Controlling Bodies in the Legal Profession

9/29/2017 10:01:00 am , , , , , , , , , , , , ,





CONTROLLING BODIES IN THE LEGAL PROFESSION

A controlling body is a group of people in a learned occupation who are entrusted with maintaining control or oversight of the legitimate practice of the occupation. It could also be a body, acting to safeguard the public interest, organizations which represent the interest of the professional practitioners, and so act to maintain their own privileged and powerful position.

There are seven principal bodies involved in the management, control and regulation of the legal profession in Nigeria.  They are:

  1. The Council of Legal Education.
  2. The Body of Benchers.
  3. Legal Practitioners Privileges Committee.
  4. Legal Practitioners Remuneration Committee.
  5. Legal Practitioners Disciplinary Committee.
  6. General Council of Bar and [Bar Council]
  7. Nigerian Bar Association.

COUNCIL OF LEGAL STUDIES

The Council is established by the virtue of Section 1 of the Legal Education Act, 1962 which later became the Legal Education (Consolidation etc) Act in 1976 contained in CAP L.10, Volume 8, LFN, 2004. By Section 1(1) of the Act, the Council is a body corporate with perpetual succession and a common seal.  It was established mainly to run the Nigerian Law School, particularly regarding policy matters. The functions of council of legal studies includes;

  1. Responsibility for the Legal Education of persons seeking to become Members of the Legal profession.  See Section 1(2) of the Act.
  2. Continuing Legal Education for legal practitioners.  See s. (3) of the Act.
  3. The issuance of qualifying certificates to persons qualified for call to the Bar.  See s.5 of the Act.
  4. Incidental matters. s. 2(5) of the Act empowers the Council to do such things as are expedient for the purpose of its functions. 
  5. Prescribed conditions which a university faculty must comply with before its products are eligible for admission into the Law School [particularly as relates to the necessary courses the university must offer]
  6. It has also prescribed good conduct as a condition precedent for admission to the Law School and for call to the Bar and the Court has upheld it.  See okonjo v. council of legal education, FCA/L.16/78 of 12 March 1979 (1979) Digest of Appeal Cases 28. Where it was held that, the CLE have d right to make such rules as they consider proper under s. 2(5) of the Act.

N.B- The CLE can deny anybody admission into the NLS upon bad character. such bad conduct as enumerated by Council include cultism, fraud, examination malpractice, etc. The Council subjects reports of bad conduct against candidate to a thorough investigation and if such reports are found to be true, such candidates may be denied admission to the school and if already admitted, the Council may prevent them from writing their Bar Final Examinations. 

Even where they do write their examinations and pass, the Council may not recommend them as fit and proper persons to the Body of Benchers for call to Bar.  Also note that while investigations are pending, the Council may withhold the release of candidates result until the conclusion of the investigation. Council considers material the nature of offence committed in determining if it amounts to bad conduct. 

Conviction may not necessarily amount to bad conduct, for example, conviction on political ground.  Conversely, acquittal or State pardon is not necessarily conclusive evidence of good conduct.  For example, an acquittal on technical ground. Character is fundamental both to admission into the NLS and collection of bar certificate. It is within the discretion of the CLE to consider who they consider to be of good or bad character.

COMPOSITION OF THE COUNCIL OF LEGAL EDUCATION (CLE)

The CLE consist of the following;

  1. The Chairman, who is appointed by the FG upon the Federal Attorney General’s recommendation.
  2. Attorney General of all the states (and in the absence of a State Attorney General, the Solicitor General).
  3. A representative of the Federal Ministry of Justice appointed by the Federal Attorney General.
  4. Heads of Faculty of Law of recognised universities in Nigeria, whose course of legal studies is approved by Council as sufficient qualification for admission to the Law School [Dean of accredited faculties of law automatically get appointed to the CLE].
  5. The President of the Nigerian Bar Association.
  6. 15 persons entitled to practise as legal practitioners in Nigeria of not less than 10 years post call selected by NBA.
  7. The Director General of the Law School.
  8. Two authors of published learned works in the field of law appointed by the Federal Attorney General.



N.B-  the Chairman and the two authors hold office for four years and may be reappointed for another four years unless they resign or are removed.  Council Members are not entitled to any remuneration.  By the virtue of s. 2(5) of the Act.



s. 4 empowers the Federal Attorney General to give Council, directions of a general nature regarding the exercise of its functions and the Council has the duty to comply with these directives. See the case of okonjo vs council of legal education.



