Week 3
Week 3
OVERVIEW OF LAW IN PRACTICE
There are two modules presented under Law in Practice comprising skills subjects and ethics and professional responsibility.
The titles of these two modules are:
1. Communication and ADR Skills (skills);
2. Professional Responsibility (ethics).
GOALS OF PROFESSIONAL ETHICS AND RESPONSIBILITY
1. To equip the students with the knowledge of the ethics of the profession as well as their professional responsibilities in the course of their legal practice and leadership roles.
2. To impart in the students the knowledge of relevant statutes and bodies which regulate the legal profession, including the judiciary.
3. To educate the students on how to set up, equip and manage law offices including the staff.
4. To acquaint the students with elementary accounting procedures relating to the keeping and management of the statutory (obligatory) accounts
GOALS OF SKILLS
a. To equip students with skills to conduct interviews with clients
b. To teach students how to approach legal writing to produce error free documents.
c. To educate students on the availability of ADR processes.
HISTORY OF THE LEGAL PROFESSION AND REGULATIONS
In August 1860 Lagos was ceded to the Queen of England as a result Lagos became a British colony.
Therefore all laws applicable in England became applicable to Lagos, and in 1863 the Supreme Court Ordinance was promulgated to the colony.
The problem of this legal system was that there was shortage of qualified personnel to man the court and shortage of court facilities which led to the employment of lay-men without the knowledge of the law to man the legal process.
As at 1862, there were 7 Magistrates– 3 were barristers, 2 were writing clerks, 1 was a merchant and 1 was a commander of the West Indian Garrison in Lagos.
To solve this problem, the Supreme Court Ordinance of 1876 was promulgated for the admission of persons to practice as legal practitioners in Nigeria.
The history of the development of the Legal profession is thus divided into 3 stages as follows:
FIRST STAGE BETWEEN 1876-1914
In this stage, those entitled to practice were:
a. Professionally qualified legal practitioners abroad who were automatically enrolled to practice in Nigeria
b. Those who served Articles as Solicitors of the Supreme Court
s. 73 supreme court ordinance
c. Local Attorneys given license to practice FOR 6 MONTHS and it is renewable. S. 74 of the ordinance
THE SUPREME COURT ORDINANCE OF 1876
THE SECOND STAGE WAS BETWEEN 1914- 1962.
In this Stage, those entitled to practice were only qualified professionals from Britain who are:
d. Barristers
e. Graduate Barristers
f. Solicitors
THE DEFICIENCIES OF ENGLISH TRAINED LAWYERS PRACTICING IN NIGERIA WAS THAT THEY:
a. Had no knowledge of the Nigerian Customary Law
b. Had no knowledge of our Nigerian Land law
c. Possessed no university degree, and
d. Have no post-call experience nor were they attached to Law offices.
THE THIRD STAGE BETWEEN 1962- DATE
Those entitled to practice are:
g. Those entitled to practice generally(whose name is on the roll)
h. Those entitled to practice by virtue of their office (Law officers)
i. Those entitled to practice by warrant for particular proceedings – i.e. apply to the Chief Justice of the Federation for a warrant to enable the applicant to practise as a barrister for the particular proceedings
CONDITIONS TO QUALIFY FOR ADMISSION AS A LEGAL PRACTITIONER IN NIGERIA ARE AS FOLLOWS:
1. He satisfies the Benchers that he is of good character
2. He produces a qualifying certificate to the Benchers
(The above two are the conditions for Call to the Bar)
3. He has his name enrolled as a Barrister and Solicitor of the Supreme court
4. He has paid his practicing fees.
S. 4(1) of the LPA
NB: The qualifying certificate for Call is issued by the Council of Legal Education.
S. 5 of the Legal Education Act
CONDITIONS FOR ENROLMENT AT THE SUPREME COURT ARE:
a. That a person has been called to the Bar by the Benchers, and
b. He produces the Certificate of his call to the Bar to the Registrar of the Supreme Court.
S. 7 (1) of the LPA
EXEMPTION FROM ATTENDANCE OF THE NIGERIAN LAW SCHOOL
A. Partial exemption from attendance of the Nigerian Law School
• Graduate of Law from Common Law jurisdiction teaching Law in Nigerian universities for a period of 5 years or 10 years if he studied in a non-common law jurisdiction and above are exempted from the Bar Part I programme of the Nigerian Law School.
S. 2(A) & (B) OF THE LEGAL EDUCATION (CONSOLIDATION) ACT 1976.
B. FULL EXEMPTION
Here a person is not to attend the Law School provided he is:
• A Nigerian citizen.
• Qualified to be admitted to the Nigerian Law School i.e. fulfilled all requirements for qualifying subjects for admission into the Law School
• At the time he was qualified to attend the Law school or so soon thereafter, he lost the opportunity for reasons beyond his control.
• At the time of the application for exemption he satisfies the Council that he has acquired knowledge and experience over a period of at least 5yrs, fitting him for enrolment and that it will be unreasonable, having regard to all circumstances to require him to go through the Law School.
VARIOUS METHODS OF DISPUTES RESOLUTION AND THE ADVANTAGES / DISADVANTAGES OF ONE OVER THE OTHER
TYPES OF Dispute resolution mechanisms
1. Negotiation;
2. Mediation;
3. Conciliation
4. Litigation;
5. Early Neutral Evaluation
6. Arbitration.
7. Hybrids
8. Expert appraisal
9. Mini trial
10. Settlement conference
A. D. R simply means Alternative Dispute Resolution. It is the method by which parties to a dispute reach an amicable resolution of the dispute without the need to resort to Court or litigation. ADR could be Court connected or non-Court connected. It is the former when where the matter was already in Court and the parties agreed on an out of Court settlement while it is the latter where the parties mutually reach an acceptable agreement without recourse to Court.
ADVANTAGES OF A. D. R
• It is cheaper;
• There is privacy;
• It promotes reconciliation;
• It saves time and cost; and
• It encourages friendliness.
TYPES OF A. D. R
1. Negotiation;
2. Mediation;
3. Conciliation
4. Arbitration.
EARLY NEUTRAL EVALUATION
This is the method where parties submit a summary of their argument on the issue in dispute to a neutral third (3rd) party who is usually a lawyer or a retired judge who is experienced in the area in dispute.
He evaluates the case of both parties and gives a candid opinion on the relative strength and weakness of their respective cases.
His opinion is not binding, but it may lead to an amicable resolution of the dispute.
All documents, records and statements made in the process are confidential and cannot be admissible as evidence.
NEGOTIATION
This entails the parties discussing and agreeing to terms or reaching mutually acceptable resolution without the aid or intervention of a 3rd party.
ADVANTAGES
Retain relationship and goodwill
Creative problem solving
DISADVANTAGES
Lack of trust by one party can make it difficult
If there was no prior relationship, no need to maintain goodwill.
MEDIATION
This is a non-binding dispute resolution mechanism involving a neutral and impartial third (3rd) party who tries to help the disputing parties reach a mutually agreeable solution.
The 3rd party known as the mediator is impartial and does not take decision for the parties rather he helps and assists in identifying the issues and interests that need to be resolved.
SUITABILITY- family matters
ENFORECEABILITY OF AGREEMENT MADE DURING MEDIATION
An agreement reached by the parties during mediation is enforceable
• if the terms of settlement are reduced into writing by the parties and witnessed by their counsel.
• The term of settlement will thereafter be filed in court and made the judgment of the court in form of a consent judgment.
CONCILIATION
• This is the process of settling a dispute in an agreeable manner.
• It is a method by which a neutral third (3rd) party meets with the parties to a dispute, and explores how the dispute might be resolved.
• However, he may deliver his opinion as to the merit of the dispute in necessary cases.
• The conciliator is a neutral person who decides and awards nothing and he is not bound to observe the strict rules of natural justice.
EXCEPTION-
Areas not subject to ADR/ Limitation of ADR are:
• Declaration of status in matrimonial causes
• Declaration of title to land
• Interpretation of statutes/ documents
• Injunctions
• Grievous criminal offences not compoundable e.g. murder
• Enforcement of fundamental human rights
• Application for judicial review.
• Election petition cases
ACRONYM- MLIICFJE
ADVANTAGES/DISADVANTAGES OF ONE METHOD OF DISPUTES RESOLUTION OVER THE OTHER
A- ADR AND LITIGATION
ADVANTAGES OF ADR OVER LITIGATION
| |Cheaper |More expensive |
| |Autonomy of parties- parties can prescribe rules and person |No autonomy |
| |presiding | |
| |Privacy during proceedings |Public proceedings |
| |Allows venting of emotions |Comportment and composure is demanded |
| |Non adversarial- preserves parties relationships |Adversarial |
| |Flexible |Rigid(rules of procedure must be followed |
| |Faster |Slower |
| |Party controlled | |
| |Experts are usually used | |
ACRONYM
SENTENCE KEY
ADVANTAGES OF LITIGATION OVER ADR
1. More concrete settlement of disputes
2. Finality of decisions
3. Enforceability of judgment
4. Appeals are allowed
5. Useful in emergency situations (injunctions)
6. Used in criminal matters
7. Coercive –compels seriousness
ACRONYM
SENTENCE KEY
DISADVANTAGES OF LITIGATION OVER ADR
1. Prone to delays
2. Costly(long time spent)
3. Rigid
4. Stressful and tedious
5. Adversarial- does not foster future relationship
6. No privacy
7. Lawyer dominated
ACRONYM
SENTENCE KEY
ARBITRATION
ADVANTAGES OF ARBITRATION OVER NEGOTIATION AND MEDIATION
• Binding and final
• Enforceable as judgment of courts
• Power to summon witnesses
• Certainty of decisions (no deadlock)
• Use of experts not prominent
DISADVANTAGES
• Rigid
• Costly (arb. Fees and experts)
• Win lose situation
• No right of appeal on merits of the case
ADVANTAGES OF ARBITRATION OVER LITIGATION
• Cheaper
• Free to choose who will preside over case
• Ensures privacy
• Less rigid
• More flexible
• Faster
• Parties can choose venue
DISADVANTAGE OF ARBITRATION OVER LITIGATION
• Not widely recognised
• Difficulty in choosing arbitrators
• Less lucrative for lawyers
• Not private or confidential
• Lack of precedent
• Not binding
MEDIATION AND OTHER FORMS
MEDIATION AND LITIGATION
• Mediation is much less costly than litigation
• In mediation, parties cannot go on appeal while in litigation they can
MEDIATION AND ARBITRATION
ADVANTAGES
• Less expensive
• Mediation results to win/win while arbitration leads to win lose
• Non imposition of settlement
• Less formal
• More privacy
DISADVANTAGES.
• Mediators lack power to summon witnesses
• No statutory provisions
• Parties may resile from agreements
• Enforcement is not mandatory
• Opinion not binding
DIFFERENCE BETWEEN MEDIATION AND CONCILIATION.
1. Mediator does not have expert knowledge while conciliator has expert knowledge of the dispute in issue.
2. Conciliation is statutorily recognised
3. A mediator only makes procedural suggestion on how parties can reach an agreement while a conciliator establishes communication between parties and brings about negotiated settlement.
MEDIATION AND NEGOTIATION
ADVANTAGES
• Mediation has the advantage of a neutral 3rd party while negotiation does not.
• Mediation is enforceable while negotiation is not.
• Matter ends in a win-win
• Mediation is faster as the mediator drives the process
• Enforcement of settlement is easier
DISADVANTAGES
• Mediation is more expensive
• Process may be compromised if mediator is partial
• Loss of privacy
• Parties may not be at ease to disclose all relevant facts.
MEDIATION AND EARLY NEUTRAL EVALUATION
Mediation makes use of a neutral 3rd party called a mediator while early neutral evaluation makes use of a judge or lawyer.
ADVISING ON ADR
1. RULES OF COURT
Order 25 R. 1(2) (C) of the High Court Civil Procedure Rules of Lagos State makes provision for the promotion of amicable settlement of cases or adoption of alternative dispute resolution.
SEE SECTION 24 HCL 2004
Order 17 Rule 1 of the High Court of the FCT, Abuja Civil Procedure Rules 2004 states that a Court or Judge, with the consent of the parties, may encourage settlement of any matter(s) before it, by either – (a) Arbitration; (b)Conciliation; (c) Mediation; or (d) any lawfully recognised method of dispute resolution.
2. RULES OF PROFESSIONAL CONDUCT 2007
S.15(3) d RPC 2007
MULTI DOOR COURTHOUSE
• Court connected alternative dispute resolution centre for providing necessary framework for the attainment of ADR
• In Nigeria, the Multi-Door Court House was first established in Lagos on 11th of June 2002 by the Negotiation and Conflict Management Group in conjunction with the Lagos State Government.
• It is usually situated in the court premises.
• In Abuja, the High Court of FCT established its own multi-door court house at Wuse zone 5 Abuja
OBJECTIVES
• To provide enhanced timely, cost effective access to justice
• To reduce the frustration litigants face in court due to long delays.
VARIOUS OPTIONS AVALAIBLE TO PARTIES AT THE MDCH
Arbitration ; mediation; conciliation; negotiation ; hybrids
MATTERS CAN BE BROUGHT TO THE MULTI-DOOR COURTHOUSE IN ANY OF THE FOLLOWING 3 WAYS:
- By Court referral i.e. the Court refers the matter to the Multi-Door Court House.
- By the parties walking into the Multi-Door Court House themselves
- By direct intervention by the workers of the Multi-Door Court House of the Negotiation and Conflict Management Group (NCMG).
ABUJA MULTIDOOR COURTHOUSE
• Situated at the high court premises Wuse Zone 5,
• Governed by the AMDC rules 2003 on procedure for the conduct of mediation and arbitration.
• Parties may choose to have their case mediated here, upon such agreement, parties are deemed to have adopted rules of procedure.
• May adopt early neutral evaluation and dialogue.
PROCEDURE
1. File written request for mediation with the appropriate filing fees asking MDCH to inform the other parties- RULES 2 &3
CONTENTS OF THE REQUEST
a. Names and addresses of the parties
b. The nature of the dispute,
2. The Centre upon receipt of request will contact the other party.
3. Where parties agree on ADR process to adopt, a list of mediators would be given to them.-RULE 5 a &b
4. The centre would be the venue –RULE 8
5. Parties, mediator and centre will have to enter an agreement known as mediation agreement- RULE 4
6. Parties may be represented by a lawyer.
ARBITRATION AT AMDC
• Arbitration procedure rules 2003 are deemed to be part of the arbitration agreement, but the parties may vary the rules.
PROCEDURE
This can be done in two ways
(ARB. CLAUSE)
1. Filing a written notice at the centre addressed at the other party indicating an intention to arbitrate.
2. Notice shall include the nature, the amount involved, remedy sought and venue requested.
3. Respondent has 10 days to reply and he can counter claim fulfilling the same condition as above.
SUBMISSION TO ARBITRATE
1. It can be initiated at the centre by filing submission to arbitrate signed by both parties (nature and amount).
2. Filing fee should also be paid.
3. Where parties have not agreed on arbitrator, there will be one as prescribed by the rules. Same procedure applies to appointment as stated above.
4. A hearing should be held in front of parties except where one party fails to attend after reasonable notice was served
5. Arbitral tribunal should make award within 1 month or 3 months in exceptional situations or extend it if it is expedient to do so, state reasons and date and place,
6. Parties can come to settlement during arbitration and ask arbitrator to make the settlement the award
KEY FEATURE OF AMDC
No independent enforcement procedure.
Mediation agreement cannot be enforced as judgment of the court but it can serve as evidence of settlement
LAGOS MULTI-DOOR COURTHOUSE
• Established by Lagos multi-door courthouse Law of 2007,
• May refer to the court for settlement,
• Offers early neutral evaluation to ascertain the strength and weakness and possibility of success.
• Arbitration Awards are made under the Lagos state arbitration law 2009
• LMDC has practice direction on mediation which is binding on parties
OBJECTIVES OF LMDC
• Enhance access to justice by the provision of ADR
• Minimise frustration and delay in justice
• Serve as focal point for promotion of ADR
• Promote effective functioning of ADR
DISTINGUISHING FEATURES OF LAGOS MULTIDOOR COURTHOUSE
• More advanced
• Has a multi door Courthouse Judge
• Has a citizen mediation centre
• Award/terms of settlement are enforced by filing it in Court with a covering letter from the Judge. (MAJOR FACTOR)- ART 17 LMDC Practice direction (mediation) 2008.
• Agreement is deemed to be a consent judgment of the high court but parties will be required to appear before court before endorsement as judgment. – SECTION 4 LMDC LAW 2007
HISTORY OF RULES OF PROFESSIONAL CONDUCT
• Professional misconduct occurred frequently at the early stage of legal profession in Nigeria, the misconduct ranged from fraud, misappropriation of clients’ money.
• Made based on the recommendations of the UNSWORTH committee headed by EIG UNSWORTH set up in October 1959
• LPA gave power to make and revise rules of professional conduct to the general council of the bar- SECTION 11(4) LPA
• First rules made in LAGOS IN DECEMBER 25,1967, amended 1979 and further amended in 2007.
LEGAL STATUS OF THE RPC
• It is binding on all legal practitioners.
• Has rank of subsidiary legislation.
• Main law is the LPA
NBA V. KOKU
NBA V. AKINTOKUN
Section 11(4) of the Legal Practitioners Act (LPA) empowers the Bar Council to make rules of professional conduct. In NBA v. Iteogu (2006) 13 NWLR (Pt. 996) 219 at 247 Abdullahi Ibrahim SAN, Chairman, LPDC (as he then was) explained that: “the rules of professional conduct is made for the maintenance of the highest standard of professional conduct etiquette and discipline in terms of the Nigerian Bar Association”.
General responsibility of a lawyer – Rule 1 of the Rules of Professional Conduct (LPC) provides that a lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.
EXAM HINT-
You will be given scenarios and asked to identify whether it amounts to a misconduct and the rules that have been breached. This can come in any of the courses including LIP.
Note particularly all the rules with exceptions.
LIST OF RULES
R.1- general responsibility of a lawyer
R.2- duty as to admission in the legal profession
R.3- aiding in the unauthorised practice of law(common in land matters)
R. 4 -Avoidance Of Intermediary In The Practice Of The Law.
R.5 -Association For Legal Practice.
R.6- retirement from judicial or public employment
R.7- engagement in business
R.8- lawyers in salarised employment
R.9- payment of practising fees (31st march yearly) and within 1 month of enrolment for new wigs
R.13- notification to NBA of legal practice (not later than 30 days from commencement)
R.14- dedication and devotion to cause of client
R.15- representing clients within bounds of the law
R16 – represent client competently
R.17- conflict of interest
R.19- confidentiality rule
R.20- lawyer prohibited from giving evidence for client
R.21- withdrawal from employment as counsel
R.22- calling at clients house or place of business
R 23- dealing with client’s property
R.24- duty to accept brief
R- 26- fellowship and order of precedence
R.27- good faith and fairness among lawyers
R.29- change of lawyer
R.30- lawyer as an officer of court
R.31-duty of lawyers to court
R.36- court room decorum
R.37 employment in criminal cases
R.38- lawyer for an indigent accused
R.39- advertising and soliciting
R.45- lawyers to be fully robed
R.47- prohibition from instigating litigation
R.48- fees for legal services
R.52- fixing amount of fees
R.55- enforcement of rules
CLASS ACTIVITIES/ EXERCISES
TASK- P.118(CURRICULUM)
Scenario 1
A-· I practice as a Law Officer in the Ministry of Justice, Cross Rivers State. I have a degree in Law from Ahmadu Bello University, Zaria in 1973 but was not opportune to go to the Nigerian Law School. Is it right that I have a right of audience in Court? May have a full exemption
Scenario 2
I studied in England and was called to the English Bar in 1969 and have been practicing there till date. I was recently invited to handle a matter that involves a sensitive public interest in Nigeria in a Nigerian court. Do I have a right of appearance in a Nigerian Court?
Scenario 3
I am a Nigerian. I studied Law at a university in London and I want to Practice Law in Nigeria. What should I do to achieve this? What happens if I go ahead to practice law in Nigeria in my current situation?
Part1- ADR TECHINQUES
CASE STUDY 2-Case between Mrs Kayuba Ada and Agricultural Bank Plc
The appropriate alternative dispute resolution is arbitration being that a corporate person is involved. Generally, the other alternative dispute resolution method is appropriate where it is a dispute between individuals because they afford for one on one interaction. However, being a corporate body, a company acts through its directors and as such; any one of them may represent it during settlement of disputes. This would not allow for personal relationships that may be developed in a case where it involves just two individual. Also, the nature of the case is special nature which involves importation and exportation of goods i.e. international trade. Therefore, an expert arbitrator would be needed to determine the nature of the good and the amount of damages to be awarded
There are however limitations to the use of arbitration as an alternative to dispute settlement. They include the following;
1. Cost: In arbitration, the parties are required to pay the arbitrators fees. This is not required in litigation as it is the government that pay judges.
2. Arbitration in modern days is turning out to be another form of litigation. It has lost its flexibility and some strict rules guiding it.
3. No Appeal: An arbitral award is not subject to appeal which can be detrimental to party who is not satisfied with the outcome of the arbitral award. There is however room to have the award set aside.
4. Where an arbitral award is set aside, the parties to the transaction would have wasted a lot of time on the arbitral proceeding.
5. Also, in arbitration, the parties are not principally involved in decision process unlike other forms of alternative dispute resolution.
CASE STUDY 3-Case between Oke Madu and Okoro
The proper ADR method to be engaged here is negotiation. This is because this is a case involving a supermarket which will endeavour not to be tainted in bad image and since the issue of vicarious liability might come, the management may want a quick settlement so as to put the dispute behind them and move on with business. This is mostly achieved through negotiation.
2. There are moreover limitations to this form of ADR.
1. No Neutral Parties- Generally in negotiation, there is no neutral parties to coordinate and as such, unruly behavior may ensue and the process hitting the rock.
2. In a case where there are hostile parties, progress of the process may be difficult.
3. Decisions are not binding- Decisions reached in negotiation do not generally have the binding force of law which does not guarantee observance. The best that can come out of it is to bring an action, in case of breach, for a breach of agreement made under the negotiation. However, in this case, litigation will subsequently be used even though it was previously being avoided.
Q2 WHEN CAN ADR PROCESSES BE USED?
At any time before judgment is give
Week 4
Lesson plan
• Explain & discuss legal framework, powers, functions and composition of regulatory & controlling bodies & organs of the legal profession
• Explain the various exclusive rights of a legal professional in Nigeria
• Explain limitations/restrictions of these rights
• Discuss & explain conducts that amount to the impersonation of a lawyer and the sanctions for impersonating a lawyer
Controlling bodies
BODY OF BENCHERS
Legal Practitioners (Amendment) Act section 3 (1) establishes the Body of Benchers as a body of legal practitioners of the highest distinction in the legal profession in Nigeria with the responsibility for the formal call to the Bar of persons seeking to become legal practitioners. The Body is a body corporate with perpetual succession and a common seal. It consists of
• Chief Justice of Nigeria (Honourable Justice Mahmoud Muhammad) and all Justices of the Supreme Court;
• The President of the Court of Appeal
• The Attorney-General of the Federation
• The Presiding Justices of Court of Appeal Divisions
• The Chief Judge of the Federal High Court
• The Chief Judge of the High Court of the Federal Capital Territory (NB: this is like a State High CT)
• The Chief Judges of the States of the Federation
• The Attorneys-General of the all the States of the Federation
• The President of the Nigerian Bar Association
• The Chairman of the Council of Legal Education
• 30 legal practitioners nominated by the Nigerian Bar Association
• 10 members seen by the Body to be eminent members of the legal profession in Nigeria of not less than 15 years at the Bar.
A person may leave the Body if he or she resigns voluntarily or if he ceases to hold the office by virtue of which he was appointed or if removed for misconduct or other sufficient ground. The quorum for meeting of the Body shall be 10 members. The Body of Benchers is juristic i.e. can sue or be sued in its own name.
NB: not all judges are members of the body of benchers. Must be sponsored by 2 members of the body of benches before one can be called to the Nigerian Bar.
2 types of Life Benchers:
• Statutory Life Benchers – Automatic for Chief Justice of Nigeria (even after the CJN retires)
• Appointment by the Body of Benchers from among themselves
Rights and privileges of Life Benchers
• Exclusive right to sit in Inner Bar (in some Courts, there is a specific place carved out as the Inner Bar, usually in front and in other CTs, the first few rows are reserved)
• Mention any motion or cause slated for Mention only and not hearing out of turn on Cause List. NB: this right has caused a lot of confusion because it is only for mention for motions or cause (i.e. when matters are first brought to the CT) i.e. because motions don’t take time, CT just taking cognisance of the case and not hearing the matter.
Its functions include:
• Disciplinary jurisdiction over members of the legal profession
• Formal Call to Bar of persons seeking to becomes Legal Practitioners.
• Issuance of certificate to call to bar to new wigs – s4(4) LPA (As Amended)
• Prescribe number of dinning terms
• Ensure aspirants are of good character. Aspirants must be sponsored by 2.
• Disciplinary jurisdictions over students seeking to become members of the legal profession. Function has been delegated to Council of Legal Education (see s19(2) Body of Benchers Regulations)
• Prescription of call fees to be paid by aspirants to the bar. It was previously responsible for the prescription of practising fees but duty is now performed by Attorney General of the Federation as the Chair of the General Council of the Bar
• Taking all measures, whether by way of regulations or otherwise, which appear to the Body, necessary or expedient for maintaining at all times the traditional values of the profession
• Appointment of Caretaker Committee to run affairs of the NBA where circumstances demand
• Maintaining the traditional values of the profession
LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE – committee of the body of benchers
The committee was established by section 10 (1) of the Legal Practitioners Act 1962. It is a committee of Benchers who have the responsibility to determine and consider charges brought against legal practitioners in Nigeria who have misbehaved. Membership includes a Chairman who is not the CJN or a Justice of the Supreme Court, the President of the Court of Appeal and one Justice of the Court of Appeal, two Chief Judges, two AGs one of whom may be the AG Federation and four members of the Nigerian Bar Association who are not concerned with the investigation of a complaint or a decision by the Association to lay a complaint against a legal practitioners before the Committee.
Its functions include:
• Consideration and determination of complaints brought against legal practitioners e.g. lawyer converting client’s money for personal needs; use of certificate of occupancy in their possession for their own personal needs
• Gives directions to the Registrar of the Supreme Court as to the punishment to be given to a legal practitioner who has been found guilty of misconduct e.g. one of the punishment is the striking of the names of legal profession or suspension.
• Restoration of names which have been struck off (in rear circumstances where the person has shown remorse and lived a clean life for many years), or cancellation of a suspension of practice – s14(1)(b) LPA.
• E.g. expelled Chief Kunle Kalejaye from practising law
COUNCIL OF LEGAL EDUCATION
The Council of Legal Education is the body primarily responsible for the education of persons aspiring to the legal profession in Nigeria i.e. the proprietor of the Nigerian Law School.
The chairman of the council stays in office for 4 years and can be reappointed for another 4 years. The same condition applies to all other members of the office.
It was established under section 1 of the Legal Education Act 1962. The Council consists of
• A Chairman (OCJ Okocha); appointed by the President on the recommendation of the Attorney-General of the Federation.
• Attorneys-General of States or the Solicitor General where no AG
• A representative of the Federal Ministry of Justice to be appointed by AG Federation
• President of the Nigerian Bar Association
• The head of faculty of law of any recognised university in Nigeria whose course of legal studies is approved by the Council as sufficient for admission to the Nigerian Law School
• 15 legal professions not less than 10 years post call nominated by the NBA
• The Director-General of the Nigerian Law School
• 2 authors of published learned works in the field of law, to be appointed by the Attorney-General of the Federation
Functions
• Responsibility for legal education – professional training of aspirants to the bar and discipline of aspirants. Includes accreditation of Law faculties & training at Nigerian Law School. Now a joint team between the NUC (Nigerian Universities Commission) and CLE to issue accreditation
• The Council is vested with a statutory duty of issuing a qualifying certificate to any Nigerian that successfully completes an academic year of practical training in the Nigerian Law School.
• Responsible for continuing legal education (note: NBA is also responsible for this). See rule 11 of the Rules of Professional Conduct. This is mandatory for law professionals e.g. workshops/sessions at the NBA Conference. Rule 11(4) RPC provides the required credit hours for every year are: 24 hours for LPs of up to 5yrs post call; 18hours for LPs of not up to 10yrs but more than 5yrs post-call; and 12 hours for LPs of above 10yrs post call
• Incidental powers to do such other things – for purposes of performing its functions e.g. prescribing good conduct for aspirants to the NLS, conditions for admission into the law school. See Okonjo v CLE.
Appointment as DG of NLS
• He is the holder or a former holder of the officer of a profession in a faculty of law in a Nigerian University; or
• He is qualified for appointment as a professor in a faculty of law at a Nigerian University
• He is a legal practitioner who has on or before the date of his application been in active practice for not less than 10yrs
Also Note the overriding supervisory power of the Attorney General of the Federation over the CLE. The Federal Ministry of Justice is the supervisory body for the CLE – gives directives of a general character
LEGAL PRACTITIONERS PRIVILEGES COMMITEE
This was established by the section 5(3) Legal Practitioners Act (As Amended). Members include the Chief Justice of Nigeria who shall be the Chairman, the AG of the Federation, one Justice of the Supreme Court, the President of the Court of Appeal, Five Chief Judges of States, Chief Judge of the Federal High Court, Five Legal Practitioners who are Senior Advocates of Nigeria.
Functions include
1. Confers the rank of Senior Advocate of Nigeria on deserving legal practitioners in Nigeria
2. Makes rules relating to Senior Advocates of Nigeria, with the approval of the Body of Benchers
• With respect to restrictions on the rights of Senior Advocates of Nigeria to practice
• The privileges to be accorded to the SAN
• Ensuring the dignity of the rank of the SAN
• On the mode of appearance before the Courts by Senior Advocates of Nigeria
3. May withdraw the rank of SAN from holder either absolutely or for a short period of time. Find examples of this:
Note: the guidelines for conferment of SAN 2013 replaced the 2011 guidelines. Study the 2013 Guidelines
• Award is strictly on merit. An unsuccessful applicant shall be informed as to the reason for his failure to qualify, where he complains, he can refer the complaint to an Independent Complaints Committee
• Conditions for SAN: 10 years post call, must have been actively practising as an advocate in Nigeria for 10years before application
• Pay a non-refundable processing fee (was N300,000 this year), must cite at least 17 contested cases handled of which at least 3 Supreme Court, 6 Ct of Appeal, 8 High Court cases. Citations of the law reports should be given and Certified True Copy if unreported
• Where it is manifest that the applicant himself has conducted the case from the High Court up to the Supreme Court provided that where the applicant submits cases in which he has appeared only at the Supreme Court he will be
• In determining 'active current legal practice' in addition to such inquiry it considers necessary, the Legal Practitioners Privileges Committee may consult the (a) Chief Judge of the State where the candidate has his main law office; and (b) Local Branch of the Nigerian Bar Association
• The candidate must be of good character and must have no pending disciplinary case or complaint relating to professional misconduct against him. A candidate shall be considered ineligible if in the opinion of the Legal Practitioners Privileges Committee the candidate is adjudged to be of the following disposition:
• (a) bad behaviour, whether in or out of court; poor temperament or propensity to insult or assault people or cause them harm or put them in state of fear of bodily harm;
• (b) indulgence in drug, alcoholic or other similar substances of addiction;
• (c) evidence of moral depravity or other socially unacceptable behaviour;
• (d) abuse of legal trust such as embezzlement or mismanagement of client's funds;
• (e) indulgence in blatant self-seeking praise or advertisement through sponsored (directly or indirectly) songs by musicians, records or tapes or other media such as print or electronic media; and
• (f) touting for briefs or engaging in any form of canvassing for cases.
• 3. A candidate must:
• (a) demonstrate high professional and personal integrity;
• (b) be honest and straightforward in all his professional/personal dealings;
• (c) be of good character and reputation;
• (d) be candid with clients and professional colleagues;
• A candidate must have sound knowledge of the law and demonstrable excellence in skills as an advocate with clear ability to use such knowledge for the advancement of the administration of Justice.
• 5. A candidate for the rank of Senior Advocate should demonstrate tangible contribution to the development of the law through case law or publications in recognised journals or scholarly presentation at national or international conferences considered by the Legal Practitioners Privileges Committee as of particular significance.
• 6. A candidate should demonstrate clear qualities of leadership and loyalty to the legal profession. He must have paid consistently as and when due his practicing fees and membership dues to the local branch in the last 10 years preceding his application and is involved in the provision of pro bono legal services to indigent clients or some form of community service. He must present evidence of income tax payment paid as and when due for a period of 3 years preceding the application.
• 7. A candidate should have or be a partner in chambers considered by the Legal Practitioners Privileges Committee to have good and up to date facilities including a good quality law library with good working environment. There must be at least five full time junior legal practitioners and other paralegal or support staff in full time salarised employment
• Must have contributed immensely to the development of law, standard of your law office and library, at least 5 full time junior legal practitioners, paid practising fees on time, at least 10 years post call; evidence of pro bono cases that you have handled (latter is a new requirement). Mrs Shuwa argues that the 5 junior legal practitioners are well paid.
• It must be noted that the Legal Practitioners Privileges Committee may in appropriate circumstances, appoint an academic who has distinguished himself and has made substantial contribution to legal scholarship and jurisprudence through teaching, research and published works in any Nigerian University, Research Institute, Nigerian Law School and other recognised institutions. An applicant for the award of Senior Advocate of Nigeria under this category shall furnish at least 20 copies of his published works to the LPPC
• Note that a SAN shall not appear or settle documents before an inferior CT. See Ct of Appeal decision in ECWA v Ijesha (1999) 13 NWLR (pt 653) 368. The case was not taken to the Supreme CT.
Privileges of SAN: These are contained in section 5(7) Senior Advocates of Nigeria (Privileges and Functions) Rule 1979
• The exclusive right to sit in the Inner Bar or where there are no faculties for the Inner Bar on the first row of the seats available for legal practitioners
• The right to mention any cause or matter listed for mention and not for hearing, and any motion in which he is appearing, out of its turn on the cause list for the day
• The privileges of wearing silk gowns
Restrictions on SAN: section 5(7) Senior Advocates of Nigeria (Privileges and Functions) Rules 1979
• He cannot appear as counsel in any civil matter before any superior Ct of record except with another junior or with a fellow SAN except when appearing in the judges’ Chambers or not in open CT. Can appear alone in a criminal court.
• SANs shall not engage in, or agree to be engaged in drafting any instrument where the appropriate or prescribed fees are less than N400. They can do so gratuitously or if the instruments are connected with parliamentary processes.
THE NIGERIA BAR ASSOCIATION
Membership is automatic upon enrolment at the Supreme CT. Practicing fees must be paid latest by 31st March each year. Amount depends on years at the Bar. If called to Bar after this date (31st March), you must pay practising fee within one month. Notify the local NBA when you open a legal practice. You cannot be in partnership with non-lawyers for the purposes of practising law.
