OPINION

THE LAWYER`S ROLE IN THE STEADILY SHRINKING LEGAL PRACTICE SPACE IN NIGERIA

By: Sylvester Udemezue

Examples abound of how several non-law-professionals, within and outside Nigeria, have steadily hit the Nigerian Law Practice Space so ferociously from all over the place, with a view to muzzling lawyers and taking away all law work from lawyers. The sad thing is, lawyers themselves appear to be doing only very little to ward off these noticed external incursions.

Indeed, this writer believes that Nigerian lawyers have constituted themselves willful or negligent contributors, as is seen in the unnecessary seeming blanket ban which the LPDC (comprising exclusively lawyers) have tried to hand out against lawyers in NBA v. Ibebunjo. With due respect to the LPDC, this writer looks at such attempt by the LPDC as an overzealous, unjustifiable hasty generalization; as already pointed out above, there appears to be not a single evidence indicating that every other Nigerian lawyer who gets involved in actual “selling and buying of land” would end up defrauding his or her client or the purchaser, unlike what happened in the case of Mr Ibebunjo.

In this writer`s view, striking out Mr. Ibebunjo`s name, and doing nothing more other than ordering Mr. Ibebunjo to refund all monies he had fraudulently collected from the supposed purchaser (Mr. Ezeife) was sufficient punishment for Mr. Ibebunjo`s ignoble and inglorious conduct.

Besides, one might consider it curious that the Nigerian Bar Association had in that case framed a second, unnecessary, complaint pertaining to the import, application or scope of rule 7 (2) and (3) of the RPC, which the LPDC later considered, leading to the pronouncements pertaining to the seeming total ban on lawyers` personal participation in sale of land transactions. In that case, clearly, the LPDC ended up making itself a major contributor to this unfortunate shrinking of the Legal Practice Space as we used to know it.

A few other examples of the needless external interferences, interruptions and intrusions into the Nigerian Legal Practice Space would serve to illustrate the point I try to make here.
Against clear provisions of the CAMA, and purportedly in pursuance of the Nigerian Federal Government`s ease-of-doing-business concept, the Corporate Affairs Commission has been fighting hard to take away some aspects of the lawyer’s work and to hand same over to its (CAC’S) in-house Lawyers.

On 5 April 2017, the Nigerian Minister of Industry, Trade and Investment, had amended the Companies Regulation, 2012 by inserting amongst others, a new Regulation 11(b) which in essence was aimed at whittling down the role of legal practitioners other than those who are in the employment of the Corporate Affairs Commission (CAC) in the process of registration of companies. Specifically, the amendment handed over to CAC`s inhouse lawyers the role of signing CAC`s Form of Statutory Declaration of Compliance, required to be signed by lawyers with the result that when a new Company`s first directors or subscribers presented an application for registration a new company, lawyers in private practice would hardly ever have the opportunity of signing these Forms
for their clients.

It meant that private practitioners would no longer be required in the process of registration of companies.

Besides, company promoters would have no need to go through private legal practitioners in respect of registration of companies; they could take their applications straight to the CAC. Expectedly, and relying on the new Regulation, CAC had published a Notice to the general public to the effect that private legal practitioners were no longer needed for registration of companies in Nigeria Angered by this development, Ernest Nkwocha Esq., a Kano based Constitutional Lawyer, had dragged the Minister of Industry, the CAC and the Attorney General of the Federation, to the Federal High Court, arguing that the conducts of the Minister and of the CAC were unknown to the Nigerian laws.

The lawyer further contended that section 585 and 609 of the Companies & Allied Matters Act CAMA), which the Minister had relied on, did not grant the Minister any powers to make the kind of provision the Minister had made.

The lawyer contended that sections 16 of CAMA was a general rule while section 35(3) of the same CAMA dealing with Statutory Declaration of Compliance, was a special and particular provision appearing subsequent to the general rule. Citing the rule of interpretation of statutes, generalia specialibus non derogant, the lawyer stressed that section 35(3) of CAMA would override the general rule in section 16 of CAMA in cases of conflict. The suit was filed on Friday, 11 May 2018.

In a judgment delivered on 19 November 2018 by the Federal High Court, sitting in Kano, Hon Justice A O Egwuatu barred legal practitioners who are in the service of Corporate Affairs Commission (CAC) from further deposing to the Statutory Declaration of Compliance towards complying with requirements relating to registration of new companies. However, to demonstrate its determination to steal lawyers` jobs, the CAC quickly appealed the FHC judgment.

Happily, the only way to take this exclusive right away from private practitioners is to amend the principal law, the CAMA, because as it stands now, in company formations, a statutory declaration by legal practitioner engaged in the formation of a company must be produced before a company can be incorporated.

Foreign embassies and consulates in Nigeria have recently turned their officials into “Notaries Public” for purposes of attesting to relevant documents, and this practice has rendered Nigeria`s indeqenous Notaries Public almost useless in that respect.