BODY OF BENCHERS

The body of benchers is established by the virtue of Section 3(1) of the Legal Practitioners Amendment. The Body of Benchers, is a body of legal practitioners of the highest distinction in the legal profession in Nigeria. By virtue of Section 3(2), it is a body corporate with perpetual succession and a common seal.

Under the LPA, the function of the body of benchers is to;

  1. Formal call to Bar of aspirants.
  2. The issuance of Call to Bar Certificate.  Section 4(3). 

Following the promulgation of (Legal Practitioners Amendment) Decree No. 21 of 1994, the functions of the body of Benchers were expanded with the following additions:

  1. Prescription of Call Fees.  See Section 5(d) of the Decree.
  2. The exercise of disciplinary jurisdiction over Members of the profession and students seeking to become legal practitioners.  See Section 8 of the Decree.
  3. Prescription of Practising Fees in consultation with the Nigerian Bar Association.  See Section 8 of the Decree.
  4. They take measures which appear necessary or expedient for maintaining the traditional values of the legal profession and in line with this, they have made regulations prescribing the following:
    1. The keeping of three dinning terms by aspirants.
    2. Unblemished conduct as pre-requisite for call to Bar, and
    3. Sponsorship of aspirants in writing by two Members of the Body of Benchers.
  5. The Body of Benchers has also been given the responsibility of the general management of the affairs of the NBA.  See Section 2 of the Decree.

COMPOSITION

The body of benchers is composed of;

1.         Chief Justice of Nigeria (Life Bencher) and all the    Justices of the Supreme Court.

2.         The President of the Court of Appeal.

3.         The Attorney General of the Federation.

4.         Presiding Justices of the Court of Appeal divisions.

5.         The Chief Judge of the Federal High Court.

6.         Two Chief Judge of the FCT.

7.         The Chief Judges of all the States.

8.         Attorneys General of all the States.

9.         The Chairman of the Council of Legal Education.

10.       30 legal practitioners nominated by the NBA.

11.       Not more than 10 legal practitioners who appear to the Body of Benchers to be eminent   legal practitioners of not less than 15 years post call.

RIGHTS AND PRIVILEGES ACCORDED TO LIFE BENCHERS

  1. They possess exclusive right to sit at the first row.
  2. They also have the right to mention any cause or matter, which is on the list for, mention and not otherwise listed for hearing out of turn.  See Sections 6(3) and 56(1) of the LPA.  Also see Section 1 of the Legal Practitioners (Amendment) Decree No. 2 of 14th September 1992.





LEGAL PRACTITIONERS PRIVILEGES COMMITTEE – (LPPC)

The Committee is established by Section 5(3) of the LPA (Legal Practitioners Act). Their function is to;

  1. To confer the rank of SAN on legal practitioners of not less than 10 years post call who have achieved distinction in the legal profession.
  2. Making rules as to obligations and privileges to be conferred on SANs as well as restrictions and mode of appearance to ensure the dignity of the rank of SAN. 

  1. The SAN (Privileges and Functions) Rules, 1979 were made by the Committee and conferred the following privileges on SAN:

a.         The exclusive right to sit at the Inner Bar or Front Row.

b.         The right to mention a cause on the list for mention out of turn.

c.         The right to wear silk gown.


WAYS TO BECOME A SENIOR ADVOCATE OF NIGERIA

AS SET OUT BY THE CHIEF JUSTICE OF NIGERIA IN JULY 1990

  1. The applicant shall furnish to the Committee or the Chairman 15 copies of his application attaching –

a. Particulars of at least six cases in which he appeared before the Supreme Court within the last 3 years preceding the date of his application or

b. Particulars of two contested cases at the Supreme Court and at least four contested cases at the Court of Appeal, or

c. One contested case at the Supreme Court, four contested cases at the Court of Appeal and at least six contested at the High Courts.

  1. The Federal Attorney General, if not already a SAN shall be made a SAN unless the Committee thinks he is not a fit and proper person.
  2. In exceptional circumstances, academic Members of the profession who have distinguished themselves through teaching and/or published works by making substantial contributions in the field of law and jurisprudence.  Particulars and copies of such works should be supplied.
  3. All former Queen’s Counsel who applied shall be conferred with the rank.
  4. Partners in Chambers who severally satisfy all the criteria are eligible, but not associates or salaried juniors.
  5. In addition to forensic excellence, an applicant shall furnish evidence of:

  1. Good law office with good library and
  2. Having at least two junior legal practitioners and staff in his Law Office.