Important that whether in active legal practice or not, should pay the practicing fees
This is an interest group not created by any statute but recognised by various statutes. The body enjoys perpetual succession. In the case of Fawehinmi v Nigerian Bar Association (No. 2) [2002] (S.C.) it was said that the Nigerian Bar Association is only a juridical entity but without juristic personality. The objects of the association as contained in clause 2 of the Constitution of the Nigerian Bar Association are:
(i) The maintenance of an independent and honourable bar and its integrity;
(ii) Promoting good relations among members of the bar
(iii) The promotion of legal education;
(iv)The better administration of justice;
(v) The promotion of law reform;
(vi)The maintenance of the highest standards of professional conduct, etiquette and discipline;
(vii) The encouragement and protection of the public right of access to the courts;
(viii) The promotion of the rule of law;
(ix) The protection of fundamental liberties and the independence of the judiciary; and
(x) The promotion and aiding of both newly qualified and incapacitated and aged members of the Association.
(xi) It keeps a database of lawyers and law offices
(xii) They investigate complaints against legal practitioners and send to LPDC if satisfied that a prima facie case has been established
(xiii) It preforms various advisory function
• The Association's day-to-day affairs are managed by the National Executive Committee (made up of elected officials and local representatives) supported by other standing and ad-hoc committees while the General Conference exercises over-riding powers. The local branches of the Association cater for the immediate interests of members at the local level and represent them at the National Executive Committee. The NBA has representatives in all other governing bodies of the legal profession and actively participates in decision-making. Every enrolled legal practitioner is qualified to be a member however membership is not compulsory
The substance of the body is provided for by the LPA which stipulates that a legal practitioner shall pay a practicing fee before being given a right of audience in court practicing fees shall be paid over to the association: see S.8(2) LPA.
Rule 10 RPC: all legal documents signed by legal practitioners to have seal and stamp of NBA.
GENERAL COUNCIL OF THE BAR
Created by section 1 (1) of the Legal Practitioners Act. The membership consists of the Attorney-General of the Federation who is the President of the Council, the AGs of the States, 20 legal practitioners nominated by the Nigerian Bar Association, seven of whom shall not be less than 10 years standing at the bar. The quorum for the meeting of the council shall be 8 members. The functions of this body are:
• Making and review of the Rules of Professional Conduct
• It makes Rules of Accounts to be kept by legal practitioners with the approval of the Attorney-General of the Federation – s20(1) & (2) LPA
LEGAL PRACTITIONERS REMUNERATION COMMITTEE
This is established by section 15(1) of the Legal Practitioners Act. Members of this committee include the AG of the Federation who is the chairman, the AG States, the President of the Nigerian Bar Association and 3 Legal Practitioners. 3 members of the Committee shall form quorum including the chairman or one nominated by him to chair a particular meeting.
• The committee is responsible for making Orders regulating the charges or remuneration of legal practitioners.
• Legal Practitioners (Remuneration for Legal Documentation & Other Land Matters Order, 1991) - see s15(3) LPA
• Agreement between a legal practitioners and his client relating to the charges of the practitioner
• The maximum charges which a legal practitioner may make over a transaction or any other activity as specified by the order
• The taking of security by legal practitioners for the payment of their fees and the allowance of interest with respect to security
• The ascertainment of the appropriate charges for any transaction or any activity with reference to such consideration as may be specified
NATIONAL JUDICIAL COUNCIL
Membership
• Chief Justice of Nigeria as Chairman
• Next most senior Justice of the Supreme Court as Deputy Chairman
• President of the CT of Appeal
• 5 retired Justices of the Supreme CT or CT of Appeal selected by the Chief Justice
• Chief Judge of the Federal High CT
• President of the National Industrial Court
• 5 Chief Judges of States to be appointed by the CJN in rotation to serve for 2yrs
• 1 Grand Kadi to be appointed by CJN to serve in rotation for 2yrs
• 1 president of the Customary Ct of Appeal to be appointed by CJN to serve in rotation for 2yrs
• 5 members of the NBA of not less than 15yrs post call and at least 1 or them must be a SAN
• 2 persons who in the opinion of the CJN are of unquestionable integrity (must not necessarily be legal professionals)
Functions
• Recommendation of persons for appointment as judicial officers
• Persons for removal as judicial officers
• Disciplinary powers e.g. for misconduct (negligent, unintentional)
• Control general policy and administration
ORDER OF PRECEDENCE IN COURT – section 8(4) LPA
(1) A.G Federation as chief law officer
(2) AG of State only in that State
(3) SAN in order of seniority
(4) Persons authorised to practice for purposes of their office e.g. Law Officers,
persons on the roll by seniority
(5) Persons authorised to practice by warrant of Chief Justice of Nigeria
LPA does not say anything about the body of benchers so where do they fit in into the list. Body of benchers should come after SANs.
Exclusive rights of a legal practitioner
(1) Appointment as a judicial officer
• Superior CTs
• Qualified to practice in Nigeria as a legal practitioner and for a specific number of years – 15 years for Supreme CT, 12 years for CT of Appeal, 10 years for High CTs. See sections 231(3), 238(3) and 250(3) 1999 Constitution of the Federal Republic of Nigeria (As Amended)
(2) Right of audience in CT
• Before all CTs of law sitting in Nigeria – s8(1) LPA (provided he suffers no disability i.e. paid licensing fee, properly dressed etc)
• Uzodinma v Commissioner of Police: the CT held that the sole warrant of the constitutional provision in relation to legal representation is to safeguard the interest of a litigant. The appellant was charged in the Grade I Area Court, Otukpo with theft contrary to s287 Penal Code. The appellant engaged a counsel to represent him at the trial CT. The CT declined the counsel the right of audience in accordance with s390 Criminal Procedure Code. The appellant was convicted and sentenced to 2yrs’ imprisonment. On appeal, the CT upheld his claim that his fundamental right to legal representation under s36(6)(c) CFRN 1999 (as amended) was breached
• No longer an exclusive right as in Osahon v Federal Republic of Nigeria: Ribadu (EFCC) wanted to prosecute in the Federal High CT. Supreme CT Held that the Nigerian Police can prosecute in any CT but advisable that the Police who wants to prosecute at the Supreme Ct should be called to the Nigerian Bar. Academics argue that this second phrase is only obiter (but obiter from the Supreme CT is very persuasive). Also, in the Constitution, one can appear to represent himself (Constitution states that “legal practitioner or any other person or authority”) as this encompasses the right to a fair trial – issue that a lay litigant cannot understand the technicalities of CT such as how to call cite cases, all witnesses, swear affidavits etc.
• Personally as a litigant/accused
• Must be properly attired – Rule 36(a) Rules of Professional Conduct. In High CT, you should be properly dressed with wig and gown and no wig and gown for magistrate CT. Note R. 36(f) RPC – no wig and gown when conducting cases where he is a party or giving evidence – Fawehinmi v NBA (1989) 2 NSCC 1 e.g. lawyer giving evidence cannot enter the witness box with the wig and gown
(3)Preparation of documents in probate s22(1)(d) & (4) LPA
• Section 22(1)(d) LPA: if any person other than a legal practitioner prepares for or in expectation of reward any instrument relating to immovable property, or relating to or with a view to the grant of probate or letters of administration, or relating to or with a view to proceedings in any CT of record in Nigeria is guilty of an offence.
• He shall be guilty of an offence and liable, in the case of an offence under paragraph (a) of this subsection or a second or subsequent offence under paragraph (d) of this subsection, to a fine of an amount not exceeding N200 or imprisonment for a term not exceeding two years or both, and in any other case to a fine of an amount not exceeding N100.
(4) Preparation of conveyancing instrument: s22(1)(d) LPA; ss4&5 Land Instruments Preparation Laws of the Western Region of Nigeria 1959
• Section 4 LIPL: no person other than a legal practitioner shall either directly or indirectly for or in expectation of any fee, gain or reward draw or prepare any instrument
• Section 5(1) LIPL: an agreement entered into after the commencement of this Law to pay a fee or reward to any person, other than a legal practitioner, in consideration of such person drawing or preparing any instrument is void
• Under no circumstances should a legal practitioner succumb to the practice of rubber stamping landed documents prepared by a non-lawyer for any reward: Rule 3(1) & (2) RPC 2007
• Rule 10(3) RPC 2007: any document signed or filed by a legal practitioner without compliance with the requirement of the rule is nor properly signed or filed
(5)Appointment as a AG/Minister or Commissioner for Justice – ss150 &195 1999 Constitution
• The Federal AG is the chief law officer of the federation while the state AG is the chief law officer of the state. Only a legal practitioner can be appointed an AG and Minister of Justice. Must be 10yrs post call
(6) Statutory declaration of Compliance under s35(3) CAMA
• To satisfy the requirement for the formation of a company under the CAMA, a legal practitioner is expected to comply with a statutory declaration before the incorporation of any company in Nigeria
• The provision of the CAMA expressly state that a legal practitioner must statutorily declare in the prescribed form that all the requirements of the Act have been complied with before the documents can be accepted for registration
(7) Appointment as a notary public - must have paid practising consistently for 7years
• Section 2(2) Notaries Public Act Vol 11 CAP N141 Laws of the Federation of Nigeria 2010 stipulates that the Chief Justice of Nigeria may admit any legal practitioner considered as fit as notary. The criteria for fitness are not specified. Typically in practice, two requirements for admission must be complied with: (1) an applicant is required to pay his practising fees for a period of 7 uninterrupted years within the time specified for payment of practising fees; (2) the applicant must be attested to by the Chief judge of the State where he practises.
• An applicant applies to the Chief Justice of Nigeria with a detailed Curriculum Vitae accompanied with all credentials and the proof of payment of practising fees for 7 consecutive years
(8) Appointment as an SAN
Restrictions on legal practitioner
1) Non-payment of practising fees means no right of audience in CT – s7(a) LP (Amendment). Decree No. 21; S8(2) LPA; rule 9 RPC and article 19 of the Constitution of the NBA. Graded from SAN and members of the Body of Benchers; Legal Practitioners of 15yrs or more post call standing; LPs of 10yrs or more but less than 15yrs; LPs of 5yrs or more but less than 10yrs; LPs of less than 5yrs. All payments to the made to the Registrar of the Supreme CT who issues a receipt. Nine-tenths of the monies collected is remitted to the NBA as part of running costs of the Association. Rule 9 RPC states that non-payment is an infraction
2) Failure to comply with stipulated laws: through the combined effect of s24 LPA which provides for entitlement to practise for the purpose of any particular proceedings and s2(2) LPA which empowers the Chief Justice to grant a warrant to an applicant upon fulfilment of the requirement, a foreign legal practitioner engaged by a client in Nigeria is given right of audience in the CT before which his client is appearing
3) A Legal Practitioner as a Litigant: where a LP is in Ct as a litigant, he cannot appear both as a party and as a counsel for himself. An advocate cannot appear for another party in the same suit where he is a litigant irrespective of the relationship that exists btw them. Where the LP is a litigant in a civil case, though he may be permitted to speak from the Bar, he is disallowed from robing as a barrister and in criminal case, he can only conduct his case from the dock. A LP who is a litigant cannot be said to represent himself in CT but only conducts his case in person just like any other litigant – Fawehinmi v NBA
4) Notary public: a notary public is precluded from exercising his duties and functions in any proceedings or matter when he has an interest: s19 NPA 2010
5) Engaging in business: rule 7 RPC. Exception: rule 7(3) RPC. See below
6) Salaried employment: rule 8 RPC – Where a LP is a servant or engaged in a salarised employment of any kind, he is disqualified from appearing as an advocate in Ct. A LP who is employed as a legal officer in a government department is free from any limitation to appear as an advocate on behalf of the government. Thus, a LP cannot take up full time employment and at the same time represent his employer in CT. Where a LP is a director of a duly registered company, he is prohibited from appearing as an advocate in Ct or judicial tribunal on behalf of his employer (Rule 8(3) RPC). A LP who is in full salarised employment may nonetheless represent his employer where the law provides that such employer may be represented by an officer or agent. He is however unauthorised to wear his barrister’s robes.
An exemption for university lecturers who can also be in private practice and work as well [Regulated and Other Professions (Private Practice Prohibition) (Law Lecturers Exemption) (No. 2) Order of 14th September 1992]. A lecturer (now a judge) raised the issue that the Order does not cover lecturers in the Nigerian Law School (decision is awaited. It is either at the CT of Appeal or Supreme CT). Inconsistent with the fact that Council of Legal Education has issued a circular requiring lecturers to be in active private practice
7) Retired judicial officers don’t have a right of audience in any court or tribunal both during and after their appointment (R6(3) RPC). See s318(1) CFRN for definition of judicial officer and so a magistrate can practice after retirement
8) Even after retirement: s292(2) CFRN. Judicial officer can be a consultant.
9) After retirement, judicial officer must not sign pleadings but can practice as a solicitor or legal consultant alone or in partnership 6(4) RPC. Can still be addressed as Justice: rule 6(5) RPC
10) Exceptions – retired judicial officer may appear to personally represent himself if he has no other disability. See Hon Justice Atake v Afejuku (1994) 12 SCNJ 1
11) SANs – see above
12) Public officers – where a LP is a public officer, he may be by virtue of such responsibility be prohibited from engaging in private practice except farming: section 2(b) Code of Conduct for Public Officers in the CFRN 1999 (as amended)
Impersonating a legal practitioner s22(1(a) – (d) LPA
• Practices or holds out
• Takes or uses title Legal Practitioner
• Wilfully takes or uses any name, title, addition, description falsely implying or pretends he is a Legal Practitioner
• Prepares any instrument related to immovable property, probate, letters of administration or connected to proceedings in any CT of record in Nigeria is guilty of an offence
• he shall be guilty of an offence and liable, in the case of an offence under paragraph (a) of this subsection or a second or subsequent offence under paragraph (d) of this subsection, to a fine of an amount not exceeding N200 or imprisonment for a term not exceeding two years or both, and in any other case to a fine of an amount not exceeding N100.
Engagement in business - Rule 7(1) of the RPC states that unless permitted by the General Council of the Bar (hereinafter referred to as the “Bar Council”), a lawyer shall not practice as a legal practitioner at the same time as he practices any other profession.
Rule 7(2) states that a lawyer shall not practice as a legal practitioner while personally engaged in –
a) The business of buying and selling commodities;
b) The business of a commission agent;
c) Such other trade or business which the Bar Council may from time to time declare to be incompatible with practice as a lawyer or as tending to undermine the high standing of the profession
Rule 7(3) states that for the purpose of this law, “trade or business” includes all forms of participation in any trade or business but does not include –
a) Membership of the Board of Directors of a company which does not involve either executive, administrative or clerical functions;
b) Being Secretary of a company; or
c) Being a shareholder in a company.
Lawyers in salaried employment – Rule 8(1) states that a lawyer, whilst a servant or in a salaried employment of any kind, shall not appear as advocate in a court or judicial tribunal for his employer except where the lawyer is employed as a legal officer in a Government department.
Rule 8(2) a lawyer, whilst a servant or in a salaried employment, shall not prepare, sign, or file pleadings, applications, instruments, agreements, contracts, deeds, letters, memoranda, reports, legal opinion or similar instruments or processes or file any such document for his employer.
Rule 8(3) a director of a registered company shall not appear as an advocate in court or judicial tribunal for his company.
Rule 8(4) a lawyer in a full-time salaried employment may represent his employer as an officer or agent in cases where the employer is permitted by law to appear by an officer or agent, and in such cases, the lawyer shall not wear robes.
Rule 8(5) an officer in the Armed Forces who is a lawyer may discharge any duties devolving on him as such officer and may appear as a Court Martial as long as he does so in his capacity as an officer and not as a lawyer.
Week 5: Rules 14-24
LAWYER’S GENERAL DUTIES TO CLIENTS
The rules of professional conduct is made for the maintenance of the highest standard of professional conduct etiquette and discipline in terms of the constitution of the Nigerian Bar Association known as The Legal Practitioners Act (LPA), 2004; The Rules of Professional Conduct for Legal Practitioners (RPC), 2004.
There are several duties expected of a lawyer to a client. These are:
DEDICATION AND DEVOTION TO THE CAUSE OF THE CLIENT – Rule 14
The lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defence of the client’s rights and exertion of his utmost learning and ability, to the end that nothing be taken or be withheld from him save by the rules of law legally applied. No fear of judicial disfavour or public unpopularity should restrain him from the full discharge of his duty.
A lawyer should take full instructions from the client before advising him. Advice should be based on merit; a lawyer should always inform the client concerning the progress of his case and where there is conflict between the client and the lawyer in respect of the exact instructions given to the lawyer, the instruction of the client must prevail. It may be oral or written or both but it is advisable that it should be in writing.
A lawyer shall inform the client that his claim or defence is hopeless if he considers it to be so. Where an action is statute-barred and counsel did not advise his client not to take the action, he could be indemnified in costs – Bello Raji v. X (1946) 18 NLR 74.
REPRESENTING CLIENTS WITHIN THE BOUNDS OF THE LAW – Rule 15
A lawyer may refuse to represent a client where he believes his conduct to be unlawful even though it can be argued to be legal. He shall also keep strictly within the law notwithstanding any plea or instruction from the client, and if the client insists on a breach of law, the lawyer shall withdraw his service.
REPRESENTING CLIENT COMPETENTLY – Rule 16
A lawyer shall not handle a legal matter, which he is not competent to handle without associating a lawyer with him who is competent except the client objects or neglect a matter entrusted on him or handle a legal matter without adequate preparation. Lecturer thinks that the exception means that the client objects to the skilled lawyer chosen (Mr A) and not that the client objects to having any skilled lawyer because if the client does so, the lawyer should reject the brief.
CONFLICT OF INTEREST – Rule 17
A lawyer has the duty to disclose to his client any conflicting interest. That is, a lawyer that has accepted a brief from his former client cannot use it against him except where the client, after full disclosure, still wants the lawyer he can act notwithstanding conflict of interest.
In some cases of conflicting interest; the brief must be refused. A lawyer will not be permitted to act against his former client when he has obtained confidential information while acting for him, which would be improper and prejudicial to use against him in the service of an adversary. Otherwise, there is no rule that a lawyer cannot act against his former client – Onigbongbo community v. Minister of Lagos Affairs & 31 Others. In Re Chief FR.A. Williams 1972 2 U.I.L.R. 235 (SC).
Conversely, a judge should not preside over a case in which he had previously served as counsel or rendered legal advice unless he had fully disclosed this to the parties – Olue v. Enenwali 1976 2 SC 23.
Counsel should not represent himself in litigation since objectivity and detachment can hardly be maintained – Egbe v. Adefarasin 1987 1 NWLR (Pt. 47).
AGREEMENT WITH CLIENT – Rule 18
Client has freedom of choice of legal practitioner. A Client may terminate his brief to counsel at any time when he no longer has confidence in him. A client can change his lawyer whether for good cause or not. It doesn’t absolve the client of any fees he incurred to the lawyer before termination. Where a counsel is debriefed, he owes the court a duty to make a final appearance before the court for a formal withdrawal of his representation – Okonedo – Egharegbarni v. Julius Berger Nig. Ltd (1995) 5 N.W.L.R. (pt 398) 679 at 699. Lawyer should have agreement with client in writing and even if agreement is oral, then the lawyer is bound by the agreement.
PRIVILEGE AND CONFIDENCE OF A CLIENT- Rule 19
A lawyer must preserve his client’s confidence in the performance of his duty and must not disclose any information without his client’s consent – R v. Egbuabor (1962) 1 All NLR 287 – Where original and translated version of statement of accused to the police was being produced and read in court, accused denied that it is correct. He said what he told the police was that he was sick and could not get up. Defence Counsel then said “I do not object to the statement being tendered. My original instruction was that accused went to tap palm wine on the day ‘in question”. It was held in fairness to counsel it should be said that apart from this lapse he seems to have done his best for the appellant, and we do not suggest that he was guilty of any conscious dereliction of his duty to his client. That cannot alter the fact that by his unauthorised disclosure and his abstention from cross-examination he implied that he himself doubted if the evidence to be given by his client was to be relied on, and it was a miscarriage of justice, as understood in this country that he should have continued to represent the appellant without the appellant’s being aware that the counsel to whom he looked to present his case had, from his point of view, gone over to the enemy.
In the circumstances we consider that the conviction must be set aside, but there was a substantial case against the appellant, and the order we make is that the conviction is quashed and the appellant is to be retried before another Judge of the Western Region High Court.
Section 192(1) of the Evidence Act has to do with professional communication. It provides that “no legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose and communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment; provided that nothing in this section shall protect from disclosure – (a) any such communication made in furtherance of any illegal purpose. (b) any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.”
The exceptions to this rule is:
1) It does not extend to suppression of a crime or fraud – Annesley v. Earl of Anglesea (1743) L.R.Q.B 317.
2) If the information is not a confidential nature.
3) If it is meant to be communicated to a 3rd party.
4) If a legal practitioner is accused by his client.
5) If the communication is of an illegal purpose.
LAWYER AS A WITNESS FOR A CLIENT – Rule 20
Under section 173 of Evidence Act, a lawyer is a competent but no compellable witness for his client – Gachi & Ors v. The State (1965) NMLR 39. A lawyer is not to act in any litigation where he or a member of his firm would be or may be called as a witness except where he is to testify to an uncounted matter or as regards to the nature and value of legal services rendered or solely to a matter of formality
WITHDRAWAL FROM EMPLOYMENT – Rule 21
A lawyer can only withdraw from employment, once assumed, for good cause and after reasonable notice to the client.
“Good Cause’ includes where the client insists upon an unjust or immoral counsel in the conduct of his case, or if he persists over the lawyer’s remonstrance in presenting frivolous defence, or if he deliberately disregards an agreement or obligation as to fees and expenses”. Upon withdrawal, lawyer should refund such part of the retainer as has not been clearly earned.
CALLING AT CLIENT’S HOUSE OR PLACE OF BUSINESS – Rule 22
A lawyer has the duty to take instructions from a client in chambers and not the client’s house except for urgent reasons e.g. where the client is ill, where it has to do with family relations, etc.
DEALING WITH CLIENT’S PROPERTY – Rule 23
A lawyer who collects money for his client, or is in position to deliver property on behalf of his client, shall promptly report and account for it and shall not mix such money or property with or use it as, his own.
RESPONSIBILITY FOR LITIGATION – Rule 24
A lawyer has the duty to accept a brief in the court in which the lawyer practices, subject to payment of proper professional fee otherwise called the cab bank rule – Rondell v. Worsley (1967) 3 All ER 993. The rule provides that special circumstances may justify his refusal, at his discretion to accept a brief e.g. personal interest, conflicting interest, religious grounds, etc. Refusal on other grounds may be unprofessional conduct. It is therefore his duty to undertake defence of a crime regardless of the guilt of the crime except those of suspicious circumstances e.g. personal interest, non-payment of fees, etc. – Udo v. The State (1988) (Pt. 82) 316; Udofia v. The State (1988) 2 NEEIII.
In the absence of express limitation, an instruction to a lawyer confers upon him the power to do all such things as he considers necessary within the scope of his instructions to obtain the most favourable result for the client. Thus, he can compromise a suit or withdraw an appeal without further reference to his client. He can determine what accommodations to be granted to the opposing lawyer to the exclusion of his client, provided the merits of the case are unaffected and the client is not prejudiced.
The basis of the Counsel’s right (not duty) to control incidents of trial is the presumption of the client’s confidence in the counsel – Edozien v. Edozien (1993) 1.N.W.L.R. (pt 272) 678 at 693.
INVESTIGATION OF FACTS AND PRODUCTION OF WITNESS, ETC – Rule 25
A lawyer has a duty to thoroughly investigate and marshal out facts stated by client including interview of potential witnesses for his client or for the opposing side. It is not inadvisable that counsel should meet his client’s witnesses for the first time in court.
LAWYERS DUTIES ON ACCOUNTABILITY AND COSTS/CHARGES
DUTY TO OPEN CLIENT ACCOUNT
A Lawyer has the duty to open a separate Bank account for the keeping of money received on behalf of a client and should make no withdrawal from it unless permitted by the Rules. A lawyer who breaches this provision could have his name struck off the roll even though there has been no criminal trial or conviction. In Re a Solicitor 121 Sol.J0376. Decided 25th May 1977, A bank cannot have recourse to the Legal Practitioners client's account to recover any indebtedness of the legal practitioner to the bank unless the indebtedness arose in connection with the account – Section 20(1) of Legal Practitioners Act.
The Legal Practitioners’ Remuneration Committee is empowered under section 15 of the LPA to make orders regulating fees of legal practitioners.
Charges means any charges (whether by way of fees, disbursements, expenses or otherwise) in respect of anything done by a legal practitioner in his capacity as a legal practitioner – section 19 of the LPA.
FEES FOR LEGAL SERVICES
It should be noted that where a lawyer collects money for his client, or is in position to deliver property on behalf of his client, he shall promptly report and account for it and shall not mix such money or property with or use it as his own – Rule 23(2) of RPC.
FIXING THE AMOUNT OF THE FEE
A lawyer is entitled to be paid adequate remuneration for his service to his client – Rule 48(1). But he shall not collect any illegal or excessive fee – Rule 48(2).
The professional fee charged by a lawyer for his services shall be reasonable and commensurate for his services. Accordingly, a lawyer should not charge fees, which are excessively high or too low to amount to understanding except where the low fee is based on a special relationship or indigence of a client – Rule 52(1).
DIVISION OF FEES
A lawyer shall not share the fees of his legal services except with another lawyer based upon the division of service or responsibility – Rule 53.
LETTER WRITING
Practitioners are required to draft letters of various kinds, ranging from a covering letter to a letter before a civil action. In drafting letters, the conventions governing letter writing such as layout, salutation and complimentary close must be adhered to. Since the practitioner acts on behalf of a client in a professional capacity, the letter should be written in plain English. It should never be conversational; thus, can’t, won’t, they’re, and so on, should not be used. Such an informal style of writing is inappropriate. In Weston v. Central Criminal court, Courts Administrator (1977) 1 QB 32 at 39, the Court of Appeal observed that the letter was discourteous and rude.
Every letter should bear a date. The day should be written in figures, the month in words and the year in figures. The month and year should not be abbreviated but be written in full. Dates should not be punctuated. However, it is permissible to insert a comma after the month. The month should be written out in words, while the day and year should be written in figures.
A letter must bear a heading or caption, for example, if a client is being informed about progress in a suit, then the heading of the letter will be the suit number and the parties to the suit
Letters written for a firm should be written in either the first person singular, that is “I” or in the first person plural “We”. Where it is intended that the letter should be read only by the addressee, the expression ‘Strictly Private and Confidential’, should be written on it.
No letter must be dispatched unsigned. A letter must be signed either by the writer or on his behalf.
There are two types of letters namely Simple (social or informal) letters and Business (official or formal) letters.
Simple letters are those written to friends and relatives conveying a personal message while business letters are more formal than simple letters.
CHECKLISTS OF GUIDELINES FOR STANDARD LAWYER’S LETTER TO CLIENT
To write a good letter, one would have to look at the parts of a letter which are:
1) Letterhead – This contains the names, address, references, and qualifications of the writer. It must be simple and sober.
2) Date – The applicable mode in Nigeria is: the day, month (written in words), and year e.g. 4 December 2009.
3) References – This is usually inserted. It is helpful when filing and making cross-references.
4) Status of the letter – The word private and confidential (if necessary) should be included.
5) Name and address of the recipient – Identify the reader by name, title or both.
6) Salutation – The level of familiarity would consider what to salute with e.g. Dear Sir, Dear Mr. ABC.
7) Subject head – This should give a summary of what the letter contains. It is recommended to be in sentence style capitalisation and not in capital letters except where absolutely necessary e.g. My Expectation In Law School.
8) Body of the letter – This is the bulk part of the letter which can be grouped under the following heads:
a) The opening – introduce or acknowledge the content of the letter.
b) The middle – the actual message which may be one or more paragraphs (numbering is also accepted).
c) The closing – this is the expected action from the recipient.
9) Complimentary closure of the letter – This is the choice or the mode of salutation. It should be noted that the closure is a determinant factor of the salutation. For example, Dear Sir closes with Yours faithfully; Dear Mr. ABC closes with Yours truly, etc.
10) Name and signature of the writer – It is advisable to always sign on top of the name. When signing on behalf of someone, you must indicate it by adding the word “for”. For example, For: Mr. ABC. However, the expression “pp” is used in some cases.
11) Enclosure – Where you enclose or attach other documents, you should indicate that fact and you may list or omit the list of the documents. (Encl is the short form of Enclosure).
12) Copies – This is used where there is need to notify other persons about the message in the letter. It is known as the distribution list. (CC is the short form of Copies). It is also used to notify the recipient that same copy has been sent to other persons. But where a blind copy is to be sent to other persons, nothing should be shown on the letter.
HINTS ON WRITING LETTERS
1. Be careful about your choice of words or spelling, and place all punctuations properly.
2. Be polite, purposeful and firm. Also avoid over familiarity.
3. Be brief, and as much as possible, restrict your letter to one page.
4. A good letter should have only one paragraph but where several paragraphs are necessary, each paragraph should contain only one idea distinct from other paragraphs.
DUTIES OF A LAWYER TOWARDS HIS CLIENT
Duty to dedication of client’s matter (diligence):
• Devote his attention, energy and expertise
• Consult his client in question of doubt
• Keep the client informed
• Warn the client against any particular risk
• Respond to request for information from the client promptly
• Inform him when he believes his case or his defence is hopeless e.g. in litigation. In Abuja, pre-action counselling showing the lawyer have advised the client appropriately on the strength and weakness of the case
• Represent him throughout the matter: Rule 14
Duty to accept brief:
• So that unpopular client can get lawyers
• But it must be within the ambit of the law;
• So long the proper fees are paid/agreed to be paid; and
• Within the sphere of your practice e.g. a commercial lawyer can/should refuse a criminal brief
• Refusal is also justified in special circumstances e.g. against your personal interest (such as when the lawyer’s life will be at stake i.e. must be an imminent threat if he accepts the brief he can refuse the brief, refusal on religious or cultural grounds etc); conflict of interest – must disclose this special interest to the client and the client decides whether or not to continue with the lawyer
Duty to avoid conflict of interest
• After full disclosure to the client and client can decide whether or not to continue with the lawyer
• Not to acquire proprietary interest in the subject matter except it is a right of lien to ensure your fees are paid
• Not to appear as counsel where also a partner
• Partners, associates and affiliate cannot also appear (Rule 17 RPC)
Duty to represent client within the bounds of law (Rule 15)
• Keep strictly within the law
• Restrain his client from misconduct or breach
• A lawyer shall not give service or advice which is capable of causing disloyalty, breach of law or disrespect to judicial officer such as explicitly or implicitly advising client to give bribes to judicial officer, collecting the bribe meant for the judicial officer and keeping it for himself
• A lawyer should file suit, assert a position or delay trial or take actions that are meant to harass the opponent or are malicious
• Lawyer should not advance a claim unwarranted under the existing law e.g. no law supporting the claim except where within the law, it is not a popular argument but something to support your argument within the law, then lawyer can bring the case; or where the lawyer states that the interpretation of the law should be changed.
• Lawyer should not fail or neglect to inform the client of ADR
• Or fail to disclose what he is required by law to reveal
• Use false evidence
• Make false statement of fact or law
• Creating and preserving false evidence
• Assist in conduct that is illegal or fraudulent
• Any conduct contrary to any of the rules
Duty to represent client competently: Rule 16
• If not competent, must find a competent lawyer to partner unless the client objects
• Adequate preparation: take comprehensive instructions, know the facts of the case fully, your defence and the opponent’s case so as to rebut the opponent’s case
• Not to neglect the mattes entrusted to him
• Shall take full responsibility for his malpractice or professional misconduct
NB: Breach of these duties may result to professional negligence: Rule 14(5) (considered as professional misconduct). Professional misconduct may be gross misconduct which may lead to suspension or striking off from the register of lawyers
Skills
Interviewing a client
• Logical sequence
• Flexible (individual differences)
• Good atmosphere
• Empathy
Stages of interviewing
• Listening
▪ Deep mental analysis: paying attention to what client is saying and what he is not saying, fixing the client’s information into a particular sphere of law to get the defence or claim
▪ Body language displayed (nervous, apprehension, fidgety or speaking too quickly)
▪ Reluctant to reveal information
▪ Your own behaviour
• Questioning
▪ Asking open, narrow, leading (to suggest a particular answer in the question you are asking the person and mirror questions (confirmatory question: to confirm what the client has said)
• Advising
▪ Avoid jargon: avoid giving the client legalistic terms
▪ Explain in layman’s terms
▪ Summarise all the options again if necessary – don’t tell a client what to do, assist the client in knowing the implication of each option
▪ Discuss fees and expenses
Outlines of interview plan
10 top tips of legal interviewing
Week 6
Duties of the lawyer to the client
Privilege and confidence of the client: Rule 19 RPC
• All oral or written communication made by a client in the normal course of engagement are privileged and cannot be communicated or revealed to a 3rd party by the legal practitioner
• The scope: may not reveal client’s secret, use the confidential information to the advantage of the client
• This duty extends to employees, associates and persons whose service are utilised by the legal practitioner
• The lawyer is also under an obligation not to communicate upon the subject of controversy or negotiate or compromise the matter with the other party who is represented by a lawyer, he can only deal with the lawyer
• He cannot use the confidence or secret of his client to the advantage of himself or of a 3rd party
• Section 192 Evidence Act 2011 also provides for non-disclosure of confidential information relating to communication to the legal practitioner in the course of briefing, the content of written document and the advise given to the client
• Section 192(3) E.A: even after the termination of the relationship, the rule still applies – this is even more onerous than the RPC
• Section 193 E.A.: provides that the above provisions shall apply to interpreters and the clerks of the legal practitioners
Exceptions
• He may reveal with the consent of the client after a full disclosure
• When it is permitted by the RPC (e.g. when consent of the client after full disclosure) when required by law (e.g. Money Laundering Prohibition Act – reveal communication if it amounts to money laundering)or by a court order
• When the confidence is about the commission of a crime and disclosure is necessary to forestall it
• A lawyer may reveal such communication when it is necessary to recover his professional fees
• He may also reveal when defending himself or associates against an action of wrong conduct or negligence instituted by the client against the legal practitioner
• Rule 15(4) RPC: where the information relates to the perpetuation of fraud and he has warned the client to desist or rectify it and he refuses, then he is under an obligation to reveal the fraud to the affected person or tribunal, except the communication is privileged. This provision makes it seems that where such information is privileged that the lawyer is not under an obligation to reveal. Rule 15(4) must be read in conjunction with the exceptions created under Rule 19 i.e. where the information is to as to the commission of crime, the legal practitioner can reveal the information even though privileged. NB: this covers where the crime is committed or still being committed
• Money Laundering (Prohibition) Act 2011: Section 6: provides that financial institutions are under the obligation to report suspicious transactions to the appropriate authorities and to keep surveillance on them. Section 7: such record are to be kept for a period of 5yrs even after the serving relationship with the customer. See section 4: non-financial institutions including lawyers are under obligations to report suspicious transactions e.g. where large sums of money is involved and the source of the money cannot be verified. Section 8 - The records referred to in section 7 of this Act shall be communicated on demand to the Central Bank of Nigeria, or the National Drug Law Enforcement Agency and such other regulatory authorities, judicial persons as the Commission may, from time to time, by order published in the gazette, specify.
