By Qudus Adebola Alalafia, Esq

It is trite that before any person in Nigeria can appear before our courts in Nigeria, such a person must be one who is not under disability of whatever nature under the existing law, rules and regulation of the Government,[1] must be called to the Nigerian Bar by the Body of Benchers, must have his name on the roll call[2] and in the case of an alien, upon when an application is made to the Chief Justice of Nigeria by or on behalf of any person appearing to him to be entitled to practise as an advocate in any country where the legal system is similar to that of Nigeria[3] and other instances in that behalf as provided for under the enabling enactments.

However, the Nigerian courts while interpreting our corpus juris have had cause to hold that the mere fact that a person is regarded as legal practitioner does not confer a right of appearance on him before our courts so far there are conditions to be fulfilled or there are certain provisions of our law that make his appearance void before such courts.

The first of such precedent is the celebrated case of Awolowo v Minister of Internal Affairs,[4] wherein the late elder statesman, Chief Obafemi Awolowo, and several others were charged for treasonable felony in 1962. The head of his defence team, a British lawyer, Mr. E.F.N Gratiaen, QC, was denied access into the country by the immigration authorities.[5] It was the submission of the well-respected elder stateman that Section 21(5) (c ) of the 1960 Independence Constitution entitled as of right every person charged with a criminal offence to bring into Nigeria from the United Kingdom any non-Nigerian counsel for the purpose of defending him. It was their contention that this provision admitted of no limitation whatsoever.[6] Rejecting this submission, Justice Udoma declared as follows:

“I must state at once that I do not accept as sound proposition the submission that the provision contained in Section 21 (5) (c ) of the Constitution, liberally interpreted, can be construed to entitle anyone to bring a Counsel from the United Kingdom for the purpose of defending him in a criminal charge. To accept that interpretation, would be to strain language. The Constitution is a Nigerian Constitution, meant for Nigerians in Nigeria. It only runs in Nigeria. The natural consequence of this is that the legal representative contemplated in Section 21 (5)(c) ought to be someone in Nigeria, and not outside it.”   

However, for the purpose of this paper, an insight is made into the relevant provisions of the Senior Advocates of Nigeria (Privileges and Functions) Rules[7] (hereinafter referred to as “the Rules”) excluding a Senior Advocate of Nigeria from right of audience in the inferior court (Area Courts inclusive) particularly by the combined interpretation of Rules 2 and 3 against the background of Rules 4 and 6 of the Rules which enjoyed a judicial blessing in the case of Registered Trustees, ECWA Church v Ijesha.[8]

Senior Advocate of Nigeria (SAN) is a title that may be conferred on legal practitioners in Nigeria of not less than ten years standing and who have distinguished themselves in the legal profession. It is the equivalent of the rank of Queen’s Counsel in the United Kingdom, from which Nigeria became Independent in 1960. A Senior Advocate of Nigeria is said to have been admitted to the “Inner Bar” as distinguished from the “Outer” or “Utter” Bar, consisting of junior advocates. The conferment is made in accordance with Section 5 (1) of the Legal Practitioners Act by the Legal Practitioners’ Privileges Committee since 1975. A varying number of Advocates in Nigeria have consecutively been conferred with the rank.[9] As of 9th September,2019 a total of 547 Advocates had become Senior Advocates in Nigeria.

In reference to Registered Trustees, ECWA Church v Ijesha supra the Court of Appeal held that Rules 2 and 3 of the Rules allow a Senior Advocate of Nigeria to appear in the Superior Courts. This the court applied using the legal maxim “Expressio unius est exclusion alterius” which means “clear expression of things clearly stated in the statute excludes others not expressly stated”. The court further held to give a judicial force to Rule 4 which states that a SAN shall not apply for or issue originating process or any other process from or before a court in any cause or matter except in relation to those matters in which he is entitled to appear pursuant to Rules 2 and 3 of the Rules.

The court added that Rule 6 has excluded the Area Courts from the List of Superior Courts. And that the combined effect of these two Rules (2 & 4) defines before which Court(s) a SAN can issue summons, processes, etc and which Courts are superior courts is clear. The court in reliance upon the above-mentioned legal maxim found that a SAN is excluded from or does not have a right of audience before an Area Court.

In addition thereto, the court posited that the reason for these provisions as provided for in the Rules is obvious which is to preserve the dignity of the Senior Advocate in Nigeria. It therefore went ahead to finally hold in law that a SAN cannot appear, apply for or issue legal or judicial process in a Court before which it cannot appear.

