What You Need To Know About The Draft Bill To Repeal The Legal Practitioners Act

TheNigeriaLawyer Editorial

INTRODUCTION

A new legal regime is set to be ushered in, in the Nigerian Legal Profession as a Bill is in place to repeal the Legal Practitioners Act, 1975. The Bill as garnered, states that it is:

A BILL FOR AN ACT TO REPEAL THE LEGAL PRACTITIONERS ACT CAP L11, LAWS OF THE FEDERATION OF NIGERIA, 2004 AND RE-ENACT THE LEGAL PRACTITIONERS ACT TO PROVIDE FOR REFORMS AND REGULATE THE LEGAL PROFESSION AND FOR SUCH OTHER MATTERS THEREWITH

It is limpid that the Bill states that it is set to reform and regulate the legal profession and for such other matters.  However, and as expected, it would become evident that some significant changes have been made with respect to the  hitherto Legal Practitioners Act.

In this light, what this Editorial set to do is to appraise the provisions of the Bill, by reference to the current Act with a view to assessing the likely changes that are to be ushered in, seriatim.

SECTION ONE

Section 1 of the Bill provides for the establishment of Body of Benchers, initially contained in Section 3 of the present Act.

Unlike section 3(1) & (2) of the present Act, Section 1(1) of the Bill now provides:

There shall be a Body Corporate with perpetual succession and a common seal made up of Legal Practitioners of the highest distinction in the legal profession in Nigeria to be known as the Body of Benchers.(Emphasis ours).

However, the Bill has conferred additional powers on the Body of Benchers. Section 1(2)(b) and (c) of the Bill provide:

(b) Taking all measures (whether by making regulations pursuant to the powers conferred on it by this section or otherwise howsoever) which appear to it to be necessary or expedient for maintaining at all times the traditional values of the legal profession; and

 (c) The exercise of disciplinary jurisdiction over members of the legal profession

Apparently, this is not contained in the current enactment,

In another development, there is a significant change in the constitution of the members of the Body of Benchers as evident in section 1(3) of the Bill. This is because, the Bill has added the following persons as members:

• the President of the National industrial Court,
• Life Benchers,
• the President of the Senate,
• the Speaker of the House of Representatives and
• the Chairman of the National Assembly Committees on Judiciary.

However the memberships of the Senate president, Speaker of the House of Representatives and the Chairman of the National Assembly Committees is only practicable where the individuals occupying these positions are Lawyers. This particular section has generated controversies across some quarters.

It is also noteworthy that Section 1(3)(q) provides that 20 legal practitioners as nominated by the National Executive Committee of the Nigerian Bar Association;  meaning a reduction compared to the current Act that provides for 30 legal practitioners as members in Section 3(1)(k) of the Act.

It is equally to be noted that the Body of Benchers appears to be under an obligation to make regulations under Section 1(4) of the Bill. This is because, Section 3(5) of the Act says: “The Benchers MAY make regulations”  while in the Bill, “may” has been changed to “shall”.

Furthermore, Section 1(8) and (9) sprinkles fresh waters of development as it summarily provides that regardless of whatever provision is entailed in the constitution of the Nigerian Bar Association, the Body of Benchers may:

(9) Wherever any of the events specified in subsection (8) of this section occurs, the Body of Benchers shall have power to:-

(a) Inquire into the cause of the default in holding the necessary elections or of the dispute among members of the National Executive Committee of the Association;

(b) Appoint (whether or not from among the Body of Benchers) such other suitable persons to run the affairs of the Association, and such persons shall be known as the Caretaker Committee of the Nigerian Bar Association (in this Act referred to as “the Caretaker Committee”).

However, these provisions can only come into existence if:

(8)Notwithstanding anything contained in the Constitution of the Nigerian Bar Association, the Body of Benchers shall have and may exercise any or all the powers specified in subsection (9) of this section whenever-

(a) The term of office of the officers or the elected members of the National Executive Committee of the Association has expired and it is impossible for the Association to hold the necessary elections for a period exceeding 30 days thereafter; or

(b) The Body Benchers is satisfied that by reason of dispute among the members of National Executive Committee of the Association, it is impossible or impracticable for the National Executive Committee to undertake or continue its functions of managing the affairs of the Association; or

(c) The National Executive Committee of the Association passes a resolution calling upon the Body of Benchers to exercise such powers.

In addition, the Body of Benchers have the following powers:

• To determine the duration of a caretaker committee not exceeding 12 months (Section 1(10))
• The appointment of the Committee shall terminate all resolutions and the operation of the Association’s Bank account is to the managed by the Committee and any prior Court order to the contrary shall abate (Section 1(11 & 12))
• The disciplinary powers of the Body shall be regulated by Rules to be made by CJN.

SECTION 2

The Bill makes provision for the membership tenure of the Body of Benchers, noting that:

• Membership ceases if a person was a Bencher by virtue of an office he held
• Membership is for 3 years and subject to another 3 years renewal
• All present and past and Chief Justices of Nigeria are life benchers
• A member who served for 5 consecutive years is eligible to be a Life Bencher if vacancy exists.
• The Body has power to make rules to regulate her affairs.