NB: if the client in murder trial admits that he is guilty, cannot reveal this but cannot canvass a defence based on his innocence. Can use mitigating factors such as involuntary intoxication etc
Also see Rule 19(3)(c): a lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.
Lawyer as witness for a client
• Rule 20 RPC provides that a lawyer should not accept to act in any contemplated or pending case if he knows or ought to reasonably know that he or a lawyer in his firm may be called or ought to be called as witness in the case
However, the rule admits some exceptions, which are as follows: Rule 20(2)
• If the testimony relates solely to an uncounted matter i.e. non-contentious matter
• Where the testimony relates solely to a matter of formality and does not require substantial evidence to oppose it e.g. a testimony as to the procedure for tendering document
• Where the testimony relates solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client
• Where it relates to a matter where the refusal will work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as lawyer in that particular case e.g. in a matter where the character of the client is in issue or it relates to a will where the lawyer happens to be a witness – because no other person to testify to the matter
• Rule 20(4) provides that where the counsel already undertakes the case before realising that he will be called upon to testify, he should withdraw from the case
• Rule 20(5): If in the course of the trial, it becomes apparent that his testimony will be required to uphold the course of justice, it will not be prejudicial to his client, he may leave further conduct of the trial to other counsel and testify
• But under Rule 20(5) he can testify for other parties and continue to represent his client except where his testimony will be prejudicial to his client’s case – this is strange since there are rare cases where the testimony will not be prejudicial to the client
• Allow other persons to represent the client where he is about to testify or believes he will testify but where impossible to get other counsel, he may testify and continue to represent the client but he must not try to show the veracity of his testimony: Rule 20(6)
Rule 24(1) RPC – Responsibility for litigation
• Lawyers are duty bound to accept brief relating to the areas in which they practice, provided the right fee is paid, except there are exceptional circumstances to the contrary e.g. conflict to interest, contrary to his religious or moral belief
• It is the duty of lawyer to decide the case to bring to CT for the plaintiff and the cases he will contest for the defendant
• He will be personally liable if he brings questionable actions or offers questionable defence or advice, he will not be absolved on the basis of following client instruction: Rule 24(2) – lawyer not expected to be a puppet in the hands of the client, he must advice the client and lead the client
• A lawyer should not conduct or defend a case when he knows that it is calculated to harass or injure the opposite party or to work oppression or wrong: rule 24(3)
• It is a lawyer’s duty to take decisions in matters that are incidental and are not affecting the merits of the case. He must not allow his client to propel him to do things that are not proper or professional: rule 24(4)
• He is at liberty to make decisions on what concessions to grant to the opposing lawyer in as much as it does not prejudice the right of his client e.g. agree to adjournment at the instance of the other party: rule 24(5)
• Lawyer is expected to control the incidental matters such as time fixed for trial, applying or resisting adjournment: rule 24(6) and other matters that may come up in CT
Withdrawal from employment
• It is the duty of a lawyer not to withdraw from employment once assumed except for just cause: Rule 21(2)
However, in the following circumstances he may withdraw from employment
• Conflict of interest btw lawyer and client e.g. lawyer is suing (on behalf of the client) for recovery of contract sum and the company sued and discovers that the company belongs to another long-standing client of the lawyer
• Where the client insists on an unjust or immoral course of conduct of his case e.g. he wants the lawyer to bribe a judge
• If he persists in pressing a frivolous case against the lawyer’s advice
• If the client deliberately disregards an agreement or obligation to pay fees or expenses: Rule 21(2)
• A lawyer who is withdrawing from employment should give reasonable notice to the client to enable him get another lawyer: Rule 21(3)
• If the withdrawal occurs after full payment of fees, the lawyer should return the part of the fees that has not been earned: Rule 21(4)
Dealing with client property
• A lawyer is enjoined not to abuse or take advantage of the confidence reposed in him for his personal gain or benefit: Rule 23(1)
• A lawyer who collects money or manages property for his client should report and account for it promptly: Rule 23(2)
Calling at client’s place for business
• A lawyer should not call at a client’s house or place of business for the purpose of advising or taking instructions
• Exceptions: special circumstances or urgency
• Examples of such (though not expressly provided for by the rules) are extreme old age, infirmity of the mind or body, client is in custody etc.
Change of counsel by client
• The rules under Rule 29 gives the client the right to terminate the brief of a lawyer and change his lawyer. After the change the following must be ensured
• The new lawyer should give notice to the former lawyer
• He should use his best endeavour to ensure the payment of outstanding professional fees of the former lawyer
• Both lawyers should give notice to the CT: Rule 29(2)
Duties of the old Lawyer to the client
• All letters written by the lawyer to other persons at the discretion of the client must be handed over to the client e.g. case file, exhibits
• Copies of letters written by the lawyer to other persons at the discretion of the client
• Drafts and copies made in the course of business
While the lawyer is entitled to
• All letters written by the client to the lawyer
• Copies of letters addressed by the lawyer to the client
• A lien on the papers or documents of his client in respect of unpaid fees
Conflict of interest
• Where there exists such conflict a lawyer is duty bound to disclose such: Rule 17(1)
• A lawyer while representing his client should not allow his personal, proprietary, financial or business interest to conflict with the interest of his client: Rule 17(2)
• A lawyer shall not acquire proprietary interest in the cause of action or subject matter of litigation which he is conducting for a client: R17(3)
• He may however, acquire a lien granted by law to secure his fees and expenses or contract with a client for a reasonable contingent fee in a civil case
▪ For a lien: must be a CT order to this effect, the lawyer cannot unilaterally have a lien on the client’s landed property. Different from the lien on the client’s documents where the lawyer can have a lien unilaterally). Section 16 Legal Practitioners Act provides procedure (give client a bill of charges, allow a period of 1 month to elapse before instituting an action in CT)
▪ NB: a contingent fee i.e. when say damages are paid in a civil matter, then the lawyer will be paid his fees
• A lawyer should not accept a brief where the subject matter is likely to affect the interest of an existing client unless the two parties consent: R17(4)
• A lawyer shall not appear as counsel for a client in a matter where he himself is a party: R17(5)
• The above rules also extend to the lawyer’s associates, partners and affiliates
Dedication and devotion to the cause of the client
• A lawyer is duty bound to devote his attention, energy and expertise to the service of his client and subject to any rule or law to act in a manner consistent with the best interest of the client
• A lawyer is under an obligation to observe the following:
• Consult with his client in all questions that are not within his discretion e.g. settlement out of court, granting concessions to the opposing party
• Keep the client informed of the progress of the case and important development e.g. client is not in CT, lawyer should write to the client informing him of the progress of the case, next date for hearing, encouraging him to be in CT
• Warn the client against any particular risk likely to occur in the course of trial
• Respond as promptly as possible to the requests for information by the client
• Inform the client where he considers his case to be hopeless
• A lawyer is enjoined to be personally present and represent his client throughout the proceedings: R14(1)
• Failure to represent client properly will be considered a misconduct: R14(5)
• However, a lawyer is not under any obligation to carry out instructions of the client if it contradicts his professional judgment
Representing clients within the bounds of the law
• A lawyer’s first duty is to uphold the law, this supersedes his duty to his client, therefore, he must refuse to participate or aid conducts that are unlawful: R15(1)
• Where the client insists on perpetuating illegality, a lawyer must withdraw his employment: R15(2)
• A lawyer shall not agree with his client to carry out any act which may bring disrespect to a judge or compromise any public holder: R15(3)(a)
• Agree to file a suit which is meant to annoy, harass or injure another person: R15(3)(b)
• A lawyer shall not fail to inform his client about the option of ADR mechanism before resorting to or continuing litigation on behalf of his client: R15(3)(d)
Representing clients competently
• A Lawyer shall not handle a legal matter which he knows or ought to know that he is not competent to handle without associating with a lawyer competent to handle it unless the client objects
• Handle a legal matter without adequate preparation
• Neglect or abandon a legal matter entrusted to him
• Attempt to exonerate himself from or limit his liability to his client from his personal misconduct: R16
General duties of lawyers
• Fiduciary relationship: the relation btw the lawyer and his client is fiduciary in nature, a position of trust, therefore lawyer should at all times be honest, fair and open in dealing with his client
• Rule 1 enjoins lawyers to uphold and observe the rule of law, promote and foster the cause of justice, maintain high standard of professional conduct and should not do anything that will portray the profession in a bad light
• This is even higher than the duty to the client
WEEK 7: DRAFTING 1 (I) BASIC DRAFTING PRINCIPLES; (II) LETTER WRITING CONTENTS – also draft a legal opinion
BASIC PRINCIPLES IN DRAFTING
Drafting is a form of communication in permanent form. The art of legal writing. Drafting is a legal composition. Thus, an important skill that every legal practitioner needs to possess. Documents are drafted in English language, because it is the language of the law in Nigeria.
Standard British English, and plain English, should be used in drafting documents. Therefore, law graduates should have acquired sufficient knowledge of English grammar in the course of their education.
It is used to prepare the following documents:
1) Pleadings;
2) Agreements;
3) Reports;
4) Letters;
5) Legal opinion;
6) Memorandum; etc
It consists of sentences, and each sentence must be a unit of sense.
George Coode in his book “Legislative Expression or the Language of the Written Law” states that every legislative sentence consists of four parts namely:
1. The description of the legal subject;
2. The enunciation of the legal action;
3. The description of the case to which the legal action is confined; and
4. The conditions on performance of which the legal action operates.
Every legislative sentence must contain a legal subject and a legal action. The action that is of the legal subject is linked to the subject by using a connective between the legal subject and the legal action. The connective would depend on if the legal action is mandatory, prohibitory or permissive. If it is a mandatory action, then a connective expression as “shall” would be used; of prohibitory, “shall not” would be used; and if permissive “may” or “may not” would be used.
Most legislative sentences are qualified and subject to cases and conditions, which must precede the legal subject and not action.
George Coode’s order for drafting legislative sentence is arranged thus:
CASE – CONDITION – LEGAL SUBJECT – LEGAL ACTION
a) THE LEGAL SUBJECT
The legal subject must necessarily be a person who is conferred with the rights, power, privilege, obligation or liability to carry out a legal action.A legal subject cannot be a thing because it is only a person that can be conferred with rights, powers, privileges etc.
b) LEGISLATIVE ACTION
This is the action required of the subject and this action is linked to the subject by using a connective. The connective depends on whether the legal action imposed on the subject is mandatory, permissive or prohibitory. For instance, the connective expression “shall” is mandatory. “May” or “may not” is permissive, while “shall not” is prohibitory.
c) THE CASE
The case states the circumstances in which the legal action can be involved. In stating the case, the expression such as “when”, “where” can be used.
d) CONDITIONS
Conditions may be prescribed which have to be fulfilled before legal action can be taken. Where there are such conditions, no legal action can be taken until they are complied with. Expressions such as “if” and “unless” are used in stating conditions.
However, some legal writers have criticised the above form by stating that a simpler form should be better to help legal practitioners in drafting. Thus, a sentence should be arranged in the manner below:
SUBJECT – VERB - OBJECT
The subject being the actor, that is, a person empowered to do or refrain from doing an act.
The verb states what is to be done or not to be done.
The object on the other hand, is the thing or person being acted upon.
In using the above format to prepare a good draft, the legal practitioner should state precisely in a clear manner what ought to be done by the person or thing involved in the body of the draft and should also go an extra mile to state what the person or thing should refrain from doing, and the person or thing in which the essence of the draft is to be acted upon.
USING PROPER LANGUAGE AND GRAMMAR AND AVOIDANCE OF AMBIGUITY IN DRAFTING
The proper language to use as earlier stated is Standard British English, and plain English for this will help easy understanding of whatever document that is to be prepared by a legal practitioner.
To be an efficient legal writer, the legal practitioner should have a proper understanding of Standard British English, particularly in respect of the following:
1. Spelling
2. Sentence structure
3. Paragraphing.
4. Grammar.
5. Capitalisation.
6. Punctuations.
To avoid ambiguity, nouns should be preferred to pronouns even at the cost of repetition.
Adjectives and adverbs should also be used carefully because their meanings are less clearly fixed than that of nouns.
PRECEDENTS IN DRAFTING DOCUMENTS
This is a system of jurisprudence based on judicial precedents rather than statutory laws, which is advisable for an efficient legal practitioner to use in drafting good documents. Precedent should be cautiously used and used in the Nigerian context. Forms and precedents must not be slavishly. Note not all the drafts in the textbooks are correct. Some adaptations and modifications as are relevant to the Nigerian context may have to be made: Olufuntuyi v Barclays Bank DCO Ltd (1965): lawyer can use precedent in drafting but must be adapted to the Nigerian context.
PRODUCING ERROR FREE DOCUMENTS
The best way to produce error free documents is to:
1. Avoid ambiguities.
2. It should be well planned.
3. Drafts should be sent for perusals, that is, the document should be read thoroughly or carefully.
4. It should undergo scrutiny i.e. getting the service of another legal practitioner or practitioners.
5. The use of short sentences is advisable to aid clarity.
6. Proof read your document, that is, edit and check the draft for any further error.
THE NEED TO ADEQUATELY REPRESENT THE INTENTION OF THE CLIENTS IN DRAFTING DOCUMENTS
The reason is that most clients are illiterates and do not know how to go about drafting document or documents, as such they acquire the services of legal practitioners to assist them in drafting good documents.
The legal practitioner on the other hand is to get a checklist from the client as regards to what the draft shall curtail. The legal practitioner however, must not allow the client to stipulate the type of document to be drafted. No matter how experienced in legal transactions the client is, he or she does not know the law. The knowledge of the law is the preserve of the legal practitioner. Thus, it is the legal practitioner’s knowledge and expertise that should be exercised in deciding which document can appropriately embody the transaction.
Oral and documentary details of the transaction must be provided by the client, and in some cases, the legal practitioner must visit the subject matter of the transaction, if necessary, to gain a better understanding of the transaction and to enable the legal practitioner draft an appropriate document.
STAGES OF DRAFTING
There are several stages of drafting which includes:
1. Taking and understanding instructions
2. Analysing, classification and research
3. Design, planning and outline of the draft.
4. Composition.
5. Scrutiny.
6. Editing and checking the draft.
TAKING AND UNDERSTANDING INSTRUCTIONS: It is crucial for a legal practitioner to obtain from his client full instructions prior to drafting a document for a conveyancing transaction. Instructions may by client orally or in writing. Where instructions are oral, the legal practitioner should write down the instructions taken from his client. Lawyer to make adequate preparations for the conduct of the interview, he should get a pro-formal interview ready which will contain all pertinent questions he intends to ask, a lawyer should be courteous to a client and make him relax, a lawyer should be sure he gains the client’s confidence and attention from the beginning, a lawyer should be in control of the interview all through the interview period, a lawyer should not allow his client irrespective of how experienced he may be to dictate the legal format the transaction should take, a lawyer must look and feel pleased to see his client (a welcoming smile may be good but the lawyer must not appear patronising), a lawyer’s mood throughout should be sober, decorous but not mournful, a lawyer should take his client through the questions and answers and tick off answered questions as the interview progresses (counsel must not seem too probing in this exercise), a lawyer should carefully consider the totality of the instructions received (clarify and resolve any ambiguities, ask for further elucidation on areas which appear to be in doubt), a lawyer should put instructions in legal form and add such legal provisions necessary to give real effect to the client’s instructions, note and identify the intention of your client vis-à-vis the intention of the other parties in the transaction (what are your client’s obligations?)
DESIGN
This is the act of working out the form of something (as by making a sketch, outline or plan). A legal practitioner must make or work out a plan for the draft. Thus, a draft must have a good design e.g. whether the document will be divided into parts, chapters, clauses etc for easy assimilation. The order – the document should bear such an order that will make it most readily understood. The idea should be arranged in some order e.g. in order of sequence. Accuracy and precision – all superfluous phrases should be avoided, legal language should be precise and accurate. Each sentence should bear an order that will most readily and clearly bring put the meaning of the sentence.
PLANNING AND OUTLINE OF THE DRAFT
This is the cognitive process of thinking about what you will do in the event of something happening. That is, the plan should have the will and intention to carry out some action that is derived from the design. There should also be a schematic or preliminary plan acting as the outline of the draft.
COMPOSITION
This is the spatial property resulting from the arrangement of parts in relation to each other and to the whole, that is, the way in which the draft is composed. Thus, the draft should be created by arranging several precedents to form a unified whole.
SCRUTINY
This is the act of examining something closely (as for mistakes). For a draft to be error free, a legal practitioners draft should undergo scrutiny that is, getting the service of another legal practitioner or practitioners.
EDITING AND CHECKING THE DRAFT
This is the last stage of drafting. After a draft has undergone scrutiny, a legal practitioner should edit and make omissions or additions based upon what is scrutinised and give a final thorough check to see if it is standardised.
HABITS TO AVOID IN DRAFTING
For a drafting to be good, a legal practitioner has to avoid certain words which if used will act as pitfalls to good drafting techniques. Such words are as follows:
1. Words and phrases that are uncommon and intricate expressions–A legal practitioner should avoid words or phrases that are uncommon or having many complexly arranged elements, that is, elaborate or complex words should be avoided e.g. unnecessary foreign words, slangs, jargon. For example instead of ‘it shall be lawful for a tenant”, it is clear to say “the tenant shall…”
2. Verbose statements and excessive use of words–A legal practitioner should avoid using statements that contains more words than are needed and should also refrain from using excessive words in order for the document to convey a simple meaning. A large number of verbose examples are found in old legal documents. Some of the words used in these documents are repetitive and this type of drafting should be avoided. For example, “buys, purchases & sells, alienate and takes legal interest in land situate & located at….”, “Null and void and of no effect” (repetitive).
3. Archaic words and expressions –The use of old words should be avoided and be placed with modern words. For example, “doeth” is an archaic word for “do”. Examples of archaic words are whereas, aforementioned, whereof, herein after, herein, hath, doth. These should only be used where they are absolutely necessary. Also avoid technical terms and abbreviations. It is unnecessary to repeat the word whereas to introduce every document. Changing language – different words should not be used to say the same thing in the same document. Do not start with landlord and end with lessor. Be consistent throughout.
4. Latin words and phrases – In drafting, sentences should be written in plain English devoid of Latin words and phrases. The use of Latin words and phrases should be avoided when drafting documents for a client because not all clients understand its meaning. For example, rather than writing the Latin word or phrase: “et in terra paxhominibusbonaevoluntatis”, the English phrase “and peace to his people on earth” should be written. Use plain, everyday language that can be understood by both lawyers and non-lawyers. And don’t use abbreviation (e.g. FCT should be Federal Capital Territory).
5. Use of pronouns instead of nouns, adverbs instead of verbs -To avoid pitfalls in drafting, nouns should be preferred to pronouns even at the cost of repetition. Verbs should be used instead of adverbs. Adjectives and adverbs should also be used carefully because their meanings are less clearly fixed than that of nouns.
6. Improper use of words –A legal practitioner should avoid improper use of words. Words like may, shall, will, when, where, etc. should be used at the appropriate places. In ordinary usage, ‘will’ used in the first person implies a wish or intention. Ensure that the intention of tour client is properly reflected. Will or any gives some kind of discretion but for an obligation, use the word ‘may’. Ogwuche v Mba (1994): advocated that ‘must’ is more compelling and obligatory than ‘shall’. Improper use of ‘and’, ‘or’. And is used ordinary in conjunctive. See Ezekwesili v Onwuagbu (1198).
7. Clumsy and inelegant words and phrases –A legal practitioner should not used words that are clumsy, that is, words or phrases that are difficult to use, because they are not elegant or graceful in expression.
8. Redundant words or phrases, jargon and technical terms –A legal practitioner should avoid using words and phrases that are no longer needed or useful in drafting documents. He should also avoid jargons because such words or expressions are not accepted. However, it is permissible to use technical terms and terms of art where they are understood in the trade or profession, when the document is intended for persons engaged in that trade or profession.
AID TO CLEARNESS AND ACCURACY
For a document to be well drafted, it must be clear and accurate. The following will aid a legal practitioner to draft an accurate and clear document:
1. Punctuations –A legal composition must be properly punctuated. Punctuation aids clarity and enables the sentence to convey the intended meaning. Punctuation marks must be used correctly, if they are to serve a useful purpose. The use of proper punctuation marks is an essential part of good drafting. The punctuation marks that may be used are – full stop, comma, colon, semi-colon, brackets, question mark, exclamation mark, quotation marks, hyphen and apostrophe. Section 3 of the Interpretation Act 1964 states that punctuation forms part of an enactment and is taken into account in construing it. See Houston v Burns (1981); Shell BP v FBIR (1976)
2. Capitalisations –A sentence must begin with a capital letter and may end with a full stop, exclamation mark or question mark.
3. Use of definitions –When words are used in drafting a document, it is advisable for a legal practitioner should define words, which he believes will not be understood by a client. For example, when a legal practitioner uses words like “lessor”, “lessee”, mortgagor, etc, he should define such words to give its original meaning.
4. Use of interpretation clauses –This is the act of interpreting something as expressed in an artistic performance. When this is done, the legal document will convey a great meaning making it clear and accurate. In this Act, unless the context otherwise requires, a child means…..; association means the Nigerian Bar Association; Attorney-General means the Attorney-General of the Federation
5. Words in use to avoid context, ambiguity –Words that convey one meaning rather than several meanings or context should be used.
6. Conveyancing Law and Interpretation Act 1964, sections 14 and 18 –Both sections referred to make use of words like “month” and “person”. To achieve clarity and accuracy, the meaning of such words should be explained. Thus, “month” means a “calendar month”(not 31 days because not all the months have 31 days), whilst “person” includes a “corporation”.
7. Brackets –These are in pairs: open and closed brackets. They are also called parenthesis. Generally, they are used to enclose an aside or afterthought, which further clarifies a sentence. Brackets are used in legal documents to enclose nicknames given to parties to a transaction e.g. (the seller), (the buyer), etc. They are also used to enclose abbreviations or equivalence of figures in words. There are two types of brackets namely round ( ), and square [ ]. Square brackets are used in quotations where words which do not belong to the quotation are inserted in the quotation for sake of clarity while round brackets are used in all other situations except in citations of certain journals and law reports.
8. Schedule –This is an annex or appendix to a statute or other document which aids clarity. Thus, they are part of enactment – A. G v. Lamplough (1878) 3 EXD 214. This makes the document easier to read, details are banished to the schedule so that the reader is not distracted form the points of the document.
9. Repetition of preposition – This should be done in a logical manner in order to convey the essence of the legal document. That is, prepositions should be repeated where and when necessary for sake of clarity.
10. Enumerating particulars and the exclusion of the “Ejusdem generis rule” –A legal practitioner has to determine the number of particulars by mentioning them one after the other and avoid the use of “ejusdem generis rule” which means “of or as the same kind”. Because, this might lead to ambiguity – Cotman v. Brougham (1981) A 514.
11. Cross headings and computation of time –These are used to give a clearer understanding of a legal document.
NB: Clarity: a word used can change the fortune of a party: Consolidated Contractors v Masari (2011) 3 NWLR (pt 1234)
SENTENCE AND PARAGRAPHS
1. Sentences - A sentence must begin with a capital letter and may end with a full stop, exclamation mark or question mark.
a) Sentences – Sentences should be written in plain English.
b) Lengths of sentences – Long sentences should be avoided at all cost instead such a sentence should be redrafted into series of sentences. The length of a sentence depends on the idea in the sentence. Several scholars have given different ranges of words that should be contained in a sentence but a lot of them have agreed on a maximum of twenty eight (28) words while others ranges from twenty (20) words to twenty five (25) words. Thus, a sentence must neither be too long nor too short. So it should be short but must convey the meaning of actions to be taken or message to be conveyed
c) Use of active words and not a passive voice –Short, familiar words should be used instead of long unfamiliar words. Concrete words should be preferred to abstract. Words giving the same meaning should be consistently used. Technical words should be used sparingly. E.g. Fejiro broke the glass (active) and not the glass was broken by Fejiro (passive)
2. Paragraphing technique –Sentences must be arranged in paragraphs, each paragraph consisting of a thing, idea or argument. The division of a text into paragraphs makes for easy reading.
3. Lengths of paragraphs –Suggestions have been giving about the right length of a paragraph, ranging from five (5) sentences to six (6) sentences. In some cases, they may be drafted in clauses and sub-clauses duly numbered e.g. affidavits should be numbered.
4. Numbering and indentation in paragraph – This is necessary in order to make clarifications in a legal document.
PARAGRAPHS
PARAGRAPHING TECHNIQUES –
• Sentences must be arranged in paragraphs
• Each paragraph consisting of a thing, idea or argument.
TYPES OF PARAGRAPHING TECHNIQUES
1. Two layered text which is divided into
• Introductory statement,
• Numbered paragraphs
1. Three layered text which is divided into:
• Introductory statement
• Independent paragraphs, and
• Concluding statement.
NOTE- EXAMPLES/ ILLUSTRATIONS FOR EXAMS
RATIONALE-The division of a text into paragraphs makes for easy reading.
LENGTHS OF PARAGRAPHS –
Should range from five (5) sentences to six (6) sentences.
USE OF NUMBERING AND INDENTATION IN PARAGRAPH to differentiate the different paragraphs.
Rationale -This is necessary in order to make clarifications in a legal document.
NOTE FURTHER: In exams, you will be given a long sentence and asked to re-draft using paragraphing techniques.
EXPRESSIONS AS TO TIME
In computation of time there is the problem of whether to reckon exclusively or
inclusively the stated date or dates in legal document.
“ON”- when used it is interpreted as INCLUSIVE of the stated date.
E.g. on 10thNovember 2011, includes the stated date.
It means the whole day.
“FROM”
When used the stated date is construed EXCLUSIVELY.
E.g. from 10th November,
2011. It excludes the 10th and starts running on the following day 11th November, 2011.
CARTWRIGHT V. MC CORMICK (1963) I WLR P. 187
STEWART V. CHAPMAN (1951) L K. B. 796.
“AT”: This is used where it is intended to take into account fraction (hours) of the day.
E.g. “commences at 10.00am”.
The interpretation is that parties intend to reckon with fractions of day.
“AFTER”
When an event is stated to take place after a named date the date of the event
is to be excluded.
E.g.
“This agreement commences after the payment of the sum of 1 million naira”.
Brown v. Black (1912) l K.B, 316.
“TO”
• If a legal document expresses “from 10th November to 15th November, 2011.
Because of the use of “from”, 10th is excluded but it is not clear whether 15th is
included because of the use of “to”.
• To avoid ambiguity it is better to add “both dates inclusive” or “the 15th day inclusive”.
“TILL” OR “UNTIL”
• This does not give clear indication of inclusiveness or exclusiveness.
• To avoid ambiguity use “till and including” or “till but excluding”
e.g.
• “till but excluding 10th November …”
• “till and including 10th November …”.
“AT THE EXPIRATION OF”.
It may mean
- not later than the expiration of, or
- at or after the expiration of.
If within a reasonable time is intended, it should be so stated.
THE GOOD OF RUDDY(1972) L.R, 2P and D 330.
“DAY”
• This means the period of 24 hours starting at a midnight and ending on the
• following midnight.
• Generally it is used to mean the whole day
• But where fractions, that is, commencing at a particular hour of the day is intended, it should be clearly stated by using the word “at”.
BELFIED V. BELFIED
CARTWRIGHT (SUPRA)
“CLEAR DAY”
Simply means the period of 24 hours starting at midnight, excluding fractions of a day.
“WORKING DAY”
• This means Monday to Friday excluding public holiday, Saturday and Sunday.
Essien v. Essien (2009)
The Court of Appeal took judicial notice of Saturday as a work free day.
• An act to be done on public holiday shall be deemed duly done if done on the next day.
Section 15(3) Of Interpretation Act
• However, where the act is to be done within a particular period not exceeding six days holiday shall be left out of account in computing the period.
“A WEEK”
• This is a seven (7) clear days starting midnight of Saturday to the midnight of the next Saturday.
• However parties can state in their agreement that the period begins at midnight of any particular day of the week to the midnight of the corresponding day in the next week. E.g.
“Midnight Monday to midnight Monday”.
“MONTH”
• Generally, month can be lunar or calendar month.
• In Nigeria a month is referred to as a calendar month.
• On the meaning of calendar month section 18 of the Interpretation Act
defines it thus:
“A calendar month ends upon the day in the next ensuing month having same number as that on which the computation began.
• But if the next ensuing month has not the same number as that on which the computation began, then the calendar month on the last day of the next ensuing month.
E.g. calendar month from
28th March expires on 27th April
29th January expires on 28th February
31st August expires on 30th September
DOODS V.WALKER (1981) WLR 1027
AKEREDOLU V. AKINREMI(1985) 2NWLR (pL10) p 787
The calendar month is calculated according to the Gregorian calendar.
“YEAR”
A year is a period of 12 months usually calculated from 1st January to 31st December.
When a contrary intention is intended it should be clearly and expressly stated.
“WITHIN A REASONABLE TIME’’/ “AS SOON AS POSSIBLE”
• “Within a reasonable time” is common in commercial documents and in some cases implied.
• The phrase should be avoided as it is difficult for two persons to agree on what is a reasonable time.
• Where possible specify the time frame.
• “As soon as possible” means shortest possible time or within a practicable time
• It is imprecise, unspecific and its construction depends on circumstances of each case.
• Both phrases should be avoided as much as possible.
• However, where there is uncertainty or the performance of act or obligation depends on prevailing circumstance their use become inevitable.
“NOT LATER THAN” / “NOT EARLIER THAN”
In both cases the stated date is INCLUSIVE in constructing the period of time.
“FORTHWITH” / “IMMEDIATELY”
• Both words means prompt or without delay.
• They are imprecise and their meaning depends on the circumstance of each case. “Forthwith” is archaic and should be replaced with immediately.
Legal practitioners may be required to draft several documents. These include internal memoranda, letters, legal documents, legal opinions and advice, and pleadings. Drafting rules must be followed when drafting documents and the right format adopted. Also, the appearance of legal documents is important. Documents should be well laid out to aid readability.
Writing is the official medium of official communication in legal practice. Therefore, it cannot be over-emphasised the need to develop good writing skills. It is active/physical vehicle through which the thoughts of a writer are expressed and communicated to the recipient of the letter. As legal practitioners, you will be required to draft letters of various kinds in the course of your practice. As a permanent form of communication, utmost care must be taken during the preparation stage to:
a) Ascertain the instructions received from the client
b) Fully understand the purpose and nature of the letter to be written
It helps the lawyer in choosing the appropriate style, layout, tone and vocabulary to use. When acting in a professional capacity, a formal style should be adopted. It should be in the first person singular or plural (I or We) and you must be consistent. If it is a sole practice, the lawyer should use ‘I’. You must also use the active voice. The active voice is simple and easy to read, informative and specific, clear and precise therefore giving rise to short sentences. The passive voice is an official style, verbose, vague, ambiguous and giving rise to long sentences. Avoid making the letters chatty and also avoid the use of slangs and abbreviations. The tone should be polite, humane and firm. Avoid being rude. Weston v Central Criminal Court Administrator (1977): the client was arraigned for soliciting/street trading, his lawyer wrote to the Court and adjourned to a particular date. A CT official made a mistake and fixed an earlier date than agreed by counsels. The counsel to accused wrote a nasty letter to the CT (saying mindless CT official wrote the wrong date). This was held that this was not in good taste for a legal professional; Boyo v AG Midwestern State (1971). Be careful about choice of words, spelling and place punctuations properly. As much as possible, restrict your letter to one page. Each paragraph in a letter should contain one idea only. Clearly identify why you are writing the letter and what you want the letter to achieve. Can this result be achieved better by any other means (e.g. phone call or a meeting).
Types of letters
• Official (business) letters
• Informal (social) letters
Formal Letter
• Indented style is the old style. For modern purposes, American style i.e. the block (aligned) style or modernised British style: semi-blocked (indented) style). In either one, you can use open or closed punctuation
• In the case of EIB Building Society Ltd v Adebayo (2004) All FWLR (Pt 193) Pg 228: a lawyer wrote : I am directly to confirm to you that EIB has fully refinanced…….. you are therefore to fully discharge your obligation….this has always been the position of things as you very well known or must have known. Supreme CT held that this writing is worthless without any moduline of business acumen. Supreme CT said ‘finally (pg 366) remember that you will be judged by the letter you write. Although clients do not know whether you know the law right, they will know whether you spelt their name right. And many will know whether you made grammatical errors. If you want to be known as a competent lawyer, then write a good letter”
Parts of a letter
Contents of a formal letter
1) The Sender’s Address or Letterhead: every formal letter should begin with the sender’s address written at the top right-hand corner of the paper. In modern practice, law offices have printed letterhead having the address of the office. A lawyer should not be cosmetic or flamboyant in the design of letterhead and black and white is most preferred. A letterhead may contain the logo of the law firm, the name of the firm, the address of the firm, the telephone number(s) of the firm, the email address and where applicable, the website address
2) Reference: In the past, because letters were printed with analogue typewriters, letterheads had ‘Our Ref’ and ‘Your Ref’ printed on them. This method has however become obsolete as letterheads are stored in computers nowadays, consequently leaving the person drafting the letter to insert the reference. Where such references are not utilised, it will be unnecessary to include ‘Our Ref’ and ‘Your Ref’. However, in keeping with the tradition of the legal profession, lawyers are expected to have all their correspondence well referenced e.g. Law/2011/23. Helpful for record purposes such as filing and cross referencing and retrieving such documents
3) Date: in the past, the date was placed immediately below the sender’s address with a line spacing in btw the address and the date. In modern times, using the block style, the date is written to the left-hand side corner above the addressee’s address. However, there are no hard and fast rules as to where the date should be placed. Dates should be written in full e.g. 7th July, 2015 (using the British style) to eliminate doubts as to when a letter was written and it makes for formality and decency. Should include actual date of dispatch (not back date). Be consistent with whichever style you choose
1) Status of the letter: Special Instructions/Special Markings: special instructions or markings such as ‘STRICTLY PRIVATE AND CONFIDENTIAL,’ ‘CONFIDENTIAL’, ‘PRIVATE’ or ‘PRIVATE AND CONFIDENTIAL’, ‘WITHOUT PREJUDICE’, ‘SUBJECT TO CONTRACT’ contained in a formal letter are often typed in the upper case and inserted btw the date and the addressee’s address. However, there is no consensus among authors as to the location of special instructions or markings. Whereas some authors are of the opinion that is should be written immediately after the date or before the date, some state that it can be placed at the right-hand corner above the salutation
a) Confidential: where a letter is marked ‘CONFIDENTIAL’ , it means any person deputising for, or the secretary to the addressee may open and read the letter. However, the information should be kept strictly within the law firm, company or institution to which the letter is addressed
b) Private or private confidential: where marked with these, the implication is that only the addressee should open and read it and no other person
Where any of the above special instructions are used in a formal letter, a corresponding mark should be printed on the envelopes to ensure compliance
c) Without prejudice: when used by parties, it means that the parties have negotiated a settlement without implying any admission of liability and thus cannot be given in evidence in trial. Where a letter is marked ‘WITHOUT PREJUDICE’, it is the intention of the parties (writer and recipient) that the letter cannot be tendered as evidence in any courts without the consent of both parties i.e. it serves as an estoppel to preclude or bar of evidence as to the contents of the letter. The position of the writer is not jeopardised if the terms he proposes are not accepted or where negotiations breaks down between the parties
d) Subject to contract: where letter is marked with this, it means that the agreement reached by the parties is not binding on the parties until a formal contract is made. Where a letter of acceptance is marked ‘SUBJECT TO CONTRACT’, such an acceptance is considered invalid. A lawyer should ensure the implication of any of the phrases in formal correspondence sent and received. UBA v Tejumola & Sons Ltd (1988): the agreement was reached subject to contract which Tejumola didn’t obviously understand. He demolished the flats to create a banking hall and built a slap for a banking hall. UBA then said that they were no longer interested. Supreme CT held that since the agreement was made subject to contract, UBA was not bound.
