issue determined first, it is quite possible that the case might be tried to conclusion upon which the judge would then decide both issues before him as to whether the parcel of land lies within Lagos State and who has better title. The law of limitation which prescribes that any right of action with regard to title to land shall be extinguished within a certain period of time after the cause of action has accrued stipulates within most, if not all, jurisdictions that the period of time is twelve years. If the action in question was brought within one year of the cause of action having accrued, counsel for the defence would exercise his skill and judgment to raise the issue of the location of the land for immediate determination because his client would have nothing to gain by the case lasting till after a full trial. If, however, the action was filed in the twelfth year, it would be exercising great skill to opt to go through the whole trial and have the issue about the location of the land tried together with the merits of the case in the hope that by the time judgment is delivered the twelve years would have elapsed. This would be a strategy which would bear fruit if the defendant were to succeed on the contention that the land is located in Ogun State because any fresh action filed in Ogun State thereafter would be met with a plea that it is statute barred, that is, that twelve years have run since the act complained of and so the plaintiff has lost his right of action.
At the commencement of trial so many issues arise which require skill to manoeuvre one’s way through. I was privileged to have worked for over eleven years in the chambers of the late Chief F. R. A. Williams (who is perhaps the greatest advocate Nigeria has ever produced and who was incidentally the father of the person being honoured today). My experience was enriched by witnessing his court room practice and by listening to stories he told us of various court room dramas some of which brought to life the cold print of some of those cases reported. He once told us a story of how he represented a client who was the defendant in a case before the trial court. The case had been set down for the defence to be conducted but witnesses for the defence were not available. Chief Williams said that he had sensed that if he asked for an adjournment because the defence witnesses were not available, the defence case would probably have been closed by the judge that day without the opportunity of defence witnesses testifying. Chief Williams said that, in order to avert the situation, on the spur of the moment he announced to the court that he intended to call the plaintiff as a witness for the defendant. As Chief Williams anticipated, this application was opposed as unheard of and the judge ruled against him that he could not do such a thing. Chief Williams obtained a stay of further proceedings in the case on the basis of his intention to appeal against that decision. The decision was appealed, the effect of which was that Chief Williams was, after all, able to obtain the adjournment he wanted and eventually, the Supreme Court ruled in his favour to the effect that a plaintiff is a compellable witness to be called by the defendant[20]
In another case, a tremendous show of skill was again exhibited by Chief Williams. He had been instructed by a client who was indebted to a bank which was about to foreclose and sell the properties that had been mortgaged to secure the loan. The client was clearly not disputing that he owed the bank. However, he disputed the figure. He was also uncomfortable that the bank wanted to sell his properties. He wanted to resolve this dispute over the amount owed and buy time to be able to repay the amount he claimed he owed. Chief Williams promptly filed an action for a declaration as to the amount the client claimed he owed. The mortgages entered into were also challenged on various grounds and reliefs were sought to nullify them. After pleadings had been exchanged, the case was set down for hearing. Typically, Nigerian practitioners approach the issue of who starts calling evidence during trial as if it invariably is the plaintiff. Although in most cases the plaintiff would be the one to start calling evidence, the rule is that it is whoever will lose if no evidence is called on either side given the state of the pleadings and the presumptions of law that apply that starts. Chief Williams was, as usual, skilful enough to realise that, on the state of the pleadings he had a reasonably good chance to contend that the defendant was to start in that case. This sparked off argument which led to a decision against Chief Williams as a result of which the trial was stayed pending the determination of appeals on the point to both the Court of Appeal and the Supreme Court one after the other. The final decision by the Supreme Court was that the plaintiff should start which in effect meant that Chief Williams lost the contention but the Supreme Court pointed out that the issue raised by Chief Williams was not frivolous.[21] The ingenuity of Chief Williams bought time for the client to be able to gather funds to pay off what he claimed he actually owed if he was so minded to do.
