LEGAL SYSTEM II
A. INTERNAL CONFLICT OF LAW
- English law and customary law
- Matters between natives and natives.
- Matters between natives and non-natives
- Lex Situs.
B. JUDICIAL INSTITUTIONS
- The role of the judiciary
- The history and development of the courts
C. TYPES AND JURISDICTIONS OF COURTS
- Customary and Area courts
- Magistrate and District Courts
- Courts of record
- Special Courts
- Sharia Court of Appeal
- Customary Court of Appeal
- Tribunals (excluding Commissions of Inquiry)
D. JUDICIAL PERSONNEL– APPOINTMENT AND TENURE.
E. LEGAL PROFESSION AND LEGAL EDUCATION IN NIGERIA.
Conflict of law is said to be a set of rules of procedural laws which determines the legal system and the law of jurisdiction applying to a given legal dispute. Also it is regarded as a term used in the consideration of the “Challenge of having several laws applying in a given legal issue, that affect two different nations’ state.
This is otherwise known as private international law. Therefore, conflict of laws narrowly under the Nigeria Legal System is termed “Internal Conflict of law.” Having known that Nigeria has various sources of laws under its legal system, there are bound to be conflicts between these various laws.
The following are the predications of conflict of law, that is, the internal conflict of law. Predications can be better put as causes of internal conflict of law.
Predications of Internal Conflict of Law:
- The plurality of laws guiding the general aspect of our living.
- Multi ethnic, Multi Lingual or Multi Cultural nature of Nigeria.
- Parties having an option of their transaction being regulated by different laws.
- A non-Nigerian having a transaction with a Nigeria without stating the law that will be applicable.
- Inconsistency of other laws with the provision of the Nigerian constitution.
THE LAW BETWEEN PEOPLE OF NIGERIA DESCENT/ BETWEEN NIGERIANS
The general rule with regards to dispute between persons who are Nigerian is that customary law should apply, that is, the law of the land. The various high court laws enjoins the court to observe and enforce the observers of customary laws. Section 26 of Lagos State High Court Law Cap H3, Laws of Lagos State 2003 provides:
- 1. The high court shall observe and enforce the observers of customary laws which is applicable and is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by implication with any law for the time being in force and nothing in this law shall deprive any person of the benefit of customary law.
(1)2 Go ahead:
Customary law shall be deem applicable in causes and matters where parties thereto are natives….
(A minor by infant relief act is someone under 21 years old; an infant has no capacity to enter into contract).
Therefore in resolving conflict of laws when parties are natives (Nigerians), the general rule is that if there is a native law and custom applicable to the matter in controversy and if such law and custom is not repugnant to natural justice, equity and good conscience or incompatible with any local ordinance and if it shall not appear that it was intended by the parties that the obligation under the transaction should be regulated by English law. The matter in controversy shall be determined in accordance with such native law and custom. This position has been reinforced in the following cases:
1 Lewis V Bankole (1908) NLR81
- Agibigbi V. Agibigbi (1992) 2NLR pt221
- Aghenghen V. Waghoreghor (1974) ALLNR pt74
EXEMPTIONS TO CUSTOMARY LAW APPLY TO NIGERIANS OR NATIVES
As against the general rule that transaction or dispute between Nigerians should be governed by customary law, there are at least two situations in which court may refuse the applicability of the customary law and these are:
- When the parties either expressly or impliedly agree that customary law should not apply or
- Where the transaction is unknown to customary law.
Note: If the contract is between a Nigerian & Foreigner, English law will be applied. However if the foreigner will induce English law for injustice, it may not apply.
Section 26(3) of High Court of the Lagos statute provides;
“No party shall be entitled to claim the benefit of any customary law if it appears from either express contract or from the nature of the transaction, out of which any suit or question may have arisen that such party agreed that his obligation in connection with such transaction shall be exclusively regulated otherwise than by customary law or that such transaction are transaction unknown to customary law.”* (note when a question bothers on exemption, use section 26(3) of Lagos High Court).
As between a native and non-native, any dispute that may arise in the light of transaction between them, shall as a matter of general rule be regulated by English law.
In the case of Salvage V. Macmoy (1909) REN504.
The deceased husband of the defendant was a non-Nigeria, he conducted a marriage under native and custom with the defendant.
The court held that the deceased husband being a Sierra Leonean lacks capacity to contract a marriage in Nigeria under native law and custom and therefore the marriage was consequently void.
The only exemption to this in which English law would not apply but rather customary laws, is where substantial injustice would result, if there is strict adherence to any other rules of law.
Section 26(2) of the High Court of Lagos State earlier on referred to provides that:
“Customary laws shall be deemed applicable in causes and matters between natives where the parties thereto are natives and also in causes and matters between natives and non-natives where it may appears to the court that substantial injustice would be done to either party by a strict adherence to any rule of law which may otherwise be applicable”
The rationale behind this position is to protect natives who would enter into transactions that are ponderous and transactions that are failed in its technical form which the non-native is attempting to take advantage of.
The Choice of Applicable Customary Law:
As earlier noted, matters between natives shall be regulated by customary law and if it appears that substantial injustice would arise if any other law is used for matters between native and non-natives, customary law is to be used.
However, the court is faced usually with the problem of; “which customary law” is to be applied. The pointer to this problem is the multi-cultural, multi lingual and multi ethnic nature of Nigeria. For instance in the absence of an express agreement between a Yoruba man and an Uhrobo man, it may be difficult to know the customary law that should be applicable for transactions between them but it should be stressed that the nature of the transaction is a determinant of the customary law that will be applied.
Succession to Land/Property:
In the issue of taking over the property of a deceased upon his demise in the case that he never wrote a will. The law applicable for the succession of both movable and immovable properties are the personal laws of the deceased.
“Personal law” refers to the law that the deceased subjected himself to during his lifetime. And of course to determine this, evidence must be adduced to the satisfaction of the court that the person was in his lifetime bound by those laws.
In the case of Olowu V. Olowu (1958)3 NLR pt13 pg372, the Supreme Court noted that under the Nigerian law, a person is free to change his personal law from customary to English law or vice versa and also from one cultural group to another and so forth. With this, what matters is the personal law of the deceased at the time of his death. Meanwhile where the personal law of the deceased can’t be ascertained or determined, then the law of where the land is situated will be applied, as far as the issue deals with land succession.
In the case of Ekem v. Nerba (1947)12 WACA 258, the deceased and owner of the property in question was a Nigerian but no evidence was adduced to show what part of Nigeria he belonged to. The court settled for the law of where the land was situated (Lex situs).
Land dispute other than succession
The customary law applicable to land matters that are not contended on succession is the law of where the land is situated. That is, issues of sale of land, mortgage (pledge), tenancy and other related dispute will be resolved using the law of the community where the land is situated. As an illustration, if a Yoruba man and an Igbo man have a dispute over a land in Lagos, the customary law prevalent in Lagos would apply and the parties cannot decide that the customary law of either of them should apply, though they can decide that English law should apply.
In Ukeje v. Ukeje (2001)27 WRN 142 CA both parties were Igbos and the land in question was in Lagos. The court reinstated the Lex situs principle and upheld the Yoruba customary law of Lagos as applicable.
Other civil cases
In other civil cases apart from succession and land matters, the customary law applicable is dependent on the circumstances of each case and this often takes in so much permutations.
Judiciary: It is described in simple terms as the arm of government saddle with the responsibility of interpretation of the law, adjudication, settlement of dispute and improvement and role of the fundamental human rights of citizen. It is important to note that the judiciary derives its powers from the constitution. However, there is a distinction between judicial functions and judicial powers. While the former encompasses the role of the judiciary in resolving conflicts through resort to established rules, which can be exercised by non-judicial or quasi-judicial institutions. The latter is restricted to recognized judicial institutions, and its functions are wider than the general functions.
In Nigeria however, the power of judiciary are contained in section 6(6) of the 1999 constitution of the federal republic of Nigeria which states as follows:
- The judicial power vested in accordance to the foregoing provision of this section are:
(a) Shall extend, notwithstanding anything to the contrary in this constitution to all inherent power and sanctions of the court of law
(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any action as to civil rights and obligations of that question.
(c) Shall not except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objective and directive principle of state policy set out in chapter 2 of this constitution.
(d) Shall not, as from the date when this section comes into force, extend to any action or proceedings, relating to any existing law, may on or after 15th of January 1966 for determining any issue or question as to the competency of any authority or persons to make any such law.
Note that the language of the constitution is both permissive and restrictive. While paragraph A & B state situation under which judicial power maybe exercised. Paragraph C & D state situation where such power may not be exercised. It is from this section that all judicial institutions in the country derived their power to act.