2) Attention Line: where a formal letter is addressed to a law firm, a company, a government department or an institution, but however intended that a particular person should deal with the subject matter, then attention line is used giving a line spacing with the addressee’s address e.g.
For the attention of Mr Peter Clark, Chief Accountant.
Johnson & James Ltd
Plot 65 Amada Close
Wuse II
Abuja
3) Recipient’s address: the name and address of the recipient should be written as it will appear in the envelope. Where the letter is addressed to a particular department, the department and the address should be written
Example:
Mr Oche Sule
Saulanat & Antic Ltd
Personnel Manager
Plot 72 Cross River Avenue
Area 3
Garki
Abuja
Where a letter is written to a foreign country, the name of the country should be included on the last line of the address. In many foreign countries, postcodes are used. In Nigeria, PO Box or Private Mail Bags (PMB) are used where physical address is not used
4) Salutation: the salutation is contingent upon the recipient. There should be a line spacing btw the recipient’s address and the salutation e.g. Dear Sir (Traditional) or Madam, Dear Mr Johnson (less formal modern), Dear Sirs, Dear Madam, Dear Sir. Honorary titles can be used e.g. Dr, Prof, President, Governor, Minister, Ambassador. When Dear Sir is used, probably the first time writing to the person, but where you use Dear Mr Johnson, then you’ve had interaction with the person for a while. The salutation may be handwritten in simple official letters especially when it is within the organisation (a special touch to this letter)
5) Heading: it should present at a glance a summary of the content of the letter. Heading must reflect the subject matter of the letter. Heading may be omitted in simple official letters. The heading is written with a line spacing after the salutation. It is a brief description of the content of the letter. It is appropriate to be written in the upper case for prominence. In litigious matters, the name of the client or the parties must be specified first, followed closely by ats (at the suit of). RE (with regard to, in respect of) serves as a signpost and it refers to other communication that has gone on in respect of this matter btw the parties. Though it may be dispensed with in consonance with plain English
Examples
RE: PAYMENT OF CONTRACT SUM
RE: VAYMOND v DUPE
APPLLICATION FOR THE POST OF A LAWYER
6) Body of the Letter: formal letter comprises of three main segments: the introductory paragraph, the main paragraph and the concluding paragraph. The introductory paragraph (opening paragraph) should briefly explain the basis for the letter and confirm relationship with the client. In a legal letter, the introductory paragraph gives a brief description of the lawyer’s relationship with the client. In an application letter, an introductory paragraph establishes the purpose for writing the application letter; it gives an explanation to the job applied for and the source of information of the vacancy. Introduction Example is: We write as counsel to Mr Phillips & Co. acknowledgment: with respect to the above subject matter (when referring to other correspondence). The main paragraph states the reason a lawyer is writing the letter by pinpointing the issues and sequentially presenting them. Contain the actual message(s) to be conveyed, it may be one or more paragraphs. The concluding paragraph states what action is to be taken and by whom e.g. stating the action that you expect from recipient or what you intend to do on behalf of your client. Do not make threats that you know you will not carry out.
7) Complimentary close: a closing greeting comes immediately after the last paragraph with a line spacing. It usually comes before the signature. It is a polite way of ending a letter e.g. Yours faithfully. The mode of salutation dictates the choice of complimentary close. If you use Dear Sir, then use Yours faithfully or Yours truly. When you use Dear Mrs Smith, then use Yours sincerely. Avoid flowery or archaic terms (I have the honour to be your most obedient and long-serving servant)
8) Writer’s signature: comes after the complimentary close. Signature is necessary for authentication and identity of the writer. Where a person signs on behalf of the writer either because of the writer’s unavailability or indisposition, the practice is to write the words ‘for’ or ‘pp’ after your name. Lawyers must read and scrutinise the letter before appending their signature. Sign on top of the name.
9) Sender’s name: comes immediately after the signature
10) Enclosures: where there are documents sent together with the letter, it is traditional to indicate this in the body of the letter at the foot below the writer’s designation. It is usually abbreviated as ‘Encl’ or Encls at the bottom left hand corner followed by a list of documents enclosed. It is useful to dictate the number of enclosures e.g. Encs x 2. Some lawyers itemise the documents attached
E.g.
Encs
(1) A bill of charges
(2) An invoice
11) Copies: when a copy is to be sent to a third party, it is customary to use the word ‘copy’ or ‘copy to’ or simply ‘cc’ followed by the distribution lists
Example
Copy: Daniel Fox, Chief Accountant
12) Where blind copies are sent, the abbreviation ‘bcc’ is written on the office copy of the people copied. The addressee’s copy will not have any cc. It means that the writer does not want the addressee to be aware that copies are sent to third parties
Example of formal letter
EMEKA WIGWE & CO.
(Barristers and Solicitors)
No. 1 Wigwe Crescent, Ughelli
Phone No: 07081112222 Email: Wigwe@ Fax: 12345678
Our Ref: ______________________Your Ref: ____________________________
13th December 2013
Mrs Mercy Jemiye
No. 2 Adolor Close Ughelli.
Dear Madam,
re- registration of business name ‘Journey Mercies Transport Company’
We are happy to inform you that the Corporate Affairs Commission (“CAC”) has approved our application to reservation the business name “Journey Mercies Transport Company” in your favour.
We request that you kindly forward the following documents to enable our firm complete registration of your business name:
1. Your tax clearance certificate; and
2. Two (2) passport photographs
As soon as we receive the above documents, we shall promptly forward same, along with the necessary forms, to the CAC for registration of your business. Kindly contact us if you
Your faithfully,
Emeka Wigwe Esq
Principal Partner
For: Emeka Wigwe & Co
Contents of a Legal Opinion (e.g. when a Bill is in formation at the House of Assembly or from the AG’s office)
• Introduction: cite the fact that writer has been authorised/briefed to write a legal opinion on……. (the authorising official must be stated and the capacity in which he is authorising the writing of the legal opinion)
• Summary of the facts where they are available. Where the facts are vague, writer to ask for clarification from the authorising official (e.g. company wishing to merge asks the company secretary for a legal opinion on the merger)
• What the applicable law is (if one exists e.g. what is the law states in relation to the topic e.g.). sometimes, the possible of the law may be multifaceted. Start with the one that is in the favour of your opinion down to the least favourable
• Apply the law to the facts of the case
• Conclusion. Certain circumstances, where there is one than one conclusion. Start with the best conclusion and move down to the options. Conclude by stating what you think should be done based on the facts of the case
• Sign the legal opinion
Contents of Legal Opinion under the law of tort
• Summary of the facts
• Who to sue if identity of parties are unclear
• Liabilities of the parties
• Remedies to be sought/available to the client
• Case law and decisions of the Court in event of litigation of which is the best remedy to be sought by the client
• May require further information and documents
• Procedure to be followed
• Limitation period (if it is key, then flag it in introduction, if not put it after procedure to be followed)
Guidelines to Legal opinion
• Restrict answer to which opinion is sought. Avoid general discussion
• Make the answer clear, simple and comprehensible to the recipient
• State the opinions’ limitations if any (e.g. you didn’t have access to all the necessary relevant information/data)
• Address all sides to the issue in an objective manner and state your opinion (avoid balancing arguments)
• The opinion should be stated in paragraphs with headings and sub-headings where necessary
• Checklist: Date, recipient’s address, the heading, opening/introduction, facts, the law, my conclusion i.e. state the conclusion (sometimes an executive summary is attached to this memo) and then explain on how I arrived at the conclusion i.e. by merging the facts to the law, Closing, name, signature and office address of the writer
As a counsel, Chairman of INEC has briefed you to write a legal opinion on the rights of internally displaced persons (due to floods and insurgency) to vote in the forthcoming general elections in Nigeria.
Introduction
I, Emokiniovo Dafe-Akpedeye of Compos Mentis Chamber, at No 1 Compos Mentis Bouvleard, Warri, Delta State have been engaged by Professor Attahiru Muhammadu Jega, the Chairman of the Independent National Electoral Commission to write a legal opinion on the right of internally displaced persons to vote in the 2015 gubernatorial elections.
Summary of Facts
Currently, in Nigeria, there are internally displaced persons due to floods and the activities of insurgents in the North East of the country. Internally displaced persons are those are no longer in their normal place of abode and have had to seek refuge elsewhere. For instance, in Borno State, persons have fled due to the activities of Boko Haram to neighbouring states in and outside Nigeria.
Relevant statutory and case law
Article 2(1) of the African Union Convention for the Protection and Assistance of Internally Displace Persons in Africa (Kampala Convention) states that all signatory states should ‘take necessary measures to ensure that internally displaced persons who are citizens in their country of nationality can enjoin their civic and political rights, particularly public participation, the right to vote and to be elected to public office’. Nigeria ratified this Convention in 2012 and therefore, it is bound by this law. Also see Elemelu v INEC (give citation)saying that prisoners have not excluded from voting and persons in diaspora to vote – note that this case law is not conclusive
Section ….. of the Electoral Act 2011 states that Nigerians above 18 years may register to vote if they are ordinarily resident, originate from or work in any registration area.
Recommendation
Based on the Kampala Convention, INEC has a duty to take all necessary measures to ensure that those within the country are to register and obtain their permanent voters’ card in order to vote in the upcoming elections. In addition, section…. of the Electoral Act provides some flexibility in the law so that any person resident in Nigeria may register to vote, even those internally displaced.
The issue is what necessary measure should Nigeria take even limited resources
Covering letter forwarding the legal opinion to the Chairman of INEC
Compos Mentis Chambers
No 1 Compos Mentis Boulevard, Warri, Delta Nigeria
Phone No: 08047164842
Email: e.dafeakpos@
9th January 2015
For the attention of Professor Attahiru Muhammadu Jega, Chairman
Independent National Electoral Commission
436 Zambezi Crescent
Maitama District
Federal Capital Territory
Abuja
The Chairman, Independent National Electoral Commission
Legal opinion on the voting rights of Internally Displaced persons
I am writing with regard to the legal opinion on the right of internally displaced persons to vote you requested on 1st January 2015.
Please find enclosed the copy of my report on the issue above. Please do not hesitate to contact me if you have any further queries.
Yours faithfully
Signature
Emokiniovo Dafe-Akpedeye
For: Compos Mentis Chambers
Encl
(1) Legal opinion on voting rights of internally displaced persons
WEEK 8
DRAFTING: FORMAL DOCUMENTS
Stages of drafting legal documents
1. Taking Client’s Instructions:
• Importance of understanding instruction.
• Interviewing models e.g. Avrom Sherr Model-LQA Model (Listening, Questioning and Advising)
• Listening: Let client tell the story
• Questioning: Interview checklist, visit, follow up questions
• Advising: deed of assignment versus power of attorney etc
2. Analysis of Instruction
• Research in general rule on the subject
• Practicability both at law and in reality
3. Design of the draft
• Division into parts/sections (statute); chapters (constitution); clauses (contract)
4. Composing the draft
• No ambiguity/ensure clarity of expression
• Use of precedent – but note challenge of using precedent – obsolesce, foreign circumstances, high cost of the books, stagnancy (they are not updated)
• Every error however trivial creates doubt on the writer’s professional competence
5. Scrutinising the finished product
• 2 stages of editing: after drafting allow passage of time, peer review
MINUTES OF A MEETING
Minutes is a summarised record or written summary of the points discussed at a meeting, that is, an official written message – attendance of members, discussions, decisions, who is responsible for what, actions/steps to be taken etc
Importance of learning the art of drafting minutes
• Organisation of law firm
• Most company Secretaries are lawyers and it is the duty of the secretary to produce minutes
Here are some tips in writing effective meeting minutes.
1. Know the purpose – Before writing minutes, you must know the purpose of it. First, a report of meeting minutes is an official record of the meeting (i.e. a legal document). But it is just not the type of record you write, print out, file and then forever forget. It provides a historical account of official business and operational decisions, and involvement of people making the decisions. It is used as a reference, which is periodically, or frequently referred to. Sometimes, minutes of meeting can become a legal document and evidence in court. It also serves as a blueprint for future actions.
2. Keep it concise – Keep the key information in order and make sure you don’t miss critical info. You only have certain limited time and it will be impossible to write every single thing discussed during a meeting. So, keep it concise, i.e. compact and short. Take notes of the issues discussed, major points raised and decisions taken. Make sure what you write will be easily understood, and usable in the future. Keep in mind many of the meetings require the attendees looking back at the previous meeting’s minutes. So if people can’t read them, it will amount to a waste of time.
3. Get the right info and follow the right format – To keep it short, here are list information that should be in your minutes of meeting: Time, date and venue of meeting; List of attendance (and their position); Agenda of meeting – key agenda, details, and specific action plan, and owner/executor of the plan; and the name of person taking minutes.
4. Keep a record – Normally, after minutes are hand-written, they are transferred into a proper computerised document (e.g. Microsoft Word or Excel), properly restructured, save and printed out. Good and fast typists can immediately record conversation into the computer/laptop, where this requires less time for fine tuning later on. The minutes are then distributed among the attendees of the meeting, or those who will be responsible to take actions as regards to what is discussed during the meeting.
It should be noted that minutes are not verbatim of what transpired at a meeting but abstracts of a meeting, therefore, there should be no verbosity, and obiter dictums should be avoided.
The Don’ts of Minute Writing
1. Don’t Editorialise: Be objective and don’t offer opinions/commentaries
2. No blow-by-blow account: no opinion of individuals
3. No confidential/sensitive matters because the minutes can be called up as evidence in litigation
The basic contents of minutes are:
1. Date
2. Type of meeting
3. Venue of the meeting
4. Attendance at the meeting
5. Agenda of the meeting
6. Any other business (A. O. B) that is not included in the agenda.
7. Closing. (DTVAAAC)
The drafting rules of minutes are –
1. It should be a simple language
2. It should be clear
3. It should be precise
4. It should be proof-read.
OFFICE MEMORANDUM
Internal correspondence in an organisation – a way of passing information to staff in the office. Memos do not go outside the organisation (the way it differs from letters). No need for Dear Sir in memos. A Latin word that means ‘something to be remembered. Similar to letters in terms of tone but differ in terms of format.
Purpose: convey information to colleagues or ask them to do something. It should be easy to scan and the stakes/information should be stated clearly.
Format of a memo
• 2 parts: the head and message (body)
• The memo head: writer, recipient, subject, date and reference (WRSDR)
• Salutation and closing (Dear Sir and Yours faithfully are not sued in memos)
• But Sign the document and put official designation
• Date of letter: 16 January 2015.
• Subject: summary of the message to the recipient (it should not be clumsy). Use RE if continuation of previous memo
• Body of the memo: paragraph format (blocked or indented). Style should be formal or personal depending on your relationship with the person. If coming from superior, it has to be formal. If between contemporaries, then can be informal. But ensure information is brief and concise and straight to the point.
• 3 Paragraphs: opening, middle and closing
• Opening paragraph: introduces the subject of the memo and provides the reason for the memo
• Middle paragraph: more details on the subject. Number/bullet system should be used. Move from the major to minor issues
• Closing paragraph: desired action from the recipients and a deadline for response.
• Enclosures, attachments and distribution lists are included if necessary.
CURRICULUM VITAE/RESUME
This is a brief account of a person’s qualifications and previous occupations, sent with a job application (personal details, education and work experience: state of origin, date of birth/age). Summary of applicant’s qualifications and suitability for the job sought. A targeted marking tool as tailored to particular job
Vitas and resumes both have similar purposes – as marketing documents that provide key information about your skills, experiences, education, and personal qualities that show you as the ideal candidate. Where a resume and curriculum vitae differ is their use, format, and length.
Curriculum Vitae – often called a C. V or Vita – tends to be used more for scientific and teaching positions than a resume. Thus, vitas tend to provide great detail about academic and research experiences. Where resumes tend toward brevity, vitas lean toward completeness.
Unlike resumes, there is no set format to vitas. While vitas do not have the one-page rule of resumes, you need to walk the line between providing a good quality of depth to showcase your qualifications and attract potential employer interest and providing too much information thus appearing verbose and turning off potential employer interest.
THE IMPORTANCE
• First contact/first impression
• Apt words, different CV for different job positions
• Brief and straight to the point
• Format: modern practice is in reverse –chronological order (current or most recent position/qualification)
• Maiden name (if married and changed name)
• References: list or state ‘available on request’
THE DOS AND DONTS
• Tailor resume to the positions you are applying for
• Lead with your strongest suit – usually employment but if fresh graduate or career changer then education
• Make your resume easy to scan
• Select details that support your goal-duties and achievements that make you shine in that particular job
• Use strong verbs in your job description: instead of responsible for the supervision of 7 staff members, use supervised a staff of 7
• Focus on achievements and quantify them
• Add a volunteer section
• Note honours and awards
• Be careful about hobbies e.g. extreme sport may be a red flag about risk of injury and missing work
• Keep several different resumes for different job positions. Remember a resume is a targeted marketing tool
• Don’t lie
• Don’t use tiny fonts and narrow margins to bring in more info on the page
• Don’t use technical or jargons
• Don’t use unusual formatting – some software screen resume and reject yours
• Don’t recap your job description in the work experience section
• Don’t leave gaps in the resume – enrol in education program or training
An effective curriculum vitae should have the following:
1. Name
2. Address (home or permanent, not P. O. Box)
3. Telephone and e-mail address (if any)
4. State of origin
5. Schools attended
6. Educational qualifications with dates
7. Area of specialisation
8. Employment record
9. Present position
10. Summary of present job schedule
11. Cognate experience
12. Referees
13. Signature and date
Minutes of meeting
As a lawyer in the chamber of Ikpeazu SAN, a firm of legal practitioners, located at No 162 E Glenbrook Blvd Onitsha Anambra State, you have been instructed to take and produce the minutes of the quarterly meeting of the chambers. The meeting scheduled to assess the firm’s activities for the year 2014 took place on 5th January 2015. The external training consultant, Professor Walter Roosevelt of the James E. Rogers College of Law, University of Arizona USA was in attendance for purposes of ensuring compliance with all the training modules to which lawyers in the firm had been exposed to since 2012. The Meeting was presided over by the Head of Chambers, Mr Solomon Kanu. Using the following Guidelines of a Minute, develop the appropriate body of the Minutes to be assessed. See Pg 122 Curriculum lesson plan.
1) Heading (minutes of…state nature of, place, date and time)
2) Present (List of members present)
3) In attendance (List of those in attendance
4) List of those absent (if practicable)
5) Opening remarks/prayers
6) Adoption of Agenda
7) Adoption of the minutes of the last meeting
8) Matters arising
9) Issues discussed following the agenda
10) Reports
11) Resolutions
12) AOB/General issue
13) Conclusion
14) Adjournment and closing remark/prayer (if any)
15) Signatories
THE MINUTES OF THE QUARTERLY MEETING OF IKPEAZU SAN, A FIRM OF LEGAL PRACTITIONERS OF NO 162 GLENBROOK BLVD, ONITSHA, ANAMBRA STATE HELD ON MONDAY, 5TH JANUARY 2015 AT 13:00 HOURS AT THE CONFERENCE HALL OF THE FIRM
PRESENT:
1. Mr Solomon Kanu: Head of Chambers
2. Mr Aroture Ajibola: Legal Practitioner
3. Miss Mobola Ayoade: Legal Practitioner
4. Miss Emokiniovo Dafe-Akpedeye: Legal Practitioner/Secretary
5. Mrs Ibukun Okeke: Head of Human Resources
IN ATTENDANCE
1. Professor Walter Roosevelt: External training consultant
ABSENTEES
None
OPENING REMARKS
The Head of Chambers, Mr Solomon Kanu thanked the legal practitioners for their devotion to the firm in the year 2014.
ADOPTION OF THE AGENDA OF THE MEETING
The agenda was adopted by Mr Solomon Kanu and seconded by Mr Aroture Ajibola.
ADOPTION OF MINUTES OF THE LAST MINUTE
The minutes of the last meeting held on the 5th day of August 2014 was read by Emokiniovo Dafe-Akpedeye and adopted by Mr Solomon Kanu and Mr Aroture Ajibola
MATTERS ARISING
The following matters arose from the meetings of the last meeting:
1. The purchase of five new computers for the firm’s library. The new computers have now been ordered and the firm expects delivery on 31st January 2015.
ISSUES DISCUSSED FOLLOWING AGENDA
The main agenda for this meeting are:
1. Assessment of firm’s activities for the year 2014
It was resolved that two more lawyers of the firm should attend Professor Nwosu’s Dispute resolution course since this area is now a thriving area of law
2. Level of compliance with training modules
It was resolved that Mrs Ibukun Okeke remind her staff of the need for smooth communication between the new staff and the human resources department
REPORTS
RESOLTIONS
AOB/GENERAL ISSUES
CONCLUSION
ADJOURNMENT
In the absence of any other business, Mr Solomon Kanu moved the motion for the adjournment of the meeting supported by Mr Aroture Ajibola
The meeting came to an end at about 3pm and was adjourned to the 5th day of April 2015.
CLOSING REMARK/PRAYER
Closing prayer was said by….
DATED THE 5th DAY OF JANUARY 2015
………………… ……………….
Chairman Secretary
The principal of the above chamber, Dr Chinonye Ikpeazu, SAN had a meeting with the Head of Chambers, Mr Solomon Kanu on 15th December 2014. The resolutions of the meeting are as follows:
(a) Mandatory specialisation of practice for lawyers in the firm
(b) Effective training of the externs from the Nigerian law school
(c) Mandatory attendance of the NBA annual conference by all lawyers in the firm
Question: as Head of Chambers, write a memo to the lawyers in the firm addressing the outcomes of this meeting with the principal
IKPEAZU CHAMBERS
NO 162 E GLENBROOK BLVD
ONITSHA, ANAMBRA STATE
INTERNAL MEMORANDUM
FROM: The Head of Chambers
TO: All legal practitioners
DATE: 5th January 2015
SUBJECT: DIRECTIVES FROM THE PRINCIPAL PARTNER
Dear colleagues
I have been directed to inform you as follows:
1) All lawyers of the firm must specialise in a particular area of law.
2) Attendance at the annual Nigerian Bar Association conference is now compulsory for all lawyers in the firm.
3) That the firm shall see to the effective training of externs from the Nigerian Law School
These changes will be effected on 30th March 2015.
Please forward to me your area of interest for your specialised practice of law and any comments on how to effectively train the externs and the compulsory attendance the NBA conference by 30th January 2015.
Thank you.
………….(signature)
Mr Solomon Kanu
Head of Chambers
CC: Mr Chinonye Ikpeazu
Principal Partner
Mr Uba Okeke is a lawyer in the law firm of Ikpeazu SAN. He took up employment immediately after his NYSC and has been with the law firm for 7 years. Mr Okeke is not happy with the current changes in the Ikpeazu law firm. Shell Petroleum Development Company Ltd advertised the position of a legal officer. Mr Okeke desires to apply for this position. Draft the guideline that Mr Okeke would adopt to prepare his CV
CURRICULUM VITAE OF MR UBA OKEKE
PERSONAL DATA
Name: Mr Uba Okeke
Address: No 13 Ukezi Street, Onitsha, Anambra State
Email address: ubaokeke@
Phone number: +2348157163735
State of origin: Delta State
Date of birth: 16th January 1983
Marital status: Married
EDUCATIONAL QUALIFICATION
Nigerian Law School 2005-2006
• Barrister at Law (B.L.), First Class Degree
University of Oxford 2002-2005
• Bachelor of Law Degree (LL.B), First Class Degree
Oxbridge School 2000-2002
• A’Levels, A* grade in Mathematics, French, Government and Economics
Olashore International School 1994-2000
• Secondary school certificate (WASSCE), A1 in Mathematics, Government, English Language, English Literature, Economics, Biology, Commerce and French
AREA OF SPECIALISATION
• Oil and gas
• Dispute resolution
• Corporate law
EMPLOYMENT RECORD
Legal Practitioner at Ikpeazu SAN Chambers, 2007-date
• Lead adviser on the contract between NNPC and Elf
• Arbitrator for SPDC on the Okolopo dispute
National Youth Service Corps with the Ministry of Justice, Abuja, 2006-2007
• Research on the criminal prosecution of former Governor Ikposu on the extortion of oil companies in Delta State
SUMMARY OF PRESENT JOB SCHEDULE
• Legal adviser on contracts
• Litigator, arbitrator and mediator
COGNATE EXPERIENCE
HOBBIES
• Reading
• Playing Golf
REFERENCES
• Mr Solomon Kanu, Head of Chambers, Ikpeazu SAN Chambers, No 162 E Glenbrook Blvd Onitsha Anambra State
• Mr Aroture Ajibola, Partner, Ikpeazu SAN Chambers, No 162 E Glenbrook Blvd Onitsha Anambra State
SIGNATURE
DATE
FIRST NAME: Bijalo
OTHER NAME: Mimz
MARITAL STATUS: Single
DATE OF BIRTH: 15th January 1940
LOCAL GOVT. AREA: Bwari L.G.A
STATE OF ORIGIN: Bontutu State
QUALIFICATIONS OBTAINED WITH DATES
INSTITUTION DATE AND YEAR
• ABC Nursery and Primary School
Lagos State. 1987 – 1992
First school leaving certificate
• Lawyers Government College
Abuja. 1993 – 1998
Senior Secondary Certificate Examination
• Corporate Law University
Abuja 2002 - 2006
Law (LL. B)
OBJECTIVES
• To contribute effectively, strive for excellence and to execute planning objectives for your firm at all times.
JOB AND WORK EXPERIENCE
• Owambe Constructions, Lagos State
Industrial Training 2004 -2005
• National Youth Service Corp
United Grammar School
Otondo State
Intro. Tech. Teacher 2007 – 2008
• Batt Integrated Services Ltd.
Yemen, Abuja.
Site Manager 2008
HOBBIES
• Football, Dancing, Traveling and Reading.
SKILLS
• Proficient in data management packages (Ms-Word, Ms-Excel, Power-point) and working with the internet
• Good communication skills
• High level of integrity and reliability
• Construction minded, dynamic and quick in grasping new concept self-motivated and confident
REFEREES
Mr. BijaloAbx Mr. MimzQrt
QVIJ Ltd Business Development
Bontutu State National Energy Assurance
08036367377 OtondoState.
08022550477
Week 9
LEGISLATIVE DRAFTING
Legislation is the making of laws or it could be said to be the process of writing and passing laws. Legislative drafting, however, can be described as the process of drafting bills and other legislative enactments including subsidiary legislations and administrative orders, notices, warrants, permits, and similar documents.
Drafting is a skill aimed at constructing a document that achieves a purpose required of it by the client, lawyer and the law. Drafting is the initial preparation of that document. Drafting skill involves the construction of documents, both formal and informal. It necessarily involves the selection of words and expressions.
Legislative drafting like any other form of legal drafting is an institutionalised means of communication. The essential distinction is that unlike other forms of legal drafting which may be easily altered or changed, legislative drafting is more of a permanent enactment which stands on its own and speaks for itself without any form of assistance, elucidation or explanation from the drafter or draftsman.
Legislations are made to govern and regulate human conduct within a society. Where a legislation is drafted with clumsy and ambiguous language or phrases, it might cost members of the public on whom the legislation is administered long years of battles and litigations with attendant huge cost. It is imperative that a great deal of care and diligence be exercised in drafting enactments to reduce as much as possible the probable difficulties and confusion that may befall the future administration and interpretation of enactments.
Thus, the legislative drafting process may be said to begin with the receipt of drafting instructions and ends with completion of the draft. For there to be a legislative drafting, there must be a legislative draftsman.
LEGISLATIVE DRAFTSMAN
A legislative draftsman is a person engaged in the drafting of legislative bills and other instruments at whatever level of government. In Nigeria, the offices of legislative draftsmen are found in various government ministries, parastatals and in all legislative institutions.
ATTRIBUTES OF A GOOD LEGISLATIVE DRAFTSMAN
1. He must be a lawyer, who must have undergone training in law, with a basic knowledge; and must have practised as a lawyer with special interest in drafting.
2. He must have a good command of English language so as to make concise and accurate instructions. He should also be able to communicate effectively with precision and in simple, clear and precise English language
3. He must be patient, meticulous, analytically minded, critically minded, and research driven.
4. He must be familiar with the interrelationships of the various departments of government; and a good knowledge of the political, sociology, psychology and economic system/society of which you are drafting the law
5. He must develop interest and flare for the subject of legislative drafting and exhibit a high sense of tolerance, commitment and dedication in the drafting process. Thus, he must be ready to carry out researches; and must know where and how to find the law.
6. He must be a very simple and humble person with a good spirit of team workmanship. He must be committed and fully devoted to his work as a legal draftsman.
7. Ability to work under pressure. Have a clear mind and mental capacity to draft laws
8. Work with little supervision
9. Willingness to accept criticisms in good faith
DUTIES OF LEGISLATIVE DRAFTSMAN
1. Taking instructions/research adequately.
2. Holding consultations and legal advice as and when necessary at any stage of the legislative process.
3. Preparation of Bills.
4. Preparation of subsidiary legislations.
5. Attending of legislative proceedings during passage of Bills.
6. Providing legal advice.
PARTS OF LEGISLATION
A legislation (Bill) is made up of several component parts. The arrangement of the component parts usually follow an established pattern which may vary from one jurisdiction to another. However, it is essential that every legislation must contain and reflect similar features in contents, which are of universal application. Some of these are –
1. Long title;
2. Preamble;
3. Commencement;
4. Enacting formula or clause;
5. Short title;
6. Marginal notes and references;
7. Interpretation section or provision.
8. Sections and subsections.
9. Punctuation;
10. Paragraphs; and
11. Schedules.
LONG TITLE
Every legislation (Bill) must contain a long title, which states in clear and concise language the fundamental purpose, which the legislation is to serve. The principal object of the long title is to highlight the object and intendment of the enactment. Thus, it helps to determine the scope of the legislation when it will be considered by a legislative body.
The language of the long title depends on whether the statute is a Federal or State statute. If it is Federal, the draftsman should normally place at the top before the main provision the following: “A Bill for an Act to...”, but if it is State, he should be “A Bill for a Law to...”. However, as soon as the Bill is enacted as law, the word “A Bill for” is dropped from the long title. It is usually written in bold letters or capital letters. It cannot affect a clear statutory provision.
The long title need not be too long rather it should be comprehensive and less cumbersome as possible to convey the intendment of the enactment. Also, the long title does not form part of the substantive provisions, although it forms an integral part and may serve useful purpose in statutory interpretation of the Bill in that it constitutes a special facility unveiling the legislative spirit and intent. In Bello & 13 Ors. v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828, the Supreme Court stated thus –
“Resort may be had to the long title of an enactment only as an aid to resolve ambiguities that may arise from the plain and ordinary words of a statute.”
For example, the long title to the Evidence Act, Cap. E14, LFN 2004 is captioned thus –
“An Act to provide for the law of evidence to be applied in all judicial proceedings in or before courts in Nigeria.”
You must end the long title with the use of ‘OTHER MATTERS’ or ‘FOR THE PURPOSE CONNECTED THEREWITH’: SEE Ibrahim v Judicial Service Commission
PREAMBLE
This is a clause that is usually at the beginning of a Bill or legislative draft of constitutional importance. Generally, a preamble is a declaration by the legislature of the reason for the passage of the statute to which it is affixed. Though, most legislation do not carry preamble, but when used, becomes part of the statute and might be useful as aid in the interpretation of ambiguous provisions in the statute and the object sought to be accomplished, though not to modify a clear provision.
Preambles are commonly used when it would be difficult to know the purpose of the statute unless and until certain facts (the mischief) are disclosed. It cannot affect a clear statutory provision. It is used in constitutions, to ratify international instruments/treaties, ceremonial statutes, laws on peculiar local problems: the preamble narrates the authority to enact the particular law or the reasons why the statute is being enacted.
For example, the preamble of the 1999 Constitution of the Federal Republic of Nigeria is captioned thus –
“WE THE PEOPLE of the Federal Republic of Nigeria ...”
COMMENCEMENT
An Act passed today needs not commence on the same day. It commences when it comes into operation – Kotoye v. Saraki (1994) 7-8 SCNJ (Pt. 111) 524.
The general rule is that it commences either on the date it receives Assent or the date it is published in the Gazette. The draftsman must be very careful about the commencement of the law and should take definite instructions on this. Usually the law specifies a commencement date. The commencement may be retrospective or fixed on a future date . (s36(8) Constitution: no person shall be convicted on a law that was not in existence at the time the person committed the offence). Therefore only beneficial statutes can be made retroactive.
It may have multiple commencement date (not usually used as could lead to confusion). Where no date is provided, it commences on the date it is passed or when published in the gazette (section 2 Interpretation Act). Commencement could also be at the happening of a particular event.
For example, the 1999 Constitution of the Federal Republic of Nigeria is captioned thus (e.g. could be clearly provided in a section of the law)
“The provisions of this Constitution shall come into force on the 30th day of May 1999.”
or This law shall commence on 4th July 2014
or This law shall be deemed to have commenced on the 4th January 2014 (if it is to be retrospective)
or
[4th July 2014] Commencement
ENACTING FORMULA OR CLAUSE
This is also found at the beginning of a legislative or statutory statement. It states the authority by which legislation is made. In Joiner v. State (1967) SCG Ga 367, 155 S. E 526, the Supreme Court of Georgia held thus –
“The purpose of an enacting clause is to establish the Act, to give it permanence, uniformity and certainty, to afford evidence of legislative statutory nature, and to secure uniformity of identification and thus prevent inadvertence, possible mistakes, and fraud.”
The enacting clause comes immediately after the long title or preamble, and varies from one jurisdiction to another depending on the type of government in place.