However, Section 3(8) of the Act provides:

Except as may be provided by regulations made under subsection (5) of this section, the quorum of the Benchers shall be ten.

Conversely, Section 2(6) of the Bill provides:

The quorum of the Body of Benchers for general business is 30.  

SECTION THREE

Section 3 of the Bill is a new innovation. Subsection 1 provides:

(1) There shall be established for the Body, the office of a Secretary who shall have a career service and shall be appointed by the Body of Benchers

Meanwhile, the Secretary has been charged with several duties which include execution of policies, administration of secretariat, in charge of Call to Bar and Law Dinner amongst others. See Section 3(2) of the Bill.

In addition, subsection 3 empowers the Body to appoint members of staff and the scheme of service obtainable in the judiciary and public service shall be applicable to the staff. Also, the Body has power to make regulations.

SECTION FOUR

Section 4 provides for the financial provisions of the Body of Benchers to be funded and operate within normal budgetary allocation as may be made to it by the Federal Government through the National Judicial Council.

In addition, it further provides for the power of the Body of Benchers to accept gift on a condition that same is not inconsistent with or inimical to its functions. Also, it has a right to invest.

SECTION FIVE

Section 5 of the Bill provides for the composition and proceedings of the Bar Council. Significantly, Section 1 of the Act has a similar provision. Meanwhile, the Act says the members are Attorney General of the Federation; Attorneys General of  the States; twenty members of the NBA.

However, Section 5 of the Bill says the members are:

• Attorney General of the Federation;
• six Attorneys General of the State;
• six members of the NBA;
• two past NBA Presidents;
• retired Court of Appeal Justice;
• six Senior Advocates of Nigeria;

Furthermore, Section 1(4) of the Act provides that the quorum of the Council shall be eight but however, Section 5(3) has increased it to be the Chairman and 12 other members. Also, Section 5(5) of the Bill states that the allowances of members shall be determined and Section 5(6) empowers the Council to make Rules of Professional Conduct. Lastly, Section 5(7) says the Secretary to the Body of Benchers shall serve as secretariat to the Council.

SECTION SIX

Section 6 provides for Inner Bar and Docket Priority. Importantly, the Act in the first schedule provides:

Table of precedence

1. The Attorney-General of the Federation.
2. The Attorneys-General of the States in order of seniority as Senior Advocates of Nigeria and thereafter in order of seniority of enrolment.
3. Senior Advocates of Nigeria in order of seniority.
4. Persons authorised to practise as legal practitioners by virtue of paragraph (b) of subsection (3) of section 2 of this Act.
5. Persons whose names are on the roll in order of seniority of enrolment.
6. Persons authorised to practise by warrant.

However, Section 6(2) of the Bill only provides:

The officers are the Attorney General of the Federation, Attorneys General of States, Life Benchers, Senior Advocates of Nigeria and Solicitor General of the Federation.

SECTION SEVEN

Section 7 provides for the practice as a Legal Practitioner. It is to be noted that Section 2(1) of the Act provides:

Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.

However, there is an additional qualification in Section 7 of the Bill thus:

A person is entitled to practice as a Legal Practitioner only if his name is on the Roll of the Legal Practitioners kept at the Supreme Court of Nigeria and he has met all the conditions for practice set out in this Act and any rules made by the Body of Benchers. (Emphasis ours)

SECTION EIGHT

Section 8 provides for the eligibility for Call to Bar, namely Council of Legal Education qualifying certificate, good character and satisfying Body of Benchers prescribed conditions.

SECTION NINE & TEN

Sections 9 & 10 provide for certificate of Call to Bar and enrollment, noting that it is the duty of the Body of Benchers to issue while the Supreme Court Registrar is to enroll.

SECTION   ELEVEN

Section 11 provides for a mandatory 2 years pupillage for new Lawyers called to Bar. It also provides that the Body of Benchers shall make rules to that effect Also, that there shall be a designated division of the Body of Benchers to address this.

SECTION TWELVE

Section 12 provides for the duty of the Body of Benchers to inspect and accredit.

It shall be the responsibility of the Body of Benchers to set standards, inspect, accredit and approve law offices of legal practitioners in Nigeria.

SECTION THIRTEEN

Section 13 provides for practicing license. Notably, Lawyers are now expected to get practicing license from the NBA which may be subject to renewal based on the conditions prescribed. Furthermore, Section 13(4)(a) outlaws impersonation as a Legal Practitioner or preparing processes or documents preserved for Lawyers. Section 13(4)(b).

SECTION FOURTEEN

Section 14 provides for mandatory stamp and seal to be used by all Legal Practitioners preparing documents. This is to be issued by the Nigerian Bar Association.

SECTION FIFTEEN

Section 15 provides for practice by foreign Lawyers in Nigeria. It would be recalled that Section 2(2) of the Act gives the Chief Justice of Nigeria exclusive power to determine such.

However, Section 15 of the Bill provides that the Chief Justice of Nigeria may make rules, in consultation with the Body of Benchers in this regard.

SECTION SIXTEEN

Section 16 further states that the Supreme Court Registrar shall maintain the roll of the Legal Practitioners in Nigeria.