During the trial, a lot of skill and judgment is again called for. Counsel has to know what questions to ask of his witness and exactly where to stop such that the witness would have said enough to prove the case and at the same time would not have ventured into areas of the case where his knowledge is shaky such as would prompt opposing counsel as to his line of useful cross-examination. As a cross-examiner, counsel also has to exercise skill to determine which particular witness not to cross-examine because it would be dangerous to do so. He must also know where to stop cross-examining a witness and what questions not to ask. One question too many may undo all the good work. I witnessed counsel cross-examining once where the evidence-in-chief in criminal proceedings was to the effect that the witness saw a group of people running away after a gunshot had been fired following which the deceased died. During cross-examination, counsel to the accused person suggested that the witness did not see the accused person in the group of people that ran away. The witness promptly replied that it was the accused person who was holding the gun during the chase. Counsel also suggested to the witness that the incident was at night and there was no electricity in the area to which the witness responded that this was correct. Counsel then asked how the witness was able to identify the accused person and the reply was that there was moonlight.[22]
During trial in one of the cases that I was privileged to appear with Chief Williams, a witness had produced in evidence the statement of the 1st defendant’s account kept by the bank to establish its indebtedness after having first established the necessary facts that needed to be established. Chief Williams started a line of cross-examination of that witness seeking to establish whether the bank records were kept as loose leaves or ledger cards or the books of account were bound and inseparable.[23] I was convinced that the line of cross-examination was a waste of time because, on the state of the law, it made no difference to the case whether the records of the bank were kept as loose leaves or ledgers or books of account that were inseparable.[24] I was also convinced that Chief Williams knew this. On our way back to chambers, therefore, I asked Chief Williams for confirmation that it did not matter whether the accounts were kept as loose leaves or ledgers and he confirmed that this was correct. I then asked him why he had engaged himself in the line of cross-examination which he had done. The answer to me was that it was deliberate to send opposing counsel on a wild goose chase: to direct his mind towards researching the law in that area to the detriment of the real substance of the case. It is important to note that that line of cross-examination was pursued in such a manner that the trial judge was merely recording the proceedings without the questions provoking any reaction from him that they were irrelevant and a waste of the court’s time. This is an element of skill during cross-examination.
A prominent bank was interested in renting the premises of a landlord. It wanted to use it as one of its branches. By exchange of correspondence, the bank requested and the landlord agreed, that several changes be made to the premises to make it suitable for use as a banking premises. These changes were made to the premises by the landlord at his expense. At the end of it all, the bank did an about turn and said that it no longer wanted the premises. The landlord sued for damages which had been suffered as a result of the breach. Chief Williams raised the defence that there was no valid contract to sue for a breach thereof because an essential term thereof, the commencement date, was never agreed upon. This defence did not find favour with the High Court and the Court of Appeal. The Supreme Court, however, reluctantly found for the bank on that ground.[25] The reluctance of the Supreme Court to find for the bank is captured in its advice to the bank that:
“It is unfortunate that the Plaintiff in conducting negotiations in a matter involving such a heavy sum of money as indicated by the evidence in this case acted without the assistance of a lawyer. It will appear that the Plaintiff at all stages of negotiations for the lease with which we are concerned in this appeal acted for itself. It is doubtful if it ever sought, let alone obtained, the advice of a legal practitioner in the matter. Perhaps if it had done the latter, it would have been warned of the risk of meeting demand after demand from the Defendant in the absence of a conclusive agreement for a lease. It turned out that the Plaintiff unwittingly took this risk which eventually materialised, as this judgment has shown, with the Plaintiff incurring losses for which the Defendant cannot be made legally liable. The stage at which the negotiations for an agreement for a lease had reached in this case raised high hopes in the Plaintiff that a concluded agreement would finally be arrived at.. That one was not reached is not because of any default on the part of the Plaintiff. In fact it was when all of the objections raised by the Defendant had been disposed of by the Plaintiff at some considerable cost that the Defendant called off the negotiations. The law says the Defendant can do so with impunity. But I do not think it will be too much to expect if the Defendant having regard to all the circumstances of this case decided to absorb exgratia some of the losses which the Plaintiff undoubtedly suffered in the transactions.”[26]
The passage quoted shows how much skill Chief Williams must have demonstrated to persuade the Supreme Court to find for the defendant bank in spite of their strong feeling of sympathy for the plaintiff.