Quasi-Judicial institutions such as administrative tribunals, only possess such powers as conferred on them by law which is usually as wide as judicial power. When we speak of judiciary, we speak of institutions with judicial powers but not necessarily all institution that exercise judicial powers.
It’s important to note the distinction between judicial powers or functions & jurisdiction. While the former refers to judicial capacity of an institution, the later refers to the capacity of an institution to exercise it power in relation to a particular subject matter or person. Hence, while an institution may have judicial power, it may not have the jurisdiction to hear a particular case. For instance, section 232 (1) of 1999 constitution confers on the Supreme Court, original jurisdiction in *”any dispute between the federation and a state or between states and if and in so far as in dispute involves any question whether of law or fact or which the existence or extend of legal rights depends”*. In such matters, the high court we have no jurisdiction, or those it has the same judicial power as the Supreme Court confers on it by the section 6 of the same constitution.
The jurisdiction of the court will usually dictate the situations under which such a court can lawfully exercise its judicial powers and this may depend on several different factors such as whether a court has original or appellate jurisdiction in a particular matter, whether or not a court has civil or criminal jurisdiction or perhaps whether a court has exclusive jurisdiction or shares jurisdiction concurrently with other courts in a particular issue.
Jurisdiction therefore differs from circumstance to circumstance and dictate the condition under which judicial power may be exercised.
Judicial institutions remain a very important part of the government machinery as they help to resolve conflict and ensure running of the other arms of government by keeping them in check.
In summary, the role and functions of the judiciary includes but are not limited to:
- Interpreting and applying the law
- Resolving conflicts between persons both natural and judicial
- Resolving conflict between government institutions and citizens and between government institutions and organs
- Ensuring the constitutionality and legality of government activity.
- Protecting the rights of citizens against abuse.
Judiciary usually consist of judges who are the officers of the court. And the court usually established by law to serve as a locus for judicial activities. While courts are tribunal of a sort, not all tribunals are courts. Some tribunals exercise quasi-judicial functions but do not possess full powers of a court. Tribunals have time frame, they are constitute for a specific purposes e.g. Election Petition tribunal. Having said that, it is important to note that not all courts have the same function or the same capacity or jurisdiction.
HISTORY OF THE NIGERIAN JUDICIAL SYSTEM
It is important to note the historical background of any institution, judiciary inclusive. As such we would attempt to trace the historical background of Nigeria Judiciary. This would be discussed under three major sub heads:
- The pre-colonial judicial administration
- The colonial judicial administration
- The post-colonial administration
Pre – Colonial Judicial Administration
Judicial administration in Nigeria has evolved and metamorphosed over the decades depending on the type of government structure in place and the system of governance.
Prior to the colonization exercise in many part of Africa, traditional society has their own system of adjudication responsible for the administration of justice in those society. Nevertheless, the entering of the European commercial actors in the society led to the development of judicial system that laid the foundation for the future for contemporary adjudication in African societies. For instance, in the 19th century before the annexation of Lagos in 1861, the different societies that now form Nigeria and other African countries operated their own political system with their own method of administration of justice. There were traditional ‘courts’ where traditional rules were applied against parties, irrespective of whether they were indigenes or foreigner.
In Igbo land for instance, the society was without central leadership. Leadership was distributed among members of the community who act in council to exercise executive, legislative and judicial power. The system of justice administration in the precolonial Hausa policy in the northern Nigeria was the closest to the modern court system that we have today in different part of the world. There was a court system where subordinate chief or Alkalis headed the court in different district or zones and the Emir had appellate and original jurisdiction in very serious cases. The administration of justice in the traditional society was based largely on unwritten customary rules interpreted by institution such as ostracization was very common as well as corporal punishment. In some instance influential individual were allowed to mete out punishment to those who offended them and this was the case in Yoruba land. The judicial system of many of this society applied to native and non-native even when the latter does not understand the context of the rules, with the increasing growth in the European trade in the region, British traders became involved in the polities of the region and judicial administration.
The traditional system of judiciary administration posed a problem for foreigners particularly European foreigners who were unfamiliar to the traditional law in many of the African society. This led to the introduction of consul court By the British government with appointed consul to attend to dispute between indigenes and foreign traders while traditional court continued to administer cases involving only indigenes. An example is the oil rivers protectorate with later became the Niger port protectorate, for which consuls were appointed by the British government to observe treaties and handle the governance of the British subject in that area. In the area that should be known as the protectorate of southern Nigeria courts of equity were introduced in the mid-19th century with the main function of administering the commercial relation between British subject and non-British subject. There were different from the consul court in that they were less technical, and related more to the administration of commercial relations then governance and judicial issues.
This was the beginning of the emergence of legal system in many of the British territory including what would eventually become Nigeria.
Colonial Administration of Justice
This period can be classified into two which are Pre-amalgamation and post- amalgamation periods. The pre-amalgamation period covers the period between 1861 and 1914. At that time, different part of what is known as Nigeria now were administered by the British government or its subject. The post-amalgamation period would refer to the period after the amalgamation of the colony and protectorate of the Southern Nigeria with the protectorate of the Northern Nigeria to form what we recognize as Nigeria. After the cession of Lagos to the British crown in 1861, the supreme court ordinance 1863 establish the supreme court in the territory of Lagos and this was subsequently replaced by the courts of civil and criminal justice which was the highest court in the land. Furthermore, appeals from the West African Court of Appeal situated in Sierra Leone lays straight to the judicial committee of the Privy Council. In 1874, the Gold coast colony was established comprising Lagos and the Gold coast. The Supreme Court ordinance 1876 provided for a supreme court the colony which would apply common law, doctrines of equity and statutes of general application in force on the 24th of July 1874. The three tier court system had hierarchy consisting of the district commissioners’ court, the divisional court and the full court and appeals ran in that order.
By 1886, Lagos seized to be part of the Gold coast colony and the colony and protectorate of Lagos had its own supreme court with similar provisions with the 1876 ordinance. During this period, the indigenous court system flourished. Although it was limited to cases involving indigenes some of whom had imbibed the English way of life. It should be noted that the pre- amalgamation judicial experience of Northern and Southern Nigeria is similar to that described above. However, a significant difference was that while the proclamations were introduced to establish English courts to establish laws, native laws was administered by native courts established by separate proclamations. Thus, both English and native laws were administered by English trial courts under English laws unlike the system in Lagos where the native system was left significantly untouched by the English system. However, after the amalgamation of the colony and protectorate of Lagos which the colony of Southern Nigeria in 1906, the native court system extended to Lagos by the virtue of the native court ordinance of 1906. It should be noted that the native courts have both civil and criminal jurisdiction.
Obilade in the textbook, “The Nigerian Legal System,” notes that the absence of native oversight and control in the southern protectorate weakened the native court system while the Chiefs in the northern protectorate involved in the appointment of members of the native court added to the efficacy of the system.
After the 1914 amalgamation, there were proclamations establishing a supreme court, a provincial court and a native court system respectively. The native courts were empowered to exercise jurisdiction in civil and criminal cases concerning natives, but certain classes of natives were subjects to the jurisdiction of the court only if they or residents consented or if they or the lieutenant Governors consented and the natives were:
- Government servants
- Natives (not ordinarily subjects to the jurisdiction of the court and who did not live permanently where the court had jurisdiction).
In 1933, there was further judicial reform to establish a High court and a magistrate court under the protectorate court ordinance 1933 which repealed the provisional Court ordinance while the Supreme Court continued to exist for the colony. Jurisdiction in matters relating to English law was shared between these courts which had original and appellate jurisdiction. Appeals lay from the magistrate court to the high court and from the native courts to the magistrate court or the high court while the appeals from high court and Supreme Court lays to the West African Court of Appeal. Other relevant ordinances were the native courts ordinance and the West African court ordinance, both of 1933. Jurisdiction still remained merged between the native and English system such that in certain matters e.g. land matters under customary law, the English courts did not have jurisdiction.
By 1943, a universal court system was adopted country wide and this end to the establishment of magistrate courts in all parts of the country and a supreme court of Nigeria for the whole country. The native courts continued to have exclusive original jurisdiction in matters relating to marriage, family status, guardianship, inheritance and administration of estate. Upon the adoption of a federal system of government in 1954, the court system also adopted a federal stance, and the High courts were established for Lagos and each of the three regions while there was a Federal supreme court and magistrate court for different parts of the country. These courts applied and administered English laws while the native courts in the North and the customary courts in the Southern parts of the country applied and administered customary law. The laws establishing the native courts were enacted by the different regions. It should be noted that in the Northern region where the Islamic law was the recognized customary law, a sharia court of Appeal was established to hear appeals from Native courts, and in the event of conflict between Sharia court of Appeal and the High court, a court of resolution was established for resolving such conflict.
