Many lawyers’ ambition is to become a Senior Advocate of Nigeria (SAN) because of the privileges that come with the title. But there is a controversy over the award system. Some believe that only those who are connected are conferred with SAN.
Activists, radicals and other qualified persons are shut out, they claim. Should the 40-year-old award be abolished? Or should its criteria be reviewed to ensure fair play?
COME September 21, 21 new Senior Advocates of Nigeria (SANs) will be sworn in at a special session of the Supreme Court to mark the beginning of the new legal year. They were named on July 11 to join 408 lawyers, both living and dead, who have been conferred with the rank since its inception in 1975.
The 21 were selected after an interview of 50 shortlisted candidates.
The Legal Practitioners Privileges Committee (LPPC), with the approval of the Body of Benchers, confers the award on lawyers of not less than 10 years’ standing, who have distinguished themselves on the job in line with Section 5 (7) of the Legal Practitioners Act 2004.
The SAN title was first conferred on April 3, 1975 on the late Chief Frederick Rotimi A. Williams and the late Dr Nabo Graham-Douglas. As at May 2012, there were 68 dead SANs.
The history of SAN predates its conferment in 1975. It started with the introduction of the English laws. The rank is the equivalent of the Queen’s Counsel (QC) in the United Kingdom (UK). Several countries use similar designations such as Senior Counsel, State Counsel, Senior Advocate, and President’s Advocate.
A SAN enjoys the privilege of sitting in the “Inner Bar” – the front row of seats in court which is reserved for them – as distinguished from the “Outer Bar” where junior advocates sit. SANs also have their cases called first or whenever they step into court.
The conferment is made by the LPPC headed by the Chief Justice of Nigeria (CJN) and comprising the Attorney-General, one Justice of the Supreme Court (chosen by the CJN and the Attorney-General for a term of two years, renewable), President of the Court of Appeal, five Chief Judges (chosen by the CJN and the Attorney-General for a term of two years, renewable), Chief Judge of the Federal High Court, and five SANs (chosen by the CJN and the Attorney-General for a term of two years, renewable once).
According to the LPPC, the rank is a privilege awarded as a mark of distinction and excellence in advocacy in the higher courts to members of the legal profession, who are in full time legal practice. All applicants must hold rights of audience in the higher courts.
Applicants are judged against a competency framework as provided on Paragraph 19 of the LPPC Guidelines. The selection panel looks for strong and consistent evidence of excellence in the demonstration of each of the competencies.
Applicants register with a non-refundable fee of N300,000. The process of selecting SAN is based on “evidence” which is reviewed by the LPPC Secretariat, called first filter, on the basis of the list of important cases, narrative description of practice and self-assessment.
The application form asks a lawyer to provide eight judgments of the High Court via Certified True Copies (CTC) of complete record of trial proceedings in at least five contested cases from filing stage to judgment, showing that the applicant as a counsel conducted the trial fully.
A candidate is also expected to provide a list of six judgments of the Court of Appeal and a list of three judgments of the Supreme Court where it is manifest that the applicant conducted the cases from the High Court to the Supreme Court.
However, where an applicant submits only cases where he has appeared at the Supreme Court, he will be required to submit six judgments of the Supreme Court to qualify.
An aspiring SAN must also provide a narrative description of his practice, and the names of assessors the LPPC can approach, who have seen the candidate in action in such cases.
All applicants will then be considered by the sub-committees for the second filter, mainly to review what the secretariat did. Only those applicants, who appear to the committee to demonstrate the competencies sufficiently are invited for interview.
The remaining applicants are supposed to be notified with reasons why they were unsuccessful. The list of recommended candidates is passed to the CJN for the conferment.
Section 6 (1) (a) and (b) of the Legal Practitioners Act gives a SAN “(a) the exclusive right to sit in the inner bar or, where no facilities exist for an inner bar, on the front row of seats available for legal practitioners; and (b) the right to mention any motion in which he is appearing or any other cause or matter which is on the list for mention and not otherwise listed for hearing out of its turn on the cause list.”
In a system where cases take so long to determine, and where dockets are usually full, it is indeed, a unique privilege. In other words, to have a case determined on time, hire a SAN.