The skill of the barrister also comes to play when he is addressing the court. A barrister goes to court prepared to address the court along certain lines. The judge in many cases would have seen certain aspects of the case from another perspective different to the perspective being presented by counsel. In such cases the judge would ask questions of counsel on issues counsel may not have considered at all or in great depth. The situation is even compounded where counsel is before the Court of Appeal or the Supreme Court where the bench could comprise three, five or seven justices all firing such questions one after the other. It takes tremendous skill to marshal all relevant residual knowledge on the spot and put it across to the judge or judges in such persuasive manner that, in spite of the fact that counsel never before prepared for that issue, the judge or judges would be persuaded on the point.
Sometimes an address is prolonged in order to obtain an adjournment that it might not be appropriate to seek. It takes a lot of skill to present the address in a drawn out manner without irritating the court with repetition or irrelevant matter until such a time as, because the time is far spent, the court would on its own volition, adjourn the case. This is known as filibustering, a practice more commonly associated with legislators attempting to delay the passage of a bill into law. No less a jurist than the Honourable Justice Kayode Eso acknowledged filibustering as an art when he said:
“A counsel who has been briefed and has accepted the brief and also has indicated to the court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment.
Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the court.”[27]
The manner in which the sentences are constructed and inflections of counsel do have a measure of relevance in determining how much of counsel’s address he is able to get across to the judge. No matter how correct he is in the analysis of the law and the facts of the case, if he is boring he might not carry the judge along with him. In the United states of America, advocacy usually goes one stage further with the involvement of theatrical gestures like pacing up and down the court room and choosing an appropriate moment to stop, or demonstrating an act that was supposed to have happened in order to emphasise a point or induce the members of the jury to believe the story being put across.
Though solicitors are not as much on the centre stage as barristers, their practice is not without the element of skill. In the writing of a legal opinion, it is an art to present it to the client in such simple language and as briefly as possible so he will not become bored and confused. At the same time, he is expected to ensure that no essential point that should be explained to the client which might be of vital importance in his decision making is omitted. With regard to drafting documents, although originally, solicitors who started as men who were barely literate wrapped the simplest transactions in mountains of legal jargon since they were paid by the line, the trend these days is to simplify these documents whilst at the same time ensuring that the essence of the agreement is captured. This is a skill.
Legal draftsmen also exercise a lot of skill in drafting statutes and legal instruments. In drafting these documents, it is an art to capture what the legislators meant to say having regard to all sorts of rules that the courts usually resort to in the event of an enquiry into the meaning of the said legislation. It is usual for the courts, of course ably assisted by counsel, whilst purporting to be finding out the true intention of parliament, to resort to various canons of interpretation in order to give the statute the meaning they prefer. A legal draftsman has to be very skilful to ensure that parliament’s true intentions are not scuttled by legal practitioners and the courts.
Conclusion: It is my opinion that it cannot be gainsaid that the legal profession, in this day and age, is not both an art and a business. Is it, however, more of one than the other? I will attempt to answer this question hereafter.
There are many legal practitioners who are very skilful but who have been unable to show such skills because they do not operate from a properly functioning business setting and as such they don’t get much patronage. Alternatively, the type of patronage they get is from clients who cannot pay much. On the other hand, a number of practitioners who have the opportunity to show their skills are getting more disillusioned with the idea of showing such skills because they are not convinced that these skills now play a significant role in their ability to attract good legal business and, accordingly, seek to attract legal business by other means.
Recent trends in our courts are killing some, if not all, elements of the artistic aspects of practice and they are:
(a) cases don’t get heard on time so barristers have fewer opportunities to sharpen their skills; and
(b) since the introduction of brief writing, the courts, particularly the High Courts and the Court of Appeal, are less patient in permitting oral advocacy which is perhaps the high point of the skills of a barrister.
The solicitors are also affected by this malaise. The fact that cases don’t get heard on time has a rippling effect. Commercial people use the courts less to settle their disputes and the ones who do wait for ages before such disputes are settled. The solicitor, therefore, no longer sees any paramount importance in putting in all his skills in drafting documents which may never be tested for their efficacy or which, by the time they are tested, may have lost their importance to the clients.