Post – Colonial Judicial Administration
After the attainment of independence in 1960, the political climate in Nigeria completely changed but the judicial structure remain significantly the same with the different regions having their High courts, magistrate courts and customary/native courts, while there was a federal supreme court and the judicial committee of the privy council which remained the highest court of the land. The most significant change brought about by the 1960 independence constitution was the abolition of criminal jurisdiction under customary law as the constitution provided that no one would be convicted of an offence not provided by any written law with the exception of contempt of court. There was no further significant change in the judicial system until 1963 when Nigeria became a republic with complete independence from other British government.
Under the 1963 constitution, the supreme court of Nigeria became the highest court of the land. In 1963, there was also an additional region removed from the former Western region known as the Midwestern region. The native courts in the Northern region became known as area courts. The judicial system was severely affected by military coup of Jan 1966 and another one in July of the same year. The following year, the country was divided into 12 states under the states (creation and transitional provision), Decree 17 of 1967. This was the beginning of series of military coups which short lived return to civil rule in 1979 and during the period of 1967 till date the country has been restructured several time. Presently, there are now 36 states and FCT. The Justice System remains decentralized up to the court of Appeal which has different divisions in different states and the Supreme Court which is situated in the FCT.
Posts independence, the different development in the judicial system have had to do mostly with the appointment of judges during the military regime, as well as the role of tribunals and commission of enquiry. During the military, the role of judiciary which is clearly stated in the constitution is limited considerably as the constitution is usually suspended.
The administration of justice in Nigeria has since its early inception sought to make a distinction between customary and non-customary jurisdiction and the extent of that distinction has been modified over time but the greatest change has occurred in the arrangement of non-customary system which has become more sophisticated overtime and whose coverage has widened while that of customary system would be said to have become more limited.
It is evident that there have been series of development in the post – colonial judicial administration, which are; the establishment of National Industrial Courts, the Customary Court of Appeal and various amendments or modifications to the existing court procedure rules, ranging from the High Court, to the Court of Appeal and ultimately to the Supreme Court. However, there is little a long way to go in the development of post-colonial judicial administration in Nigeria.
TYPES AND JURISDICTIONS OF COURTS
The list of superior courts is contained in section 254(C) of Nigeria Constitution.
The Supreme Court
Section 230 of the constitution establishes Supreme Court as the apex court of the land. The Supreme Court consists of Chief Justice of the federation and other judged not exceeding 21 in number. The appointment of the CJN is done by the president of the federation on recommendation from the National Judicial Council. However, this appointment is subject to ratification by the Senate. The current CJN is Hon. Justice Walter Samuel Onnoghen.
The qualification to be appointed a judge of the Supreme Court entails that such a person must have been called to the Nigerian Bar for a period not less than 15years.
Also, when there is vacancy in office of the C.J, the most senior judge will fill the seat.
Also, some of the judges of the Supreme Court must be well learned in customary law and others must be well grounded in Islamic law.
The Court of Appeal
This is established in section 237 of the constitution and it consists of President of the court of appeal and other judges not less than 49 in number. It is the court next to Supreme Court. The president of the court of appeal is appointed by the president of the federation on recommendation of NJC subject yo confirmation by Senate. The current president of the court of appeal is Hon. Justice Zainab Bulkachuwa. It must be noted that the other judges of the court of appeal are appointed by the president on recommendation of the NJC but not subject to confirmation by the Senate.
Before a person can qualify as a judge of the court of appeal, such a person must be qualified as a legal practitioner for not less than 12years.
Also, at least 3 of the judges must be well vast in knowledge of customary law while the other 3 must be well grounded in Islamic law.
When there is vacant seat of the President of the court of appeal, the most senior judge will fill the seat.
The Federal High Court
Section 249 of the constitution establishes FHC. The appointment of the chief judge is done by the President of FRN on recommendation by NJC subject to confirmation by the Senate. There is only one FHC in Nigeria but divided into judicial divisions.
Before a person would qualify to be C.J of FHC, such a person must have being called to bar for not less than 10years. When there is vacancy in the office of C.J, the most senior judge will be appointed.
The High Court of FCT Abuja
Section 255 established the H.C of FCT and consists of C.J of that state and such number of justices as may be prescribed by an Act of National Assembly. Appointment is made by the president in recommendation of NJC and confirmation by Senate. The qualification of being a judge here is that the person must have being called to bar for not less than 10 years. When there is vacancy in the office of the CJ, the most senior judge will fill the position.
The Sharia Court Of Appeal of FCT
Section 260 establishes SCA of FCT. The head of the court is called Grand Khadi and other justices are called Khadis. Appointment of the Grand Khadi is made by the president of the FRN on recommendation of NJC confirmed by the Senate. The qualification as a judge here us that such person must have 10years post call experience and must have a recognized qualification in Islamic law from an institution acceptable to NJC OR the person must have attended and obtained a recognized qualification in Islamic law from an institution approved by the NJC and not have held the qualification for not less than 12years. In addition to the second criteria, the person must also either have a considerable experience in the practice of Islamic law or a distinguished scholar of Islamic law.
The most senior Khadi takes over when there is vacant seat of the Grand Khadi.
The Customary Court Of Appeal of FCT
Section 265 establishes this court. The head is called President while others are called judges. The president is appointed by the president of the FRN subject to recommendation by NJC and confirmation by Senate. The qualification here is that such a person must have being called to bar for not less than 10years and in the opinion of NJC, must have knowledge in customary law and practice OR in the opinion of the NJC has considerable knowledge in customary law and practice.
The High Court Of A State
Section 279 of the constitution makes provision for High court of a state and the Governor of each state is responsible for appointing the C.J and other judges. The appointment of the C.J by the Governor is based on recommendation of the NJC and confirmation by the state House of Assembly.
Qualification here is 10years post call and when there is vacancy of the sit of the C.J, the most senior judge is appointed for not more than 3months and after it lapses, he cannot continue except the NJC deems it so.
The Sharia Court Of Appeal Of A State
Here, the Grand Khadi and other Khadis are appointed by the Governor of a state on recommendation by NJC and subject to confirmation by the state House of Assembly.
Qualification here is same as the Sharia Court of Appeal of FCT. Vacancy is also same as Sharia court of Appeal of FCT.
The Customary Court Of Appeal Of A State
The president of the customary court of Appeal of a state is appointed by the Governor of the state on recommendation by the NJC and subject to confirmation by the state House of Assembly.
Qualification is same as Customary court of Appeal of FCT.
The National Industrial Court
Section 20(3) of the Trade dispute Act establishes this court. The court consists of the President and other members. The appointment of the president is made by the president of FRN haven consulted the Federal Judicial Service Commission, other members are also appointed by the President after consultation with FJSC.
The qualification for being the president of NIC is that the person must have been a judge of a court if unlimited jurisdiction in civil and criminal matters in some parr of the common wealth or a court having jurisdiction in appeals from that court.
Must have been qualified for admission as an advocate in Nigeria and must have been so qualified for a period of not less than 10years.
Meanwhile, appointment of other members of the NIC entails that such persons must be persons of good standing well acquainted with employment matters and at least one of the four judges must have knowledge of Economics, trade, industry and commerce.
When there is vacancy in the office of the president of NIC, the president after consultation from FJSC can appoint any qualified person to act as president and the tenure will be stated in the appointment and where the tenure is not stated, the president can revoke the appointment at any point in time.
Section 6(J&K) provides for offer courts. Some of the ones we have are:
This is common in the Southern states of the country and not uniform in each state. Magistrate court is lower to High court in hierarchy and so appeals from magistrate court goes to High court of state. The highest ranking magistrate is the Chief magistrate.
This is the same as magistrate court but operates in the North and it is purely for civil cases
This is also equivalent of magistrate court but it is purely for hearing criminal cases. The qualification as a judge here depends on the laws of each state but usually 3years of post call
It is an adhoc court for hearing special cases
They are military courts for trying military offences
These courts hear revenue matters relating to tax and rates
These courts have jurisdiction on customary laws and practices
A coroner is someone who makes inquest into the cause of death. It hears cases on when cause of death of someone is not known.
This court was first established in Children and Young Persons Ordinance of 1943. The chief judge may appoint anyone to sit with a magistrate for trying a juvenile. Under the Children and Yong Persons Ordinance, a child is any person under the age of 14 and young person is anyone who has attained the age of 14 and under the age of 18(in the North less than 18 and south less than 17).