On the official website of the Embassy of the United States in Nigeria, the following notice/advert is boldly displayed, and Nigerian Lawyers appear to be doing practically nothing about that:

“…. Notary services are available to all U.S. passport holders and foreign nationals for documents destined to be used in the United States. The fee is 50 U.S. dollars (USD) or the Nigerian Naira (NGN) equivalent, for each notary seal stamp administered. The NGN to USD exchange rate may vary.

All services must be paid for upfront in cash. We do not accept any form of card payment or personal checks….”

At the High Court Probate Registries and Land Registries across the country, staff members of the registries are in the habit to advising prospective applicants for Letters of Administration, Probate and Resealing (in the probate registries), and for Perfection and Regularization of Land Documents, titles and transactions, etc., to ignore Lawyers and instead bring their applications and documents direct to the probate and land registries for registration, processing, and perfection, respectively as the case may be.

The wordings of the Legal Practitioners Act leaves no one in doubt about the role it assigned to lawyers in the process of application for, and processing of, documents for probate or letters of Administration.

The term “legal practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings. Besides, a person shall not be entitled to practice as a barrister and solicitor in Nigeria if his or her name is not on the roll.

Officers and men of the Nigerian Police and some other Law Enforcement agencies in Nigeria would tell their suspects, accused persons, arrestees and detainees that they have no need for lawyers as “police are their friends.”

The Nigerian Police are now a debt recovery agency, and collecting more than the 10 percent usually due for the lawyers for services rendered towards the legal jobs relating to debt recovery, against clear pronouncements of the Supreme Court of Nigeria warning security agencies to stay off pure civil disputes.

Then, at the various zonal offices of the Economic and Financial Crimes Commission (EFCC), Nigerian lawyers are hardly allowed to operate. Section 8(2) of the Administration of Criminal Justice, Act (the Act), 2015 provides that:

“a suspect shall not be arrested merely on a civil wrong or breach of contract.” Some potential clients still resort to using these law enforcement agents notwithstanding the pronouncement of Nigeria`s Court of Appeal in Anogwie v. Odom:

“…the invitation of the police to intervene in a matter that is purely civil in nature cannot be justified under any circumstances.

The duties of the Police as provided under Section 4 of the POLICE ACT, Cap 359 LFN 1990 does not include the settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties.”
Most clients now prefer to take the law into their own hands by enlisting the services of members of the O`dua Peoples` Congress (OPC), Movement for the Actualization of the Sovereign State of Biafra (MASSOB), Indigenous People of Biafra (IPOB), AREWA Youths, or even retired or active militants, ethnic militias, areas boys, thugs and even social miscreants and louts, etc., to get their legal jobs done quick – jobs which range from debt recovery, ejection of recalcitrant tenants to settlement of scores with perceived social, community or political enemies, etc.

Some other prospective clients prefer to use serving or retired military men for a “quick action.”

What is more? Right inside the Law Firm/Offices, where lawyers are supposed to feel at home, most (of course, not all) senior lawyers/colleagues treat their juniors in Chambers, as rags or salves. Some Law Firms owe workers` salaries (including salaries of fee earners) for months while some others pay as monthly salaries to each employee, money that would not even be enough to cover the affected employee`s transportation cost in one month.

Outside the Law Firm, some establishments claim they have no jobs for lawyers; the truth, however, is, they get these otherwise legal jobs done through extralegal or extrajudicial means.

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Then, what happens within the precincts of the court of the courtrooms, the court of justice?

There are incessant cases of court-is-not-sitting, dirty deals, corruption, kickback, needless and annoying adjournments and other delays and delay-tactics, mostly perpetrated by lawyers, litigants, court officials and (in some cases) presiding judicial officers alike.

The result is that litigation is becoming increasingly unattractive to the ordinary clients who bring their cases to the courts, in genuine expectation of quick and fair dispensation of justice. So many discouraging stories and disheartening reports emanating from the courts of justice are an increasing source of worry and discouragement to prospective litigants.

There were recent reports about the stench oozing out of the Lagos State judiciary: “Justice for Sale (I & II): Extortion, Injustice prevail in Lagos State Courts”

The result of all these is a steady decline in the number of clients who are willing to settle their cases by litigation, which automatically translates to fewer jobs for the litigations advocates.

The Omo N’Iles quacks and other non-expert Land Speculators and Grabbers unleash their own terror on legal practice.

To checkmate the activities of these land grabbers in Lagos State, Governor Akinwunmi Ambode had on 15 August 2016, signed into law the Lagos State Properties Protection Law, 2016, which was geared towards the prohibition of forceful entry and illegal occupation of landed properties, violent and fraudulent conducts in relation to landed properties in Lagos state.

The main objective of the law is to provide legal comfort and assurance to interested investors that they can carry on legitimate land and property transactions without fear of harassment, intimidation or unnecessary exploitation by these land grabbers.