The same decline may be observed with regard to the legal draftsman. Legislators do not pass bills into law at the rate that it was done in the past. They are, these days, more concerned with other matters. As a result, the drafting skills of the legal draftsman are dulled.
For a long time now, the orientation has shifted greatly, from one where although a professional practised his profession to make money, it was not to the detriment of job satisfaction and the attainment of high standards, to one where he practises it solely or mainly to make money. This also applies to the legal profession. That being the case, legal practitioners are not, these days, very particular about skills but more about packaging practice as a business to attract as much financial success as possible.
The end result, in my opinion, is that whilst legal practice started as an art, the legal profession, as it exists today, is both an art and a business. These days, however, it has become more of a business in Nigeria. The better organised a law firm is as a business without necessarily portraying the skills and ability of a lawyer to the fullest, the more positioned it is to attract the best briefs and the best junior lawyers who in turn become more comfortable with this mode of practice
Dated the 3rd day of July 2008
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[1] Oxford Advanced Learner’s Dictionary 6th edition.
[2] The New International Webster’s Comprehensive Dictionary of The English Language Encyclopaedic Edition..
[3] Oxford Advanced Learner’s Dictionary 6th edition.
[4] Oxford Advanced Learners Dictionary 6th edition.
[5] The New International Webster’s Comprehensive Dictionary of The English Language Encyclopaedic Edition..
[6] The New International Webster’s Comprehensive Dictionary of The English Language Encyclopaedic Edition..
[7] Robert J. Bonner, Lawyers and Litigants in Ancient Athens: The Genesis of the Legal Profession.
[8] John A. Crook, Law and Life of Ancient Rome.
[9] John A. Crook, Law and Life of Ancient Rome.
[10] A. H. M. Jones, The Later Roman Empire: A Social, Economic, and Administrative Survey, vol 1.
[11] James A. Brundage, The Rise of the Professional Jurist in the Thirteenth Century.
[12] Professional Conduct of Legal Practitioners in Nigeria, J. Olakunle Orojo.
[13] Halsburys Laws of England 3rd edition.
[14] A. H. M. Jones, The Later Roman Empire: A Social, Economic, and Administrative Survey, vol 1.
[15] Professional Conduct of Legal Practitioners in Nigeria, J. Olakunle Orojo.
[16] The Legal Practitioners Act Cap L 11 Laws of the Federal Republic of Nigeria 2004..
[17] Legal Practitioners (Remuneration For Legal Documentation And Other Land Matters) Order S. I. 7 of 1991.
[18] S. I. No 6 of 2007.
[19] S. I. No 6 of 2007.
[20] Elias v. Disu & Ors (1962) All N.L.R. Part 1 (Reprint) 215.
[21] Bakare v. A.C.B. Ltd (1986) 3 N.W..L.R. Part 26 47.
[22] The case ended in the Supreme Court and it is reported as Ishola (Alias Ejigbadero) v. The State (1978) 11 N..S.C.C. 499 although the judgment of the Supreme Court did not deal with the issue.
[23] The case ended in the Supreme Court and it is reported as Bronik Motors Ltd & Anor v. Wema Bank Ltd (1983) 1 S.C.N.L.R. 296.
[24] Esso West Africa Inc v. Oyegbola (1969) Vol. 6 N.S.C.C. 350 at 3549 to 3553.
[25] U.B.A. Limited v.Tejumola & Sons Limited (1988) 2 N.W.L.R. Part 79 662.
[26] U.B.A. Limited v.Tejumola & Sons Limited (1988) 2 N.W.L.R. Part 79 662 at 684F-H.
[27] Mosheshe General Merchants Ltd v. Nigeria Steel Products Limited (1987) 2 N.W.L.R. Part 55 110 at 121D
Nigerian Young Lawyers deserve better
The caption 'FG approves salary scale for medical doctors' published in the Thisday Newspapers of 24th September 2009, peeved rather than facsinate me.
My ire was drawn towards the 'Seniors', Authorities, controlling bodies and policy makers of the Legal Profession in Nigeria, for being directly or otherwise selfish and unnecessary cruel to their Juniors, in terms of remuneration and general conditions of work.