Trial of juvenile are not made public. Also, the law forbids the use of words like “you are hereby sentenced or convicted” to children. Juvenile court cannot imprison a child or young adult except in rare cases where it is seen that other corrective measure won’t work. The corrective measures used are:
- The court can dismiss the charge
- The juvenile can be discharged on self-recognizance
- The juvenile can be discharged and placed under the supervision of a probation officer
- The juvenile can be committed to the care of an approved institution or relative
- The court can order the juvenile or the parents to pay a fine
- The court can order the juvenile to be flogged
- The juvenile’s parent can be ordered to give security of good behavior
TENURE OF OFFICE, REMUNERATION AND REMOVAL OF JUDICIAL OFFICERS
Section 291(1&2) of the constitution makes provision that the CJN, JSC, PCA and JCA may retire upon the age of 65 and shall seize to hold office upon the age of 70. Note however that other judicial officers apart from the ones aforementioned in S.C and C.A may retire upon the age of 60 shall seize to hold office at the age of 65.
Section 84 of the constitution makes provision that the remuneration of judicial officers will be prescribed by N.A which includes benefits, arrears, allowances and it will not exceeded the amount prescribed by Revenue Mobilization Allocation and Fiscal Commission.
Also, a judge of not less than 15years in service is entitled to pension, allowances and benefits.
Section 292 provides that a judicial officer in the likes of CJN, PCA, JCA, Grand Khadi ) can be removes by president of FRN acting on an address subject to ratification of 2/3rd majority of Senate as a result of:
- Contravention of the code of conduct
– The C.J of a state, Grand khadi of SCA of a state, president Customary court of a state shall be removed by Governor of a state, acting on an address which is subject to ratification of 2/3rd majority of House of Assembly
– In any other cases not mentioned, they can be removed by the President or the Governor as the case may be, acting on the recommendation of the NJC that the judicial officer should be so removed.
JUDICIAL PERSONNEL IN NIGERIA
There are some bodies that are part of judiciary, they are related to the court but they are not judges.
1) National Judicial Council
2) The federal Judicial Service Commission
3) The State judicial Service Commission
4) The Judicial Service Commission of FCT
THE NATIONAL JUDICIAL COUNCIL
It was established by section 153 of the constitution alongside other bodies by section 154. There is the appointment tenure of office.
The members of the National Judicial Council are appointed by the President of the federal republic of Nigeria on the confirmation by the Senate.
it is done by the President but must be with the support of two third majority of the Senate. Removal of the officer might be because of gross misconduct, infirmity/ terminal disease.
For somebody to be a member, he must be qualified to contest in an election as a member of house of representative. Within the preceding 10 years of his appointment, he must not have been removed as a member of any body for misconduct.
1) Chairman is the first member who is the Chief Justice of Nigeria (Ibrahim Tanko Muhammad)
2) The next most senior judge of Supreme Court who shall be the deputy chairman
3) The President of the court of Appeal (Justice Zainab Adamu Bulkachuwa)
4) Five retired justices selected by the Chief Justice of Nigeria either from the Supreme Court or Court Appeal
5) The Chief Judge of the federal high Court
6) five Chief Judges of the state to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the state high court or the FCT in rotation to serve for two years.
7) One grand khadi to be appointed by the Chief Justice of Nigeria from among the Khadi from the Sharia Court of Appeal in rotation to serve for two years.
8) One of the President of customary Court of Appeal appointment by the Chief Justice of Nigeria from among the president of Customary Court of Appeal to serve in rotation for two years.
9) Five members of NBA who have be qualified to practice for a period not less than 15 years and at least one of them must be a senior advocate of Nigeria appointed by the Chief Justice of Nigeria on the recommendation of the National executive committee of the Nigerian Bar Association to serve for two years subject to re-appointment
10) Two persons that are not legal practitioners who in the opinion of Chief Justice of Nigeria are of unquestionably character / integrity
11) Secretary to the council who is a legal practitioner appointed by the National judicial Council on the recommendation of the Federal Judicial Service commission
FUNCTIONS OF THE NATONAL JUDICIAL COUNCIL
1) Recommendation of the recommendee to the President for among the list submitted to the Council. The appointment of Chief Justice of Supreme Court, justices of Supreme Court, Judges of Federal high Court and Chief Judge of the federal High Court etc.
2) They also recommend the removal of Chief Justice of Supreme Court, Justices of Supreme Court or Court of Appeal and also President of the Court of Appeal, Chief Judge of Federal High Court etc.
3) They exercise disciplinary control of judicial officers i.e. Judges in the temple of justice.
4) Recommend to the Governors from among the list submitted to the Council by the State judicial Service commission i.e. Judges of the State High Court, Sharia Court of Appeal of a State or Customary Court of Appeal if it applicable ( if there is Sharia Court of Appeal or Customary Court of Appeal in such a State )
5) They recommend to the Governor of the State for the removal of Judges supra
6) Collect, Control and disburse the money collected in respect of judiciary
7) Advice the President of Governors on any matter pertaining to the judiciary SD may be refer to the Council by the President of Governor of any State of Federation.
8) Appoint, dismiss, and exercise disciplinary control over members of the Council.
9) They control and disburse Money for the Council
10) Any other matter on administrator of politics in administration of policy as relating to the Judiciary.
THE FEDERAL JUDICIAL SERVICE COMMISSION
It was also established by section 153 of the constitution alongside other bodies by section 154 – 160 spell out the duties appointment, obligations etc. of the bodies. There is the appointment tenure of office.
The members of the federal judicial Service commission are appointed by the President of the federal republic of Nigeria on the confirmation by the Senate.
It is done by the President but must be with the support of two third majority of the Senate. Removal of the officer might be because of gross misconduct, infirmity/ terminal disease.
For somebody to be a member, he must be qualified to contest in an election as a member of house of representative. Within the preceding 10 years of his appointment, he must not have been removed as a member of any body for misconduct.
FUNCTIONS OF THE FEDERAL JUDICIAL SERVICE COMMISSION
1) Advice the national Judicial Council in nominating person for the office of Chief Justice of Nigeria, President of the Court of Appeal, etc.
2) Recommend to the National Judicial Council for the removal of a person from the office Chief Justice of Nigeria, President of the Court of Appeal etc.
3) Appoint, dismiss, and exercise disciplinary control over Chief Registrar and deputy Chief registrar of both Supreme Court, Court of Appeal, Federal High Court, and other judicial staff of the National Judicial Council of the federation.
4) Consultation with the President of the appointment of the President of the National Industrial Court
1) Chief Justice of the Supreme Court is a chairman of the federal Judicial Service commission
2) President of the Court of Appeal is a member of the federal judicial Service commission
3) Attorney General of Federation is also a member of federal judicial Service commission
4) Chief Judge of federal high court is a member of the federal judicial Service commission
5) Two persons qualify as a legal practitioners for the period of not less than 15 years are also members
6) Two other persons who are not legal practitioners but from the opinion of the President are of good characters
THE STATE JUDICIAL SERVICE COMMISSION
It was established by section 197 of the constitution alongside other bodies. There is the appointment tenure of office.
The members of the State judicial Service commission are appointed by the Governor of the State on the confirmation by a resolution of the House of Assembly of the State
it is done by the Governor but must be with the support of two third majority of the House of Assembly. Removal of the officer might be because of gross misconduct, infirmity/ terminal disease.
For somebody to be a member, he must be qualified to contest in an election as a member of house of Assembly. Within the preceding 10 years of his appointment, he must not have been removed as a member of any body for misconduct.
1) Chief Justice of a State as a chairman of the commission
2) Attorney General of the State as a member of the commission
3) Grand Khadi of the Sharia Court of Appeal of a State if any at a member of the commission
4) President of the customary Court of Appeal of a state If any as a member of the commission
5) Two members who are legal practitioners, who are so qualified for a period not less than ten years
6) Two members who are not legal practitioners but from opinion of the Governor, they are of unquestionably characters.
THE JUDICIAL SERVICE COMMISSION OF THE FEDERAL CAPITAL TERRITORY
It was established by section 304 (1) of the constitution. And in (2) it provides that the provision of section 154(1) and (3), 155, 156, 157(1) and (2), 158(1) and 159 to 161 of this constitution shall apply with necessary modifications to the judicial Service committee of the federal capital territory, Abuja.
In this foregoing of the judicial Service commission of the federal Capital Territory, the appointment and the membership of this commission will be set up as or the way National judicial Council is being formed and operated. This means that the President will appoint the Chief Justice of the high court of the federal capital territory and so on as it is stipulated in national judicial council.