  1. Good character and reputation, honesty, integrity, ability and sound knowledge of the law.
  2. Successful practice at the Bar, satisfactory presentation of cases in Court and high standard in the profession.
  3. Finally respect for the Code of Conduct and etiquette at the Bar and loyalty to the profession.



COMPOSITION OF THE COMMITTEE

1.         The Chief Justice of Nigeria. (Chairman)

2.         The Federal Attorney General.

3.         One Justice of the Supreme Court.

4.         President of the Court of Appeal.

5.         Five Chief Judges of State High Courts.

6.         The Chief Judge of the Federal High Court.

7.         Five Legal Practitioners who are SANs.



Please note that the Chief Justice of Nigeria in consultation with the Federal Attorney General appoints numbers 3, 5 and 7 above.





LEGAL PRACTITIONERS REMUNERATIVE COMMITTEE – (LPRC)
The Committee is established by s. 15 of the Legal Practitioners Act. It is empowered by s. 15(3) to make provision for maximum charges for transactions or activities, ascertainment of appropriate charges, the taking of security by legal practitioners for payment of fees or their charges and allowance of interest with respect to the security and also agreements between legal practitioners and their clients with respect to charges. 

COMPOSITION

  1. The Federal Attorney General.
  2. States Attorneys General.
  3. The Nigerian Bar Association President, and
  4. 3 NBA Members appointed by NBA.





LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE – (LPDC)

This is a Committee of the Body of Benchers established by Section 11 of the Legal Practitioners Act as amended by Decree No. 21 of 1994.

It considers and determines allegations of misbehavior by persons whose names are on the Roll in their capacity as legal practitioners. Appeals from their decisions lie to the Supreme Court.  Section 9 of Decree 21 of 1994.


COMPOSITION

            The Committee’s composition as prescribed by Section 10(2) of the LPA has since been altered by Section 9 of Decree 21 of 1994.  The new composition are as follows;

  1. A Chairman who shall not be either the CJN or a Justice of the Supreme Court.
  2. Two Justices of the Court of Appeal, one of whom shall be the President of the Court of Appeal.
  3. Two Chief Judges.
  4. Two Attorneys-General who shall be either the Attorney General of the Federation and an Attorney General of a State or two State Attorney General and
  5. Four Members of NBA unconnected with either the investigation of a complaint or the decision by NBA to present a complaint against a legal practitioner for determination by the disciplinary Committee.



GENERAL COUNCIL OF THE BAR

They are provided for under Section 1(1) of the Legal Practitioners Act. The General Council of Bar, referred it as “Bar Council” is established by Section 1(2) of the LPA.

FUNCTIONS
1. By Section 1(1) of the LPA, the Bar Council was originally charged with the general management of the affairs of NBA subject to any limitations provided by the NBA Constitution. These limitations include;

  1. Article 8(a) of the NBA Constitution provides that the powers of the General Council of the Bar shall not include:
      1. Any control over the budget or finances of the NBA;
      2. Power to appoint representatives of the NBA to any statutory, executive/judicial or other bodies;
      3. Power to issue any statement purporting to express the views of NBA on matters of public interest or matters affecting the legal provision generally;
      4. Power to make any arrangement including an agenda of venue for the annual general conference or any other general meeting of NBA.

  2. Article 8(b) of the NBA provides that any decision of the Bar Council may be reviewed or modified by the Annual General Conference or at any other general meeting of the Association.  However, by virtue of Articles 8(c) and (d), if the Bar Council exercises its power to constitute a Committee of NBA Members to run NBA affairs in some emergency or unavoidable circumstances, the limitations provided in Articles 8(a) and (b) will not apply. Most importantly, however, over and above all the limitations imposed by the NBA Constitution, the entire power of general management of NBA affairs by the Bar Council has, in fact, been totally removed and transferred to the Body of Benchers by virtue of Section 2 of Decree 21 of 1994.  The General Council of Bar, therefore, appears emasculated.


2. The power of the Bar Council to fix practicing fees has also been transferred to the Body of Benchers in consultation with the NBA.  See Section 8(e) of Decree 21 of 1994.