For example, in military regimes, the enacting formula or clause could be captioned thus –
“The Federal Military Government decrees as follows...”
In civilian administrations, it could be captioned thus –
“ENACTED by the National Assembly of the Federal Republic of Nigeria as follows:...” or
“ENACTED by the House of Assembly of Enugu State of the Federal Republic of Nigeria as follows:”
ESTABLISHMENT CLAUSE
Only when a statutory body is to be created e.g. there is hereby established a corporation or there shall be established or there shall continue to be established
SHORT TITLE
This is for identification purpose. It is the short name by which the statute is to be cited and identified. Unlike the long title, the short title presents very brief information on the subject matter of the Bill. A concise description of the statute mainly used for identification. Used in citing the statute. This is not the same as an acronym. Ends with the year the statute was enacted.
For example, the Criminal Procedure Code, 1960 is captioned thus –
“This Law may be cited as the Criminal Procedure Code Law.”
APPLICATION CLAUSE
Usually of general application. Exceptions where there is territorial application e.g. Property and Conveyancing Law (1959) (Western States). Criminal Procedure Code 1960: this law shall apply to Northern states in Nigeria. Specific categories of people: Legal Practitioners Act (1975) state that this law shall apply to legal practitioners in Nigeria
DURATION
Laws are generally in force until repealed. However, there may provide expiration date or expire by reference to an event or empower an officer to fix an expiration date. May be used to test public reaction to government policy.
MARGINAL NOTES AND REFERENCES
It should be noted that marginal notes do not form part of a Bill or legislative enactment. It is usually short and only serves a descriptive purpose to assist in the proper construction of a particular provision contained in the Bill against which the marginal note is provided. They are either on the left or right side of the legislation.
Section 3(3) of the Interpretation Act, Cap. 192 LFN, 1990 provides that –
“a heading or marginal note does not form part of the enactment and is intended “ for convenience of reference only...”
However, courts are not expressly precluded from seeking assistance by reference to marginal notes to resolve contentious issues of law where the provisions of the Act are ambiguous – Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1 at 23; Schroder v. Major (1989) 2 NWLR (Pt. 101) 1.
INTERPRETATION SECTION OR PROVISION
This is also referred to as “definition clause”. It is found either at the beginning or the end of a Bill or legislative draft. In more recent statutes, it comes at the beginning of the legislature. It contains the definitions or meanings of words and expressions used in the statute. E.g. the meaning of woman in a statute may be different from the general meaning of woman. Thus not mandatory unless when words used in the statute have a particular meaning in the statute.
The interpretation clause aids clarity and consistency in drafting. Thus, once a word or expression is defined in the Interpretation Section, the draftsman is free or at liberty to use the word or expression repeatedly without providing the meaning each time such word or expression is used.
As a general rule, where a particular word or expression is not defined in the interpretation section of the statute, the Interpretation Act of the Federation or Interpretation Laws of each State shall be resorted to for the purpose of construction and judicial interpretation. This is the position of the law because the Interpretation Act of the Federation and the Interpretation Laws of each State govern interpretation of statutory enactments and instruments generally. In Attah v. The State (1993) 7 NWLR (Pt. 3005) 257 at 286, per Karibi Whyte JSC stated thus –
“It is well settled principle in the interpretation of statutes that where it has been defined in a statute, the meaning given to it in the definition must be adhered to in the construction of the provision of the statute unless the contrary intention appears from the particular section or the meaning is repugnant in the context in which the definition is used.”
For example, the Companies and Allied Matters Act is captioned thus –
“In this Part of this Act, unless the context otherwise requires...”
Another drafting method that is commonly used are the words “means” and “includes”. The implication is that where the former is used, it follows that the statute does not admit of any other meanings of the word already restrictively defined in the interpretation section (closed) – Odu’a Investment Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; Owena Bank Nig. Plc. v. N. S. E. Ltd. (1997) 8 NWLR (Pt. 515) 1; N. E. W Ltd. v. Denap Ltd (1997) 10 NWLR (Pt. 325) 481. On the other hand, where the latter is used, it follows that the words defined could admit of other extraneous meanings other than in the sense in which they are defined in the interpretation section (open).
The word to be defined must be in quotation marks. In this Act “woman” means….. or In this Act “woman” includes…….
SECTIONS AND SUBSECTIONS
This has to do with the division into sections and sub-sections. It is advisable that a section should contain one main idea, which should be self explanatory, short, lucid and devoid of ambiguity.
However, where the composition of the section turns out to be a long one, the proper thing for a draftsman to do is to break the section into sub-sections.
PUNCTUATIONS
This is all its various forms like comma, full stop, colons, inverted commas, quotation marks, etc. must be taken into consideration in construing an enactment.
The draftsman must make careful use of punctuations in legislative drafting because where it is recklessly used, could defeat the purpose of an enactment.
Section 3(1) of the Interpretation Act provides thus –
“Punctuation forms part of an enactment and regard shall be had to it accordingly in construing the enactment.”
PARAGRAPHS
This is necessary where a section or sub-section of a statute becomes unreasonably long. The essence of this is to help the readability of the sentence and it also creates precision in the understanding of the legislative sentence.
A paragraph may be divided into sub-paragraphs particularly where the paragraph in the sentence becomes too long.
SCHEDULES
This is used in legislative drafting to supply supplementary details. Schedules exhibit in detail matters or information mentioned or referred to in the principal body of the Bill or legislation. It is used to clear and tidy presentation of detailed information. It is usually numbered paragraphs e.g. First Schedule to CFRN 1999 (s3 of the Constitution, which provides for the states in the Federation: instead of listing the states and local governments under the states in section 3, this was banished to the First Schedule to the Constitution. There is a cross reference in the section which mentions that the states are mentioned in the First Schedule).
Details of information, statistics, figures, tables, and other special or technical matters highlighted or referred to in the body of an enactment are contained in the schedule. Moreover, what the principal provisions do is to make references to details contained in the schedule to the enactment.
However, it is important for the draftsman to remember to indicate on top of the first page of the schedule by way of marginal reference the main provisions or section(s) by virtue of which and for which purpose a particular schedule is provided.
STAGES OF LEGISLATION
Previously, only in-house lawyers at the legislature were engaged to draft laws. In recent times, private legal practitioners are also engaged to draft laws. For a draftsman to produce a good draft, he must pass through five identifiable stages. The stages are –
1. Understanding instructions;
2. Analysis instructions;
3. Design the Draft;
4. Composition the Draft; and
5. Scrutinising the Draft. - UADCS
UNDERSTANDING
It is essential that the draftsman understand fully the instruction received in respect of the law he is going to draft. He should, therefore, direct his mind to one of two things or indeed both, which are –
a) He can make clear to those instructing him the kind of drafting instructions, which is most helpful to him. This can be done on a case by case basis, for example, he can get in touch with the instructing authority, setting out what and what information should be supplied to him or generally as a guide to all authorities who wish to instruct him to draft one law or the other; or/and
b) He can consult with the instructing office at an early stage after receipt of the preliminary drafting instructions.
Drafting instructions are the instruction emanating from the authority sponsoring the law to the legislative draftsman who is responsible for reflecting policies in laws or statutes. The instructing authority could be anything from the government, a parastatal or other agency of government. The legislative draftsman would, invariably, be a lawyer knowledgeable in the art of drafting laws and could be a legal practitioner commissioned to draft the law.
The following are essential in drafting instruction –
a) Sufficient background information to enable the draftsman to see in perspective and in context the facts and the problems, which the legislative proposal is intended to meet.
b) The principal objectives of the legislation must be clearly stated.
c) The means whereby the principal objectives are to be achieved should be stated.
d) All known implications, difficulties whether legal, social or administrative associated or contemplated by the proposals should be stated.
E.g. the New Sexual Offences Bill (before the National Assembly) widens the definition of rape, increases the punishment for rape and imposes harsher offences for raping children.
ANALYSIS
Legislative proposals should be carefully analysed in relation to the following –
1. Existing law – There is no Bill that is not related remotely or otherwise to any existing law. Be that as it may, it is the duty of the draftsman to study in great detail all existing laws within the spheres of the legislative proposal. The major advantage of doing this is to avoid drafting a law that duplicates or impliedly repeals existing laws on the subject matter. This does not mean that a law may not, on the face of it, purport to amend any existing law.
2. Potential danger areas – It is generally agreed that the duty of the draftsman is to put legislative proposals in draft form for passage into laws, and not to concern himself with formulation of the policies which give rise to the legislative proposals. But in practical terms, it is difficult to insulate the draftsman completely from having a say in determining the shape, contents, and policy-related issues concerning the proposed legislation because by virtue of the position of the draftsman, he is presumed and in fact, expected to be familiar with the law on a wide range of issues which puts him in a vantage position to see a legislative proposal in a wider and more balanced perspective than is possible for those who instructed him e.g. not to draft a law that would lead to inter-state or tribal conflicts or war.
3. Practicability – This is similar to potential danger areas. It deals with enforcement of legislative enactments. It is common to find that sponsors of legislative proposals seem more interested in pushing for rapid legislation without considering the capacity of the proposed legislation to be administered effectively and without difficulty e.g. if a law is drafted that in Akwa Ibom that all the women should use hijab, it would not be practicable or all men should no longer wear trousers but to wear skirt, it would not be practicable.
DESIGN
After gaining thorough understanding of the proposals and assessing same in relation to existing law, the draftsman now reaches the design or planning stage. This is the outline or framework prepared by the draftsman that assists him in visualising the shape or broad content of the enactment.
At this stage, the draftsman is to do the following:
1. Make a precise outline of the objectives and principles to be contained in the legislation.
2. Make a statement of the principal means of attaining the objectives and principles.
3. Design the structure of the draft statute, e.g. the substantive provisions and the administrative provisions of the bill. Look at existing statutes to see what the structure is in that jurisdiction
4. Have a pre-prepared checklist to serve as a guide
5. Know the conventional practice in that area, the socio-political realities in that area and the adequacy/inadequacy of existing laws.
COMPOSITION
Composing a statute entails a lot of mental discipline. The person drafting will, invariably, rely on some aids to compose. These aids include precedents, statutes on similar sub or related subjects, both local and other jurisdiction. Proper use of precedents may constitute a source of ideas on content, in addition to being helpful in the actual drafting i.e. a guide on the structure of the bill into parts, sections. Use of precedents saves time and using precedents from the same jurisdiction may contribute in no small way to consistency of approach/with jurisdiction, which, in turn, will contribute to statute law, becoming a coherent body rather than a patchwork. Must not adopt precedents slavishly i.e. must be there must be adaptation of precedents e.g. correct mistakes made in precedents. However, precedents must be carefully used in the context of Nigeria. Formulation or construction of the content of each section so that the meaning of the statute is clear so that it reflects the intention of the draftsman and sponsor of the bill
SCRUTINISING THE DRAFT
This is the last stage of drafting. Under this stage, the draftsman is expected to have checked and re-checked the drafts in previous stages, and must have had series of conferences and meetings, both formal and informal, with those sponsoring the statute. Errors or mistakes, especially of substance and against the general intendments of the statute must have been detected, corrected and put in place. At this stage however, one should ask an independent eye, preferably a legal practitioner, to have another critical look at the draft (for example, checking the punctuation marks, spelling, marginal notes, grammatical errors, etc, for someone who has been involved as the draftsman may not spot drafting and other clerical errors. Coherence and logical sequential presentation of the law. Are the provisions in a particular section detailed enough to convey the meaning of the section. Reference and terminology, punctuation, spellings.
FORMALITIES IN LEGISLATIVE DRAFTING
• Arrangement in parts
• Arrangement of segments and sections
• Some legislative drafting devices
• Paragraphing techniques
ARRANGEMENT INTO PARTS
Clarity of presentation and ease of reference. Numbered in capital roman numbers. Each part is denoted by descriptive headings e.g. Under Chapter V of the Constitution, Part I deals with National Assembly. The division is determined after composition of the draft. Applied to distinct categories/subject matters. E.g. CAMA is divided into Three Main Parts with sections, In the 1999 Constitution Chapter I is subdivided into parts; Chapter II is divided into sections etc.
ARRANGEMENT IN SEGMENTS
Segments are broader and larger than parts. Under segments, you have chapters and parts.
• Preliminary segment: long title, commencement, preamble, enacting clause, short title, interpretation, and application.
• Principal Segment: the substantive provisions which creates new rights and duties, administrative provisions: implementing agency, administrative procedures etc.
• Miscellaneous segment: offences, penalties, supplemental provisions such as power to make subsidiary legislation, links with existing legislation
• Final segment: savings (a provision to save an existing Act), transitional provisions, repeals, consequential amendments, schedules
SOME LEGISLATIVE DRAFTING DEVICES
Headings, marginal notes are used to state/point to the provisions in that section i.e. to guide the reader, marginal references: e.g. in section 3(2) of the Constitution, a marginal reference refers the reader to Part I First Schedule (serves as a cross reference
PARAGRAPHING TECHNIQUES
Sections are in Arabic numerals: 1
Subsections (Arabic numerals): (1)
Paragraphs (small letters): (a)
Sub-paragraphs (small roman numeral): (i)
Sub sub-paragraph (caps): (A)
For example: Section 1(1)(a)(i)(A)
CHECKLIST ON PRINCIPLES
• Must be sequential in arrangement so reader can understand the legislation
• Use of good sentence structure
• Application of paragraphing techniques
• Use of punctuation marks – must be regular and in keeping with what is obtainable in that jurisdiction
• Preferable to use the active voice instead of the passive voice
• Draft must be intelligible, precise and unambiguous (e.g. s8 and 9 of the Constitution are ambiguous)
• Modification of precedents to suit the particular circumstances. Must not be copied slavishly.
BILL SETTING UP A STATUTORY CORPORATION
Establishment Clause:
• There is hereby established a body to be known as the Development Monitoring Agency which shall be a body corporate with perpetual succession and a common seal
LEGISLATIVE PROCESS
National Assembly CFRN 1999 s58
• Bill originates in Senate or House of Representative
• Passed where it originates
• Passed in the other House
• President assents in 30 days
Thus this is different from legislative stages in drafting (5 stages above)
LEGISLATIVE PROCESS
The processes a bill must pass through to become law are:
THE FIRST READING: This is where the bill is read for the first time by the bill sponsor and the leaflets of the bill are circulated for the legislators to take home and study.
THE SECOND READING:
Here, the bill’s sponsor would explain the bill to the house who would debate on it and pass a resolution. This is the stage where members of the legislative house deliberate on the merits and the demerits of the bill.
If a simple majority pass a resolution to refer it to one of its committees then it scales to the next stage, if not, then it dies a natural death here.
THE COMMITTEE STAGE: Here, the committee of the house in charge of the said bill would meet to have a detailed examination and debate on the bill after which amendments are made. All amendments made are done to reflect the collective decision of the house, arrived at the second reading.
THE REPORT STAGE: Here, the bill, along with its amendments is tendered by the house committee, to the house, where it would be read for the third time.
THE THIRD READING:
Here, the bill is read for the third time, thereafter, the house is heard to vote on the bill. Once the Bill is passed by the house in which it was introduced, it would be referred to the House’s legal draftsman to prepare the “Clean Copy”.
THE CLEAN COPY STAGE: Here, a clean printed copy of the bill containing the amendments is signed by the clerk of the House and endorsed by the Speaker or Senate President. The copy is then forwarded to the clerk of the other house (where applicable).
THE ASSENT STAGE: Here, the President or Governor would assent to the bill within 30 days, whereupon it becomes Law and where the President or Governor withholds assent to same, the National Assembly or House of Assembly can proceed to veto override by two-third majority: s58(5) and s100(5) Constitution respectively.
THE DIFFERENCES BETWEEN LEGISLATIVE PROCESS AND LEGISLATIVE DRAFTING
1. Legislative process is the process where laws are made while drafting process is the process whereby clients instruction is reduced in draft form.
2. Legislative process is the responsibility of the legislature or lawmakers while the drafting process is the responsibility of the draftsman
3. The stages of the legislative and drafting process are different. The legislative process includes process of bill reading while the drafting process commences with taking instructions and ends with scrutinising the draft.
4. Legislative drafting is a precursor to legislative process, because legislative process refers to proceedings on an already prepared legislative draft.
5. The outcome of a “legislative draft” is a “BILL” whereas, the outcome of a legislative process, where successfully completed is an “ACT” or “LAW” as the case may be.
PUNCTUATION
Full stop: ends the statement except where it is in the form of exclamation or question, in which case exclamation mark or question mark will be used. It can be used at the end of an abbreviated work e.g. Dr.
Column (:) - used to introduce a list
Semi-column (;): used to separate related sentences. It is inserted instead of use of a conjunctive word like ‘and’
Comma (,): to separate one group of words from another. The proper use of comma gives the sentence clarity
Question mark (?): used immediately after a direct question and not an indirect question.
Quotation marks (“”): used to enclose exact words spoken by a person or enclose words when drafting the definition section e.g. “woman” means
Exclamation mark (!): used to convey an exclamation
Bracket: (): to enclose after thoughts and used after figures in documents. There a two types: rounded bracket and the square brackets. No difference btw the two and more of convention to use the square bracket in the commencement in legislative drafting
The apostrophe (‘): it is placed before the s. It is used to show possession e.g Ijeoma’s house
CLASS EXERCISE
Omitowoju Local government area of Osun State is known to be very rich in gold and tantalite. Since 2004, when the Federal Government shifted the development to solid minerals, there has been an upsurge in the mining of gold and tantalite in the area in a very indiscriminate and unregulated manner. These mining activities are beginning to have harmful impact on the environment and there is strong erosion as a result in the area.
The Governor of Osun State, after many deliberations with the senators from the state, has agreed that there is an urgent need for a law regulating mining and prohibiting the mining of these minerals without a government licence and for penalties to be imposed on offenders who violate the proposed legislation. It will commence as determined by the Minister for Solid Mineral. The law will also provide for a Solid Minerals Extraction Commission.
The order will be: Long title, Preamble, Commencement, Enacting Clause, Establishment Clause, Interpretation Clause, Short title (LPCEEIS)
Draft the following clauses in their appropriate order:
• Long Title: A BILL FOR AN ACT TO REGULATE THE MINING OF SOLID MINERALS AND THE PROHIBITION OF MINING WITHOUT A GOVERNMENT LICENCE IN THE FEDERAL REPUBLIC OF NIGERIA AND FOR THE PURPOSE CONNECTED THEREWITH
• A BILL FOR AN ACT TO REGULATE THE MINING OF GOLD AND TANTALITE AND TO PROHIBIT THE MINING OF THE MINERALS WITHOUT A GOVERNMENT MINING LICENCE AND TO CREATE A SOLID MINERAL EXTRACTION COMMISSION AND OTHER MATTERS CONNECTED THEREWITH
• The commencement: The Act shall commence on a date to be determined by the Minister for Solid Minerals
• Enacting Clause: ENACTED by the National Assembly of the Federal Republic of Nigeria as follows:
• Establishment Clause: There shall be established a body to be known as the Solid Minerals Extraction Commission which shall be a body corporate with perpetual succession and a common seal with its headquarters at No 30 Maitama Way, Maitama, Abuja.
• Interpretation clause: “Minerals” means gold and tantalite
• Short title: The Solid Minerals Mining Act 2015
• List instances where a preamble may be required in a legislation: to ratify international treaties, constitutions, ceremonial statutes, laws with peculiar local problems, to declare the reasons for the passage of the legislation, to state the authority enacting the particular law e.g. in the 1999 Constitution of the Federal Republic of Nigeria, it states “WE THE PEOPLE of the Federal Republic of Nigeria”….
• Write the following in words: s12(5)(a)(iii)(B): it means section 12, subsection 5, paragraph a, sub-paragraph (iii), sub sub-paragraph B
ETHICAL ISSUES IN LEGISLATIVE DRAFTING
1. Devotion and Dedication to the cause of the client (R. 14, RPC, 2007): the draftsman is expected to commit himself towards ensuring that he comes up with a productive bill.
2. Duty to represent client competently: (R.16 RPC):
3. Duty to keep the client informed of the progress and any important development in the course or matter as may be reasonably necessary: (R14 (2)(b)RPC)
4. Duty to respond promptly as reasonably possible to request for information by the client: (R. 14(2)(d)RPC)
5. Duty to consult with his client in all questions of doubt which do not fall within his discretion (R.14 (2)(a)):
WEEK 10
DRAFTING: RULES OF INTERPRETATION AND CONSTRUCTION OF AND CONTEMPT OF COURT
MAXIMS USED IN CONSTRUCTION
LITERAL RULE
This is also termed strict constructionism, which is the doctrinal view of judicial construction holding that the judges should interpret a document of statute (especially one involving penal sanctions) according to its literal terms, without looking to other sources to ascertain the meaning i.e. words to be given their ordinary meaning. It is the primary rule of construction. Where the words of the statute are clear and unambiguous, they must be construed according to their ordinary, plain and natural meaning. Where words are used in reference to a trade, profession or business, they must be used in line with that profession or trade. If used in a technical sense, the relevant interpretation is the technical meaning. Where no technical meaning, they are understood in their ordinary meaning and according to the rules of grammar. Where wordings of statute is broad or narrow, it must be construed broadly or narrowly respectively – R. v. Commissioner of Income Tax (1888) 22 Q. B. S. 296; Bronik Motors v. Wema Bank (1983) L.S.C.L.R. 296; Adegbenro v Akintola; Awolowo v. Shagari (1979) 6-9 S.C. 51; Toriola v. Williams (1982) 7S. C. 27; R v. Bangaza (1960) 5 FSC 1: Federal Supreme CT to interpret…….: CT held the relevant age was the date of conviction and not the age of commission of the offence (literal meaning) ;NdomaEgba v. Chukwuogor (2004) FWLR (Pt. 217) 735;Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; Ojukwu v. Obasanjo (2004) FWLR (pt 222) 1666. Argument that the CT should not fill gaps in statute as it is for the legislature to do so through amendment and it strengthens separation of power and provides for uniformity and consistency in the interpretation of statute It could lead to absurdity or injustice: Awolowo v Shagari & ors (1979): the issue of 2/3rd of 19 states. It has the ability of statute law becoming an arbitrary body of rules without underlying reasons.
GOLDEN RULE
This is the principle that in construing written instruments, a court should adhere to the grammatical and ordinary sense of the words unless that adherence would lead to some manifest absurdity; especially in statutory construction, thus, it is the principle that if a statute’s literal meaning would lead to an absurd or unjust result, or even to an inconsistency within the statute itself, the statute should be interpreted in such a way that avoids such a result or inconsistency. Avoids absurdity, injustice or thwarting the legislative intention
Rupert Cross in “Statutory Interpretation” page 14 (1976) held thus:
“The golden rule… allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in. The scope of the golden rule is debatable, particularly so far as the meaning of an ‘absurdity’ is concerned”.
Thus, it is a basic principle which should always be followed – Grey v. n (1857) 10 E. R. 1216; Mitchell v. Torrup (1766) Park 227; Bronik Motors v. Wema Bank (1983) L.S.C.L.R. 296 Pearso; Lee v. Knapp (1967) 2 QBD 442.Onyewu v. K. S. M (2003) 10 NWLR (Pt 827) 40. Beck v Smith (1836) 150 ER pg724-726; Udon and ors v Orthopaedic Management Board and ors (1990); Bronik Motors v Wema Bank
Merits: averts absurdity, injustice or thwarting the legislative intention. Demerits: offends separation of powers and foster judicial arbitrariness in the following ways: CTs in an attempt to vary the words used in a statute may arrive at divergent conclusions, which will introduce inconsistency and lack of uniformity in the judicial process.
MISCHIEF RULE
In statutory construction, the doctrine that a statute should be interpreted by first identifying the problem (or ‘mischief’) that the statute was designed to remedy and then adopting a constitution that will suppress the problem the remedy – Re Heydon's case (1584) 3 C. Rep. 7a; Smith v. Hughes (1960) 1 W.L.R. 830; Savannah Bank v. Ajilo (1989) 1 NWLR (Pt 97) 305; Wilson v. Attorney-General, Bendel State (1985) 1 NWLR (Pt 4) 573; National Assembly v. President (2003) 9 NWLR (Pt 824) 104. Cts to look at the position of the law before the Act was to be interpreted, defect or mischief not provided for in old law i.e. which the statute was intended to remedy, remedy to cure the defect and construe/interpret the provisions of the statute in such a way as to supress the mischief and advance the remedy. Balogun v Salami (1964) 1 ANLR 128; Wilson v AG Bendel State (1985) 1 NWLR (pt 4) pg 573.
Criticisms: encourages judicial activism and CTs entering the arena of the legislation: Magor v St Mellon RDC (1952) AC 189. Not useful where the legislation is about a new policy without previous mischief
EJUSDEM GENERIS RULE
Where there are enumerated specifics followed by a general word, the interpretation of the general word will depend on the class formed by the specifics. This means ‘of the same kind or class’. A canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. Thus, the class first mentioned is to be taken as the most comprehensive and the general words as referring to matter ejusdem generis with such class – Tillmann and Co. v. S. S. Knutsford Co. (1908) 2 K.B; (1908) A.C. 14, or ports if it was in the opinion of the master unsafe to do so "in consequence for war, disturbance or any other cause". The question arose whether a port inaccessible in the opinion of the master through ice was within the exception. It was held not to be so any other cause "must" be construed to apply to cause ejusdem generis or similar to "war" disturbance"; Jammal Steel Structure v. A. C. B. (1973) All NLR 823; F. R. N v. Ifegwu (2003) 15 NWLR (Pt 842) 113; Ojukwu v. Obasanjo (2004) FWLR (Pt 222) 1666. This rule can be excluded by using any of the following drafting skills:
a) Including but not limited to the following: lion, tiger, leopard and other animals
b) Lion, tiger and other animals whether of the same kind as those mentioned or not
c) Without prejudice to the generality of the following: lion, tiger and other animals
BENEFICIAL CONSTRUCTION
In construing a statute, the words must not be so strained as to include cases plainly omitted from the natural meaning of the language. Accordingly, a statute requiring that public house must be dosed at certain hours on Sunday should not be" so construed as to extend it to Christmas Day – Forsdike v. Colquhoun (1883) 112 B.D.71: the argument was that a statute required a public houses to be closed at certain hours on Sunday. It was sought to be stressed to include Christmas day. The CT refused this. Savannah Bank v. Ajilo (supra).
PURPOSIVE RULE OF INTERPRETATION
This approach is developed from the use of the" Purpose clause" and commonly found in statutes. The purpose clause may help the reader interpret the statute in case of any uncertainty in the statute – PDP v. INEC (1999) 11 NWLR (Pt. 626) 200; Pepper (Inspector of taxes) v. Hart (1993) All ER 42; Omoijahe v. Umoru (1999) 8 NWLR (pt 614) 188.
UT RES MAGIS VALEAT QUAM PEREAT
In circumstances where alternative constructions are equally open, that alternative which is consistent with the smooth working of the system is to be chosen which the statute purports to be regulating and that alternative is to be rejected which would introduce uncertainty, friction or confusion into the working of the system"; Shanon Realties Limited v. Villede St. Michael (1924) A.C. 185 per Lord Shaw at page 192 – 193.This is apparent in the construction of the constitution – Nafiu Rabiu v.The State (1980) Apply an interpretation that will give effect to a statutory provision rather than one which will not.
Yagube v COP: Supreme CT held where a word in a statute has two meanings, Ct to adopt meaning that will not defeat intention of the legislature
GENERALIBUS SPECIALIA DEROGANT/GENERALIA SPECIALIBUS NON DEROGANT
This is one of the exceptions to the ejusdem generis rule. It means a word that has a general meaning cannot derogate from a specific provision meaning i.e. the special provision prevails over the general provision.– Shroeder v. Major (1989) 2 NWLR (Pt. 101) 1; Attorney-General, Ondo State v. Attorney-General (Federation) (2002) 9 NWLR (Pt. 772) 222;M.V. Panormous Bay v.Olam (Nig) Ltd (2004) 5 NWLR (Pt 865) 1
EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS
What is stated in statute expressly excludes that which is not stated in statute. Therefore one does not import into a statute that which it is not meant to govern. Attorney-General(Federation) v. Aideyan; Ogbuniya v. Okudo (1976) 6-9 SC 32; PDP v. INEC (Supra); Osahon v. FRN (2003) 16 NWLR (845) 89; Udo v Orthopaedic Hospital (supra); PDP v INEC (1999) 11 NWLR
LEX NON COGIT IMPOSSIBILIA
This legal maxim means that the law does not command the doing of the impossible – Ohuka v. State (1988) 1 NWLR (pt 72) 1: Section 31 Supreme CT Act 1960 stated that a convicted person is to give notice of appeal within a prescribed period from the date of judgment. The day that judgment was given, convict was not taken to CT and months passed before it came to the convict’s notice that he had been convicted. Therefore, the time of notice cannot run until the appellant became aware of the judgment and not on the date judgment was given.
CONTRA PROFERENTUM
This means against the offeror. It is the doctrine that, in interpreting documents, ambiguities are to be construed unfavourably. Thus, it is where a particular contract is construed strictly against the interest maker of the particular provision in that document and in favour of the other party.
OUSTER CLAUSE
These are statutes, which have the effect of encroaching or derogating from vested rights of people. They are constructed strictly e.g. AG Federation v Sode (1999) 1 NWLR (128) 500; Fawehinmi v Abacha
INTERPRETATION OF THE CONSTITUTION
The Constitution of the Federal is usually construed broadly and liberally: Onuoha v State (1998) 12 NCLJ. This principle was reinstated in the case of PDP and another v INEC and others (1999) 11 NWLR (Pt 626) Pg 201: CT held that in interpreting the provisions of the statute or the constitution, such provisions should not be read in isolation of other parts. The statute or constitution should be read as a whole in order to know the intention of the legislature; The CT must be purposive in its construction of the Constitution. Where the Constitution gives a right but does not expressly state how the right is lost or denied, the CT has the right to ensure that the right is not taken by a restrictive rule; Also, the CT to protect the constitutional right by providing a remedy for redress of this right.
MEANING: Advocacy is a Latin word gotten from “advocare” which means “to speak out .
Advocacy refers to the process of pleading the cause of others or handling a client’s case. It is the art of persuading others (court) to believe in your client’s version of events.
Trial advocacy deals with the vocal skills which a lawyer uses in proceedings before the court or other bodies in the cause of handling matters for his client..
THE ESSENTIALS OF GOOD ADVOCACY –
1. Mastery of the facts;
2. Mastery of the law;
3. Adequate preparation;
4. Ability to speak eloquently in court;
5. Ability to efficiently conduct oral examination in court; and
6. Mastery of the proper approach to present final or closing address, including the ability to effectively canvass an allocutus or plea in mitigation.
HABITS TO AVOID AS AN ADVOCATE
An advocate should avoid the following –
1. Rude language.
2. Hiding under the cover of immunity to ridicule the character of opponents.
3. Being dishonest.
4. Being Hot-tempered.
5. Being timid.
6. Being over sensitive.
It should be noted that a persuasive (convincing) story can prove an affirmative case if it has the following characteristics –
1. It is told about people who have reasons for the way they act;
2. It accounts for or explains all of the known or undeniable facts;
3. It is told by credible witness;
4. It is supported by details;
5. It accords with common sense and contains no implausible elements; and
6. It is organised in a way that makes each succeeding fact increasingly more likely.
In preparing a persuasive story, the lawyer is under a duty to be bound by the truth under the rules of ethics and the Rules of Professional Conduct.
STAGES FOR PREPARING A PERSUASIVE STORY
To prepare a persuasive story, it consist of the following stages –
1. Prepare a story that has a theory and theme;
2. Plan your final argument;
3. Plan your case in chief considering your potential witnesses and exhibits; evaluating each witness individually in terms of factual weaknesses, evidentiary problems and credibility problems; decide which witness to call;
4. Plan your cross-examination; and
5. Outline your opening statement.
THE MAIN EFFECT OF ADVOCACY is for communication, that is, to communicate clearly and persuasively.
By this, one could infer three (3) things, which are –
1. Ability to speak with clear voice;
2. Listen carefully and adequately noting the language indicators (that is, speech, intonation, speed, hesitation, attitude, body posture, facial expression, etc); and
3. Ability to question effectively.
MODES OF ADVOCACY
Oral advocacy
Written advocacy
ESSENTIAL QUALITIES OF GOOD ADVOCATE
Extract from Munkman “The Technique of advocacy”
• A good voice
• Command of words
• Confidence
• Persistence
• Practical judgment
• Knowledge of mankind and of affairs
• Honesty,
• Industry or Hard work,
• Eloquence,
• Quick wit, and
• Spirit of fellowship.
PRE-TRIAL BRIEFING OF WITNESSES
Meet your prospective witness to make a statement for him. Let him know you before he meets you in court.
1. Determine the relevance of his evidence and determine whether he is a credible witness. Both will determine your decision to call him a witness.
2. Discuss with your witness how to dress to court to make a favourable impression.
3. Discuss with him how to give evidence in court. Advice him to avoid being insolent, insulting or truculent. Should answer questions politely and courteously. Should not be unbalanced or exhibit temperament in the face of fiery cross-examination.
4. Rehearse his evidence with him a day or two before the court hearing to refresh his memory about an event, which might have occurred years before.
5. Explain the proceedings in court to the witness e.g. (i) that he would be sworn before he gives evidence (enquire how he would like to be sworn) and (ii) that he would be required to leave the court i.e. out of court and out of hearing. Agree with him where he would be during the period and how to fetch him when he is wanted in court.
6. Ensure that witness spend minimum time in court, particularly busy witnesses. Where court has to adjourn before a witness testifies, counsel should inform him of adjourned date. Most witnesses sitting in the well of the court do not hear what goes on between the bench, bar and court clerk.
7. Arrange payment of reasonable allowance to your witness to compensate for his travelling expenses and the loss suffered by leaving his business to come to court. Remember your case will be determined on the strength of evidence given by your witness
EFFECTIVE ADVOCACY
THIS INVOLVES THE FOLLOWING:
a. Conduct clients and witnesses interview
b. Gather and master the facts of your case
c. Study and analyse the evidence needed to proof your case
d. Know the relevant law and authority to be relied upon
SKILLS AN ADVOCATE MUST POSSESS ARE:
a) Mastery of the facts of his case
b) Good communication, which involves one’s eloquence, clarity, good body posture, good body language and facial expression.
c) Mastery of the Law applicable on the case in concern
d) Adequate preparation
e) Address the Court properly- e.g. my Lord, Honour and Worship (NB: note magistrate in North is Your Worship and in Lagos it is Your Honour)
f) Ability to conduct examination of witnesses in Court.
ESSENTIAL TECHNIQUES OF TRIAL ADVOCACY
a. Speak slowly and be heard
b. Maintain eye contact with the judge
c. Be attentive to personal appearance and behaviour
d. Avoid raising manifold issues in making submissions
e. Clearly identify the theory of the case
f. Lead the judge
g. Use transitional devices like topic transition and topic label. Example is: My Lord, I will like to proceed to my next point on ambiguity of the charge.
h. Keep your focus on facts
i. Use the provisions of the Law appropriately by not citing a decision that has been overruled or not binding on the jurisdiction.