THE INDEPENDENT CORRUPTS PRACTICES AND OTHER RELATED OFFENCES COMMISSION (ICPC)
The ICPC is a Nigerian agency that was inaugurated on 29 September 2000 following the recommendation of President Olusegun Obasanjo. The mandate is to receive and investigate reports of corruption and in appropriate cases prosecute the offender(s), to examine, review and enforce the correction of corruption prone systems and procedures of public bodies, with a view to eliminating corruption in public life, and to educate and enlighten the public on and against corruption and related offences with a view to enlisting and fostering public support for the fight against corruption. The Corrupt Practices and other Related Offences Act 2000 governs the committee’s activities.
Establishment. (1) There is hereby established a Commission to be known as the Independent Corrupt Practices and Other Related Offences Commission (hereinafter in this Act referred to as “the commission”) Commission composition, tenure and removal from Office. (2) The commission shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.(3) The commission shall consist of a chairman and twelve (12) other members, two of whom shall come from each of the six geo-political zones;(a) A retired police officer not below the rank of commissioner of police;(b) A legal practitioner with at least 10 years post- call experience;
(c) A retired judge of a superior court of record;(d) A retired public servant not below the rank of a Director;(e) A woman;(f) A youth not being less than 21 or more than 30 years of age at the time of his or her appointment and
(g) A chartered accountant.
(4) The chairman shall be a person who has held or is qualified to hold office as a judge of a superior court of record in Nigeria.
(5) Remuneration for members of the Commission shall be determined by the National Revenue Mobilization, Allocation and Fiscal commission.
Section 8(2) deal with the duties of functions of the commission
– To receive, investigate, complaint, and prosecute offenders
– To combat corruption
– To combat gratification and bribery of public officers
– They majorly deal with public officers
– Since the inception of the commission, people have criticize it that it has not done much and it has its own excuse which are lack of funds and the tardiness of the court process and also big wigs in the society.
THE ECONOMIC AND FINANCIAL CRIME COMMISSION
This was established by EFCC act of 2002
Section 5 of the EFCC act provides that “it shall investigate all financial crimes including: Advanced fees fraud (419) (see section 419 of criminal code) , money laundering, counterfeiting, etc. (📝 ICPC only deal with financial crime in civil servants or public servants while EFCC covers all sectors.)
1) Chairman: Ibrahim Magu (2015 – date)
2) A serving or retired member of any law enforcement of Security Agent
3) The Governor of the Central Bank or his representative
4) A Representative of each of the following ministries
I Foreign affairs
5) Chairman of NDLA (National Drug Law Enforcement Agency)
6) Director General of:
- I) National Intelligent Agency (NIA)
- II) Director for State Security (DSS)
III) Security and Exchange Commission (SEC)
7) Commissioner for Insurance
8) Post Master General of Nigeria Postal Service
9) Nigeria Communication Commission Chairman
10) Controller General of Nigeria Customs Service
11) Controller General of Nigeria Immigration Service
12) A Representative of Nigeria police Force not below the rank of Assistance Inspector General of Police
13) Four Eminent Nigerian with experience in Finance, Banking or Accounting
14) Director General who shall be the head of Administration
LIST OF PROMINENT NIGERIANS THAT HAVE BEEN TRIED BY EFCC
- Diezani Alison Madueke: The former minister of petroleum was alleged to have looted over $20b, which was part of the proceeds from Nigeria’s main income generator, crude oil.
- Patrick Akpobolokemi: The former boss of Nigerian Maritime Administration and Safety Agency (NIMASA) also made his mark as one of the most reported former government officials who stole money. Akpobolokemi reportedly looted over N12b from NIMASA, using various companies to perfect his trade or practice if you like.
- Sambo Dasuki: The news that funds meant for the purchase of arms for the Army to prosecute the war against Boko Haram was allegedly misappropriated, was heart rending, because of the number of soldiers that died as a result of poor military equipment. The former National Security Adviser (NSA) was said to have diverted and supervised the disbursement of over $2.1b to various individuals and also sponsor GEJ’s second term bid.
- Olisa Metuh: The former Peoples Democratic Party (PDP) spokesman could not find his voice anymore, after it was revealed that he allegedly got N400m from the Dasuki loot. Metuh, according to reports said the money was given to him by ex-President Goodluck Jonathan as payment for a job he did.
- Musiliu Obanikoro: Reports have it that the former minister of state for defence ate part of Dasuki’s forbidden fruit. Obanikoro reportedly got N4.7b which he claimed to have shared amongst some individuals notably, the Governor of Ekiti state, Ayo Fayose and serving Senator, Iyiola Omisore. The former minister has also returned over N100m to the Economic and Financial Crimes Commission (EFCC) as part of his plea deal.
- Alhaji Abdullahi Dikko: This civil servant reportedly ‘dikkoed’ N40b from the coffers of the Nigeria Customs Service (NCS). News of his arrest by the Economic and Financial Crimes Commission (EFCC) was another shocker. The former NCS boss however returned N1b to the Federal Government and is on bail.
- 7. Alex Badeh: The former Chief of Defence Staff (CDS) bought a N320m house for his 28 year-old son and another N260m for his first son in the highbrow area of Wuse in Abuja. The houses are just part of the many properties Badeh used the over N800m which he siphoned from the military coffers, to purchase. The former CDS however ‘forfeited’ $1m to the Federal Government in other not to seem too “greedy”.
- Femi Fani-Kayode: The former minister of aviation was arraigned in court by the Economic and Financial Crimes Commission (EFCC) alongside a former minister of state for finance, Senator Nenadi Usman over an alleged N1.5b fraud. The anti-graft agency later filed a fresh charge against FFK bordering on another fraud amounting to N4.7b. The former minister, who was the spokesman of the Goodluck Jonathan campaign organisation, allegedly collected money from Dasuki for GEJ’s re-election bid.
- Patience Jonathan: Nigerians really agreed that ‘there is God oh’ when news emerged that the former first lady claimed ownership of five Skye Bank accounts with billions of Naira in them. She even went to court to order the EFCC to un-freeze the bank accounts, adding that it was a violation of her fundamental human rights. Seriously?
- Raymond Dokpesi: The Economic and Financial Crimes Commission (EFCC) also picked up the Chairman of Africa Independent Television (AIT) for partaking in Dasuki’s juicy loot. According to reports, N2.1b was paid to Dokpesi by the Central Bank of Nigeria (CBN) on the orders of the former National Security Adviser (NSA).
- Supreme Court Judges: Some of the senior judicial officers were accused of fraud and professional misconduct. Also, several sums of money in different foreign currencies were reportedly recovered from the homes of the judges
HISTORY OF THE LEGAL PROFESSION
The history of legal education is divided into phases
- 1914 – 1962
The S.C ordinance of 1876 provided for two categories of people who could practice under the period 1st of the categories are the legally qualified practitioners, those already called to bar as barristers or those who qualified as solicitors in either England or Scotland. These people were automatically enrolled at the supreme court of Nigeria and were therefore allowed to practice in this period.
The 2nd group of people allowed to practice at this time were referred to as local attorneys S.74 of the Supreme Court ordnance 1876 empowered the chief justice of Nigeria to admit temporarily other fit and proper persons to appear and act as barristers, solicitors and proctors. These people as their name implies are not professionally qualified persons but they were admitted by the CJN to practice Law. The CJN have may require their educational qualification, ability to read and write, their knowledge of the principle and practice of Law. Such appointment is for 6 months but renewable at expiration for 6 months at a time.
In 1913 pressure came from the legally qualified personnel to stop the C.J from further appointment of local attorney, because they were dragging the profession in the mud. OSHO DAVIES had his application on the CJN’s table which was denied him. He made their appeal to the full court of the full court was of the opinion that the C.J.’s discretion in that respect was properly exercised.
2nd PHASE: 1914-1962
In this phase legal practice was restricted to legally qualified lawyers, those who qualified as barrister and solicitors in Britain. For the barristers. To be qualified as a barrister one needed to be enrolled to any of the Inns of Court vis a vis, the inner temple, middle temple, the Gray’s inn and Lincoln’s inn. These 4 inns of courts make up the legal council. To qualify for admissions in any of these inns you needed to have WASSCE; West African Secondary School Certificate Examination. The period of training lasted for 3 years; the 1st year was for Bar Part 1 and the last 2 years for Bar Part II. Many students were not able to attend lectures because lectures were not compulsory they took to private teaching, what was compulsory were the dinners, there were 12 dinners for the 3 years, for dinners each year. The student who has passed both parts and kept the 12 dinning terms then were called to bar by the body of benchers of the respective inns and students get enrolled at the S.C of England. As a barrister which intention to practice in Britain will be further subjected to 3 months post call practical course, at the conclusion of which the student will go for a 1 year pupillage when student joined the inn of chamber a fee of 100 guineas is paid. For the 1st 6 months of pupillage student will not earn any fee and subsequently pay is chipped in. Though admission requirement was WASSCE, some got enrolled which LL.B and they enrolled for 2 years, exempted from bar part 1. In Nigeria the salaries of graduate barristers were enhanced.
