Rule 10 of the Rules of Professional Conducts for Legal Practitioners, 2007-herein after referred to as RPC- provides thus ‘(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association. (2) for the purpose of this rule, ‘legal documents’ shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents’. (3) if, without complying with the requirements of this rule, a lawyer signs or files any legal document as defined in sub-rule (2) of this rule, and in any of the capacities mentioned in sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed’. (Underlining is the writer’s for emphasis).
The issue this paper addresses is on the mandatory requirement for the affixing of approved seal and stamp by the Nigerian Bar Association-herein after referred to as NBA-, hence, this paper calls for a review of this requirement for the reasons and grounds argued and submitted below.
It is no doubt that the RPC was made pursuant to section 1 of the Legal Practitioner’s Act, 2004 (as amended)- herein after referred to as the LPA-, and section 10(c) of the Legal Practitioners Amendment Decree No 21, 1994-herein after referred to as LPAD. The said section 1 (1) of the LPA provides thus ‘There shall be a body to be known as the General Council of the Bar (in this Act, referred to as ‘the Bar Council’) which 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. However, section 2 of the LPAD has amended the following words ‘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’, as contained in the section 1(1) of the LPA. And by section 1(2) LPA, the Attorney-General of the Federation has been made the President of the Council. Also, by section 10 of the LPAD, it provides thus ’10. The existing section 11 of the Principal Act is amended by- (c) substituting for the existing subsection (4) a new subsection (4) as follows, that is- (4) It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession and cause such rules to be published in the Gazette and distributed to all the branches of the association’. And by section 24 of the LPA, ‘association’ means the Nigerian Bar Association. Therefore, pursuant to the above laws, the Attorney-General of the Federation (as he then was), made the RPC. Since the making of the RPC, and not too far from this moment, the provisions of Rule 10 (supra) has come into effect to the extent that the NBA at the National Level, has made provisions of approved NBA seal which is: green in colour for lawyers in private practice; and red in colour for lawyers in public office, upon payment of some certain amount of money, despite the payment of the annual practicing fee, whereas, by section 8 and 23(2) of the LPA, the practicing fees ought to be used for the purpose of the Association, which ought to include the seal and stamp. Nevertheless this trend, the writer of this paper is of the humble submission that if going by the provisions of the LPA, the LPDA, the Companies and Allied Matters Act, 2004 (as amended)-herein after referred to as CAMA-, and the legal personality status of the NBA, it is totally wrong and unreasonable for the Bar Council to have conferred such power of an approved seal and stamp on the NBA. The reasons for this submission are not far-fetched.
It is notorious that the NBA is created under the provisions of the Part C of the CAMA, with the legal personality of an ‘Incorporated Trustees of the Nigerian Bar Association’. Thus, the NBA is by that creation, a creation of a private professional association and not a statutory association. For instance, section 19 of the Nigerian Bar Association Constitution (Amended and adopted at the Annual General Meeting held in Abuja on 27th August, 2015)-herein after referred to as the NBA Constitution-, provides for ‘Trustees’ in section19(2) of the said NBA Constitution, it is provided thus ‘Trustees (hereinafter referred to as ‘the Trustees’) shall not be more than nine in number and shall be known as ‘THE INCORPORATED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION’ in accordance with the provisions of the Part C of the Companies and Allied Matter Act, Cap C20, Laws of the Federation of Nigeria, 2004 (‘CAMA’, as may be amended from time-to-time)’. Therefore, it is further submitted that membership of the NBA is not an automatic membership rather and except in compliance with section 4 of the NBA Constitution. Also, the issue of membership or being a member of an Association is a Fundamental Right guaranteed under section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Article 10 and 11 of the African Charter on Human and Peoples’ Rights-herein after referred to as ACHPR, Article 20 of the United Nations Universal Declaration of Human Rights Resolution 219A (III) of 10, December, 1948-herein after referred to as UNUDHR-, and under these human rights laws, no one may be compelled to belong to an association, including the NBA as an association. Therefore, it is submitted that same right to association, even as professionals, cannot be taken away by any law or Rule or practice, else, such law, Rule or practice becomes inconsistent with the provisions of the Constitution and shall thereby be declared null and void and of no effect by a competent court of law, by virtue of section 1(1) and (3) of the Constitution, and same right to association cannot be taken away by the Bar Council.
Furthermore, it is submitted that the act of the Bar Council mandating all legal practitioners including those who are not members of the NBA, to affix any approved seal and stamp by the NBA is very unjust, unlawful, illegal, unconstitutional and a violation of the constitutional and fundamental rights of lawyers in Nigeria, as this will either directly or indirectly compel such lawyers to become NBA members against their will and interest. Perhaps, such lawyers might have no interest to protect or to require NBA to protect for them. Perhaps they already have their voluntarily joined association for the protection of their interests and of course, where they feel more comfortable and even financially responsible, yet, they would be compelled to also pay Branch dues to any of the NBA Association. Such requirement of seal and stamp by the bar Council is therefore discriminatory and in violation with the right of lawyers to freedom from discrimination as provided for in section 42 of the Constitution, Article 2 of the ACHPR and Article 2 of the UNUDHR.
Furthermore, the writer of this paper is of the view that though, the long-held wrong notion of the status of the NBA initially, even by the practitioners of the law themselves, might have been responsible for this provision of the RPC, the writer of this paper is of the view that it would have been appropriate, legal and lawful if the Bar Council had delegated such function of seal and stamp to the Body of Benchers thereby having the following provisions rather than the existing one in Rule 10 (1) thus ‘(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Body of Benchers’. This recommendation is made considering the facts that all members of the Bar Council are most likely members of the Body of Benchers. Also, the substitution of Body of Benchers would allow all heads of courts to also participate in the process of approved seal and stamp for legal practitioners, since they are members of the Body of Benchers, as provided by section 3(1) of the LPA, more so, it is more required in this present situation where un-qualified and non-lawyers have almost taken over the legal practice from the qualified ones. It is also noted that by section 3(2) of the LPA, the Body of Benchers is a statutory body with perpetual succession and a common seal. And it is submitted and recommended that there should be no requirement for payment of fees, as payment of practicing fees should be sufficient and no need to send any percentage of the practicing fees to the NBA, a private association. Therefore sections: 9 and 23 of the LPA should be amended, including all necessary sections of the LPA and or the LPAD with immediate effect. Also, it is submitted and recommended that all laws in all Nigerian statutes which requires the membership of members of NBA as members of either the Committee etc, should be reviewed to include other professional associations of lawyers, so as to avoid being discriminatory in violation of section 42 of the Constitution, Article 2 of the ACHPR and Article 2 of the UNUDHR (supra).
Therefore, it is submitted that the law remains unchanged that since the right to an association is a constitutional right under the Chapter IV of the Constitution, any lawyer, especially he who is not willing to be a member of the NBA, may proceed to the court to declare the said Rule 10 of the RPC unconstitutional, null and void and of no effect for violating his fundamental right, being discriminatory against him and for compelling him against his will to be a member of such NBA and or to purchase the approved seal and stamp by the NBA, a private association incorporated under the Part C of CAMA, relying on section 46(1) of the Constitution.
Finally, and without prejudice to the above submissions made in this paper, the writer of this paper therefore calls on the Bar Council to review this provision of Rule 10 of the RPC, by removing the NBA and replace same with Body of Benchers, in order to pre-empt any legal action and for the true reflection of the Rule of Law. Also, sections: 8 and 23 of the LPA should be reviewed in respect of practicing fees, removing NBA as only and sole recipient.
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