3. The power of the Bar Council to make rules of account to be kept by legal practitioners is still intact. Section 20(1)(a) to (d) of the LPA provides as follows:

(1)        Subject to subsection (2) of this section, the Bar Council may, from time to time, as the Council considers expedient, make rules –

(a)        As to the opening and keeping by legal practitioners of accounts at banks for clients’ moneys; and

 (b)       As to the keeping by legal practitioners of records containing particulars and information as to moneys received, held or paid by them for or on account of their clients; and

(c)        As to the opening and keeping by a legal practitioner who is the sole trustee or who is a co-trustee only with one or more of his partners, clerks or servants of an account at a bank for moneys of any trust of which he is the sole trustee or such a co-trustee as aforesaid; and

(d)       As to the keeping by such a legal practitioner as is mentioned in paragraph (e) of this subsection of records containing particulars and information as to moneys received, held or paid by him for or on account of any such trust as is so mentioned; and empowering the Bar Council to take such action as it thinks necessary to enable it to ascertain whether the rules are being complied with.
4. Its power to make and revise rules of professional conduct is still intact.  See Section 12(4) of the LPA as amended by Decree 21 of 1994.  The current Rules of Professional Conduct were made by the Council under these provisions.


COMPOSITION

  1. The Attorney General of the Federation (President).
  2. The States Attorney General and
  3. 20 Members of the NBA and not less than 7 of them shall be legal practitioners of not less than 10 years post call.

In Section 318(1) of the 1999 Constitution of the FRN, “judicial office” means:

1.         Office of CJN or Justices of the Supreme Court.

2.         President or Justices of the Court of Appeal.

3.         Chief Judge or Judges of Federal High Court.

4.         Chief Judge or Judges of the High Court of the FCT, Abuja.

5.         Chief Judge of a State and Judges of State High Courts.

6.         Grand Kadi or Kadis of the Sharia Court of Appeal of the FCT, Abuja.

7.         President or Judges of the Customary Court of Appeal of the FCT Abuja.

8.         Grand Kadi or Kadis of the Sharia Court of Appeal of a State.

9.         President or Judges of the Customary Court of Appeal of a State and

a reference to a “judicial officer” is a reference to the holder of any such office.

                                      



                                       NIGERIAN BAR ASSOCIATION – (NBA)

The Nigerian Bar Association (NBA) is not established by statute unlike the other controlling bodies. However, it is recognised by statute. In fact, as far back as 1933, the Legal Practitioners Ordinance of that year provided for the nomination of Members of the Association as Members of the Legal Practitioners Committee. It was not until 1959 that NBA became organised in its present national form.  Its existence is also recognised by the Legal Practitioners Act, which makes provision for its sustenance.

By virtue of Section 8(2), 90 per cent of practising fees collected are to be paid by the Registrar of the Supreme Court to the NBA for its sustenance. The Legal Practitioners Act further provides for the appointment of NBA representatives of most of the controlling bodies such as the Council of Legal Education, the Body of Benchers etc.


COMPOSITION

Every person duly enrolled as a legal practitioner in Nigeria is a Member of NBA.  However, there are two categories of membership by virtue of Article 3 of the NBA Constitution, that is,

(i)         Full membership and

(ii)        Honorary membership. 

Those enrolled as legal practitioners are full members whereas honorary members are members of the legal profession within or outside Nigeria admitted as such by the Annual General Conference on the recommendation of the National Executive Committee, and they include serving and retired Judges and Magistrates.

 Article 4 of the NBA Constitution provides for aims and Objectives of the NBA.  They include:

  1. Maintenance of the honour and independence of the Bar, maintenance of the highest standards of professional conduct, etiquette and discipline.  Please note that in this regard, it refers cases to the disciplinary body.
  2. Defence of the Bar and its relation with the Judiciary and the Executive: promotion of the rule of law.
  3. Promotion and advancement of Legal Education, continuing Legal Education, advocacy and Jurisprudence and
  4. Improvement of the system of administration of justice, its procedures, arrangement of Court business and regular law reporting et cetera.

Please note that, the NBA has various Committees for the achievement of its aims and objectives.  One of such Committees is the Editorial Board, which publishes the Nigerian Bar Journal.

LEGAL STATUS OF NBA

The Trustees of NBA are registered as “Registered Trustees of NBA”.  Therefore, it is a juristic personality and not a juridical personality. It is a body corporate with perpetual succession, a common seal, the power to hold property and to sue and be sued in its corporate name. In the case of FAWEHINMI V. NBA (1989) 2 NSCC 43, the fact that the trustees of NBA were registered was not brought before the Court Otherwise, the Supreme Court would not have pronounced that the NBA is not a juristic person and should be sued in a representative capacity.













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