WORK OF THE BARRISTER
The barrister earns his livelihood by representing litigants in court. He also gives legal opinion on matters referred to him by the solicitors. A barrister is appointed in a case by the solicitor he has no direct contact with the litigant attached to a firm of solicitors and that is for a minimum period of 4 years. Educational qualification was WASSCE. During article as a solicitor you need to pass solicitors part I for 1st 2 years and 2nd 2 years for solicitors part II. The body that was responsible for training organizing the solicitors’ examination is the Law society. If one is a law graduate such is exempted from the solicitors’ part 1 and will study for solicitors’ Part II, which is 2 years. The lecture for solicitors became compulsory only in 1922 because their work was more important than that of the barrister.
The solicitor in England is a general legal adviser to the citizens. He draws up leases and conveyances, draft Wills and other commercial agreement and gives general legal advice to clients. Where a legal dispute is going hot, they appoints a barrister to settle pleading and present the case in court. Have the solicitor will seek advice from the barrister from time to time on behalf of his client.
DEFICIENCIES OF AN ENGLISH TRAINED LAWYER PRACTICING IN NIGERIA
- In England you train as a barrister or solicitor and after qualification he only practices there as such. In Nigeria, upon being called to the bar and enrolled at the Supreme Court, he practices as both a barrister and solicitor.
- In England they study English textbooks and law reports in particular in the constitutional law is studied in unitary system while Nigeria is a federation. Also, he has no knowledge of the Nigerian customary Law which is incidentally an essential and substantial part of our legal system.
- Almost all practitioners in Nigeria trained as barrister in England and most of them did not have a university degree and did not take the 3 months post practical course neither were they attached to any chamber for one year pupillage. Again lectures were not mandatory, it was only the dinners
To correct as anomalies the federal government in April 1959 appointed a committee consisting of the regions A.G’s solicitor general of the federation, the legal secretary of the southern Cameroon and 6 distinguished legal practitioners under the chairmanship of the then A.G. of Federation, Mr. E.T.C UNSWORTH. The committee was mandated
“To consider and make recommendation for the future legal Education and admission to practice the right of audience before the court and making of reciprocal arrangements in this connection which other countries”
From the committees report published in October 1959, the following recommendations emerged:
- Nigeria should establish its system of legal education
- That the faculty of law should be established 1st at the university college, Ibadan;
- That a Law should to be known as the Nigerian Law school should be established to provide vocational courses for would be lawyers.
- Qualification for admission to legal practice in Nigeria should be a degree in law of any university whose course for the degree is organized by the Council of legal Education and vocational course prescribed by the council.
- Any person graduating in Law from a University which has not accepted the syllabus recommended by the Council of Legal Education should be required to take such further examination as the council may prescribe.
- Council of Legal Education should be established.
Majority of these recommendations from UNSWORTH committee were accepted by the government and implemented the legal Education Act 1962 and Legal Practitioners Act of the same year. The Law school was set up in Late 1962 and ran its 1st 3 months course for eight students at a building acquired by the council at No, 213 Igbosere Road, Lagos, January – April 1963. The graduate already called to the bar have to do one year course, the 1st of which started in October, 1963.
Three categories of people could practice as legal practitioner in Nigeria under the Legal Practitioners Act 1962 now Cap 07 CFN 1990. The LPA at S.24 define a Legal Practitioner as
“A person who is entitled in accordance which at LPA to practice as a
Barrister and solicitor either generally or for the purpose of any particular
Office or proceeding”
The three categories
- Those entitled to practice generally –barristers in the courts
- Those entitled to practice for the purpose of particular office
- Those entitled to practice for proceedings
THOSE ENTITLED TO PRACTICE GENERALLY
A person shall be entitled to practice generally if his name is on the roll of legal practitioners kept by the Chief Registrar at the Supreme Court of Nigeria S. 21 (1) LPA. The Act (LPA) further provided that a person shall be entitled to have his name on the roll if:
- He has been called to the Bar by the benchers
- He produces a call to Bar Certificate to the registrar S. 4 (1) LPA As commended by Decree No 2, 1992 state the conditions for call to the Nigerian Bar.
A person shall be entitled to call to bar if:
- He’s a citizen of Nigeria.
- He produces a qualifying certificate to the benchers
- He satisfies the benchers that he is of good characteristic. Non-citizens of Nigeria can now be called at the Nigeria Bar if they satisfy condition B and C above.
RIGHTS OF A LEGAL PRACTITIONER
- Right of Representation
The legal practitioner has rights that are interwoven which are right of representation of litigants, and right of audience in court. By provision of S.8 (1) LPA, a legal practitioner has the right to represent another and shall have a right of audience in all the courts of law sitting in Nigeria.
A legal practitioner can only exercise this right, that is, the right of representation & audience while it is available & not when it is abeyance or suspended for one reason or the other, he ceases to be a legal practitioner and only conduct his case in person as any other member of the public. In such circumstances he does not have the right of audience & the right to represent a co-defendant/plaintiff in any action. See Fawehinmi v. N.B.A (1989) 2 N.S.C.C, 1 or (No.1) 1989 2 NWLR Pt 105 @ 494. Atake V. Afejukwu (1994) 12 SCNJ1OR (1994)9 NWR p.368 @379, Where it was held that the proposition that a barrister litigant who conducts his case in person is acting as a legal practitioner is misconceived.
Right of representation & audience presupposes there is a litigant who a legal practitioner is representing.
The twin rights of representation & audience have constitutional backing by virtue of provision of fair hearing, when a litigant has a right to the counsel of his choice though with certain limitation.
A LP has a right to represent a litigant in all court S. 36(6) (e) 1999 Constitution.
See Uzodinma v. COP (1982) 1 NCR 27, until recently legal practitioners were not accorded R of representative & audience in customary or area court.
The only exception her is that SANS are not accorded right of represent in interior courts e.g., magistrate court, customary & area court.
Regd. Trustees of ECWA Church v. Ijesha (1999) 13 NWLR pt 635 @ 368
A legal Practitioner who is a litigant & represent himself does not lose his status because he is a litigant in person in civil matter, legal practitioner can be robed but he will speak from the bar. In criminal matters he will not be robed & cannot speak from the bar but in the dock if he is an accused.
- While conducting his case in person in a civil action without losing his status as a legal practitioner, he is allowed to wear his robe & speak from the back but in practice, lawyers don’t robe while representing themselves in a civil matter GANI v. NBA. In criminal matters he must not be robed or speak from the bar even when prosecuting not only when legal practitioner is a defendant/ accused.
Newton v. Chaplain (1850) 19 LFC, Atake v. Afejukwu (1994)12 SCNJ 1or (1994) 9 NWLR part 368 @369
It advisable that a lawyer do not handle his case in person, but let another legal practitioner be his counsel Habib Nig. Bank Ltd V. Oyebanji (1988) 19 NWLRPT 580 at 71. It was held that it is better for a LP to engage the services of another lawyer, because emotion and sentiment could becloud his vision & reasoning that he cannot easily see things as any other lawyer would see them.
- Company Formation
Section 35 (3) Companies and Allied Matters Act (CAMA) 2004, before a company is incorporated by Corporate Affairs Commission, certain documents are to be delivered to the C.A.C together with registration fees. The documents are:
- Memorandum and Articles of Association duly stamped at the stamp duties offices.
- Form CO 6 – Notice of address of the registered office of the company
- Form CO. 07- Statement of the first directors of the company
- Statement of the authorized share capital signed by at least one director
- Form CO 1- Statutory Declaration of a legal practitioner engaged in the formation of the company
Such legal practitioner can be an independent legal practitioner, or a person named in the Articles of Association as director or chartered secretary of the company being formed. The purpose of statutory declaration is to serve as evidence of compliance with the requirement of incorporation of a company and must be produced before a company is incorporated.
No person other than a LP shall either directly or indirectly for or in expectation of any fee gain or reward draw or prepare any instrument relating to immovable property. See lands instrument preparation law 1959 western Nigeria S. 2&4. breach of which attract penalty of N100 fine Instrument means any document, conferring, transferring, charging or extinguishing any right, title or interest in land including unextracted minerals but does not include a will.