ESTABLISH A POSITIVE RELATIONSHIP WITH THE JUDGE BY DOING ANY OR ALL OF THE FOLLOWING:
• Handling the Judge's intervention effectively
• Avoiding contentiousness, and
• Preparing for the worst from any Judge.
CASE THEORY
The theory of the case is the starting point of preparation before going to Court.
It is the story a party wants to tell the Court convincingly to be able to get judgment in his favour.
DEVELOPING A CASE THEORY
THERE ARE TWO METHODS OF DEVELOPING A CASE THEORY WHICH ARE:
1. The circles method
2. Linear approach or the traditional approach.
THE TRADITIONAL APPROACH:
This is a situation where the Lawyer sticks to the facts, which he was briefed of by the client without more.
DISADVANTAGES OF THE LINEAR APPROACH:
It stifles one's ability to imagine:
a. The other possibilities that might arise
b. Other information, and
c. Other approaches to case preparation and delivery.
THE CIRCLES METHOD:
This method develops a story by relying on both mental and visual flexibility. The concepts are linked together in a visual rather than linear way.
ADVANTAGES OF THE CIRCLES METHOD:
a. It frees your mind to associate information.
HOW TO USE THE CIRCLES METHOD IS BY THE FOLLOWING:
1) Painting the picture to the Judge through the combination of witnesses' testimonies, exhibits tendered etc.
2) Control the witnesses by putting him at ease.
Whether in a civil or criminal matter, a story must be persuasive for a party to get judgment.
TO ESTABLISH A PERSUASIVE STORY, DO THE FOLLOWING:
a. It should be told by people involved, e.g. eye witnesses and avoid hearsay evidence
b. The witnesses are to explain all the relevant facts/details
c. The witnesses should be credible witnesses
d. The story accords with common sense
e. There is proper organisation or sequence.
CAN A WITNESS WHO IS NOT CREDIBLE DESTROY A PARTY’S CASE?
Yes, especially in cross-examination his credit will be impeached or he may become inconsistent in his testimony.
THE CASE/TRIAL PLAN
The case plan is a graphical chart on how a Lawyer intends to handle a matter from its institution to conclusion.
It may be a composite case plan containing a game plan of the Lawyer and an anticipation of the possible approach of the adverse Counsel (the devil's advocate).
WHAT ARE THE OBVIOUS TASKS IN PREPARING A CASE PLAN?
They include the following:
1. Identify the witnesses to be called in prove of the case
2. Identify the relevant documents to be tendered in Court in prove of the case and the necessary foundation to make for their admissibility in evidence.
3. Take their stories and investigate them in order to prevent new facts coming up that may likely affect the theory of your case
4. Know the relevant provisions and exceptions if possible of the Law on that matter.
5. Ask them relevant questions in Court to confirm or corroborate your story you want the Court to believe.
6. Make submissions in the above light.
7. If it is in a composite case plan, identify the possible things the opposing Counsel would do from 1-6 above. Find the appropriate ways or Laws to counter them so that one will not be taken by surprise.
Without a case plan or a game plan, there would be no ability to respond to changes or to measure the progress arising from witnesses testimonies or the documents tendered.
TRIAL PROCEDURE
OPENING ADDRESS/STATEMENT IN TRIALS.
• This is mostly done in criminal trials and rarely in civil trials. Rarely done in Nigeria in general
• Generally, it is an outline of a party’s story.
• The opening speech must be short, direct, and moderate, excluding reference to inadmissible evidence, avoiding personal opinion adverse to the facts or the likely credibility of a witness.
• The speech must have a structure because it is the means of getting the Judge to understand the case a party is about to present.
NB: Note the importance of opening address in both criminal and civil cases in Court.
In criminal trials, it is made after the plea has been taken.
S. 240 -241 of the CPA
S. 192 of the CPC
S. 272 of the ACJL.
See pg 124 to criticise the opening statement. Also draft an opening statement for scenario (ask others)
Also note closing/final address and when prosecutor has a right of reply (see criminal notes)
Week 11: Advocacy Practice, Advertisement and Improper Attraction of Business
STAGES IN A TRIAL
EXAMINATION-IN-CHIEF.
The purpose is to elicit information/facts from the witness (you call yourself) in support of a party’s case and to give an opportunity to deny any evidence to be given by the other party. It is also sometimes used to shield and insulate the witness from potential weaknesses in his evidence.
IN FCT, LAGOS, ENUGU AND SOME STATES: the frontloading rule is contained in the High Court (Civil Procedure) Rules where the Witnesses Statements on Oath are filed along with the originating process so there is no need to lead witnesses in evidence-in-chief but only to adopt the Witness statements on oath
In KANO state, Counsels still lead witnesses in evidence in chief. All undisputed documents can be tendered from the bar.
S. 214 (1) OF EVIDENCE ACT: The examination of a witness by the party who calls him shall be called examination in-chief. It is only in Criminal trial that witnesses must be led in examination-in chief.
PROCEDURE
1. The witness enters the witness box and takes the oath or affirms to tell the truth.
2. The witness is guided by counsel to tell the court his name, address, and occupation.
3. Thereafter, he begins to tell the court the whole story by identifying the parties involved in the case and how he came to know them, specifically, in regard to the events, which led to the proceedings in court.
4. The witness is also guided to tell the court the story that is relevant, and in an orderly and easy manner to follow
5. The witness may thereafter be cross-examined and re-examined before leaving the witness box.
TECHNIQUES IN EXAMINATION-IN-CHIEF
• Use open questions like why, how, when, where, whom, and what to enable the witness tell his story not leaving out important points.
• Leading questions that tend to suggest the answers to a witness are not allowed but this is permitted on introductory matters or facts that are not in issue or with the permission of the Court: s221(1)-(3) Evidence Act
• Closed questions may be used when desirable especially if the witness is not been specific in his story telling.
• The witness should establish a base point, which is the physical description of things and direction.
• Repeat important points, repeat them, restate them, repeat them again and think of ways to re-state them again.
• Conversely, less important points should not be repeated.
The Skills
1) Simple questions
a) Be logical: (i) Identify the evidence and sequence; (ii) start at the beginning and consider whether to elicit background information.
b) Break down the evidence: (i) Break down the subject areas of the witness evidence into smaller pieces
c) Use transitional questions
d) Focus on short and simple questions: (i) Ask a single fact; (ii) Ask non-leading questions; (iii) You may ask leading questions of non-disputed facts
The non-leading question usually start by asking who, what, where, when, why, how
2) Piggy Backing Questions are questions that you need to carry your witness along to get the answer/facts you are wishing to elicit e.g. what did John do when he saw you? He attacked me with a hammer. When he attacked you with the hammer, what did you do?
3) Insulating the witness when there are weaknesses in the case the advocate has to insulate the witness. This may be where: (i) Evident weakness in your case; (ii) Weakness is subtle; (iii) There is a weakness and the witness is absolutely dreadful and incomprehensible.
4) Inflection, volume and rate of speech: (i) Try to avoid sounding like a lawyer; (ii) Be interested in the witness’s answer
5) Listening: (i) Never assume you know the answer of a question you asked; (ii) Never focus on your next question until the witness has given a complete answer to the question that has just been asked
6) Body language: (i) Eye contact and confidence can reassure a hesitant witness; (ii) Avoid moving around the courtroom too much
But before all these you should
• Know the witness you are calling i.e. their personality (shy, hot temper, nervous, respectful, defensive, temperamental)
• Make him understand your case (i.e. this is what the lawyer needs to prove and the witnesses’ evidence is required to move such and such fact)
• Drop him if you think he/she is a bad witness
CROSS-EXAMINATION
• It is the interrogation of a witness called by one’s opponent in a Court trial.
• Leading questions and closed questions can be asked which are even more effective.
• In some jurisdictions, advocates are not permitted to ask questions that do not pertain to the testimony offered during direct examination
• But in most jurisdictions, advocates are allowed to cross-examine to exceed the scope of direct examination.
• In Nigeria, can cross-examine on all relevant facts (Evidence Act on relevancy)
S. 221(4) OF THE EVIDENCE ACT: Leading questions may be asked in cross-examination.
It is a right of fair hearing to cross-examine opposing witnesses.
S. 36(6) (d) of the 1999 Constitution as amended
ONWUKA V. OWOLEWO
• Any testimony from evidence-in-chief not put to the witness as being false, is taken to be conceded.
OBJECTIVES OF CROSS-EXAMINATION:
a. Impeach the credibility of the witness (es) called by the adverse party.
b. Discredit the opponent’s testimony
c. Contradict the evidence already given by a party
d. Get evidence or materials favourable to one’s case and for use in the final address.
e. To systematically build the argument of your case to be used in address.
S. 223 AND 233 OF THE EVIDENCE ACT
THE SCOPE OF CROSS-EXAMINATION IS THAT:
1. It has a wide latitude as the questions cannot be restricted to only the facts in issue or the evidence given under examination-in-chief.
2. Leading questions are allowed: S. 221(4) of the Evidence Act.
3. Do not try to extract new information in cross-examination
4. Effective cross-examination always succeed by asking questions by implication
5. There is no restriction on facts sought to be questioned on
6. It is an avenue for the test of accuracy, veracity and credibility of witnesses
7. Can show previous inconsistent statements made by a witness.
Ingredients of cross-examination
1) Control: keep the witness tight and control his direction. Ask questions with speed
2) Speed: If a witness is not telling the truth, he needs time to think. Do not allow him that time
3) Memory: You must know facts and information with minimal reference to paper if you must
4) Precision: question must be formulated swiftly and with care. It must be clear, simple and not objectionable to get a precise answer
5) Logic: questions asked should be logical with the aim at the end to show that the witness is not logical
6) Timing: once a witness is put into a corner, then finish him
7) Manner: your manner and behaviour should be appropriate to the circumstances and the witness (e.g. an elderly woman who is ill, arrogant, high tempered)
8) Termination: you must know when to quit
3 rules for cross-examination
• Rule one: Do not cross-examine e.g. when the witness has done no damage to your case, when no facts can be elicited to help your case
• Rule two: Do not ask questions that you don’t know the answer
Question: is it not true that you were furious at the victim for being unfaithful because he was your lover?
Answer: No, he was not my lover, he was my father
• Rule three: Do not ask questions that are open – those that begin with: what, when, who, where, how
Phases of cross-examination
• Phase one: Extraction – get some useful information from the witness which is favourable to your case
• Phase two: Closing – close all doors and windows and make the witness to make commitment on some facts before attacking him or else he will escape e.g. dates
• Phase three: Impeachment: before you proceed to do this, you must have asked yourself: whether the witness has really hurt your case…………………
Ten commandments of cross-examination
1) Be Brief, succinct, short: never more than 3 points on cross examination
2) Ask short questions and use plain words
3) Ask leading questions
4) Do not ask questions you do not know the answers
5) Listen to the answers
6) Don’t quarrel with the witness (i.e. when the witness gives an absurd or irrational answer)
7) Don’t give the witness the opportunity to repeat his story (makes it more believable to the judge)
THE RESTRICTIONS IN CROSS-EXAMINATION OF WITNESSES
1. Argumentative questions
2. Intimidating behaviour
3. Unfair characterisations of the witness
4. Assuming facts not in evidence
5. Asking compound and defective questions
S. 224, 227 and 228 of the Evidence Act 2011.
s224(1): If any question permitted to be asked under section 223 of this Act relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it.
Section 227: The court may forbid any question or inquiry which it regards as indecent or scandalous although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.
Section 228: The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form.
TECHNIQUES OF CROSS-EXAMINATION
1. Control the witness
2. Ask questions that will tell your client's story
3. Determine the flow of information
4. Save the best for the last
5. Use of sequenced questions which are logical
DELIVERY TECHNIQUES OF CROSS-EXAMINATION
1. Do not read or memorise the proposed questions to aid your flexibility in doing so
2. Use body and hand movement
3. Verbal pacing so that the Court will record while the witness understands the questions
4. Use of visuals
5. Use of headlines
6. Use of simple, active language.
MUNKMAN’S TECHNIQUES OF CROSS-EXAMINATION ARE AS FOLLOWS:
CONFRONTATIONAL TECHNIQUE –
This involves using the previous inconsistent statement of a witness to discredit him.
PROBING TECHNIQUE
Questioning on the evidence given under examination-in-chief.
INSINUATION –
It involves presenting your case or facts to the witness, which tend to add, alter or modify the evidence already given and which are favourable to your case.
Examples of such are questions asked are like these: ‘It is true that…..’, ‘Will I be correct to say….?’, ‘I put it to you that…..’ etc.
UNDERMINING:
Here you use questions that will reduce the qualification or experience of the witness and is directed to the person and not the testimony of the witness. Example where it is a vital tool is when cross-examining an expert witness.
RE-EXAMINATION
The aim is to clear any ambiguity arising from a witness’ cross-examination but it is not to supply omitted or new facts to a party’s case.
S. 214 (3) of the Evidence Act
FINAL ADDRESSES
It is a constitutional right to be allowed to address the Court after the close of evidence: S. 294(1) of the 1999 Constitution as amended.
THE PURPOSES OF FINAL ADDRESSES ARE AS FOLLOWS:
a. To apply the Law to the evidence already adduced in trial
b. To urge the Court to deliver judgment in one’s favour.
POST-TRIAL/PRESENTATION ACTIVITIES INCLUDES THE FOLLOWING:
a. Notify the client of what has happened during trial in Court
b. Inform the client of what is expected to happen in the matter
c. Write to inform, confirm instructions or remind the Client of what he is expected to do
d. Advice clients on the options available after judgment.
TRIAL PUBLICITY OR THE SUB JUDICE RULE
The general rule is that a Lawyer or a Law Firm engaged in or associated with the prosecution or defence of any trial anticipated or pending in a Court shall not make any statement or participate in making extra judicial statement calculated to prejudice or interfere with the fair trial of a matter/judgment or sentence: R. 33 of the RPC. An EXCEPTION is where the statement made is a fair comment.
IMPROPER ATTRACTION OF BUSINESS
Improper attraction of business includes all acts, which give an unfair advantage to a lawyer thus lowering the prestige of the profession. It also causes unhealthy reputation, misrepresentations, insinuations of incompetence, and it is unethical.
ADVERTISEMENT AND SOLICITATION
Advertisement is a notice or display advertising a thing or something whilst solicitation is to accost someone and offer one’s services.
Before the making of the Legal Practitioner’s Rules 1964, advertising was generally prohibited in the legal profession under Rule 33 of the Old Rules. In LPDC v Gani Fawehinmi (1985) 2 NSCC 998, the Late Chief Gani Fawehinmi after editing a book, advertised it in a newspaper known as ‘West Africa’ in the following words, “A New Book on Nigerian Constitutional Law titled Nigerian Constitutional Law Reports 1981 Vol One Edited by Chief Gani Fawehinmi the famous, reputable and controversial Nigerian Lawyer.”
The office of the Attorney General of the Federation brought a two count charge of professional misconduct against Chief Fawehinmi on the grounds of contravention of the rules of advertisement under Rules 33 and 34 of the RPC 1979. The matter was however struck out but on the successful challenge of the composition of the tribunal, which had offended the rule of natural justice and fair hearing.
Under Rule 39(1) of the Rules of Professional Conduct, 2007 however, a lawyer may engage in any advertising or promotion in connection with the practice of law so far as it is fair and proper in all circumstance; and complies with the Rules. The rule expressly provides:
39.(1) Subject to paragraphs (2) and (3) of this rule a lawyer may engage in any advertising or promotion in connection with his practice of the law, provided:
(a) it is fair and proper in all the circumstances
(b) it complies with the provisions of these Rules.
The Rules in Section 39 (2) then provides the circumstances where advertisement is prohibited as follows.
39 (2)A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which -
(a) is inaccurate or likely to mislead;
(b) is likely to diminish public confidence in the legal profession, or the Administration of Justice, or otherwise bring the legal profession into disrepute;
(c) makes comparison with or criticises other lawyers or other professions or professionals;
(d) includes statement about the quality of the lawyer’s work, the size or success of his practice or his success rate; or
(e) is so frequent or obstructive as to cause annoyance to those to whom it is directed.
Soliciting is similar to advertising. Soliciting relates to a statement or conduct by a lawyer which is calculated to lure a particular person or group of persons to engage the lawyer
Rule 39(3) RPC 2007: Specifically, a lawyer shall not advertise his services or solicit professional employment either directly or indirectly by (a) circulars, handbills, advertisement, through touts or by personal communication or interview; (b) by furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of the law (c) by procuring his photograph to be published in connection with matters in which he has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved or the importance of the lawyer’s position; (d) by permitting or inspiring sound recordings in relation to his practice of law; or (e) by such similar self-aggrandisement.
The most infamous reported case on improper attraction of business, albeit not in the legal profession was the locus classicus case of Allison v General Council of Medical Education and Registration (1894) 1 QB 750. In that case, the Plaintiff, a medical practitioner published a great number of advertisements in several newspapers which contained reflections upon his medical colleagues generally and their methods of treating their patients, the plaintiff after castigating them, advised the public to have nothing to do with his colleagues and their drugs. The advertisements also recommended to the public to apply to the plaintiff for medical advice and stated his address and the amount of fees, which he charged. The General Council found him guilty of infamous misconduct in a professional respect and directed that his name be erased from the register of medical practitioners and his challenge of that decision was dismissed.
Rule 39(4) states some forms of advertisement that are allowed.
Nothing in this rule shall preclude a lawyer from publishing in a reputable law list or Law Directory, a brief biographical or informative data of himself, including all or any of the following matters
(a) his name or names of his professional association; (b) his address, telephone number, telex number, e-mail address, etc ;(c) the school, colleges, or other institutions attended with dates of graduation, degree and other educational or academic qualifications or distinctions; (d) date and place of birth and admission to practice law; (e) any public or quasi-public office, post of honour, legal authority, etc;(f) any legal teaching position;(g) any national Honours ;(h) membership and office in the Bar Association and duties thereon; and (i) any position held in legal scientific societies.
Rule 40 RPC permits the printing of business cards (also his note-paper, envelopes and visiting cards) containing his (a) name and address; (b) academic and professional qualifications and title including the words “Barrister-at-Law”, “Barrister and Solicitor”, “Solicitor and Advocate”, “Legal Practitioner”, “Attorney –at-Law”, and (c) any National Honours.
Also permissible to send to a client notice of a change of address or telephone number or other circumstances relating to his practice, a lawyer may send to his clients notice of the change and may insert an advertisement of such change in a newspaper or journal: Rule 43 RPC.
Also having the word “Barrister and Solicitor” or “Solicitors and Advocate” written after the lawyer’s name or a sign or notice containing his or firm name and professional qualifications displayed at the entrance or outside in building where his chambers is situated is permissible. However, the sign and notice must be of reasonable size and the design must be sober: Rule 41 RPC
A lawyer’s degree may also appear after his name. If he is a notary public, it could also be included but it does not include specialist qualification. For example, Commercial Land consultants, experts in family issues, divorce, custody, welfare, etc. Such advert is unethical.
Rule 42 RPC permits a lawyer who writes a book or an article for publication in which he gives information on the law, to add his professional qualification after his name while Rule 46(1) RPC permits a lawyer to write articles for publications, or participate in radio and television programmes in which he gives information on the law, but he shall not accept employment from any such publication or programme to advise on inquires in respect of their individual rights. Rule 46(2): A lawyer shall also not (a) insert in any newspaper, periodical or any other publication, an advertisement offering as a lawyer, to undertake confidential enquiries or (b) write for publication or otherwise cause or permit to be published except in a legal periodical, any particulars of his practice or earnings in the Courts or cases where the time for appeal has not expired on any matter in which he has been engaged as a lawyer; or (c) take steps to procure the publication of his photograph as a lawyer in the press or any periodical. Section 46(3) RPC: Where a lawyer is instructed by a client to publish an advertisement or notice, the lawyer may put his name, address and his academic professional qualifications.
Rule 44 RPC: Where a lawyer is available to act as an associate of other lawyers either generally or in a particular branch of the law or legal service, he may send to lawyers in his locality only and publish in his local journal, if any, a brief and dignified announcement of his availability to serve other lawyers in that connection as long as the announcement is not designed to attract improperly.
Soliciting for instructions and employment is probably the most common and degrading example of unfair attraction of business. It lowers the prestige and reputation of the lawyer involved and the profession as a whole. In includes the following:
1. Solicitation for employment in Court premises.
2. Solicitation for conveyancing business.
3. Conducting search at the Land Registry to detect defects with a view to employment in litigation.
4. Instigating litigation.
5. Ambulance chasing.
6. Under association. This is an indirect form of touting; and could also be referred to as “class touting”.
7. Pasting circulars, handbills and advertisement through touts or by personal communication or interview
8. Furnishing, permitting or inspiring Newspaper Radio or TV comments in relation to his Law practice
9. Procuring his photograph to be published in connection with matters he has handled or the manner of their conduct
10. Permitting inspiring sound recording in relation to his practice of Law.
11. Similar self-aggrandisement.
Finally, it is desirable for a legal practitioner to meet with people in clubs, restaurants and other social gatherings, but not where the aim of such gathering is for a legal practitioner to associate unduly with other persons who are in a special position to assist him to obtain employment. It is very dishonourable for a legal practitioner to distribute his cards in social gatherings to gain employment. This is very degrading and unethical.
USE OF LAWYERS’ ROBES
Rule 45(1) RPC: Except with the permission of the Court, a lawyer appearing before a High Court, the Court of Appeal or the Supreme Court shall do so in his robes.
Rule 45(2) RPC: A lawyer shall not wear the Barrister’s or Senior Advocate’s robe (a) on any occasion other than in Court except as may be directed or permitted by the Bar Council; or (b) When conducting his own case as party to a legal proceeding in Court; or (c) When giving evidence in a legal proceeding in Court.
INSTIGATION OF CONTROVERSY OR LITIGATION.
The general rule is that a Lawyer should not foment strife or instigate litigation without being consulted, proffer advice or bring a law-suit.
An EXCEPTION to this rule is in the case of
• Close relations or
• of a trust where he is the trustee, then he can take up a case even without being consulted.
R. 47(1) of the RPC.
Section 47(2) RPC: A Lawyer should not do any of the following amounting to instigation of controversy or litigation with a view of been engaged as Lawyer in respect of the matters instigated:
a) Search Lands Registry or other Registries for defects with a view to employment or litigation.
b) Seek out Claimants in respect of personal injuries or any other cause of action with a view to being employed by the prospective client
c) Engage, aid or encourage an agent or any person to follow up on accidents with a view to employment as a lawyer in respect of any claims arising there from; or
d) Offer or agree to offer rewards to any person who by reason of his own employment is likely to influence legal work in favour of the lawyer.
THE EFFECT OF BREACHING THE RULE OF ADVERTISEMENT
Where there is a breach of advertisement, the noble and sober nature of the profession will not be maintained since success now depends on effective advertisement and not on competence.
Adverts tend to berate or belittle other members of the profession. It creates unfair attraction of business. Briefs will now depend on the financial capability of the lawyer to engage the best form of advert. Unhealthy competition and rivalry will be created and dignity of the profession would be eroded by such practice.
Week 12: LAW OFFICE MANAGEMENT
WHAT IS LAW OFFICE MANAGEMENT
Law Office Management is the study of the organisation and methods employed in the law office and the relationship between members of staff of that office on one hand and their relationship with members of the public with whom they are in contact. It is also concerned with the development of human and other resources in a law office.
SIGNIFICANCE: The study of Law office management is important because the success of a legal practitioner to a large extent depends on his ability to successfully manage his law office rather than on his academic achievements or advocacy or drafting skills.
WHEN IS A LAWYER QUALIFIED TO OPEN A LAW OFFICE
OLD POSITION- LP s must undergo pupillage before they can open a law office. Thus a lawyer of less than 5 years post call was prohibited from engaging in private practice on his own. However, SECTION 6(2) of Regulated and Other Professions (Private Practice Prohibition) Act, Cap. 390 LFN, 1990 (LAW HAS BEEN REPEALED)
NEW POSITION- Every legal practitioner can engage in private practice immediately after being called to the bar.
ESTABLISHING A LAW FIRM
WHY ESTABLISH A LAW FIRM?
Rule 22 RPC provides that except in special circumstances or some other urgent reason, a member of the Bar shall not call at a client’s house or place of business for the purpose of giving advice or taking instruction from the client. In effect, a legal practitioner who wishes to practice must do so from a law firm – either an already existing one, or he will have to establish one.
REASONS FOR ESTABLISHMENT OF A LAW FIRM
1) Sheer necessity – This is due to the inability to secure paid employment which makes them opt for establishing a law firm in order to create employment for themselves.
2) Self–esteem/pride – Some legal practitioners establish law firms because it is perceived as prestigious to own a law firm. This is due to the fact that putting up their name on notice and printing their names on complementary cards or letterhead papers is their desire.
3) Independence – Most legal practitioners establish law firms because of a desire to be their own boss rather than working under someone else.
4) Desire to earn higher professional fees
5) Profit – Some legal practitioners believe that the profit they will make by establishing their own law firm will exceed that earned when being employed.
6) Compliance with the rules-RULE 22
LEGAL SERVICES A LAWYER/LAW FIRM RENDERS TO HIS/ITS CLIENTS
1. Representation in Courts or other tribunal for purposes of litigation
2. Drafting, editing or analysing legal documents
3. Offering Legal Opinions and Advice
4. Representing clients in ADR Processes
5. Conducting Investigation & Searches (at Land Registries, Probate, CAC, etc.)
6. Representation in (contract) negotiations
7. Management of law firms
8. Settlement of disputes (i.e., acting as Arbitrators/Mediators, etc.)
9. Perfection of titles of clients
SKILLS A LAWYER/LAW FIRM MUST POSSESS IN ORDER TO BE ABLE TO RENDER NECESSARY LEGAL SERVICES TO CLIENT
1. Drafting skills
2. Advocacy Skills
3. Negotiation skills
4. Management skills
5. Communication skills
6. Research skills
7. Interviewing Skills
8. Adjudication skills (when they act as arbitrators, mediators, or Panel/Committee chairmen/members for settlement of disputes, etc.)
QUALITIES A LEGAL PRACTITIONER MUST POSSESS IN ORDER TO SUCCEED IN THE PROFESSION
a. Honesty
b. Integrity
c. Hard-work, determination and commitment
d. Skills --includes advocacy, communication, negotiation, research, drafting etc
e. Knowledge --both legal and non-legal
HONESTY AND INTEGRITY are the foundation of the rules of professional conduct. The legal practitioner is an officer of the law and has a primary duty to aid in the administration of justice. The practitioner – client relationship is subject to the overriding duty of the practitioner to his profession as an officer of the law. The Rules of the RPC all relate to honesty and integrity.
Rule 15 RPC – enjoins the legal practitioner to perform his duty within the law and to obey his conscience and not that of his client.
Rule 54 RPC : A lawyer shall not accept any compensation, rebate, commission, gift or other advantage from or on behalf of the opposing party except with the full knowledge and consent of his client after full disclosure.
Rule 23(2) RPC: Where a lawyer collects money for his client, or is in a position to deliver property on behalf of his client, he shall promptly report, and account for it, and shall not mix such money or property with, or use it as, his own.
See SAGOE v. R (1963) 1 ALL NLR 290; ONAGORUWA v. STATE (1993) 7 NWLR (pt. 303) 49.
REQUISITES FOR ESTABLISHING A LAW FIRM
Knowledge: Knowledge entails both legal and non-legal knowledge and every
practitioner is presumed to have both knowledge.
Skill: This is the ability to apply legal knowledge to solve a legal problem.
A combination of the two will be required to render good legal services otherwise a practitioner may be liable for damages.
BELLO RAJI V: X. A LEGAL PRACTITIONER (1946) 18 NLR 74
Experience – The best way to acquire experience is by working for an experienced person for some time that is, working in another well-established law firm or in the Ministry of Justice.
Good Luck – The success of a law firm is also determined by good luck, which may provide an abundance of opportunities for the legal practitioner
Dynamism and innovation; Wits and intelligence; Finance
BUSINESS PLAN
A business plan is a document containing information about a proposed firm, its goals and the financial projections for it. It is normally prepared by an Accountant for the owner.
Note that it is desirable for a legal practitioner who chooses to establish a law firm to have a business plan.
THE CONTENTS OF A BUSINESS PLAN ARE:-
1. Name(s) of the practitioner
2. Name of the firm
3. Business Address
4. Business Start date
5. Types of firm
6. Goals of the firm
7. Segmentation of the market
8. Market competitors
9. Capital requirement
10. Borrowing requirement
11. Security to be provided
12. Use of funds
13. Employment of staff
14. Management system
CLIENTELE
A legal practitioner must ensure that markets exist for his service otherwise the purpose of establishing a law firm will be defeated.
POTENTIAL CLIENTS -
(a) Banks and other financial institutions.
(b) Companies
(c) Large statutory bodies
(d) Legal Aid Council
(e) Individuals
(f) Government briefs.
Therefore, a practitioner should map out strategies of winning clients subject however to Rules of Professional Conduct.
STRATEGIES FOR WINNING CLIENTS
THE BENEFITS THAT A CLIENT SEEKS FROM A FIRM
i) Expertise – This involves clients who require firms with expert knowledge and skill to handle what they consider as complex and unusual matters.
ii) Experience – This involves clients choosing one firm instead of another because such firms are experienced in an area of law due to the reputation of the firm.
iii) Efficiency – This involves clients with matters that can be handled by several firms but require a prompt delivery of service at a competitive rate.
LEGAL SKILLS AND WORK DONE BY LP ARE:
|SKILLS |PRACTITIONERS WORK |
|Legal research and verbal communication skills |Rendering legal service |
|Advocacy skills |Representing client in courts and tribunals |
|Drafting skills |Drafting documents and pleadings |
|Negotiating skills |Negotiate transactions and settlement of disputes |
|Management skills |Managing a law firm |
CLASSIFICATION OF A LAW FIRM
There are five (5) ways of classifying law firms in Nigeria. They are:
1. Location –
• firms in large metropolitan cities,
• firms in state capitals,
• firms in semi-urban or rural towns.
2. Client base – This has to do with the types of clients a legal practitioner chooses to serve.
• firms that serve organisations (that is, corporate and governmental bodies);
• private clients (that is, whether fee paying or legally aided).
.
3. Facilities –
• modern law firm (with technologically advanced and sophisticated equipment)
• traditional law firm (with only basic and simple equipment).
4. Status of lawyers – This deals with classes of legal practitioners thus, a firm may be classified as SAN or non-SAN firm.
5. Number of lawyers –
The number of legal practitioners in a law firm makes up the size of a law firm.
It is the size of law firms in a particular location that determines the criteria (small, medium or large) to be used in a classification.
Small law office: it occupies a room or two with 1-4 Lawyers (ii) Medium size law office having between 5-9 lawyers (iii) Large law office with 10m and above fee earners
ORGANISATION OF LAW FIRMS
A legal practitioner who wishes to establish a law firm must decide on a type of law firm.
In Nigeria, there are four (4) types of law firms, and any one of these may be chosen to carry out legal practice.
They can be registered under PART B
TYPES OF LAW FIRMS / MODELS OF LEGAL PRACTICE
SOLE PRACTITIONERSHIP
• ONE LEGAL practitioner as the owner of the business
• Only support staff.
ADVANTAGES
1. It is relatively easy to set up
2. Enhances quick decision making
3. The sole practitioner takes all the credit for success/failure of the practice.
4. He takes all the profits alone
DISADVANTAGES
1. Professional isolation-Has no other lawyer to discuss issues with
2. Relatively low quality work
3. Energy sapping- does the work alone
4. Lack of full attention to all the matters he is handling
5. Generalist
6. Difficulty in getting clients
7. No time for holidays
8. Full credit for failure is borne by him
9. No division of labour
10. Death may terminate the practice
11. Undue delay in service delivery
SOLE PROPRIETORSHIP.
COMPOSITION-
• One Legal Practitioner as the owner
• Employing other Legal practitioners (salary earners)
• Support staff
ADVANTAGES
1. Ease of decision making
2. Entitled to all his profits but has to pay salaries
3. Takes credit for success of the firm
4. Can specialise in any area of his choice
5. Ease of succession
6. Succession by the children and family can be achieved without stress
DISADVANTAGES
1. Bears the cost of setting up and running the firm alone
2. Bears risk of failure alone
3. Low quality decisions(unilateral)
4. Death could lead to collapse of the firm
ASSOCIATESHIP.
• Two or more legal practitioners come together to establish the firm contributing to its establishment and running
• Joint hiring of staff, furnishing , payment of rents
• Each maintain separate legal office and legal practice
• They do not share profits
ADVANTAGES
1. Easier to set up as they pool resources together
2. Not professionally isolated
3. They don’t share profits
4. Take credit of success/failure of independent practice
5. Enhances a large well furnished office
DISADVANTAGES
1. Hinders growth as each associate bears loss alone
2. Rivalry among associates
3. Lack of trust among associates
4. Conflicts may arise
5. Due to unequal success, an associate may not keep up to terms of the associateship
PARTNERSHIP.
• Two or more legal practitioners may contribute capital to provide facilities and run the firm as partners.
• The partners are all owners of the firm; the relationship between them is that of joint owners.
• The profits of the firm will be divided according to their capital contribution or any other agreed formula.
• They owe a fiduciary duty to one another and are prohibited from making secret profits.
• They are also liable jointly and severally for any loss sustained and severally for any loss sustained by the firm – Yesufu & Anor. v. Kupper International NV (1996) 5 NWLR (Pt. 446) 17.
Restrictions On Formation Of Law Firms And Law Partnerships In Nigeria
a. Lawyer must not form a partnership for the purpose of law practice with a non-lawyer or with a person who is not called to bar or admitted to practice law in Nigeria: Rule 5 (1) RPC, 2007
b. A lawyer practicing alone must not hold himself out to the public as if he is in partnership; accordingly, sole practitioners are prohibited from using the name, “A, B & Co or such other Name as many suggest that he is in partnership with others: Rule 5 (4) RPC, 2007
c. It is unlawful to carry out law practice as a corporation: Rule 5 (5) RPC, 2007
d. The name of a serving judicial officer must not appear in the name of any Law Firm in Nigeria: Rule 5 (3) RPC, 2007.
e. A lawyer must not aid a non-lawyer in an unauthorised practice of the law: Rule 3 (1) (a) RPC, 2007.
f. Except with the approval of the Bar Council, a lawyer shall not practice at the bar (own a law firm) and simultaneous practice any other profession or engage in any trade or business, except in permitted areas: Rule 7 RPC, 2007.
g. A lawyer who is a public officer must not “engage or participate in the management of any private business, profession or trade” except farming and is therefore barred from setting up or operating a law firm: Section 2 (b) of Part 1 of the 5th Schedule to the 1999 Constitution (Code of Conduct for public officers)
RULES GUIDING FORMATION OF LAW PARTNERSHIP
• All partners must be called to bar and admitted to practice in Nigerian
• Name of deceased partner will continue to be used by the firm EXCEPT where it will lead to deception
ADVANTAGES
1. Sharing of financial responsibility
2. No professional isolation
3. High quality decisions
4. Sharing of profits and losses
5. Room for specialisation
6. Easier to get clients because of professional competence of more people involved
7. More time for relaxation
8. Easier to raise capital to set up.
9. Division of labour
10. Possibility of having a well equipped law firm
DISADVANTAGES
1. In law, each partner is an agent of the other partners. Each partner is liable for the act of another done within the partnership business-
UNITED BANK OF KUWAIT V. HAMMOND
2. Fraudulent act of one partner may taint the reputation of other partners
3. There may be mistrust among the partners which may hamper the success of the firm
4. Slow decision making
5. Double loyalty
6. Disagreement among partners may affect the stability of the partnership
FORMATION OF A PARTNERSHIP
A partnership can be formed orally or in writing. However, it is advisable to have a partnership agreement in writing in order to prevent disagreements and problems.