It is surprising to note that, in a country like ours,where Law practice booms inspite of Global recession and other economic vices, some Lawyers earn ludicrous amounts not even sufficeint for their basic needs.
Their woes are compounded more, when outsiders think big of their earnings as Juniors. For the records, I stand to be controverted though, No Law firm in Nigeria is magnanimous enough to pay N150,000 for starters in a month, the highest spenders pay N120,000 or thereabout-a relatively considerate sum,if you ask me, and there is a handful of them.
May it please you to know that, No one is yearning for an unjustifiably mega pay, but at least, we deserve to stay alive, and not stink along.
Yes, our Seniors are not always bereft of their popular defence - Law-school leavers are naive,crude,raw and not useful in Chambers,hence, they need to be further trained , "so why should I pay an apprentice?"
I make bold to say that, Banks,Oil firms and other reputable institutions also train their recruits over time and still dont starve their employees of comfortable standard of working and living.
The erstwhile deceptive illusion that Lawyers are never unemployed has been relegated to the background by the reality and eyesore of unattached young Lawyers lounging the streets of our cities while a lot of their contemporaries have resorted to other friendlier and more accomodating fields.
I read with mixed feelings the story of an erstwhile Bank driver who was arrested for stealing his employer's money. In his explanation, he confessed that his monthly salary of N40,000 was sufficient for him to meet his needs. There and then , I said to myself, little did this poor fellow know that he once earned more than many Lawyers.
It is appalling for a profession that prides itself as the noblest, to treat its recruits with utmost disregard and disrespect. Rule 26 of the Rules of Professional Conduct, which provides for Lawyers to treat themselves with respect, cannot be more violated, than underrating,under-valuing and under-remunerating one's colleagues.
How does one explain that, one's allowance as a Law student while in the University was more than one's salary as a qualified Lawyer,and therefore couldn't even afford to dress decently,feed normally and buy basic needs of life, all in the name of ''enduringly garnering experience to succeed in Law practice''
Me thinks the common practice of the senior Lawyers' financial stifle of their Juniors, is not only cruel,but also unsympathetic to the welfare of their professional wards
It is saddening and lamentable enough, to note that in this 21st Century, many Law firms in Nigeria still,and proudly too, pay Lawyers about 15-30 thousand Naira monthly salary, inspite of the later being forced to do all sorts of errand running for donkey hours like donkeyworkers.
This however, is not to say that some Law firms are not relatively fair in their handling of Juniors, there are a handful of them,which informs the unending scamper for employment in such firms.
If the doctors have standard salary scale,then what stops the Lawyers. The Legal profession should not merely be noble on paper, her nobility must refelct on her members,in earning,appearance, inter-personal treatment and holistic dealings.
May I remind you that, prime of the reasons most Juniors pushed for the abolition of the rank of SAN at the last Bar Conference in Lagos, were oppression,economic terrorism and professional ill-usage of the Juniors by some of their 'privileged' Employers.
The origin of this devilish thralldom attitude is yet unknown,but it is manifestly peculiar to Nigeria.
Research shows that the lowest monthly earning of Attorneys in the United States of America is 1,500 dollars,while no Lawyer in the United Kingdom earns less than 2000 pounds in a month, even in Ghana,our African Neighbour,young Lawyers earn reasonable monthly salary
The Question now is...where did Nigeria get her precedent on this?
Where ever the malaise came from, it is apparent that, its effect on our dear profession has been unquantifiably harsh, even on the most fervid New wig,who will stop at nothing to get his practice life uder way at all cost, and this has chased many others out of the profession into friendlier fields,with the after effect of systemic brain drain.
This is the umptieth 'save our soul' appeal to the General Council of the Bar, Body of Benchers,Nigerian Bar Association, the Legal Practioners' Remuneration Committee,Body of Senior Advocates and every other stakeholder in the Legal profession, to show more considerable level of concern on the plight of the young Lawyers in this country, and please set a binding standard for meaninful remuneration of the Juniors.