Examples of such includes but not Ltd to deeds of assignment, lease agreement etc. By necessary implications oil mining leases & license granted by government to oil prospecting & Exploration Company must be prepared by a legal practitioner
- Preparation of documents for probate or letter of administration. See 5.22 (d) LPA. It is only a legal practitioner at can prepare documents for the grant of probate or letter of administration. Probate is used in relation to when there is an executed will by a testator, while letter of administration is used where a man dies court a will or intestate. Before at grant of probate it executors named in it probate registry of the High court where it estate is situate for a grant on probate of the will (only a lawyer will)
After obtaining the grant of probate of a will it executors will proceed court it administration of the estate of at testator in accordance with the wish of the testator in accordance with the wish of the testator.
By section 22 (d) of the LPA, it is exclusively the duty of the legal practitioner to prepare the document & apply for the grant of probate of a will.
By law when a man dies intestate his estate is vested in the chief judge of a state in which the estate is situate and no one has the power to deal with it unless he has obtained a grant of letter of administration from the probate registry of the high court of the state. Certain forms are filled of formalities are observed before been granted letters of administration to the personal reps of the deceased. It is only a legal practitioner that is authorized by section 22(d) LPA to apply for grant of letter of administration, breach of which is a fine N100
- Appointment as a judge
It is only a legal practitioner that can be appointed a judge to a superior court. The basic requirement as stipulated by the Constitution is minimum of 10 years post call experience A judge is expected to observe possess the required judicial policy of integrity, deep knowledge of the law, honesty & sense of justice. His performance must be high and not low and must have been noticed in some instances.
- Appointment as Attorney General and Minister of Justice
Only lawyers will be appointed as Attorney General and minister of justice of the federation or commissioner for justice of states. The Attorney General represent the government and his parastatal in both civil and criminal actions and as such must be one that has a right of representation and audience. For example, a retired or dismissed judge does not have a right of audience & representation in court anymore. A magistrate either retired or dismissed is still a LP
A criminal action and as such must be one that has right of representation & audience e.g a retired judge cannot be A.G or Minister of justice, or A.G or commissioner of justice of a state, because he no longer has a right of audience & representation in court (High – Supreme court judges).
It should be noted that a legal practitioner has immunity in litigation and he is also immune as to any statement he makes in court during litigation
Impersonating a legal practitioner
5.22 (1) of LPA
For impersonating a legal practitioner is fine or N200 or term of imprisonment of not more than 2 years or both in
- Practices or held himself out as a LP
- Knowingly uses name, title, additions or descriptions implying the he is a legal practitioner
- Or recognized by law to act as LP
- Prepares instrument s, document of grant of probate or letters of administration, or proceedings in court.
By the provision of S. 22(2) LPA such a person or offender can be dealt with for contempt of court but no proceedings for an offence under this section shall be brought after contempt proceedings have been dealt with. Proceedings in respect of offences under this provision is statute barred from with the date of offence.
Restrictions as to the Right of a Legal Practitioner to Practice
- Failure to pay practicing fee
S.18 (2) LPA, Rules 51 (a) (b) Rules of professional conduct and S.2 (2) ii of the constitution of the Nigerian Bar Association.
A legal practitioners must pay his practicing fee annually before 31st January of every year for him to be accorded right of audience in Nigeria court. Some judges help to enforce payment of practicing fees but it is still a course of concern for it NBA though NBA is still trying to work out enforcement modalities.
The Practicing fees is payable to the register of the S.C who shall issue receipt publish the list of branches of NBA help in the payment of the fees to ease the problem for lawyers.
Restriction to Right of Legal Practitioner Public Office and Private Practice
From 12th December 1984 a legal practitioner who is a public officer must not engage in private practice as provided in S.1 Regulated and other Professional (Private Practice Prohibition / Decree 1984).
Private practice in relation to this decree is law lecturers/ part time lecturers can no longer practice because they are regarded as salaried lawyers.
Rendering to any other person not being the employer or any other person normally entitled in the course of his official duties to receive such service whether or not after close of work or free days for money worth or any other valuable consideration such services prohibited includes:
- Rendering advise or consultancy services
- Issuance of certificate
- Certification of documents etc. even in partnership with another who is not a public officer
Exceptions: Outside his normal official duties a public officer can render services in 5.1 (2)
- For himself
- If he renders it to a person in any emergency
- To any person whether corporate/ incorporate authorized
Either generally or specifically by the government to receive the must be a member the services of that professional for the time being or for a period How do you recognize a professional body which he belongs? E.g. NBA follow/ Associate in ICSA, ICAN, NSE
- Where such services are rendered free, to any family member, charitable organization or any person on humanitarian basis, or professional association to which he belongs.
- A first offender, N2000 or 1 year imprisonment
- 2nd offender N5000 or 2years imprisonment
- 3rd offender, 3 years imprisonment without option of fine. See S. 2 of Regulated and other Profession Private Practice
Apart from penalty of fine and or imprisonment the name of such legal practitioner is struck off the roll
- Senior Advocate of Nigeria (SAN)
In accordance with the rules made by the legal Practitioners Privileges Committee scheduled – the responsibility of conferring that rank of SAN on deserving legal P., a SAN cannot engage in solicitors job unless in partnership with another LEGAL PRACTITIONER who is not a SAN
- His principal task is advocacy setting the pace for juniors to follow and improving the lot of the legal profession.
- A SAN must appear in any superior court of record in civil cases with at least a junior or another SAN if not he loses his right of representation and audience. See Rule 2 (1) SAN privileges and functions Rules of 1979
- A SAN cannot appear in inferior court (Area court, customary, magistrate) Regd. Trustee of ECWA v. Ijesha (supra)
- A LP can be a board member of a company which does not involve executive, administration or clerical function.
- He can be secretary of a board or GM of company
- He can be a shareholder is a company
- A legal practitioner is specifically barred from sale or purchase of commodity first hand or as commission agent or ship handler (clearing and forwarding)
Retired Judicial Officer
- 292 (2)’99 constitution. A retired judicial officer for any reason whatever cannot appear or act as LP before any court of law or tribunal in Nigeria. See Atake v. Afejukwu (supra). By S. 318 (1) 1999 cons. Judicial offices mean ‘Judges of the H.C, FHC, C.A, S.C, Grand Khadi, Khadi of sharia court of appeal, president (Judge of customary court of appeal).
Other restrictions on retired judicial officers retired lawyers as stated on rule 39 rules P. C as amended by Government notice No 476, 15th July 1982 are as follows:
- A lawyer should not accept any brief in relation to a matter upon the which he has previously acted in judicial capacity
- A lawyer having held public office or in public employment should not after retirement accept a brief in connection c any matter c he has advised on or dealt with while in such employment.
- A judicial officer after retirement cannot accept pleading i.e. statement of claims, defense
- A retired judicial officer shall only practice as a solicitor, they can draft agreement but cannot appear in court as an advocate again.
- A retired J.O may practice as a legal constant e.g. writing legal opinion, head panel of inquiry, be a resource person in workshop or seminar, arbitrators etc.
- A retired J. Officer is barred from signing any document or address or calls himself to be addressed c designation as honorable justice even if used; a retired Hon justice.
- A retired J. O must not public an article in any journal, magazine or newspaper periodical or discuss any topic in any news medium or conduct himself in public in such manner as to make public believe he is still a serving judicial officer or address him as such. Any description or designation of Retired Justice officer shall be written or altered without the word justice, but such judicial officer may sign any document or cause himself to be addressed as the honorable Mr.—-
- Duty of Counsel to Court
- Counsel has duty to go to court
- Attend all court sittings
- Counsel must know and maintain correct decorum in court.
- Counsel must rise when addressing or being addressed by the judge (two counsels must not rise / stand at the same time).
- Counsel must not talk when the judge is talking
- Counsel must be properly depressed or attired
- Counsel must not assume undignified posture, some raising up one leg, standing akimbo, hands in pocket, robe or derobe in a courtroom. see LORD DENNING’S Book “DISCIPLINE OF LAW, where he stated thus:
“Whatever the tribunal, you must give good impression, your appearance means a lot. Dress neatly not slovenly, be well groomed, your voice must be pleasing, pitch it so all can hear without straining to hear pronounce your consonants, do not slur your words, speak not too fast nor yet too slow. All these things are common steps place, but are so often forgotten, that I warn, no hands in pockets, it shows slovenliness, no fidgeting with robe, no whispering with neighbor it shows disrespect, no “eh!” not knowing what to say next. Avoid mannerisms like a plague; it distracts attention. Don’t be dull, it distract attention, don’t be long winded, all these lose you your hearers, and once you have lose them, you are done for, you can never get back, not so as to listen attentively.”