The Anambra State of Nigeria had in 2012 enacted the Prohibition of Fraudulent Practices on Land and Property Law 2012. Activities of these land grabbers, which cut across states in Nigeria, have serious adverse effects on conveyancing law practice in Nigeria; indeed, it is one of the major challenges faced by lawyers in conveyancing practice in Nigeria. Some writers have tried to explain the menace of land grabbers, but the phenomenon persists.

Recently, the Lagos State Government vowed to go tough on land grabbers, popularly known as ‘Omonile’ who specialize in seizing people’s properties.

Recently, Union Bank, with all the customers’ monies at its disposal, still proceeded to place an advert, telling the whole world to ignore lawyers as Union Bank was now a legal-services-rendering institution, apart from being a Banker; two clearly incompatible occupations.

It took open protestation and condemnation by so many lawyers before our Nigerian Bar leadership took relevant steps to kick against and halt Union Bank’s stray into irresponsibility and mischief

Some Federal and State government agencies prefer to farm out to lawyers in foreign lands, legal jobs meant for lawyers called to the Bar in Nigeria, in breach of the Legal Practitioners Act which forbids law practice in Nigeria by anyone who was not duly called to the Nigerian Bar, save for the purpose of special proceedings after having fulfilled conditions prescribed by law. In an earlier published work, the present writer had cause to make the following observations on this:

“… a large chunk of the biggest legal jobs in Nigeria (legislative drafting, etc.) are usually given out to foreign law firms, in America, Canada, UK, etc at cut-throat foreign currencies, while Nigerian lawyers, who are more often than not, more capable and competent and of course willing to work, are left to fight over crumbs and pieces from the table of the non-Nigerian Lawyers!!! One may even ask a question, what has become of the Nigerian laws that say a person who is not qualified as a lawyer in Nigeria cannot practice law in Nigeria? Do those provisions not forbid giving lawyers’ job in Nigeria to non-Nigerian lawyers?

Where is the Nigerian Bar Association its branches, and Nigerian lawyers doing about all this illegal exportation of just entitlement of Nigerian lawyers?

Lawyers have even begun to be harassed or castigated for appearing in court to represent their clients —that is, for exercising their constitutional and statutory rights as lawyers— while the prosecutors, investigators and law enforcement agents who often mastermind these harassments and blackmail strive hard to obtain convictions (of the defendants) at all costs, in total disregard of universally acknowledged standards in criminal justice administration. Lawyers are now afraid to honestly and diligently work for their clients!

While lawyers spend huge resources training and retraining as professional Arbitrators, Mediators, and Conciliators, and ADR experts, it is seen that at the community level much of the cases on arbitration, mediation and conciliation are taken before Village Heads, Chiefs, Oba, Igwes, Eze`s, Emirs Town Unions, and community associations, leaving the lawyer-mediator with nothing to show for the many arbitration and mediation Certificates he carries about. It needs however to be stated that lawyers have a primary professional responsibility to discourage litigation and encourage out-of-court settlements.

Yes! But, how many of our lawyers ever get invited or involved in non-litigation, out-of-court settlement processes? “Only a handful” is this writer`s answer.

This notwithstanding, lawyers are hereby encouraged to heed the counsel of Sandra Day O’Connor, US Supreme Court Justice: “the courts of this country should not be the places where resolution of disputes begins.

They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”  Hence, lawyer sought to go about preaching, as Abraham Lincoln once did: “discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time.

As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Peroration: Would there Still be Business Enough?
In view of this unrelenting onslaught against the legal profession in Nigeria, would there still be business enough for lawyers in Nigerian?

This writer believes that lawyers need urgently, by themselves and working hand in hand with their Bar Associations, to put their acts together and stand up to fight against those who fight against the legal profession and its members.

Unfortunately, as it appears, instead of fighting the real enemies of the profession in Nigeria, Nigerian Lawyers are busy fighting one another, fighting their bar associations, and leaving the legal profession declining and the Legal Practice Space steadily shrinking. The writer has illustrated above how lawyers` traditional jobs are being brazenly seized by outsiders, who operate unhindered, while the Nigerian Bar Association is enmeshed in needless internal wrangling and unnecessary narcissistic divisions. The truth is, nothing will work unless lawyers do something.

No progress would be made in this direction if lawyers do nothing concrete and constructive to scare these saber-rattlers.

Lawyers in Nigeria need to wake up to their responsibilities! Time for the Bar, the Bench, and members of both the bar and the bench, to stand and fight to save the soul of the legal profession in Nigeria is now or never!

There is no time to wait or waste; time will never be right. As Barack Obama put it, “the change we desire will not come if we wait for some other person or some other time.

We are the ones we’ve been waiting for. We are the change that we seek.” If we fold our arms and do nothing to halt the steady decline in the legal practice space and also to enlarge the scope of legal jobs with a view to leaving enough for lawyers in Nigeria, or if we continue to do things the way we have always done by continuing with our superficial approach, there might in the long run, be little or no improvements and we would continue to get the same results as we have always got while the professions becomes the worse for it.

A stitch in time saves nine

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