The issues, which a partnership agreement should deal with, include the following:
1) Nature and object of the partnership business;
2) Firm name;
3) Location of firm;
4) Capital contributions;
5) Decision of profits and losses;
6) Maintenance of individual income accounts;
7) Management;
8) Devotion of full time to the firm;
9) Expulsion from the firm;
10) Admission of new partners;
11) Retirement, expulsion or death of a partner;
12) Withdrawal of partner due to incapacitation;
13) Annual and maternity leave;
14) Ownership of assets;
15) Restraint of trade;
16) Resolution of disputes; and
17) Termination.
NOTIFICATION OF LAW OFFICE
■ Legal Practitioners must notify the branch NBA of its location of its establishment
■ Such notification must be made WITHIN 30 DAYS of its establishment
THE NOTICE SHOULD CONTAIN-:
■ Name of the lawyer or lawyers
■ Date of call to bar and enrolment
■ Address of the law office
■ The information is entered into the Register of the NBA
■ Change of information, if any, is communicated to the NBA.
RULE 13(1) RPC
R.13(4)- similar notice is required in event of CHANGE OF NAME OR ADDRESS
FINANCING A LAW FIRM
TYPES OF CAPITAL
1) Start-up capital – This is for provision of facilities needed by the firm such as premises, furniture, vehicle, office machinery and equipment. It should be noted that they may be bought or hired, but they must be provided before a law firm can operate. However please note that machines and equipment may be hired, rather than out rightly purchased
2) Working capital – This is for recurrent expenditure such as utilities bills, staff salaries and wages and cost of stationery. The cost of establishing a law firm will depend on the type of firm to be established, where the firm will be established, if it is a modern firm, etc.
SOURCES OF FUNDS FOR A LAW FIRM
1. Personal funds and savings
2. Borrowing from banks or other financial institutions
3. Financial support from friends and family
Where a legal practitioner has been in gainful employment (prior to establishing his own firm), it is quite likely that he may have some personal savings with which to establish a law firm. A legal practitioner may also raise funds from family, relatives and friends and this is also classified as personal savings.
Difference Between Loans And Overdraft From Banks And Other Financial Institutions.
The difference between a loan and an overdraft is that while interest is payable on the entire amount of the loan whether utilised or not, interest is payable only on the amount of the overdraft that is utilised.
Secondly, overdraft is repayable on demand at any time, whereas the repayment period of a loan is fixed.
An ascertainable amount is required to buy fixed assets and a loan is expected to be repaid over a fixed period unlike an overdraft.
Money required as working capital is unascertainable and will vary over a period of time and an overdraft can be drawn when required.
In the light of the foregoing, it is advisable to apply for a loan if the fund required is start up capital and an overdraft if the fund required is working capital.
Note that a lender may require security to be provided. It is now a criminal act to grant a loan without security or adequate security. See SS. 19 and 20 Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 1994.
Security may be in form of real property, shares and stocks or personal guarantee.
It is advisable to consider the interest rate, bank charges, commissions, arrangement fees and other charges on a loan or overdraft from various banks before making a decision and going for the best offer. Indeed if a practitioner can otherwise provide funds, borrowing from the banks and financial institutions is not to be encouraged.
TYPES OF PREMISES: There are 3 types of premises that can be used for office accommodation. They are:
1. PURPOSE BUILT OFFICE ACCOMMODATION:-
This is a form of building purposely built for office accommodation.
It is often open space but" partitioned by the practitioner as he wishes.
2. EXISTING BUILDING:- This is an existing building that is converted into a law office with considerable modifications. This is because such building is initially designed for residential use.
3. OFFICE IN THE HOME:-
A law office could be located at home whereby a legal practitioner operates from his home.
ADVANTAGE
Saves overhead cost
DISADVANTAGE
Inconvenience
Does not convey business like image
DESCRIPTION OF PREMISES
The premises where a law firm operates is popularly called "Chambers" in Nigeria.
This is not appropriate because of the fused nature of legal practice.
The proper name should be "Law Office" as is called in United States of America where there is also a fused profession.
FACTORS TO BE CONSIDERED IN FINDING A LAW OFFICE PREMISES
• The location and proximity to the Court
• Serene and neat environment
• Accessibility to clients
HOW TO SEARCH FOR LAW OFFICE
• Personal scouting
• Use of estate Agents
• Contact friends and colleagues
• Place and look at advertisements in newspaper
TYPES OF STAFF IN A LAW OFFICE
Legal work in the Law Office is carried out by 2 classes of staff namely fee earners and supporting staff.
1. Fee Earners:-
These are the practitioners who do legal work and earn fees for the firm.
2. Supporting Staff:-
These are the staff who do non-legal service in the office.
Practitioners require the assistance of supporting staff to carry out non-legal work in the office.
The number and type of supporting staff depends on the environment and available infrastructure.
THE BASIC SUPPORTING STAFF are
RECEPTIONIST, TYPIST, LIBRARIAN, DRIVER, SECURITY GUARDS AND LITIGATION CLERK.
METHODS OF ATTRACTING STAFF
These methods include:-
(a) Advertising in the Newspaper, job websites and other electronic media
(b) Introduction by existing and former staff
(c) Recommendation by the existing and former staff
(d) Inviting applicants from previous advert
(e) Recommendation by other Lawyers or judicial officers, consultants, agencies or institutions
SELECTION PROCEDURE
After the advertisement or recommendation as the case may be, the law firm establishes procedures for selection of staff for the job.
METHODS OF SELECTING STAFFS
1. Performance tests for typists, clerks etc
2. Aptitude tests for messengers
3. Personality tests for receptionists and secretaries
4. By Interview of persons with credible recognised qualifications such as university or professional qualification
5. Job experience and area of specialisation
OFFER LETTER OF EMPLOYMENT AND ITS CONTENTS
Job title,
Job Description,
Date of Employment,
Location of Staff,
Working Hours,
Remuneration,
Gratuity,
Pension and other entitlement,
Annual Leave,
Sickness and Incapacity,
Termination of Employment,
Restraint of trade,
Summary Dismissal
INDUCTION OF STAFF
The purpose is to inform the new staff about the culture of the office.
The new staff should know the following as an induction programme:-
(a) History of the firm;
(b) Administrative procedures;
(c) The existing staff
DISCIPLINARY AND GRIEVANCE PROCEDURE
A law office establishes disciplinary- procedure for breach of rules governing the conduct of staff at work.
These procedures and rules are stated in the OFFICE MANUAL.
THE DISCIPLINARY PROCEDURES INCLUDE
• Verbal warning,
• Formal written warning,
• Final written warning a
• Dismissal from employment for gross misconduct.
LAW OFFICE LAYOUT
The layout of the Law Office should be properly and carefully designed.
In the planning stage, several factors should be taken into account.
Such factors include number of staff, future expansion, equipment and furniture etc.
A GOOD LAW OFFICE MUST HAVE THE FOLLOWING:-
(a) Reception Room
(b) Practitioners' Room
(c) Supporting Staff Room
(d) Library
(e) Toilet, etc.
Please note however, that the most basic room requirements in the law office include (a)(b)(c) and (e) above.
METHODS OF ACQUIRING EQUIPMENT AND MACHINES
These are essentially 2 realistic methods of acquiring equipment and machines.
These are either by leasing or purchasing.
LEASING
There are companies that engage in leasing equipment and machines.
A lease of equipment or machines may be granted to a law office.
Where such a lease is granted, the law office pays a monthly rent for a term of years.
It is to be noted that it is UNCOMMON in Nigeria for law offices to acquire equipment and machines by leasing.
PURCHASING
On the other hand, machines and equipment can be acquired by outright purchase. Where they are purchased, the law office becomes the owner out rightly.
Law Office Machines
Machines are technologies, which enable the equipment to function and also facilitate efficient performance of other functions
These technologies are:
(a) Generator:
Due to unreliable and inadequate supply of electricity, many law offices in Nigeria resort to the use of generators. There are petrol-fuelled generators and diesel-fuelled generators. There are also low capacity and high capacity generators. The type and size to be used depends on the capability of each law office.
(b) Vehicles: Vehicles are also essential in a law office. This will facilitate the free movement of both fee earners and supporting staff in their outside assignments.
LAW OFFICE EQUIPMENT
The equipment needed by a law office includes the following:
1. Typewriter
2. Answering Machine
3. Photocopying machine
4. Telex Machine
5. Duplicating Machine
6. Facsimile Machine
7. Dictating Machine
8. Dedicated Word Processor
9. Rubber Stamp
10. Computer
11. Calculator/Adding machine
12. Devices using computers e.g. e-mail & internet
13. Telephone
NOTE THAT
• Proper record of these should be kept by the law office.
• These equipment should be maintained and serviced by the law office to prevent sudden breakdown.
LAW OFFICE SUPPLIES
A law office requires the following supplies as well to function effectively.
The minimum and maximum level of supplies required must be ascertained and controlled.
This can be accomplished by using STOCK BOOK to monitor supplies.
THEY ARE:
1. Letterhead
2. Continuation Sheet
3. Compliment Slips
4. Business Card
5. File Jackets
6. Office Forms
7. Legal Forms
8. Other stationery e.g. ribbons, envelopes, staple pins, paper clips, cellotape etc.
LAW OFFICE ADMINISTRATION
A law office needs proper administration and management if it is to function well.
To achieve proper administration and management, it must establish systems and procedure to regulate work and performance of task.
These should be contained in the office manual to be displayed for all staff. The systems and procedures should not be static but prone to changes from time to time, which may be occasioned by changes in size of office or working methods in the office.
THE CONTENTS OF AN OFFICE MANUAL INCLUDES:
1. Working hours
2. Attendance Register
3. Confidentiality of Work
4. Salary advancement
5. Bonus provision
6. Assignment of staff
7. Absence and lateness
8. Overtime work
9. Holidays
10. Salary Increment
11. Annual Leave
12. Reporting Structure
13. File Management
14. Provision of Office supplies
15. Method of answering the telephone
16. Procedure on receiving facsimile message
17. Procedure for dealing with correspondence
18. Procedure for borrowing office books
19. Disciplinary Procedure
20. Grievance procedure
NOTE – The differences between business plan and office manual
Ensure law office has LAW OFFICE SECURITY AND INSURANCE and FITTINGS AND FURNITURE
MANAGEMENT OF A LAW OFFICE
Type of management structure selected depends on the type of office
MANAGEMENT STRUCTURES
1. Management by a committee of partners
2. Management by all partners (mostly in small partnerships)
3. Management by a sole partner
4. Management by a sole owner (sole practitionership and proprietorship)
5. Management by associates (in an associateship)
6. Management by experts (in an associateship)
7. Management by experts who may or may not be lawyers but are appointed by the owner
MANAGEMENT FUNCTIONS
1. Planning-
2. Organising
3. Coordination
• Identify strategies for implementing the plans
• Explain the main resources of a law firm
• Explain how to co-ordinate the work flow of a law firm
• How to implement the well planned areas
• How to organise resources of the firm
• Assignment/ delegation/ harmonisation of work
4. Controlling
5. Evaluating
The management functions should be tailored to meet the vision and mission expectations of the firms.
DRAFTING VISION/MISSION STATEMENTS
The vision of the firm should inform everyone in the firm about the short term goals of the firm and thus creates commitment to it.
MARKER- immediate achievable goals of the firm
THE MISSION STATEMENT must be drafted by the owners of the firm. It must state concisely the firm’s long-term goals and should not be written in more than fifty (50) words.
MARKER- core ideals around which the firm is set up
CRITERIA FOR SETTING GOALS FOR A LAW FIRM
1. Complimentary – The goals must be complementary in order for them to be achievable because if they are conflicting, achievement will be difficult. They are said to be complementary because the achievement of one brings to the achievement of others. For example, a good service rendered to a customer will make the customer to tell others about it.
2. Specific – It must state precisely what it is expected to achieve so that plans can be formulated for their achievement. For example, a firm should state the actual percentage it intends to achieve annually.
3. Measurable – They must be formulated in such a way that it is possible to present evidence of their achievement or otherwise. For example, from evidence available, a firm should be able to tell if what it intends to achieve has actually been met or not.
4. Related to time – They must not be open-ended goals. As such, a realistic deadline should be set for the achievement of such goals. For example, a firm should fix a period within which it is to achieve its goals.
5. Attainable – The goals should be one that is realistic and attainable with the firm’s resources.
An example of a mission/vision statement is:
“To be a quality firm providing a range of legal services to commercial and property clients profitably and to the highest standard with partners and staff, happy and committed to this ideal and inspiring to continual development in the firm’s quality standards”.
An example of a goal of a firm is:
To meet clients’ needs with full satisfaction
ITEMS REQUIRING PLANNING
• Finance;
• Services;
• Clients;
• Facilities;
• Staff
TYPES OF PLANNING
• Strategic/ long term planning
• Tactical/ medium term planning
• Operational / short term planning
EXTERNAL ENVIRONMENT
Social political and economic environments.
Time Management
Time is -a valuable resource to legal practitioner; hence it must be well managed.
METHODS OF TIME MANAGEMENT
This can be done
• By making a list of "things to do" and prioritising the work according to criteria of urgency and importance.
• Having a reminder system
PRIORITISING OF WORK
TYPES- LEGAL AND NON LEGAL WORK
CLASSIFICATION OF LEGAL WORK
• Office work
• Court related work
ORDER IN WHICH LEGAL WORK MAY BE PRIORITISED
• Urgent legal work should take priority over others
• Court matters requiring presentation of witness on the next adjourned date
REMINDER SYSTEM
Forms – diary; notebook; phone; computer
TYPES
PERSONAL REMINDER SYSTEM-
Types
• Office and firm diary;
• Personal diary and computer
RELEVANCE OF THE OFFICE DIARY-
• Open for consultation by every lawyer in the law firm
• Helps lawyers in deciding dates and times to fix future activities
FIRM WIDE REMINDER SYSTEM-
TYPES –
• Card index systems
• Pre printed forms (INFORMATION IN PRE PRINTED FORM: NAME OF CLIENT; LEGAL WORK; NAME OF LAWYER; TYPE OF ACTIVITY; DATE IT WAS TAKEN; NEXT DATE IT MAY COME UP)
• Tickler slip system
• Office computers
The MOST EFFECTIVE reminder system is the use of diaries both for personal use and office use and PRE PRINTED FORMS/COMPUTERS.
FILING SYSTEM
• Documents should be filed in paper form or electronically.
HOW TO CONTROL MOVEMENT OF FILE
They can be controlled by-:
• Registering incoming and outgoing files
• Devising methods of requesting and returning files
• Determining time and whether or not to dispose files
TYPES OF FILING SYSTEMS
• ALPHABETICAL
• NON-ALPHABETICAL SYSTEM.
• An indexing system is useful and cross-references must be complied for easy retrieval of documents.
• The movement of files must be controlled and procedure devised for requesting delivering and returning of files.
• At the conclusion of a matter, the file should be closed and the office must decide whether to hand over the file to the client or retain it.
• If the file is retained, the firm will incur costs of storing it, therefore, it must be moved to low - cost storage.
• The office must also devise a RETENTION SCHEDULE stating the length of time the file will be retained before it is considered for destruction.
LAW OFFICE RECORDS
Information required for administering the office in the short and long run should be collated, and a record of them provided for use in the office.
THE PURPOSE OF SUCH RECORDS is to enhance the efficient administration of the office by providing records from which information can be readily obtained.
THE RECORD THAT WILL BE REQUIRED IN A LAW OFFICE INCLUDE:
1. Office Manual
2, Staff Register
3. Equipment and Machine Register
4. Book & Periodicals Register
6. Master File Register
7 Closed File Register
8 Referral Register
9 Internal Telephone Directory
10 Income and Outgoing Correspondence Register
11 Incoming & Outgoing Telephone Call Book
12 Visitors' Book, etc.
REQUIREMENT OF THE RULES FOR APPOINTING OF SANS regarding law offices-
Law Firm for Senior Advocate of Nigeria: Must have a standard Law office or be a partner with at least 5 juniors and the Partnership agreement will be of at least 5 years.
To be conferred with SAN, the office must meet certain criterion.
These are-:
■ Good and spacious size
■ Good and quality library
■ Sufficient facilities
■ Sufficient partners or junior counsel
■ Sufficient and efficient numbers of trained support staff.
PARA 15 GCSAN
IT IN LAW PRACTICE
It is useful to have computers and possibly virtual libraries and database (e.g. Law Pavilion)
LETTER FOR NOTIFICATION OF LAW OFFICE
GABRIELLA NDU & CO
BARRISTERS AND SOLICITORS
NO. 10 ASO DRIVE NYANYA, ABUJA- NIGERIA.
Our Ref:
Date: 18 May 2014
The Chairman,
Nigerian Bar Association,
Abuja Branch,
High Court Complex, Maitama,
Abuja.
Dear Sir,
NOTIFICATION OF ESTABLISHMENT OF LAW OFFICE
I, Ndu Gabriella, a Legal practitioner called to the Nigerian Bar on 20th November, 2010 and enrolled as a Barrister and Solicitor of the Supreme Court of Nigeria, hereby give you notice of the establishment of my law office situated at No. 10 Aso Drive Nyanya, Abuja- Nigeria in compliance with Rule 13 of the RPC 2007.
Please find attached copies of my qualifying certificates and other relevant documents
Thank you.
Yours faithfully,
Gabriella Ndu
(Principal Partner)
GABRIELLA NDU& CO
ENCLS:
1) Call to Bar Certificate
2) Receipt of payment of practicing fee
Week 13: APPOINTMENT AND DISCIPLINE OF JUDICIAL OFFICERS, DISCIPLINE OF LEGAL PRACTITIONERS
A- MEANING OF JUDICIAL OFFICERS
They are holders of judicial offices that preside over superior Courts of Record. See section 318(1) of the 1999 Constitution as amended. Justices of the Supreme CT, Justices of the CT of Appeal, judges of the Federal High CT, High CT of the FCT, High CT of the States, National Industrial Court, Khadis of the Sharia Ct of Appeal of FCT and States and Judges of the Customary CT of Appeal of FCT and States
Historical antecedent:
1960 Independence Constitution: Judges of the High CT of the regions or the Federal Supreme CT: 10yr post call experience, appointment by the Judicial Service Commission of the Federal or State as the case may be except the Chief Justice of the Federation, Chief Justice of the Regional High CT and that of Lagos (these are appointed by the Prime Minister, Premier of the Region, Governor-General respectively
1963 Constitution: Judicial Service Commission was abolished and appointed was by the President and the Governors acting on the advice of the Prime Minister and the Premiers respectively. There was a brief interlude of military rule, where a body similar to the Judicial Service Commission called the Advisory Judicial Committee was introduced (advised on the appointment)
1979 Constitution: appointment of Chief Justice of the Federation was by the President subject to confirmation by simple majority of the Senate. Other Justices were appointed by the Federal Service Commission subject to the confirmation of the Senate. Also the appointment of the President of the CT of Appeal. For other justices of the CT of Appeal, the Chief Judge of Federal High Ct and other judges, no requirement for the approval by the Senate. For the Chief Judge of the states, Grand Khadi of the Sharia CT of Appeal and President of the customary ct of Appeal, appointment by Governor subject to confirmation by the State House of Assembly.
Other judges are appointed without the confirmation by the House of Assembly.
NOTE (EXAMS)-Magistrates, Judges of Area Courts and Customary Courts are not regarded as judicial officers. They are under the supervision of the High Courts and employed by the state Judicial Service Commission.
B-QUALIFICATION FOR THE APPOINTMENT OF JUDICIAL OFFICERS
1. High Court Judge (FHC/SHC)
i. 10 years post-call
ii. Unquestionable character
iii. Cogent experience in legal practice as a Law officer or private legal practitioner.
NB-The above criteria apply to the National Industrial Court (PRESIDENT).
S250(3) and S271(3) respectively
Chief Judge and Judges of High CT of the FCT: appointment is by the President upon the recommendation of the National Judicial Council and subject to the confirmation of the Senate. For the other judges of the High CT of the FCT, there is no need for confirmation by the Senate: s256(1)& (2) Constitution. Qualification is 10yrs post call: s256(3). duly constituted if it consists of at least one (1) Judge of the HC-FCT (Section 258).
Chief Judge of the Federal High CT: appointment is by President upon recommendation of NJC and subject to confirmation by the Senate (in the case of the Chief Judge): s250(1) & (2). Qualification is 10yrs post call: s250(3)
Chief Judge and judges of High CTs of the State: s271. Where President is featured, it is the Governor, and House of Assembly
Federal High Ct:
• The Chief Judge is appointed by the President on the recommendation of the National Judicial Council subject to confirmation by the Senate (Section 250(1)) and the Judges of the FHC are appointed by the President on recommendation of the National Judicial Council(Section 250(2)).
• To be appointed as either a Chief Judge or a Judge of the FHC, such person must have qualified to practise as a legal practitioner in Nigeria for not less than ten (10) years (Section 250(3)).
• A Federal High Court shall be duly constituted if it consists of at least one (1) judge of that court (Section 253).
2. Kadis of the Sharia Court of Appeal
i) 10 years post-call and a qualification in Islamic Law
ii) A non-Lawyer with 12 years experience in Islamic Law. (APPROVED INSTITUTION)
SECTION 261(3)(a)&(b) OF THE CONSTITUTION.
Grand Kadi and Kadis of the FCT: Appointment of Kadis is by the President upon recommendation of NJC and for the Grand Kadi there must be confirmation by the Senate: s261(1) & (2). 10yrs post call and obtain a recognised qualification in Islamic law from a school recognised by the NJC or 12ys post call qualification from an Islamic school recognised by the NJC/ in addition, he must have considerable experience in the practice of Islamic law or he is a distinguished scholar of Islamic law: s261(3). This court shall be duly constituted if it consists of at least three (3) Kadis when exercising its jurisdiction (Section 263).
S276 Constitution for appointment of Grand Kadi and Kadis of the Sharia Court of Appeal of States
3.Judge of the Customary Court of Appeal of FCT
i) 10 years post-call experience in customary Law practice.
ii) A non-Lawyer with 10 years experience in CUSTOMARY PERSONAL Law.
S. 266(3)
Customary CT of Appeal of FCT: Appointment is by President upon recommendation by NJC subject to confirmation by the Senate where the President of customary CT of Appeal is concerned: s266(1) & (2). 10yrs post call and considerable experience and knowledge of customary law or in the opinion of the NJC has considerable experience in customary law: s266(3). This court is duly constituted if it consists of at least three (3) judges of the court in exercising any of its jurisdiction conferred on it by the National Assembly (Section 268).
See s281 for states customary CT of Appeal
4. Justice of the Court of Appeal
i) 12 years post-call experience: s. 238(3) of the Constitution
President of the CT of Appeal is by the President upon the recommendation of the NJC and subject to confirmation by the Senate. For other Justices of the CT of Appeal, no need for confirmation by the Senate. S238(1) & (2). 3 must be learned in Islamic Personal Law and 3 learned in Customary law. Not less than 49 Justices. In considering the validity of an elected President or Vice-President at least three (3) JCA’s must be present for the court to be duly constituted (Section 239(2)).
5. Supreme Court:
At least 15 years post-call experience: See 231(3) of the 1999 Constitution.
Note –(exams) for qualifications and constitution of judges, the number stipulated is the MINIMUM.
Appointment of Chief Justice and Justices of the Supreme Ct is made by the President upon the recommendation of the National Judicial Council and subject to confirmation by the Senate: s231(1) & (2)
The Supreme Court is duly constituted when there at least five (5) Justices present, but for constitutional or human right matters at least seven (7) Justices must be present (Section 234).
No more than 21 Justices of the SC
National Industrial Court
The President of this court is appointed based on the recommendation by the National Judicial Council and confirmation by the Senate (Section 254B(1)). The appointment of the other judges is on the recommendation of the National Judicial Council (Section 254B(2)).
This appointment is however based on the qualification to practice as a legal practitioner in Nigeria for a period not less than 10 years and such person has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria (Section 254B(3) & (4)).
The NIC shall be duly constituted with a single Judge or not more than three (3) Judges as the President of the NIC may direct.
The National Judicial Council
Part 1, Item I of the Third Schedule to the Constitution
The NJC is made of:
• The Chief Justice of Nigeria who is the Chairman
• The next most senior Justice of the Supreme CT – Deputy Chairman
• President of the CT of Appeal
• 5 retired Justices selected by the Chief Justice of Nigeria from the Supreme CT or the CT of Appeal
• Chief Judge of the Federal High CT
• President of the National Industrial Court
• 5 Chief Judges of the State to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the State and the High Ct of the FCT in rotation to serve for 2yrs
• One Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the State CTs of Appeal to serve in rotation for 2yrs
• One President of the Customary CT of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary CTs of Appeal to serve in rotation for 2yrs
• 5 members of the Nigerian Bar Association who have been qualified to practice for not less than 15yrs, at least one them whom shall be an SAN, appointed by the Chief Justice of Nigeria upon the recommendation of the National Executive Committee of the NBA to serve for 2 yrs and subject to re-appointment
• Provided that the 5 members shall sit in the Council only for the purpose of considering the names of persons for appointment for the superior CTs of record and
• 2 persons not being legal practitioners who in the opinion of the Chief Justice of Nigeria are of unquestionable integrity.
Functions of the NJC
(a)Recommend to the President from among the list of persons submitted to it by
(i)The Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme CT, the President and Justices of the Ct of Appeal, the Chief Judge and Judges of the Federal High CT, and
(ii) The Judicial Service Committee of the FCT, Abuja persons for appointment to the offices of the Chief Judges and Judges of the High CT of the FCT, Abuja, The Grand Kadi and Kadis of the Sharia CT of Appeal of the FCT and the President and Judges of the Customary CT of Appeal of the FCT
(b) Recommend to the President the removal from offices of the judicial officers specified in (a) and to exercise disciplinary control over such officers
(c) recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commission persons to be appointed to the offices of the Chief Judges of the State and Judges of the High CTs of the States, the Grand Kadis and Kadis of the Sharia CT of Appeal of the States and the President and Judges of the Customary CTs of Appeal of the States
(d) recommend to the Governors the removal from the office of the judicial offices in (c) and to exercise disciplinary control over such officers
(e) collect, control and disburse all monies, capital and recurrent for the judiciary
(f) advise the President and Governors on any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors
(g) appoint, dismiss and exercise disciplinary control over members and staff of the Council
(h) control and disburse all monies, capital and recurrent for the services of the Council and
(i) deal with all other matters relating to broad issues of policy and administration
The Secretary of the Council has be appointment by the NJC on recommendation of the Federal Service Commission and shall be a legal practitioner (i.e. the Secretary is not a member of the NJC)
NJC Guidelines
The guidelines are designed to ensure the following:
• Transparent selection process
• Independence of the Judicial Service Commission and the Judicial Service Committee of the FCT
• Exclude lobbying by potential candidates
• Avoid imposition of any candidate on the Judicial Service Commission
• That only candidates with high integrity, good reputation, track record of intellectual capacity, hard work and industry are submitted to the NJC
C-PROCEDURE FOR APPOINTMENT OF JUDICIAL OFFICERS.
SUMMARY OF PROCEDURE FOR APPOINTMENT OF STATE HIGH COURT JUDGES IN NIGERIA
The procedure is provided in Rules 2, 3, 4, and 5 of the REVISED NATIONAL JUDICIAL COUNCIL GUIDELINES & PROCEDURAL RULES, made on 7 October, 2003
i. A request is made to the State Governor by the Chairman of the State Judicial Service Commission (in writing) seeking the consent of the Governor to appoint a specific number of Judges: RULE2(1),NJC(G&P) RULES 2003
ii. A copy of the notice to Governor and response of the Governor shall be forwarded to the secretary of the NJC-RULE 2(2)
iii. Upon receipt of Governors clearance, the head of the CT concerned will call for nomination of suitable candidates from judicial officers in superior courts in the state: Rule 3(1)
iv. The candidates nominated shall be shortlisted by the head of the court
v. The shortlisted candidates shall be double the required number sought to be appointed: Rule 3(20
vi. Names of the shortlisted candidates will be circulated to all judicial officers in the state and to all NBA branches in the State for comments on the suitability or otherwise of the candidates: rule 3(3)
vii. The comments and the names of the shortlisted candidates will be forwarded to the Chairman of the State Judicial Service Commission who shall forward to the candidates the National Judicial Council Form A (Bio data Form) which each shall fill and return with their CV, etc: Rule 4(1)
viii. The completed NJC Form A shall be submitted to the State Judicial Service Commission with the necessary documents
ix. The State Judicial Service Commission will hold a meeting and consider the shortlisted candidates, their documents and then decide on the names to the forwarded to the National Judicial Council
x. In doing so, they shall make sure that only candidates who are above board are forwarded
xi. The Chairman of the State Judicial Service Commission shall then send a written request for NJC recommendation of the selected candidates to the Governor
xii. The request shall be accompanied with an undertaking that the NJC guidelines have been complied with and the following documents:
• Letter of intention alongside the Governor’s approval is forwarded to the Secretary to the Council
• Minutes of meeting of any Judicial Service Commission or Committee for the nomination of the candidates for appointment must be forwarded in 30 copies to the NJC addressed to the Secretary
xiii. Candidates whose names are forwarded must undergo medical tests and attach evidence
xiv. Candidates’ curricula vitae must be attached along with the NJC Form A
xv. Each candidate shall submit 10 judgments obtained or delivered in contested cases in the past two years (if the candidate is from the Bar). Judgment must be confirmed by the Head of the Court or the Chief Judge. If the candidate is a lecturer, he must attach publications in law journals, textbooks etc.
xvi. Candidates from the Bar to submit their practising fee receipt for the 5 years
xvii. Security report from the state security service; and
xviii. Comments from the State branch of the NBA on the persons so nominated
xix. Copy of the legislation establishing the court (when the court is newly established)
xx. Prove of availability of accommodation, court rooms, cars and other necessary facilities
All these documents will be forwarded to the NJC
xxi. National Judicial Council (NJC) will then recommend successful candidates to the Governor for appointment.
xxii. Governor appoints the judges.
xxiii. Confirmation by State House of Assembly (in the case of the Chief Judge)
D-ORGANS RESPONSIBLE FOR THE APPOINTMENT/ REMOVAL OF JUDICIAL OFFICERS
• State Judicial Service Commission (SJSC)
• Federal Judicial Service Commission
• Judicial Service Committee of the FCT
• National Judicial Council
See s. 153 of the Constitution
• President of the Federal Republic of Nigeria
• The Governor of a State ϖ Discipline of Judicial officers
E- DISCIPLINE OF JUDICIAL OFFICERS
Code of Conduct for Judicial Officers – it was made by the NJC.
• A judicial officer remains in office until the prescribed retirement age. However, he may be removed under the Constitution through the following procedure:
The disciplinary measures include any of the following:
• Removal from office
• Suspension from office
NOTE (EXAMS)-NJC only have the power to suspend a judicial officer and not to remove them. It could also recommend the removal of a judicial officer.
F-REMOVAL OF JUDICIAL OFFICERS
MAY BE DONE BY PRESIDENT OR GOVERNOR
I) PRESIDENT
NJC recommends the removal;
The President removes Heads of Federal Courts
(Chief Justice of Nigeria, President of the Court of Appeal, Chief judge of the FHC, President of the National Industrial Court, Chief Judge of High Court FCT, Grand Kadi of Sharia Court of Appeal FCT, President of the Customary Court of Appeal FCT, etc) acting on an address supported BY 2/3 MAJORITY OF THE SENATE.
NOTE(EXAMS)-In respect to other judicial officers of the Federal Courts, the President removes them acting on the recommendation of the NJC.
s. 292 of the 1999 Constitution amended.
II) GOVERNOR
The Governor removes Heads of State Courts (Chief Judge of State, Grand Kadi of Sharia Ct of Appeal of a State, President of Customary Ct of Appeal of a State) acting on an address supported by two-third majority of the House of Assembly.
NOTE-In respect to other judicial officers in the State, he removes them on the recommendation of the NJC.
section 292(1) of the 1999 Constitution.
III-GROUNDS FOR THE REMOVAL OF JUDICIAL OFFICERS
• Misconduct
• Contradiction of the Code of Conduct for judicial officers
• Inability to perform the functions of his office due to infirmity of the mind or body
NB(EXAMS)-The Code of Conduct for Judicial Officers applies to Magistrates, Customary Court Judges and all persons sitting in judicial capacities.
EFFECT OF REMOVAL-By s. 292(2) of the Constitution, judicial officers shall not on ceasing to be judicial officers for an reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria
PROCEDURE FOR LAYING COMPLAINTS AGAINST A JUDICIAL OFFICER.
1.Write a complaint addressed to the NJC
2.The judicial officer in question will be notified in writing and given time to react to the allegation.
3.If the allegation is proved, the NJC may:
a-Suspend him or
b- Recommend his removal to the President/ Governor
ELELU – HABEEB V NATIONAL JUDICIAL COUNCIL (2012) 13 NWLR (PT. 1318) 423
• The appellant was appointed Chief Judge of Kwara State in 2009.
• Governor wanted to remove the Chief Judge on grounds of misconduct and inability to perform her duty. He sent an address to the House of Assembly
• The House of Assembly considered the address and invited the Chief Judge. The Chief Judge attended the session of the House of Assembly but was not even an opportunity to make her case. House of Assembly approved the Governor’s address and she was removed in her absence with no notice given to her.