Getting the rank also opens the door to charging higher legal fees. A non-SAN may handle a case for less, but it may take triple the amount to hire a SAN. There is also the belief that SANs are better lawyers having attained the rank.
LPPC claims to be committed to equality of opportunity in the appointment process. It says applicants, who meet the standard of competence and excellence required of a SAN, would be recommended for conferment on merit, regardless of age, ethnic origin, pedigree, disability, marital status, religious belief, or gender or any other extraneous factors such as political views or affiliations or educational background.
But, according to critics of the rank, these ideals are rarely upheld. The critics accuse LPPC of nepotism and also allege that the rank is awarded to only those who are connected allegedly get the award. To some, it seems too easy for lawyers whose parents are SANs or are politically connected to get the rank. The critics also cite favouritism, lack of transparency and corruption as making a mockery of the award.
Some analysts are of the view that no other profession sets apart a select few and effectively hands them a meal ticket for life. If the legal profession is willing to condone this type of honours peddling why not extend it to other professions, they ask.
To the critics, there is no ‘equality before the law’ when a few are set apart from others irrespective of intellectual capacity. According to them, the legal profession insists on a level-playing field for everyone, irrespective of background or status, which principle the rank vitiates.
Some critics, such as Pa Tunji Gomez, insist the award is oppressive unlike in England. If a litigant has a case that is 20 years old in court and a SAN has a case that has just been filed, the court will hear the new case first.
Imagine a scenario where there are five SANs in court and 25 cases are listed for the day. It is possible that some of the SANs may have applications to argue. By the time they are done with their cases, the day would have been far gone, and the judge would have become tired. If he manages to take a few more cases as time permits, the rest would have to be adjourned. The non-SAN, who must have travelled from afar, would have wasted the whole day in court and achieved nothing.
“What that means is that ordinary litigants are put at disadvantage. Because the client wants their cases heard quickly, they may take their case from a junior lawyer and give it to a Senior Advocate,” Gomez said.
To those against the title, it does absolutely nothing to promote the rule of law. On the contrary, they argue, it tends to promote only the cult of personality, and with allegations of money changing hands during the screening, it runs the risk of becoming a legally sanctioned racket with SANs cornering all the juicy briefs to themselves. In short, it has been politicised, critics insist.
Need for reform
Analysts believe there is a need for a reform of the process because its present state is highly subjective. For instance, the evaluation of a candidate’s competence is based on integrity, which is ranked highest (25 per cent), followed by opinion of judges (15 per cent), general knowledge of law (15 per cent), contribution to the development of law (10 per cent), leadership qualities in the profession (10 per cent), strength and quality of reference received by candidate (15 per cent) and quality of law office/library (10 per cent).
A lawyer, who has been interviewed severally for the rank but never made the final list, and who prefers not to be named for fear of being victimised in future, said most of the conditions were highly subjective and could easily be influenced. To him, the parameters are not clearly defined.
He also faulted a system where someone, who ordinarily merits should get the title is denied the rank because of restriction on the number that must be appointed in a year.
This approach, he believes, leaves room for abuse as the factors which dictate who to pick out of the qualified applicants is subjective and prone to abuse and manipulation.
He said: “How do you determine a person’s integrity? How do you measure it from 0-25? From my thinking, it is highly subjective. If they like you, or you are their friend, they can give you 25 per cent in integrity and give the other person 10 per cent even if the person has no questionable character or has never been found to be corrupt.”
The same, he said, goes for the other parameters. He said there was a case of a lawyer, whose office is on Lagos Island, with a well equipped library, but he was scored lower than a lawyer whose office is located in a market in Onitsha with an ill-equipped library, which he shared with other lawyers.
The requirement for judges’ opinion also tends to encourage corruption, the lawyer said. It implies that every lawyer will try to be in the good books of judges no matter what it takes. Also, how does one rate leadership qualities in the profession? At times, where there is a tie between to lawyers in scores, the award is given based on seniority. This, he said, is wrong.
Another area in need of reform is the section on national character, which says: “Every effort shall be made to ensure that the conferment of the rank of SAN on candidates, who have met the criteria, reflect national character by achieving as much geographical spread and gender representation as possible.”