SECTIONS SEVENTEEN  & EIGHTEEN

Section 17 provides in express terms that the Bill is to repeal the current Legal Practitioners’ Act, 1975 as amended while Section 18 gives interpretations of specific words used in the Bill.

However, the Bill provides for Schedules which are to be seen hereafter.

FIRST SCHEDULE

The first schedule provides for the Committees of the Body of Benchers. It empowers the Body to establish several Committees for the working operations of the Body.

Specifically, it states that the Body shall have the following Committees:

• Legal Practitioners Disciplinary Committee
• Screening Committee
• Finance Committee
• Publicity Committee
• Benchers Appointment Committee
• Ethics and Compliance Committee
• Body of Benchers Mentoring Scheme Committee
• Recruitment, Promotion and Discipline Committee
• Elders Committee
• General Council of the Bar

However, the inclusion of the General Council of the Bar as part of its committees may appear to have been laced with ambiguity. This is because, the Bar Council is an independent Body already established in Section 5 of the Bill.

ITEM A

Item A provides for the Legal Practitioners Disciplinary Committee. It is pertinent to note that Section 10(2) of the Act provides for the composition of the Committee

(2) The disciplinary committee shall consist of-

(a) the Attorney-General of the Federation, who shall be chairman;

(b) the Attorneys-General of the States in the Federation;

(c) twelve legal practitioners of not less than ten years standing appointed by the Benchers on the nomination of the association. 

However, under the new Bill, it provides:

(2) The Disciplinary Committee shall consist of-

(a) a Chairman who shall not be either the Chief Justice of Nigeria or a Justice of the Supreme Court;

(b) 2 (two) Justices of the Court of Appeal one of whom may be President of the Court of Appeal;

(c) 2 (two) Chief Judges;

(d) 2 (two) Attorneys-General, who shall be either the Attorney-General of the Federation and the Attorney– General of a State or two State Attorneys-General; and

(e) 4 (four) members of the Association who are not connected with either the investigation of a complaint or the decision by the Association to present a complaint against a legal practitioner for determination by the Disciplinary Committee.

(f) Such additional number of members of the Association as the Body of Benchers may deem fit to appoint for the purpose of the effective conduct of the business of the Disciplinary Committee.

In addition, it provides that the quorum of the Committee shall be three and also, it empowers the CJN to make rules governing the Committee. Furthermore, it provides for the tenure of the members of the Committee for 3 years subject to reappointment. Also, the Committee is empowered to sit in divisions. Any document authorized or required by this Act to be served on the Disciplinary Committee shall be served on the Secretary, Body of Benchers.

ITEM B

Item B provides for penalties to be meted out through the Disciplinary Committee for unprofessional conduct.

ITEM C

Item C provides for the disciplinary jurisdiction of the Supreme Court of Nigeria in relation to an infamous conduct of a Legal Practitioner.

ITEM D

Item D provides for restoration of names to the Roll. That is, an application can be made for restoration of a name of a Legal Practitioner struck off from the Roll.

SECOND SCHEDULE

ITEM A

Item A provides for the Legal Practitioners Privileges Committee. Section 5(3) of the Act gives the composition of the Committee, to be 15 members. However, the Bill provides for the following members:

• The Chief Justice of Nigeria as the Chairman;
• The Justice of the Supreme Court next in seniority to the Chief Justice;
• The President of the Court of Appeal;
• The Attorney-General of the Federation;
• The President of the NBA;
• Two past Presidents of the NBA;
• The Chief Judge of the Federal High Court;
• 6 (Six) Chief Judges of the High Courts of States selected by the Chief Justice of Nigeria in rotation from among states constituting each of the six geographical zones;
• 6 (Six) Senior Advocates of Nigeria nominated by the National Executive Committee of the NBA; and
• 2 (Two) Life Benchers selected by the Chairman of the Body of Benchers

In addition, the Bill provides that its quorum shall be 9.

ITEM B

This provides for the Legal Practitioners Remuneration Committee with the power to regulate charges in the Legal Profession. Meanwhile, members of this Committee are to be appointed by the Attorney General of the Federation.

ITEM C

Item C provides for Clients Account. The Bill empowers the Bar Council to make rules governing the clients account being maintained by Legal Practitioners.  However, the rule cannot come into force except with the approval of the Attorney General of the Federation.

ITEM D

Item D provides for unauthorized practice of law. It provides for a penalty of 2 (two)years imprisonment or a minimum of N5, 000, 000 (Five Million Naira) fine or both if; not being a Legal Practitioner and holds out himself by rendering services.

Besides, it provides for a period of six years as statute of limitation. Also, it states that anything purportedly done shall be void and subject to recovery.

CONCLUSION

Based on an holistic review of the Bill to repeal the Legal Practitioners Act, it is our view that the structure of the hitherto Act is much more preferable in terms of arrangement. This is because, it enhances free flow of thought and adequate sequence.

Besides, it is our further view that notwithstanding the controversies that have trailed some parts of the Bill, it is hoped that the Bill would emerge overwhelmingly acceptable and in conformity with standard after thorough review.

TheNigeriaLawyer Editorial