By Kazeem A. Oyinwola
Since the amendment of Rules 9(2), 10, 11, 12 and 13 of the RPC by the Honourable Attorney-General of Federation (HAGF), serious dust has been raised on media space as to the manner, the motive as well as the legal basis for the amendment. Different legal practitioners have reacted to the news differently. The Nigerian Bar Association (NBA) even issued an official statement wherein the NBA president noted that ‘that the Legal Practitioners Act (as amended) confers the power to issue rules of professional conduct for legal practitioners, and any amendments thereto, on the General Council of the Bar’. On this basis, NBA also asserted that ‘no authority or approval was given to the amendment of the RPC” and consequently, the amendment is deemed non-existent and of no effect.
As is usual among lawyers, different shades of opinions have emerged. Divided among ourselves; there are those who opposed the amendment and there are also those who supported it. While it appears the majority of those who took to social media to oppose it concerned themselves more with the motive for the amendment, so far only few have taken pain and mental excursion to examine and interrogate whose power it is to issue, make or amend the RPC.
I choose not to join the conversation on the ground of motive for the amendment because motive is a sentimental and an unwinnable argument. Oftentimes when an argument is premised on motive, prejudices are mostly elevated to the status of facts and cacophony will replace evidence, and at the end, it is the noisiest that would carry the day. So, those who already took sides would do well to first interrogate whose power it is to issue, make or amend RPC.
There is no doubt that the power to issue/make RPC was vested in the General Council of the Bar (GCoB) by virtue of section 12(4) of the Legal Practitioners (Amendment) Decree No. 21 1994. It will be recalled that the Decree No. 21 of 1994 amended the Legal Practitioners Act 1990 which re-enacted the Legal Practitioners Act 1975. Thus, the power to issue/make RPC was until 2004 vested in the GCoB by virtue of section 12(4) the Decree. When the Legal Practitioners (Amendment) Decree No. 21 1994 amended the then Legal Practitioners Act 1990, a number of changes were introduced. One of such changes was that the Decree provided that an appeal from Legal Practitioners Disciplinary Committee (LPDC) shall lie directly to the Supreme Court instead of the Appeal Committee of the Body of Benchers. Also, section 23A of the Decree made it a criminal offence for any person to commence any action or legal proceedings in respect of the exercise of the powers conferred on the Body of Benchers by the Decree.
Undoubtedly, Legal Practitioners (Amendment) Decree No. 21 1994 was so obnoxious and draconian that Civil Liberty Organization, on behalf of NBA, sued late General Sani Abacha, the then Head of State, at the African Commission on Human and People’s Rights (African Commission) praying the Commission to set aside the Decree and declared it null and void. This culminated into the African Commission’s case of Civil Liberty Organization (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACPHR 1995). In that case, it was urged and contended on behalf of or in favour of NBA that Legal Practitioners (Amendment) Decree No. 21 1994 violated articles 6, 7 and 10 of the African Charter on Human and Peoples Right (African Charter). After what could be regarded as well researched and extensive arguments, the African Commission agreed with Civil Liberty Organization and held that the Legal Practitioners (Amendment) Decree No. 21 1994 should be annulled.
During the compilation of the Laws of the Federation of Nigeria (LFN) 2004, the Legal Practitioners (Amendment) Decree No. 21 1994 and the changes introduced therein were altogether removed from the Laws of Federation of Nigeria (LFN 2004) and replaced with the Legal Practitioner Act 1975. What was the reason for this replacement? Perhaps, only the Law Reform Committee could explain the reason but I guess it was due to the above background. Why retain, in the LFN, an obnoxious Decree that an international adjudicatory body, African Commission, has declared null and void! Well, I can only guess.
Base on this replacement, in the Revised Edition of the LFN 2004, the changes made to the Legal Practitioners Act 1990 by the Legal Practitioners (Amendment) Decree No. 21 1994 were not reflected as it has been jettisoned altogether and replaced with Legal Practitioners Act 1975. At first it appears as though there was conflict as regards which of the Legal Practitioners Act was the extant law; the Legal Practitioner (Amendment) Decree (Act) No. 21 1994 omitted in the 2004 LFN by the Law Reform Committee or the Legal Practitioner Act 1975 captured in the 2004 edition of the LFN?
This apparent dilemma became an issue at the Supreme Court in the case of Akintokun vs LPDC (2014) LPELR-22941(SC), a case in which many amici curia were invited to address the court on which of the two enactments is the extant LPA. The Supreme Court maintained that the Revised Edition (LFN) Act, 2007 is the Act that gave effect to the Revised Edition of the Laws of the Federation, 2004 and this commenced on 25th May, 2007. Thus, the Supreme Court held that the Legal Practitioners Act 1975 in the LFN 2004 (being the later law) implicitly repealed the Legal Practitioners (Amendment) Act (Decree No. 21 of 1994). Recall that it was in section 12(4) of the Legal Practitioners (Amendment) Act (Decree No. 21 of 1994) that the power to issue RPC was vested in the GCoB but the said Decree is now deemed repealed by the Legal Practitioners Act Cap L11 LFN 2004.