Olumide Babalola
My ire was drawn towards the 'Seniors', Authorities, controlling bodies and policy makers of the Legal Profession in Nigeria, for being directly or otherwise selfish and unnecessary cruel to their Juniors, in terms of remuneration and general conditions of work.
It is surprising to note that, in a country like ours,where Law practice booms inspite of Global recession and other economic vices, some Lawyers earn ludicrous amounts not even sufficeint for their basic needs.
Their woes are compounded more, when outsiders think big of their earnings as Juniors. For the records, I stand to be controverted though, No Law firm in Nigeria is magnanimous enough to pay N150,000 for starters in a month, the highest spenders pay N120,000 or thereabout-a relatively considerate sum,if you ask me, and there is a handful of them.
May it please you to know that, No one is yearning for an unjustifiably mega pay, but at least, we deserve to stay alive, and not stink along.
Yes, our Seniors are not always bereft of their popular defence - Law-school leavers are naive,crude,raw and not useful in Chambers,hence, they need to be further trained , "so why should I pay an apprentice?"
I make bold to say that, Banks,Oil firms and other reputable institutions also train their recruits over time and still dont starve their employees of comfortable standard of working and living.
The erstwhile deceptive illusion that Lawyers are never unemployed has been relegated to the background by the reality and eyesore of unattached young Lawyers lounging the streets of our cities while a lot of their contemporaries have resorted to other friendlier and more accomodating fields.
I read with mixed feelings the story of an erstwhile Bank driver who was arrested for stealing his employer's money. In his explanation, he confessed that his monthly salary of N40,000 was sufficient for him to meet his needs. There and then , I said to myself, little did this poor fellow know that he once earned more than many Lawyers.
It is appalling for a profession that prides itself as the noblest, to treat its recruits with utmost disregard and disrespect. Rule 26 of the Rules of Professional Conduct, which provides for Lawyers to treat themselves with respect, cannot be more violated, than underrating,under-valuing and under-remunerating one's colleagues.
How does one explain that, one's allowance as a Law student while in the University was more than one's salary as a qualified Lawyer,and therefore couldn't even afford to dress decently,feed normally and buy basic needs of life, all in the name of ''enduringly garnering experience to succeed in Law practice''
Me thinks the common practice of the senior Lawyers' financial stifle of their Juniors, is not only cruel,but also unsympathetic to the welfare of their professional wards
It is saddening and lamentable enough, to note that in this 21st Century, many Law firms in Nigeria still,and proudly too, pay Lawyers about 15-30 thousand Naira monthly salary, inspite of the later being forced to do all sorts of errand running for donkey hours like donkeyworkers.
This however, is not to say that some Law firms are not relatively fair in their handling of Juniors, there are a handful of them,which informs the unending scamper for employment in such firms.
If the doctors have standard salary scale,then what stops the Lawyers. The Legal profession should not merely be noble on paper, her nobility must refelct on her members,in earning,appearance, inter-personal treatment and holistic dealings.
May I remind you that, prime of the reasons most Juniors pushed for the abolition of the rank of SAN at the last Bar Conference in Lagos, were oppression,economic terrorism and professional ill-usage of the Juniors by some of their 'privileged' Employers.
The origin of this devilish thralldom attitude is yet unknown,but it is manifestly peculiar to Nigeria.
Research shows that the lowest monthly earning of Attorneys in the United States of America is 1,500 dollars,while no Lawyer in the United Kingdom earns less than 2000 pounds in a month, even in Ghana,our African Neighbour,young Lawyers earn reasonable monthly salary
The Question now is...where did Nigeria get her precedent on this?
Where ever the malaise came from, it is apparent that, its effect on our dear profession has been unquantifiably harsh, even on the most fervid New wig,who will stop at nothing to get his practice life uder way at all cost, and this has chased many others out of the profession into friendlier fields,with the after effect of systemic brain drain.
This is the umptieth 'save our soul' appeal to the General Council of the Bar, Body of Benchers,Nigerian Bar Association, the Legal Practioners' Remuneration Committee,Body of Senior Advocates and every other stakeholder in the Legal profession, to show more considerable level of concern on the plight of the young Lawyers in this country, and please set a binding standard for meaninful remuneration of the Juniors.
Olumide Babalola
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