While this writer appreciates and as a matter of emphasis respect the prudent legal reasoning of the Court of Appeal in respect of its holdings as it affects the principle of law under contemplation, more so when this writer is aware that every case is decided base on its context and circumstances affecting thereto. However and with all due respect, this writer is constraint to accept that the interpretation given to Rules 2 and 3 against the background of Rules 4 and 6 of the Senior Advocates of Nigeria (Privileges and Functions) Rules is the current and correct position of law in view of the extant position of the Supreme Court of Nigeria and a careful interpretation of the Rules vis-à-vis the Constitution of the Federal Republic of Nigeria, 1999.

For the purpose of clarity and proper guidance, the relevant rules are reproduced hereunder:

  1. Notwithstanding the provisions of any rules of court but without prejudice to any enactment, all courts of law in Nigeria before which legal practitioners are entitled to appear shall accord to every Senior Advocate of Nigeria the following rights and privileges, that is to say-

(a) the exclusive right to sit in the inner bar or where no facilities exist for an inner bar, on the front row of the seats available for legal practitioners;
(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.

  1. (1) A Senior Advocate of Nigeria shall not appear as counsel in any civil case before any superior court of record except with a junior or with another Senior Advocate of Nigeria.
    (2) Notwithstanding paragraph (1) of this rule, a Senior Advocate of Nigeria may appear with or without another counsel in any motion or other civil cause or matter in Judges’ Chambers or elsewhere not in open court.
  2. A Senior Advocate of Nigeria may appear as counsel in any criminal cause or matter before any court of superior record with or without another counsel.
  3. A Senior Advocate of Nigeria shall not apply for or issue originating process or any other process from or application before a court in any cause or matter except in relation to for process those matters in which he is entitled to appear pursuant to rules 2 and 3 of these Rules.
  4. In these Rules, unless the context otherwise requires-
    “superior court of record” means the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court or any other court or tribunal with powers not less than those of a High Court.[10]

My understanding of those provisions is that whenever a Senior Advocate of Nigeria appears as a counsel in a civil matter before a ‘superior court of record’ he must fulfil two conditions:

  • If the proceeding is in open court, he must not appear alone. He may appear with a junior or another Senior Advocate of Nigeria.
  • If the proceeding is in chambers or not in open court, he may appear alone.
  • Wherever or whenever or in any court before which a Senior Advocate is not allowed to appear, he is also not allowed to issue any process or make any application before that court or chambers or presiding officer.[11]

It is apparent that as regards the appearance of a Senior Advocate the emphasis is on the superior court of record. It is trite that the court is to ascertain the intention and purpose of the law maker and give effect to it but at the same time the court cannot bring into a statute extraneous matters that do not form part of the intention of the legislature, even when read together with other provisions in the statute in totality. It is a settled principle of interpretation that provisions in Statutes must be given their simple and direct meaning, which construes and gives the Statute its legal meaning but this will not be to the extent of bringing into the provision a different complexion from what was intended by the legislature. In this wise the court should confine itself to the plain and unambiguous meaning of the words used.[12]

This writer humbly submits that there is nothing in those provisions that prohibits a Senior Advocate from appearing at all in any court, whether superior or inferior. The appearance of a Senior Advocate is merely regulated with some conditions in a superior court of record. There are no such conditions provided for in the Rules as regards his appearance in inferior courts.

At first, it is said that the Court of Appeal could not have judiciously interpreted the Rules aforementioned without considering the provision of the constitution particularly Section 36 (6)(c)[13] which provides for every person to defend himself in person or by a legal practitioner of his own choice. While the constitution has not given a definition of who a legal practitioner is, the Legal Practitioners Act (serves as the interpretation enactment) defines it as any person who must be called to the Nigerian Bar by the Body of Benchers and must have his name on the roll call. It is in the opinion of this writer that in as much a person has been called to the Nigerian Bar and have his name on the roll call, he is entitled to appear before any court in Nigeria for a legal representation. This writer further submits that where a legal practitioner suffers no legal disability arising from the provisions of the Legal Practitioners Act such as one pointed out by the court in Awolowo v Minister of Internal Affairs supra he is qualified to appear before all courts in Nigeria notwithstanding the provisions of Rules.

Similarly, it is argued that the Senior Advocates of Nigeria (Privileges and Functions) Rules is an enactment that speaks for itself. It is an enactment that confers privileges upon certain legal practitioners in Nigeria who are qualified and have as well distinguished themselves in the legal profession, after all, the aim of interpretation of statutes is to discover the intention of the legislator through the actual words used in the law. In the consideration to have a comprehensive intention of the legislator the provisions of all sections must be considered and not a particular section in isolation of other sections or out of context of the other sections.[14] This writer strongly contends that the Senior Advocates of Nigeria (Privileges and Functions) Rules is a subsidiary legislation which ought to be in conformity with the enabling law, that is the Legal Practitioners Act.[15] The Senior Advocates of Nigeria (Privileges and Functions) Rules is an enactment that gives a Senior Advocate of Nigeria a discretion either to appear before an Inferior Court or not, and not a proscription to his constitutional right of appearance.