The same issued came up again before the Court of Appeal in the case of Chief Andrew Oru vs NBA & Ors (2015) LPELR-24813(CA). The Court of Appeal emphatically noted that:
‘…the provisions under the 1975 Act were re-enacted by the compilers of the laws of the Federation in the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990…However after the decision in LPDC vs. Gani Fawehinmi (1985) 2 NWLR (Pt.7) Pg.300, several amendments were made to the Legal Practitioners Act (1990) which culminated in the Legal Practitioners (Amendment) Act, Decree 21 of 1994….In the compilation of (2004) LFN, the Law Reform Committee inadvertently omitted or ignored the very all important amendments made by the Legal Practitioners (Amendment) Act, Decree No. 21, 1994 …The LFN 2004 compiled in year 2004 was only enacted into law by the Revised Edition (LFN) Act, 2007…’
The Court of Appeal further noted that:
“…The Supreme Court’s Judgment in Akintokun’s case emphatically held that Decree 21 of 1994 was repealed when the Laws of the Federation of Nigeria 2004 came into effect by virtue of the Revised Edition (LFN) Act, 2007.”
The Court of Appeal therefore held that the extant LPA is the Legal Practitioners Act 1975 contained in the 2004 LFN as “Legal Practitioners Act CAP L11, LFN 2004.” Subsequently, courts have been relying on LPA Cap L11 LFN 2004. For instance, in the cases of B.A. v. Kehinde (2017) 11 NWLR (Pt 1576) 225 at page 246 and Bello Sarkin Yaki v Senator Atiku Bagudu (2015) LPELR 2571 (SC), (2015) 18 N.W.L.R (Pt. 1491)288, the court relied on the LPA Cap L11 LFN 2004. It is therefore settled that the extant LPA is the Legal Practitioners Act Cap L11 LFN 2004.
Meanwhile it is in section 12(4) of the Legal Practitioners (Amendment) Act (Decree No. 21, 1994) that the GCoB was vested with the power to issue RPC. This is why when you check section 12(4) LPA Cap L11 LFN 2004 you cannot find anything in the section or anywhere else within the Act where the GCoB is vested with the power to issue, make or amend RPC.
It has been insinuated in some quarters that by the community reading of section 1(1)-(4) especially section 1(1) of the LPA Cap L11 LFN 2004, it can be taken that GCoB is empowered to issue RPC. However, section 1(2) LPA Cap L11 LFN 2004 only provides that the GCoB ‘shall be charged with the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the constitution of the Association) and with any functions conferred on the Council by this Act or that constitution.’ So, what cannon of interpretation can anyone rely on to suppose that ‘management of the affairs of the NBA’ in the section ultimately confers the power to issue RPC on the GCoB?
Given that when section 12(4) of the repealed Legal Practitioners (Amendment) Decree No. 21 1994 conferred the power to issue RPC on the GCoB, it did so expressly. It is presumed that the absence of such express power in the latter enactment is taken that the law-makers never intended that such power be exercised any longer by the GCoB? This line of reasoning is in accord with the legal maxim: “expressio unis est exclusio alterius rule”. The specific mention of GCoB’s power in the section excludes other things not mentioned in the Act, including the issuing or making of the RPC.
Since the first RPC was made in 2007 by the then Honourable Attorney General of the Federation (HAGF) Mr. Bayo Ojo, SAN, who also doubled as the President of the GCoB, it is important we ask whether the RPC 2007 was issued then by the HAGF in his capacity then as the HAGF or as the then President of the GCoB in conjunction with the members of GCoB. If it is true that it was the GCoB that made the 2007 RPC, then the Council would need to tell us where it got the power to make the RPC 2007 (since Decree No. 21 1994 that vested the GCoB with the power to make the RPC is deemed repealed by the LPA CAP L11 LFN 2004). This is also a challenge to those who have asserted that RPC and any amendment thereto can only be issued/made by the GCoB to tell us where that is contained in the extant Legal Practitioners Act CAP L11 LFN 2004.
It is instructive to note that Mr. Abubakar Malami, SAN, the HAGF, also relied on section 12(4) of the LPA CAP L11 LFN 2004 to amend the RPC 2007. Section 12(4) LPA Cap L11 LFN 2004 only talks about notice of the decision/direction of the Appeal Committee of the Body of Benchers. Is it possible the HAGF meant section 12(4) of the repealed Legal Practitioners (Amendment) Decree No. 21 1994? Or is there any other section 12(4) LPA Cap L11 LFN 2004 somewhere else that we do not have access to? Perhaps, the HAGF may also need to tell us how he derived the power to amend RPC from section 12(4) of the LPA CAP 11 LFN 2004.
As simple as it appears, I am restrained from drawing a conclusion that the amendment of the RPC 2007 by the HAGF is null and void. This is because the HAGF did not rely solely on section 12(4) of the LPA, he also relied on ‘all other powers enabling’ him ‘in that behalf’ and until anyone can show us any section of the LPA Cap L11 LFN 2004 which confers exclusive power to issue, make or amend RPC on the GCoB, the presumption of regularity seems to operate in favour of the HAGF until rebutted. This is why I consider as legally faulty the NBA’s directive contained in the letter dated 13th September 2020 to the effect that the amendment should be disregarded by its members without a court order setting aside the amendment. Just come to think of it, assuming an argument ensues in court on the propriety or otherwise of not affixing NBA seal on a court process and the court invites the parties to address it on the legal consequences. If the party who fails to affix the NBA seal relies on Statutory Instrument No. 15 of 2020 (RPC as amended), please what will the other party rely on? NBA’s letter or the social media noise that the amendment is unilateral? Now, assuming you were the judge with all your knowledge of law, what will be your ruling?
There is a lacuna, no doubt, if only we will acknowledge this fact humbly. But why did lawyers sleep all the while over it? Well, perhaps, we were comfortable with the state of affairs because we felt challenging or weakening NBA is like beating a dead horse. We focused on the dead horse but it turns out it is a Trojan horse.
Kazeem A. Oyinwola writes from Abuja, the Federal Capital Territory. You can reach him via firstname.lastname@example.org