- Respect for court
- Avoid Delay of Matter in Court
- Duty of candor and fairness
- Duty not to curry favor from the court
- Duty of Court to Counsel
A. Duty to grant fair hearing
One of the duties a court owe counsel which is also backed by the Constitution of the Federal Republic of Nigeria is fair hearing. By fair hearing, it means the twin doctrine of Natural Justice (Nemo judex in causa sua and audi alteram partem)
A hearing can only be fair when all the parties to a dispute are given opportunity of being head when one of the parties is refused hearing, the proceedings cannot qualify as fair hearing in Adesulu v. Okulaja (1998) 5 NWLR Pt 550@435.
Fair hearing is said to be a trial conducted according to all the legal rules cumulated to ensure that justice is done to the parties. The true test of F.H is the impression of a reasonable person who was present at the trail whether from his observation justice has been done in a case. Failure to ensure that fair hearing is granted vitiates the entire proceedings where fair hearing is not granted the decision arrived at no matter how eminently written is a total nullity.
Instances of Breach of the Principle of Fair Hearing by the Court
- Court refusal of reasonable request for adjournment and proceeding with case because counsel
- Failure to hear the address of one counsel after hearing the address of the other counsel.
- Where the court did not allow counsel to call his witnesses.
A judge is enjoined to be impartial and observe rules of natural justice in order to uphold the principle of fair hearing. See STATE V. OJENUBI (1973) 3 UILRP @ 156. To ensure that adjudge is impartial there are circumstances when a judges is precluded from hearing a case they are as follows:
i when he has personal interest, that is where he could be seen to be a judge in his matter (Nemo judex in causa sua).
ii when having dealt with the same issue and it comes up when he is in a superior position and he’s being called upon to decide an appeal of his own decision (he should not adjudicate such because he cannot over rule himself)
iii Where because of some latent connection of because ether of the parties or all them it will be unconscionable participate in the hearing of the case
iv Where generally he is been a member of a tribunal would not appear to be in the interest of justice as he will not be seen to do justice.
v Where a judge is seen to be biased either a as result of monetary interest or natural aversion to the facts of the case because he is incapable of suppressing his natural and instinctive tendencies.
It is worthy to note that it is the litigant(s) when a judgment is set aside on account of breach of fair hearing and not judge. Innocent Madufur Ozims v. Edwards Anuru (1991) 3 NWLR 181@571
Although a judge must be impartial he cannot sit unconcerned where counsel’s incompetence is likely to cause injustice (may be where a junior counsel is being sent to court when it is apparent that a junior counsel is being sent to court when it is apparent that a junior cannot handle the matter).
In ALHAJI MUSA OMOELEJA V. BANGUDU (1994) 3 NSCR 334@534. It was held that, it is of fundamental importance in the administration of justice at the court should not allow its judicial rule as an impartial and unbiased arbiter to be diverted by the conduct of an inaptitude counsel. The court has it primary rule of doing justice between the parties before it, a judge should therefore, not sit unconcerned watching where ignorance, inadvertence or forgetfulness of counsel is likely to resort in injustice. In such circumstances a judge is under a duty to correct the error leading to such injustice if this will not resort to injustice to the other party.
- Duty of Court not to Interfere or Descend to the Arena of Justice
Close to the duty to observe fair hearing is the duty of court not to interfere in the proceedings before it. Court must allow counsel to conduct his case in the way he though best and should not interfere by dictating the manner in cause a counsel should conduct its case. One may readily refer to the advice of Lord GREENE M.R was recalled by Lord DENNING MR in JONES v. National CAL BOARD (1957) 2 WLR 760 @ 766 that
“Justice is best done by a judge who owes the balance between the contending parties”
In Uzo v. Police (1972) 11 SCE 37 or (1972) ANLR 825. It was held that in the Nigerian system of criminal trial, the judge as umpire is not expected to descend into the arena, for the procedure is acquisition that the innocence of the accused is presumed until he is proved guilty by the prosecution. The procedure adopted by the trial magistrate is improper. In that he personally took over from the prosecution, and subjected the accused person to a lengthy disconcerting cross examination in an effort to discredit him on an irrelevant issue of forgery and on a charge of stealing some clothing. It is impossible to hold that his finding of guilt on the only charge before the court was not influenced by his unnecessary preoccupation of the court with that irrelevant issue. See the case of R.V Clewer (1953) CAR 37
James v. National Coal Board (1957) 2 QB 59
Akunfe v. State (1988) 3SCNJ 117
The court is allowed to ask questions only when it is important to do so, for the purpose of clearing any ambiguity in relation to facts/ document. It has been held in Okorie v. Police (1966) LLR 134 at 136. Court held that it is the duty of a judge or a magistrate to sit as an adjudicator allowing both parties to conduct their representative’s cases in the light of how they see it without the adjudicator entering the arena and only interposing for the purpose of clarification and when the interest of justice requires it. The questions which will determine the life issues in the matter in dispute between parties should not be asked by the court. See Oteju v. Olujana and others. Court is advised to be cautious while asking questions and must drop any question that will give answers favorable to one party.
A judge is permitted being the matter of the case before him to direct the manner in court a case be conducted before him in order to arrive at just conclusion of matter. A judge may direct consolidation of matters, or that motions that are pending be. He can also give hints like asking a junior counsel to take a date to enable a principal counsel be in court to conduct a case himself. Where the court interferes unduly in court proceedings, the judgment may be set aside.
- Duty of Court to Allow Counsel Address the Court
This is one of the basic rights of a LP and the court owes it a duty to allow a counsel to address it. Refusal of right of audience to counsel in court is a breach of fair hearing and nullifies such proceedings. In UWAIFO JCA in Saliu v. Ife (1996) 5N WLR Pt 450@564 held
“It is therefore a surprise that the learned trial judge in the present case did all he could to scare away counsel, who might have been of assistance to the cause before him and to have opened himself up to avoidable criticism. Counsel are entitled to be accorded that right of audience and to be treated c due consideration by the court before court they appear. It is indecent and discourteous of any judge to take undue advantage of his immunity to embarrass a counsel that is a clear case of abuse of privilege. The court is and must be run solemn, dignified and civilized forum where the sacred duty of the administration of justice is carried out cause a consistent sobriety of the mind. It is not a pandemonium from where insults are shouted that will surely have the consequences of discrediting the judiciary and bringing it into disrepute.”
Any judge who does so, is an agent of such odium, in that way I am afraid he painfully constitute himself a liability to the judiciary. I hold that the leaned trial judge acted outside his duty and was in a serious error to have demanded let alone insisted to see a power of attorney form the appellant’s counsel who announced his appearance for leave.
- Duty of Respect for Counsel
As counsel is enjoined to respect the court, so also is the court obliged to respect counsel. In Ezeogu v. Onwuchekwe (1997) FORE NWLR PT 502, 689 696. It was held that it is not the function of a judge in writing his judgment to run down counsel by using derogatory languages. The bench deserves respect from the bar, he should give counsel due regard and respectability. Respect begets respect and the privileged position of the judge should not be abused as opportunity for passing unwarranted and unnecessary remarks on counsel.
This duty of respect for counsel is to ensure that the professional repute is maintained, and above all ensure that justice is done. Justice cannot be said to be done where there is a serious misunderstanding between a court and the counsel, in such situation a counsel may allege bias, court should be cautious to counsel and must avoid words or action that may embarrass a counsel. He should remember first, that he is a legal practitioner, and professional colleague of counsel.
Counsel has been advised that when the court makes an unjustified and unpleasant attack on him, patience coupled with a sense of humor will be a valuable weapon, if not the court may side the judge and sue counsel for contempt of court.
Other Duties of Court to Counsel
Court must be punctual in sitting and must delay counsel unnecessarily in court. If for any reason a judge is late to court, he should apologize to counsel for delaying him.
Duty of Honesty
The court must avoid anything that may tarnish the reputation of the court He must avoid bribery and corruption like a plague. A judge must be courageous and stand against any act geared towards compromising his duty as a judge.
Duty of Diligence and Skill
A judge must be competent in the control of the v, matter of the case and above all must in the interest of justice prevent, an avoidable delay in litigation. Grant of unreasonable, long adjournments, irregular sitting must be avoided. A judge must ensure that justice is done and should not be interested in conviction but ensure that the right person be convicted, that the truth should be known and that justice should be done.