Can Senior Advocate Of Nigeria [SAN] Appear In Upper Shari’a Court?

By Rabiu Muhammad Gama.

Sheikh Abduljabbar Sheikh Nasir Kabara is a very popular name in the North, you may not be familiar with the name if you aren’t from the North – or if you don’t understand Hausa. For those of us that are not unfamiliar with the name, the bearer of the name is, to put it mildly, a first class definition of controversy. It is his controversial teachings that have landed him in prison. The Sheikh is now being prosecuted, his students would prefer the word persecuted, for his “blasphemous teachings” before an Upper Shari’a Court sitting at Kofar Kudu, Kano. The embattled Sheikh seems to be tailed by controversy wherever he goes – even when he is behind bars. Following his arraignment before the Upper Shari’a Court, four Senior Advocates of Nigeria were spotted among the state counsel, hence the resurrection of an old and, presumably,  dead “debate” on whether SANs have right of audience in Inferior Courts.

Like every debate, this debate also has two sides; those who believe SANs  have right to appear before any court in Nigeria – including Inferior Courts (hereinafter referred to as the pro-SAN camp), and those who are of the view that SANs cannot, legally speaking, appear in Inferior Courts (hereinafter referred to as the anti-SAN camp). This article aims to discuss the august rank of Senior Advocate of Nigeria, SAN, vis-à-vis the relevant provisions of  law as regards to whether or not  SANs can appear in Upper Shari’a Court. The  writer would try to analyze the submissions of both sides of the debate before pitching his tent with the camp he thinks has the law on their side.

THE RANK OF SENIOR ADVOCATE OF NIGERIA AND THE anti-SAN’s VIEW

Senior Advocate of Nigeria (SAN) is a coveted and prestigious title that is conferred upon legal practitioners in Nigeria of not less than ten years standing at the Bar.[1] By virtue of the provision of Section 5(1) of the Legal Practitioners Act (hereinafter referred to as the Act), the Legal Practitioners Privileges Committee, which is the creation of Subsection (3) of the said Section, is empowered to confer the title on legal practitioners in Nigeria who have distinguished themselves in the profession.

Generally, the Act is the law that regulates legal practitioners in Nigeria. In addition to the Act, Senior Advocates of Nigeria are further regulated by the Senior Advocates of Nigeria  (Privileges and Functions) Rules, 2004 (hereinafter referred to as the Rules). The Rules is a subsidiary legislation made in  pursuance of the provision of Section 5(7) of the Act. Before moving ahead, it’s important to note that the Court of Appeal, per Oguntade, JCA, (as he then was) held in the case of Trade Bank Plc v. Lagos Island Local Government Council[2] that “A subsidiary legislation when validly made has effect and force as the principal or enabling Act”.

Section 5(7) of the Act empowers the Legal Practitioners Privileges Committee (hereinafter referred to as the Committee) to, among other things, “make rules…as to the functions of legal practitioner, which are not to be performed by a Senior Advocate of Nigeria…for ensuring the dignity of the rank of Senior Advocate of Nigeria (emphasis mine)”. The committee, in its effort to discharge this statutory duty, came up with the Rules. In the Rules, every SAN is conferred with some privileges and some restrictions. For example, in civil cases, whenever he (an SAN) is appearing before a Superior Court of Record he must appear with a junior or another SAN except when the appearance is in the Judge’s Chambers.[3] However, he may appear alone in criminal cases whether in open court or in the judge’schambers.[4] The penultimate rule of the Rules, i.e., rule 6, defines Superior Courts as contained in Section 6(3) of the Constitution, 1999 (as amended), that is, the courts that are listed in Subsection (5) (a-i) of the said Section.

In 1999, in the now famous case of ECWA Church v. Malam Saidu Ijesha[5], the Court of Appeal (CA) decided that by a combined effect of  rules, 2,3 and 4 of the Rules and applying the legal maxim Expressio unius est exclusion alterius, meaning, expression of things clearly stated  in a statute excludes others not clearly stated, an  SAN does not have right of audience in an Area Court or any court which is not a Superior Court of Record (Upper Shari’a Court is not a Superior Court of Record as defined in Rule 6 of the Rules), and he (the SAN) is not allowed to issue any process or make any application before that court.

In addition to the above, the anti-SAN also argue that by virtue of Section 287 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) ( hereinafter referred to as the CFRN), once the court has made a pronouncement about a matter, someone else’s opinion – no matter how well-reasoned that opinion purports to be – matters not.

THE pro-SAN’s VIEW

The pro-SAN’s argument, from what I have gathered, mostly center around two to three issues. First, they seem to find pleasure in citing the dictum of Acholono, JSC, in the case of FRN v. Osahon[6], where the learned Justice posits thus:

“I wish to state here that whenever any person is called to the Bar is enrolled to practice then he has the right of audience and unless the Constitution eloquently forbids such a person or provides a qualification for appearance in court, any Act prescribing a provision contrary to spirit of the Constitution should be regarded as otiose.”