And even if it is taken that the S.A.N. Rules though a subsidiary legislation has the same force and effect as the principal or enabling law (Legal Practitioners Act), the pronouncement of the apex court that any power given by the Constitution, cannot therefore be taken away by any Act of National Assembly or Law of a state or a subsidiary legislation.[16]

In other words, a subsidiary legislation (such as the S.A.N. Rules) cannot promulgate outside the principal legislation or in conflict with the constitution or contrary to the Supreme Court interpretation.[17]

Indeed, the constitution has made it the bulwark of its provision of fair hearing to allow every litigant to be represented by a legal practitioner of his own choice.[18] It has never been in our jurisprudence that a litigant is denied legal representation by the court merely because he has engaged the services of a Senior Advocate. It is not the law of this country to dictate to a litigant which advocate should represent him otherwise only Senior Advocates will be allowed to appear in the Supreme Court. On the contrary, courts appreciate the advocacy and legal research of any legal practitioner which will be of assistance to resolving issues and attaining justice. It is even more appreciated when seasoned legal practitioners such as Senior Advocates appear before the courts. In that regard, courts find it necessary to invite them as amicus curiae in certain cases.[19]

The view that Senior Advocates should appear only in superior courts of record can be desirable out of tradition only and not of law such as the view that only legally qualified persons should prosecute criminal cases in superior courts. Just as a newly enrolled legal practitioner can appear in the apex court, a senior advocate can appear in the lowest court. The law is that the right of any legal practitioner to appear in any case (civil or criminal) in or at any level of court (superior or inferior) cannot be curtailed by any law except as allowed by the constitution. In F.R.N. v. Osahon,[20] Pats-Acholonu, JSC put it aptly thus:

whenever any person is called to the bar and 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 provisions contrary to the spirit of the Constitution should be regarded as otiose (futile).”

Qudus Adebola Alalafia, Esq. Trainee Associate, Afe Babalola &Co. 24, Madeira Street, Imani Estate, Maitama, Abuja. alalafiaqudus@gmail.com

[1] Awolowo and Ors v Usman Sarki and Ors (1962) LLR 177.

[2] Legal Practitioners Act, Chapter L11 LFN 2004

[3] Ibid

[4] (1962) LLR 177

[5] Francis Famoroti, “How Immigration Officers Barred Awolowo’s Lawyer at Airport” Nigerian Bar (Nigeria, 15 December, 2014) http://www.nigeriabar.com/2014/12/how-immigration-officials-barred-awo-rsquo-s-lawyer-at-airport#.XvRtMyhKjIU accessed on 25 June, 2020.

[6] Ibid
[7] Senior Advocates of Nigeria (Privileges and Functions) Rules, CAP 207 LFN 1990
[8] (1999) 13 NWLR (Pt. 635) 368 C.A
[9] SanAdmin, “About Us”, https://san.ng/about-us/ accessed on 25th June, 2020.
[10] Senior Advocates of Nigeria (Privileges and Functions) Rules, CAP 207 LFN 1990.
[11] Unini Chioma, “SAN’s Right of audience in magistrate Court” The Nigerian Lawyer (3rd November, 2020) https://thenigerialawyer.com/sans-right-of-audience-in-magistrate-court-full-judgement/#:~:text=Rules%20has%20prohibited%20the%20appearance,legislation%20(such%20as%20the%20S.A.N. accessed on 25th June, 2020.
[12] Att.Gen. of Federation v Att.Gen. of Lagos State (2013) 16 NWLR (pt.1380) 249 @ 317 SC.
[13] Constitution of the Federal Republic of Nigeria, 1999.
[14] Awolowo v. Shagari (1979) 6-9 SC 79; Salami v, Chairman LEDB (1989) 5 NWLR (Pt. 123) 539; Toriola v. Williams (1982) 7 SC 27.” Per GALINJE, J.C.A. (Pp.53-54, Paras.G-A)
[15] Odeneye v Efunuga (1990) 7 NWLR (Pt.164) 618 SC.
[16] Aqua Ltd v Ondo State Sports Council (1988) 4 NWLR (91) 622
[17] Unini Chioma, “SAN’s Right of audience in magistrate Court” The Nigerian Lawyer (3rd November, 2020) https://thenigerialawyer.com/sans-right-of-audience-in-magistrate-court-full-judgement/#:~:text=Rules%20has%20prohibited%20the%20appearance,legislation%20(such%20as%20the%20S.A.N. accessed on 25th June, 2020.
[18] Ibid
[19] Ibid
[20] (2006) 5 NWLR (Pt. 973) 361.

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