This implies that where a person comes from may give him an advantage over another.
“Why would you introduce quota system to a private issue? It means that if there are more qualified persons from the West than the East, some of those from the West may lose out to accommodate other zones to reflect ‘national character.’
“Legal fees are not ordinarily paid from the Federation Account or from a common national purse, so what is the justification for national character? When chartered accountants give Fellows to members, do they use national character? The fees SANs charge do not primarily come from the government, but from individual clients. Government does not hire private lawyers based on national character. I don’t see the basis for it,” the lawyer said.
Call for abolition
Some lawyers believe the award should be scrapped as it is no longer credible. Gomez, who is chairman of the Movement for the Abolition of the rank of SAN, argued that the title is oppressive and promotes exploitation.
He said: “The rank is oppressive to all other lawyers; it is against fair trade and violates the provision of the Constitution and that of the African Charter. It does not give the lawyers a common level-playing ground. It is in that respect that it ought to be jettisoned. The award was based on merit initially, but now it has become like a chieftaincy title. It is no longer on merit. Even some of the SANs are now crying out that the procedure for conferment of the award is flawed…
“The oppression is worse in the Court of Appeal and I guess in the Supreme Court. Now in the Court of Appeal, a lot of SANs appear there. If a non-SAN comes there and has a case and there are about six, seven SANs there, the court will attend to the cases of the SANs before his own, even if his matter is older. The result is that the non-SANs’ case in the Court of Appeal could last for years without being heard. I suffered from it. I was the oldest lawyer in that court on that particular day. But there were eight SANs there; and we sat there from nine till they finished around after 2pm. And my case was not called. We had to get adjournment for six months.
“I came back; and the same thing happened. My case was not called. I came back the third time; that is, a year had passed, on the same matter! You know what happened? I had to go and fetch my friend who is a SAN, my schoolmate. And I told him, ‘look this is what I am suffering o. Please come and take my case. Just mention it.’ And he said, ‘you mean that?’ And I said ‘you know me. I always like to have evidence.’ So he came to court. And he was the most senior SAN. When the court sat, they called my case first. You see, I mean over a year wasted. And it could’ve gone to two years if I had not done that.”
In an article, activist-lawyer Femi Falana (SAN), who got the title after many years his trial, said the rank would be irrelevant unless it is awarded in the same way as the QC.
The way out
Legal icon Chief Afe Babalola, who for many years was a member of LPPC, advocated that the award should be given to all qualified lawyers irrespective of their number. He said the practice of limiting the awardees to a certain number each year gives room for lobbying. This, he said, would not be necessary if the LPPC adopts the practice in England where every qualified lawyer is honoured with the award.
He said: “I was a member of the privileges’ committee. I found out that many were actually qualified, but were limited by the so-called rule that only so many ought to have been appointed. So, if 50 qualified and only 15 are to be taken, then you are going to select only 15. What yardstick, what method do you want to adopt to appoint 15 of 50 qualified lawyers? In England where we borrowed this idea, everyone that is qualified is given the award.”
Babalola suggested that the bar be raised for the award, adding that all qualified lawyers should get the title. “Let us have very stern, very strict conditions to fulfill. But, whoever crosses the bar ought to be appointed so that it won’t give room for the principle of ‘who-knows-who’,” he added.
Falana also argued that a situation where activists and radical lawyers are excluded from the inner bar on the excuse that they do not satisfy the requirements is illegal.
Falana believes the rank should either be scrapped or reformed. “The colonial legacy was abolished in 1964 in line with the republican status of the country. The rank was, however, restored in 1973 under a military dictatorship.
“With the restoration of democracy, the rank ought to be abolished without any further delay. If it is going to be retained, the LPPC should no longer be allowed to make it business as usual.
“Its attention ought to be drawn to the current practice in the United Kingdom where all lawyers, who satisfy the laid down criteria, are automatically conferred with the rank of Queen’s Counsel.
“Since we copied the practice of honouring distinguished lawyers from the United Kingdom, we cannot afford to be more catholic than the Pope,” he said.