The other argument that  the occupants of this camp, i.e., the pro-SAN, like to throw at the anti-SAN is the provision of  Section 36 (6)(c) of the CFRN that provides that:

Every person who is charged with a criminal offence shall be entitled to-

(c) defend himself in person or by legal practitioners of his own choice.

And the pro-SAN usually remind us that where a right has been conferred by the Constitution, as in the above cited Provision, that right cannot be whisked away by any other statutory provisions except the Constitution itself and any law so made is void to the extent of its inconsistency, and they would tell you that this is on the authority of Adisa v. Oyinwola.[7] Some of them ( the pro-SAN), out of sheer desperation to destroy the anti-SAN’s arguments, would even go too low to cite the controversial 2015 magistrate case of A.G Legos State v. Unknown Person. A magistrate case as an authority against the decision of the CA? You must be kidding!

ANALYSIS OF THE ARGUMENTS

It is a trite principle of law that requires no citation of cases that a decision from the CA, even when decided per incurium, is binding on all the courts below it. A decision of the CA can only be set aside if it is overruled by the Supreme Court (SC). In view of this, the decision of the CA in the ECWA Church v. Malam Saidu Ijesha(supra) stands and, since it is yet to be overruled by the SC, it  reflects the true position of the law – as it is today.

A careful reading of the Osahon’s case, which the pro-SAN are fond of citing, reveals that the case, as I see it, is not even remotely relevant to this issue. Here is why, in the Osahon’s case, the SC was faced with the question “whether a police officer (who also happened to be a lawyer) could prosecute a case in the Federal High Court”, and the SC answered this question in the affirmative. SAN’s right of audience in Inferior Courts was not one of the issues for determination that the SC had to consider in that case. The contention of SAN right of audience in Inferior Court was raised in the Ijesha’s case  – it was the sole issue for determination in that case – and the CA held that SANs cannot appear in Inferior Courts. On this note, please permit me to remind you that cases are meant to be decided on their peculiar facts; and every case is an authority for the facts which it decides. You can’t just lift a dictum from case A and apply it in case B even though it is crystal clear that the two cases are apples and oranges.

On the provision of Section 36 (6)(c) of CFRN(supra), it was submitted that the SC held in the case of Awolowo v Federal Minister of Intrernal Affaiers[8] that the provision of that Section should be read subject to the provisions of a law validly made by the National Assembly in order to regulate the right so enjoyed by the accused person. The CA took the same position in the Ijesha’s case on this particular Section of the CFRN.

I took my time to read the ruling of His Worship, M.A Etti, in the A.G Legos State v. Unknown Person (supra). One cannot but admire the eloquence and the rare display of judicial activism of his Worship in that ruling. However, one thing is quite clear, going by the doctrine of stare desis, which is one of the distinctive features of our Legal System, once there’s a decision of the CA on a matter, a magistrate, even if it were the almighty Lord Denning MR, has no option but to vow down to the hierarchical, and usually superior, wisdom of the Higher Court (the CA). I don’t expect a level 200 Law student to cite a magistrate court’s ruling while we already have a CA’s decision on a matter. That would amount to an insult to the sacred doctrine of stare decisis.

CONCLUSION

Looking at the solid arguments above, and in the light of the forgoing discussion, it is my humble submission that the law is glaringly on the side of the anti-SAN. The law is quite clear, the decision of the CA vis-à-vis the relevant provisions of the Rules is that an SAN cannot appear in any Inferior Court – and the Kofar Kudu Upper Shari’a Court is an Inferior Court. This writer finds it irresistible to pitch his tent in the beautiful camp of the anti-SAN. I, therefore, submit that the appearance of those four Senior Advocates of Nigeria on the 18^th day of August, 2021, at the Kofar Kudu Upper Shari’a Court is illegal and is a contemptuous slap to the face of the CA. Until the SC overrules the CA on this issue, or the CA refuses to follow its decision in the Ijesha’s case because in its opinion the decision can no longer stand with a decision of the SC, this is the true position of the law, I so submit. The case of Young v. Bristol Aeroplane Company Limited (1944) is emphatic here.

Rabiu Muhammad Gama is a level 300 Law student from Bayero University, Kano (BUK). He can be reached on rabiuminuwa327@gmail.com, or on 09061912994.

[1] S 5 (2) of the Legal Practitioners Act Cap. L11 LFN 2004

[2] (2003) FWLR (pt.161) @ 1734

[3] Rule 2 (1) (2)  of the Rules

[4]  Rule 3 of the Rules

[5] (1999) 13 NWLR (pt. 635) 367

[6] (2006) 1 All N.LR 374

[7] (2000) 10 NWLR (pt. 674) 116

[8] (1962) LLR 177