• She filed an action. One issue was whether the Governor had absolute right to remove her. The CT of First Instance and CT of Appeal stated it was wrong for the Governor and House of Assembly to remove her without any input from the NJC. Even though the Governor had right to remove the Chief Judge, it was not absolute and must be in conjunction with the NJC by virtue of s292 of the Constitution and Code of conduct of judicial officers. NJC has to recommend the judges and removal of judges. Supreme CT agreed with the lower courts and the Chief Judge was reinstated
• Another issue: whether The Federal High CT had jurisdiction to entertain the case. Decided that since it was a case involving agencies of Government, Federal High had jurisdiction
• Supreme Court said although section 292(1)(a) Constitution makes no provision for the NJC to play any role in the removal of the Chief Judge of the State, the fact that the NJC has a vital role in appointment and exercise of control over the judiciary (s271(1), paragraph 1, Item 1 of the 3rd Schedule of the Constitution). Therefore the entire (s153(1) & (2), s271(1), s292(1), paragraph 21 part 1 of the third schedule) dealing with appointment, removal and exercise of judicial control must be read, interpreted and applied together in resolving the issue of whether the Governor and House of Assembly can remove a Chief Judge without any input from NJC. The combined reading of these provisions reveals the intentions of the creators of the Constitution giving the NJC a vital role to play in removal of the Chief Judge. Therefore, the Governor of Kwara State and State House of Assembly cannot remove the Chief Judge without the input of the NJC. Thus, they do not have absolute power to remove a Chief Judge before the age of retirement without the recommendation of the NJC.
DISCIPLINE OF LAWYERS
Legal framework (Applicable Laws)
• Legal Practitioners Act 1975 (As amended) (now CAP L11 LFN 2004)
See section 12 LPA (problems with these sections) as Decree No 21, 1994: Legal Practitioners Amendment Decree 1994 has not been repealed causing inconsistencies with the law. Led to Supreme CT stating that appeals lie from LPDC to Body of Benchers. Actually appeal lies from LPDC to the Supreme Court
S10 LPA 1975 stated appeals lie from LPDC to Appeals Committee of the Body of Benchers. Section 10 Legal Practitioners Amendment Decree 1994 stated that Appeals Committee of the Body of Benchers should be substituted with Supreme Court. The LPA 2004 did not repeal the Legal Practitioners Amendment Decree 1994
• The Rule of Professional of Professional Conduct for Legal Practitioners 2007
• The Legal Practitioners (Disciplinary Committee) Rules 1965
• The 1999 Constitution
• Evidence Act 2011
• Decision of Nigerian superior Courts i.e. case law
THE DISCIPLINARY AUTHORITIES OF THE LEGAL PROFESSION are:
1. The Legal Practitioners Disciplinary Committee: s10 LPA
2. The Supreme Court: s13(1) LPA
3. The Chief Justice of Nigeria: s13(2) LPA
PROFESSIONAL MISCONDUCTS ON WHICH A LAWYER MAY BE DISCIPLINED
1. Infamous conduct in a professional respect: s11(1)(a) LPA
2. Conviction for an offence, which is in the opinion of the LPDC is incompatible with the status of a Legal Practitioner: s11(1)(b) LPA. Must be by a competent court of jurisdiction in Nigeria and has power to imprison.
3. Where the LPDC is satisfied that the name of a legal practitioner has been fraudulently enrolled: s11(1)(c) LPA
4. Where a legal practitioner is found guilty of a misconduct not amounting to infamous conduct: s11(2) LPA
INFAMOUS CONDUCT IN A PROFESSIONAL RESPECT
Infamous conduct in any professional respect is an act or omission which, in the opinion of the Disciplinary Committee is such that will bring the profession into disrepute”.
This will include any wrong conduct done in the pursuit of his professional duties.
CHARLES OKIKE V. LSDPC (2005)
ALLINSON V. GENERAL COUNCIL OF MEDICAL EDUCATION: using paid adverts and stating that patients should not go to other professions stating that they were incompetent. A conduct that in the eyes of your colleagues who are of good reputation and competence and think this is improper of a legal professional. Case relating to medical cases but adopted by the Bar Council in …. Conduct must have been done in the course of your work as a legal professional: Re G Idowu
NBA V. ALABI
It should be noted that the infamous conduct must be committed in a professional respect. Otherwise, it does not come within the Act.
MPDT V. OKONKWO
In Re G. Idowu, A Legal Practitioner (1971) 1 ALL NLR 126,it was held here that in interpreting these provisions, the infamous conduct must be such arising out or pertaining to his profession. Corporation paid money as party of compensation to a family. Part of the money paid by the corporation was given to Idowu. He was suspended for 2 yrs but on appeal, CT held that acceptance of the money was not an act done in the course of his professional. Supreme Ct held it must be a conduct arising out of or pertaining to his profession. Compare with other cases Re Valiance: it is not the seriousness of the offence that is material but whether the person who committed the offence should remain a member of the legal profession.
EXAMPLES
1. Defamation of brother legal practitioners-ALLISON’S CASE
2. Acting wilfully without client’s authority-
RE GRAY EXPARTE INCORPORATED LAW SOCIETY
3. Misappropriation of client’s money –
OKIKE V. LPDC;
ONITIRI V. FADIPE
4. Obtaining secret commission out of purchase money payable by a client would amount to infamous conduct-RE LOWE V. RICHIE
5. Concealing a will on client instructions-RE DAVIES
6. Refusal to pay client part of judgment debt recovered for him- NDUKWE V. LDPC
7. Failure to inform the client about money received on his behalf and appropriating same to personal use- NBA V. EDU
8. Lodging clients money into personal account
NBA V. ALABI
NBA V. KOKU
NBA V. AKINTOKUN
OBTAINING ENROLMENT BY FRAUD
This arises where a person misrepresents material facts, which enabled him to secure enrolment in the Supreme Court, which may be on any of the following:
a. Personal data
b. Academic qualifications
c. Forged certificates of Call to the Bar
d. Use of non-existent certificates.
CONDUCTS INCOMPATIBLE WITH THE STATUS OF A LEGAL PRACTITIONER
These involve any misconduct which is such as to render the Lawyer unfit to be an officer of the Court. These may fall in any of the following:
a. Lack of professional good manners
b. Lack of Court room decorum
c. Public fighting
d. Defaming other professional colleagues
CONVICTION ON A CRIMINAL OFFENCE
This means a Lawyer has been convicted by a competent Court of Law on a criminal charge.
The conditions for this to be a ground to discipline a Lawyer are as follows:
a. The conviction must have taken place in Nigeria, -S. 12 of the LPA
b. It must be by a Court of competent jurisdiction.
RE ABUAH
SAGOE V. THE QUEEN
c. There must be no pending appeal
DISCIPLINARY PROCEDURE BEFORE THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (LPDC) – see the slides
It is regulated by the Legal Practitioners Disciplinary Committee Rules 2006 and the procedure is summarised as follows:
1. A written complaint of any aggrieved person can be forwarded to either:
a. The Chief Justice of Nigeria
b. The Attorney-General of the Federation
c. President of the Court of Appeal and any presiding Justices of the Court of Appeal
d. The Chief Judge of the States, FCT and the Federal High Court
e. The Attorney-General of the States
f. Chairman of the NBA or state branch of the NBA
g. Chairman of the Body of Benchers
RULE 3(1) of the LPDC Rules
2. A copy of the complaint is sent to the Secretary of the LPDC
3. The secretary will send it to the Lawyer involved to respond to same within a period of 21 days
4. The complaint is also sent to the NBA for necessary investigation.
R. 3(2) OF THE LPDC RULES
5. The NBA will investigate the complaint by way of inquiry through a Committee appointed for that purpose
6. The Committee will write the Legal Practitioner involved inviting him to bring in his written representation. If a prima facie case is made, the NBA will then send the Report of the case, documents considered and a copy of the charge to the Secretary of the LPDC.
7. The NBA will appoint Lawyers from amongst it to prosecute the Lawyer before the LPDC.
8. The matter will be heard by the LPDC.
9. Once a Direction has been reached, Notice of it will be served on the person to whom it relates, the Body of Benchers and the Registrar of the Supreme Court.
10. Must adhere to the rules of evidence (natural justice and fair hearing must be followed)
S. 11 (6) of the LPA
11. The Notice of the Direction is to be gazetted in the Federal Gazette.
12. An aggrieved party can appeal against the direction
NB: Proceedings, the findings and directions of the LPDC shall be in public: Rule 13 and published in the gazetted (that a suspension and striking off) but admonition shall not be gazetted
THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE.
It is established by section 10 of the Legal Practitioners Act 2004 which shall be charged with the duty of considering and determining any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be the subject of proceedings under this Act.
THE DISCIPLINARY COMMITTEE shall consist of—
a. The Chairman who should not be either the Chief Justice of Nigeria or a Justice of the Supreme Court
b. Two justices of the Court of Appeal (one of whom has be the President of the Court of Appeal)
c. Two Chief Judges of the States.
d. Two Attorney-Generals of the Federation / State
e. Four legal practitioners of the Association who are not interested in the matter or took part in the investigation by NBA.
S. 10 (2) of the LPA.
Decisions of the LPDC are referred to as DIRECTION.
See appeals from LPDC to the Supreme: NB Aladejobi v NBA (2014): where the Supreme Court held that appeals lie to the Appeals Committee of Body of Benchers (thus SC held that it lacked the jurisdiction to hear the appeal)
The TIME LIMIT within which to comply with a direction of restitution is 28 days or after an Appeal, otherwise the Committee will treat the non-compliance as misconduct in a professional respect:
PUNISHMENT
Three types of punishment are provided under Section 11(1)(c) where charges are formulated against a legal practitioner. The LPDC may give direction to:
1. Ordering the Chief Registrar to strike out that person’s name off the roll; or
2. Suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or
3. Admonishing that person
And in addition to these three punishment, requiring the refund of moneys paid or the handing over the document or any other thing as the case may be: s11(1) LPA
Re Edewor (1968) 1 NLR 226: he was admonished and asked to refund part of the fees but he ran away. Supreme CT went ahead to order his suspension
STRIKING OFF THE NAME OF THE PERSON FROM THE ROLL
This punishment is meant for the most serious misconduct.
• Where a legal practitioner seriously and fraudulently abuses the confidence of his client – Re Martin (1843) 6 Beav. 337, 49 ER 856,
• Where the legal practitioner’s conduct is such that the public should not be exposed to the risk of dealing with him – Re Abuah (1962) 1 All NLR 279 at 285,
• Where his misconduct is personally disgraceful – Re Weare (1893) 2 QB 439, his name will be struck off the roll.
• In case of conviction for offences involving fraud or other serious misconduct, the committee will be inclined to order the striking off of the name of the practitioner.
• Also, if a person is fraudulently enrolled, his name shall be struck off.
Where the name of a legal practitioner is struck off the roll, his name may be restored to the roll on application to the Disciplinary Committee – section 14(1) of the LPA.
SUSPENSION
This will be ordered where the misconduct is not of such a serious nature as to warrant striking off. Where the Committee deems fit, it may suspend any erring legal practitioner from practice for a specified period in the direction – ONITIRI V. FADIPE.
Usually, where striking off is quashed or reversed, it may be substituted with suspension. Also, a person who is suspended from practice may, on application be restored – section 14(1) of the LPA.
ADMONITION
This may be required for offences, which are not serious. Other punishment available could be restitution. In certain cases, the legal practitioner may be asked to pay costs to his client.
Provisions of the rules of professional conduct relating to disciplining of lawyers
Rule 55(1) RPC: If a lawyer acts in contravention of any the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975.
RESTORATION OF A NAME TO THE ROLL OF LEGAL PRACTITIONERS AND THE PROCEDURE
THIS OCCURS where a Lawyer’s name has been stroked off the Roll due to a direction of the LPDC or the Appeal Committee/the Supreme Court upholding same, he may apply that his name be restored to the Roll.
The Procedure is that the Lawyer with genuine remorse will send an application to the Supreme Court or the LPDC praying it to relist his name.
Re AC Abuah (1973) 11 SC (Pg 31): factors to be considered for re-enrolment. His name was struck off in 1962. Applied for restoration several times. 3 main factors were considered by the SC: gravity of the offence, sufficient evidence of genuine remorse btw period of the offence and the application for restoration; whether the CT in the circumstances of the case is satisfied that the applicant has become a fit and proper person to become part of the legal profession again (State government had granted him pardon and his family had been reduced to penury)
THE CONDITIONS TO BE CONSIDERED IN GRANTING THE APPLICATION ARE:
a. The gravity of the offence
b. Sufficient evidence of genuine remorse
c. That the applicant has become a fit and proper person
d. The length of time since suspension/striking off of his name that has lapsed.
S. 14 of the LPA,
RE A.C ABUAH
ADESANYA VS. A.G FEDERATION.
DISCIPLINE BY THE CHIEF JUSTICE OF NIGERIA.
The Chief Justice of Nigeria has the power to suspend a Lawyer from practicing when it appears to him that a legal practitioner should be suspended from practice,
• Either with a view to the institution against him of proceedings before the Disciplinary Committee or
• While any such proceedings are pending,
• That a Lawyer should be so suspended after giving the Legal Practitioner a fair hearing.
The fact that an appeal is pending against a conviction does not affect this power.
S. 13(2) of the LPA.
THE DIRECTIONS THE CHIEF JUSTICE OF NIGERIA MAY GIVE INCLUDE:
• Striking his name off the roll
• Suspension from practicing
• Admonition
DISCIPLINARY POWER OF THE SUPREME COURT
Where it appears to the Supreme Court that a person whose name is on the roll has been guilty of infamous conduct in any professional respect in the course of ANY MATTER OF WHICH THE COURT OR ANY OTHER COURT OF RECORD IN NIGERIA IS OR HAS BEEN SEIZED,
The Supreme Court may if it thinks fit, after hearing any representations made and evidence adduced by or on behalf of that person and such other persons as the Court considers appropriate, give such a direction as is mentioned in subsection (1) of section 11, and the direction shall take effect forthwith; and except in the case of an admonition the Court shall cause notice of the direction to be published in the Federal Gazette: S. 13(1) of the LPA
DRAFT OF A LETTER OF APPLICATION FOR APPOINTMENT AS A JUDICIAL OFFICER :
Nuhu Bala
No. 12 Base Street Bariga
Lagos.
10 May, 2012
To
The Chairman
The State Judicial Service Commission
No. 13 Base Road, Makurdi Benue State.
Dear Sir,
APPLICATION FOR APPOINTMENT AS A JUDGE OF THE HIGH COURT OF BENUE STATE.
I, Oguntaye Alawo, hereby apply to be appointed a Judge of the High Court of Benue State. I was called to the Nigerian Bar in the year 1992 and was enrolled on the same day.
I have cogent experience in Legal practice as a Principal Partner with Agbaje Daji & company, a firm of Legal Practitioners and solicitors.
Please find attached copies of my documents for your necessary consideration.
I look forward to your kind consideration of my application.
Yours faithfully,
……………..
Oguntaye Alawo.
ENCL:
1. Call to Bar Certificate
2. Receipts of payment of practicing fees
3. Bachelor of Laws(LL.B) Certificate
4. Curriculum vitae
NB- you may be given information to draft a CV for a judicial officer. Note NJC FORM A for guidelines.
NJC FORM A
BIO-DATA
1.Names inFull_________________________________________________________________
2. Date of Birth ___________________________________________________
3. Place of Birth __________________________________________________
4. State ofOrigin____________________________________________________________
5. Local Government Area______________________________________________________________
6. ResidentialAddress_____________________________________________________________
____________________ Telephone____________________________________________________
7. Chambers/Office Address____________________________________________________________
8. Postal Address_____________________________________________________________________
__________________________________________________________________________________
10. Primary Schools attended with dates ____________________________________________________
11. Colleges attended with dates ___________________________________________________________
12. Certificates awarded on leaving College with dates ________________________________________
Subjects offered and passed with grades:
_________________________________________________________________________________
13. Universities attended with dates:
_________________________________________________________________________________
14. Degrees awarded (showing dates & class):
_________________________________________________________________________________
15. University and Law School Prizes Awarded (if any) with dates:
_________________________________________________________________________________
16(a) Date called to the Bar in Nigeria:
_________________________________________________________________________________
(b) Date and place admitted to practise outside Nigeria:
__________________________________________________________________________________
c. Date admitted as a Notary Public (if any):
__________________________________________________________________________________
d. Date of conferment of the rank as a Senior Advocate of Nigeria
_________________________________________________________________________________
17. Law Practice Experience:
a. Pupillage in Chambers showing Head of Chambers and dates:
__________________________________________________________________________________
b. Date of setting up own chambers stating:
i. Type of chamber accommodation and address:
____________________________________________________________________________
ii. Names of Partners/Associates:
____________________________________________________________________________
iii. Names of Junior Counsel employed in Chambers indicating dates and duration:
____________________________________________________________________________
iv. Library owned and number of books in the Chamber’s library with address:
____________________________________________________________________________
(c) Professional Appointments:
i. In the Ministry of Justice and positions held with dates:
___________________________________________________________________________
(d) In the Judiciary as Magistrate or President of Sharia/Customary Courts, stating positions held with dates:
i. _____________________________________________
ii. _____________________________________________
iii. _____________________________________________
18. JUDGMENTS OBTAINED/DELIVERED IN CONTESTED CASES:
a. Particulars of judgments obtained in contested cases personally conducted in the Supreme Court of Nigeria in the past five years with citation of Law Reports, if any.
i. ____________________________________________
i. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
b. Particulars of judgements obtained in contested cases conducted in the Court of Appeal in the past five years (or before taking up appointment as magistrate, etc) indicating particulars of Law Report, if reported.
i. ____________________________________________
ii. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
c. Particulars of at least ten (10) judgements obtained in contested cases conducted in the High Court in the past five years (or before taking up appointment as magistrate etc) with copies annexed or cite Law Reports where reported.
i. ____________________________________________
ii. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
vii. _________________________________________
viii. _________________________________________
ix. ___________________________________________
x. __________________________________________
d. Particulars of selected judgments delivered by the candidates in the past two years as Chief Magistrates, etc. Annex copies of your best judgements.
i. ____________________________________________
i. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
vii. _________________________________________
e. Law Publications (including papers delivered at Conferences in the field of Law and Jurisprudence) with copies annexed:
______________________________________________________________________
____________________________________________________________________
19. International Law Conferences attended (if any):
(i) ______________________________________________
(ii) ______________________________________________
(iii) ______________________________________________
20. Particulars of Developed properties (if any):
(a) In home town for own homestead:
_____________________________________________
_____________________________________________
(b) In Commercial cities for investment purposes:
_____________________________________________
______________________________________________
21. Loyalty to the Legal Profession:
(i) Branch of the Nigerian Bar Association to which the candidates
belongs ____________________________________________
ii. Evidence of payment of Practising fees. (Annex receipts for past five years) __________________________________________
iii. Details of Annual Conferences of the Nigerian Bar Association attended in the past five years, stating places and dates:
___________________________________________________
___________________________________________________
iv. Papers delivered by the candidate at Nigerian Bar Association Annual conferences (if any).
___________________________________________________
___________________________________________________
22. Does the candidate consider himself –
i. Successful in the Legal profession either as a private legal practitioner, or a legal officer or magistrate.
__________________________________________________
ii. Of good character and reputation, honest and of high integrity?
_______________________________
iii. Garrulous or quarrelsome?
___________________________________________________
Dated the ____________________ day of _____________________ 20 ____
Signature ________________________________________________
* Paragraph 18(d) shall now read as follows:
* Particulars of selected judgments delivered by the candidates in the past two years as Chief Magistrates; or in any given past two years before the candidates’ present appointments/positions. Annex copies of your best judgments”
NOTE: All judgments obtained or delivered by the candidates vide paragraph 18 above shall be confirmed by the Head of Court/the Chief Judge.
Week 14: (i) Duties of Lawyer to Court, State, Colleagues and Profession;
(ii) Contempt of Court by Lawyers
Duties of Lawyer to court
• Punctual to court: recommended 30minutes before the court sits, which is normally 9am.
• Properly dressed in professional attire – black and white: Rule 36(a) RPC
• Proper way of addressing the court depending on the court you are appearing before.
▪ Magistrate: Your Worship
▪ Customary Court: Your Honour
▪ High CT: My Lord/ Your Lordship
▪ CT of Appeal and Supreme CT: My Lord
▪ Legal practitioner: My Learned Friend
• Courtroom decorum:
▪ Conduct case with decency, decorum, custom and code of behaviour of the court, custom of practice at the bar, appearances, dressing, manner and courtesy: R 36(b)
▪ Rise while addressing or addressed: R36(c),
▪ Address objections, requests, arguments and observations to the judge. Non-engagement in banter, personality display, argument or controversy with opposing lawyer: R 36(d)
▪ Non-engagement in undignified or discourteous conduct degrading to a court or tribunal: R 36(e)
▪ Not remain in the bar or wear lawyer’s robe when conducting a case in his own cause or giving evidence: R 36(f)
▪ Mandatory court attendance unless leave obtained
Must write an adjournment letter to the court and opposing lawyer requesting the day be adjourned giving good reasons – adjournment is at the discretion of the court. Failure to do so may lead to striking off the case for lack of diligent prosecution. Where the lawyer is defence (default judgment) Okonofua v State (1981) Vol NSCC 233; FRN v Abiola (1997) NWLR (Pt 488) 444 at 467
▪ Respect to the court in words and deeds – proper ground for complaint must be channelled to the appropriate authority: R31(1) & (2); R35 (Tribunal)
▪ No unnecessary adjournments
• In conducting the case
▪ Conduct case in logical sequence – in civil, the plaintiff first then his witness. In criminal, complainant first then prosecution witness, defendant leads the defence witness
▪ Candid and fair to the court: Rules 30 & 32
▪ Obstruction of justice: e.g. by advising client not to tender certain documents. Lawyer is an officer of court: R 30
• Trial publicity – don’t engage in trial publicity. Don’t comment on a pending cases (might lead to judicial or public bias): R33
• Relation with judges – justice must not always be done but must be seen to be done. Must be careful with relationship with judges. Should be do anything that is calculated to gain or has the appearance of gaining special personal consideration of favour from a judge: R 34
Lawyers’ duties to the State
General duty of a lawyer: Rule 1 RPC: A Lawyer shall uphold and observe the rule of law, promote and Foster the cause of justice, maintain a high standard of professional conduct, and Shall not engage in any conduct which is unbecoming of a legal practitioner.
• Promote the law and the course of justice
• Don’t be involved in anything that will bring overthrow of government except through democratic means
• If the law is being tested, lawyer as a social agent should spearhead such testing of the law
• Should not advice or assist in violation of the law
• Should not cite wrong authorities/precedent/ratio
Lawyers’ duties to the profession
• Uphold the rule of law: R1 RPC
• Promote and foster the course of justice
• Maintain an honourable standard of professional conduct: don’t behave in any conduct unbecoming of a lawyer: Rule 1 RPC
• Not to allow people of unfit character to be admitted into the profession
• To prevent unauthorised practice of law
▪ Not help people who are not trained lawyers to practice law e.g. by appending your name on a document who is not a legal practitioner),
▪ Don’t share legal fees with non-lawyer and don’t form a legal partnership with a non-lawyer (Rule 53 & R5(1) RPC respectively).
▪ A lawyer shall not permit his professional service to be controlled or Exploited by any lay agency, personal or corporate, which intervenes between Him and the client. Charitable societies or other institutions rendering aid to the Indigent are not deemed to be such intermediaries: R4 RPC
Duties to counsel
• Courtesy and respect to learned friends – not allow cases to affect relationship with learned friends: R 26(1)
• Duty to keep promises – don’t take undue advantage of a colleague’s situation e.g. counsel cannot come to court and has explained this to you and then you insist that the matter be struck out: R27(2)(a) and (b)
• Don’t engage in sharp practices – frivolous applications to tire out the opposing party
• Don’t covert your colleague’s clients. If client drops a colleague and then engages you, try to help your colleagues recover the fees due to him. Where a lawyer is employed by a client to join the original lawyer, the later lawyer shall decline if it is objectionable to the original lawyer, but if the original lawyer is relieved of his retainer by the client or he withdraws, the later lawyer may come into the matter, and in that case he shall use his best Endeavour to ensure that all the fees due to the other lawyer in the matter are paid: R27(4) RPC
• Lawyers shall observe among one another the rules of precedence as laid down by the law, and subject to this, all lawyers are to be treated on the basis of equality of status: R26(2) RPC
• In his representation of his client, a lawyer should not file a suit, assert a position, conduct a defence, delay a trial, or take over action on behalf of his client when he knows or ought reasonably to know that such action would serve merely to harass or maliciously injure another: R15(3)(b) RPC
The duty of a lawyer before the court requires great courage and independence and these virtues where not handled properly can bring him into collision with the court. The lawyer must strive to perform his duties without being provocative or offensive to the court. He must remember at all times that he is an officer of the court.
CONTEMPT OF COURT
MEANING
It is a wilful ACT OR OMISSION capable of bringing judicial authority into disrepute or the obstruction of administration of justice, impairs the dignity of the court and shows disrespect for the court.
ATAKE V. A.G FEDERATION
AWOBOKUN V. ADEYEMI
RATIONALE/ PURPOSE OF CONTEMPT AS AN OFFENCE
• To protect the dignity of and confidence in the authority of the judges/court
• Instil discipline
• Ensure sanctity of court and protection of the court system
• To prevent undue interference with administration of justice
• Not to bolster the power or personality of the judges as individuals.
SHAMDANSANI V. KING EMPEROR
TYPES OF CONTEMPT
a. Criminal contempt
b. Civil contempt (only disobedience of Court Order/ judgment and other processes of the court).
c. Contempt in facie curiae – contempt committed in the face of the court. The court punishes on the spot. Summary trial –contemnor is put in the dock, informed of his at of contempt and trialled accordingly
d. Contempt ex facie curiae – contempt committed outside the court. Court must hear evidence and conduct trial. It may be tried summarily where the facts are clear and incontestable, such as in newspaper publication. In contempt outside the court, it is not desirable that the judge who is the subject of the attack should try the case. The proper procedure is to effect an arrest, charge and prosecute.
Generally, contempt is a criminal offence.
S. 133 OF THE CRIMINAL CODE
A.CRIMINAL CONTEMPT: the interference is with the justice system/administration of justice. The interference is not disobedience to order of the court or processes of the court or attacking the judge personally e.g. going to a judge’s house to ask him to take a bribe
Where contempt is only disobedience to the order of the court or judge or during the proceeding in the court – civil contempt
Acts constituting contempt
• Outrageous countenance or insulting language or behaviour intended to degraded the judge or the court
• Comments scandalising the court e.g. saying the judge is weird and he couldn’t believe the way the judgment was made
• Newspaper articles with personal attacks on the judge with respect to the way he conducted the case
• Allegation of corruption/bias against a judge
• Private conversations with a judge intended to influence him in making a decision in your favour
Proof of contempt
Judge is representing the state so proof is beyond reasonable doubt for both civil and criminal contempt
Punishment
S133 Criminal Code: maximum is 3 months in jail
IKABALA V. OJOSIPE: held that the person held in contempt can be kept in prison until he purges his contempt
Example: see lesson plan at page 122
Week 15: Negotiation, Mediation and Multi Door (see seplat note pad)
WEEK 16: ARBITRATION AND CONCILIATION
Arbitration is the reference of a dispute or difference(s) btw not less than 2 parties for determination after hearing both in a judicial manner by a person or persons other than a court of competent jurisdiction.
Conciliation is a voluntary (unless ordered by the court), non-binding private dispute resolution process in which a neutral person helps the parties to try to reach a negotiated settlement.
Differences btw arbitration and conciliation
Although, Both are both ADR processes were a third party intervenes to assist disputing parties reach a settlement, they are not the same
• Arbitration, though the Evidence Act doesn’t apply, arbitrator must have regard to relevancy and admissibility of documents so arbitrator should have an understanding of the Evidence Act
• Arbitration is like a private court (points of claim, points of defence) and its decision is enforceable
• Conciliation and arbitration are voluntary but certain instances are court ordered but for conciliation, if parties don’t agree with the decision, they can jettison the decision. But in arbitration, once parties have submitted to it in a contract (arbitration clause or container agreement) or in the submission agreement when disputes arise, whatever decision reached except for those grounds stated under the Act, it is binding and final and Ct will not ordinary tamper with an award made
• An conciliator may give an opinion or suggest an agreement for the parties and no prior agreement btw the parties
• Arbitrator cannot go outside the scope for that which is submitted for arbitration. Relies on evidence from the parties. Aim of Conciliation is different and conciliator can make his own suggestions
• Hardly leads to a win-win outcome in arbitration and relationship btw parties is never the same. Conciliation leads to continuance of relationship because the conciliator seeks to maintain the on-going relationship (more win-win situation) e.g. negotiating government policies btw Trade Unions and the government
Arbitration generally arises by the will of the parties (agreement btw the parties: consensus ad idem) i.e. agreement in the contract or agreement after the dispute has arisen to arbitrate. Arbitration can also arise by statute (if provision for arbitration in statute, parties are compelled to arbitration. Arbitration can also arise by the order of court e.g. where parties had agreed to submit to arbitration but a party in contravention of this provision, files an application in court. Other party will file a notice of preliminary objection that they were first to submit to arbitration before seeking intervention of the court
Only disputes affecting people’s civil rights and obligations which can be satisfied/compromised by way of accord and satisfaction. Example of arbitrable matters are: contract, tort,
Examples of non-arbitrable matters: Interpretation of statutes and constitution, criminal matters, election petition, dissolution of marriage as to status and any other disputes leading to a change in status, gambling,
Laws and rules governing Arbitration in Nigeria
• Common law
• Doctrine of equity
• Arbitration Ordinance 1914
• Arbitration Law of 1958
• Convention on the recognition and enforcement of foreign arbitral award 1958 (New York Convention) – has been ratified into Nigerian law
• United Nations Commission on International Trade Law 1985
• UNCITRL Arbitration Rules
• Arbitration and Conciliation Decree 1988 (now Arbitration and Conciliation Act 2004)
• Lagos State Arbitration Law 2009
Arbitration agreement
• Contractual parties may insert a clause in their contractual agreement precluding either of the parties from going to the courts in the event of a dispute arising or where there is an existing dispute from approaching the courts without first submitting such disputes to arbitration (rule in Scott v Ivery), s4 and 5 ACA
• Doctrine of separability of the arbitration clause: whether the clause is inserted in the container agreement (contract agreement btw the parties), it is still regarded as a separate agreement capable of enforcement on its own. Thus, even where the main contract has failed or becomes impossible/difficult to perform, the arbitration clause still stands. Only where the main contract is an illegality, then arbitration clause will not be enforced
• Effect of death of either party: s3 ACA – an arbitration agreement shall not be invalid by reason of death of either party and enforceable by any of the personal representatives of the deceased
• Termination and revocation: once an arbitration agreement has been entered into by parties, it can only come to an end either by the parties by consensual agreement to terminate or by an order of the court
Functions of an arbitration agreement
• It evidences the agreement of the parties to submit their disputes to arbitration
• It establishes the jurisdiction and authority of the arbitral panel over that of the court (s34 ACA doesn’t oust the jurisdiction of the court)
• It is the basic source of the power/authority of the arbitral panel
• Container agreement and submission agreement
Characteristics of an arbitration agreement (ACA – dealing with commercial and industrial arbitration)
• S1 ACA: it must be in writing
• It may refer to existing disputes or future disputes
• It may provide for an ad-hoc arbitration or incorporate the rules of an arbitration institution
• The dispute(s) btw the parties must arise in respect of a defined legal relationship
• The difference/dispute(s) must of necessity relate to matters that are arbitrable
• The agreement is irrevocable except by parties’ agreement or by leave of court
Content of an arbitration agreement
• It must define the kind of dispute envisaged or to be referred
• It must state the number of arbitrators and mode of appointment of such arbitrators
• It must state the applicable rules and procedures to be followed in the arbitration
• It must state the law applicable in the arbitration
• It must state the language to be used in the arbitration and the place of arbitration
Arbitration process
• Usually commenced by the notice of arbitration (s17 ACA) sent by a party to the other. Unless otherwise agreement, commences the day the notice is received by the other party
• S7 ACA – appointment of arbitrators
• Challenge of an arbitrator
• Jurisdiction of the arbitral panel: s12 ACA – incorporated the doctrine of competence competence – vests on the panel the power to decide on whether it has jurisdiction or not and whatever decision the panel reaches is final
Arbitration proceedings
• Preliminary meetings like pre-trial conference
• Hearing
• Right of representation by a lawyer- Art 4 First Schedule to ACA
award is given (s26: contents of an award)
• The claimant sends notice of arbitration to the respondent. The notice will contain: (a) refer to the arbitration clause or agreement btw the parties; (b) it will refer to the contract btw the parties; (c) it should state the general nature of the claim; (d) set out the relief/remedy sought; (e) propose the number of arbitrators where no provision for the number of arbitrators
• Pleadings which is exchange of points of claim, points of defence, counterclaim or reply
• Pre-trial meetings and settling of issues: issues that are agreed by both parties are dispensed with and contentious issues go to the panel
• The trial/hearing
• Either termination of proceedings or closing of proceedings: termination where arbitral panel cannot continue e.g. where it decides that it doesn’t have jurisdiction or one party cannot continue. Closing is where hearing goes on to the end
• Making of an award
• Recourse against an award
• Enforcement of an award
Pre-trial meeting
• Pre-trial meetings or meetings for directions at the instance of the arbitration. In these meetings, the parties and their representatives are required to agree on the date(s), time and place of meeting, which is suitable/acceptable to them.
Constituting the arbitral tribunal
• The type of arbitration is material. It could be either ad-hoc or institutional
• In ad-hoc, the sole arbitrator or 3 arbitrator (third arbitrator) may perform the administrative support work e.g. issuance of notices, arranging for venue of meetings etc
• If parties agree on a particular institution e.g. Abuja Multi-door Court house, administrative work is done by the centre itself
Pre-hearing review
• This enables the arbitrator monitor the implementation of matters contained in the order for review – all that has been agreed upon is gone through e.g. rules established in ad-hoc arbitration
• Only after this does the arbitral hearing start
Evidence
• Arbitrator shall determine relevancy and admissibility of evidence (documents and arguments) put before the panel;
• Witness statement may be written or oral depending on the agreement of the parties
• In some cases, the arbitrator may allow a rebuttal where agreed upon by the parties
• The Evidence Act 2011 doesn’t apply to arbitration. S15(3) ACA enjoins an arbitrator to determine, the admissibility, relevance, materiality and weight to be attached to evidence placed before it
• Therefore important for an arbitrator to understand the fundamental principles of evidence as they apply to relevancy, admissibility, proof of document, production of evidence
Cost
• The arbitrator may direct the parties to deliver to him within a specified time before a decision (award) is made as to directions to cost if either party is to win
Award
• It is a legal document which must contain adequate information to enable the court if necessary enforce it without recourse to further enquiry
• ACA prescribes the form and content of the award (s26 ACA): the award must contain the signatures of the arbitrators, the reasons for the award, it must be dated and the place of arbitration as well as the parties. A copy of the award must be delivered to each of the parties
Enforcement of an award
• Where other party refuses to pay award, the successful party may apply to court for enforcement by leave of court
• Application is under s31 ACA by originating summons supported by affidavit in addition to supplying the duly authenticated award or its CTC and the original arbitration agreement btw the parties or its CTC
• Party against whom the order of enforcement is sought must be put on notice (Imani & Sons v Bill Construction Ltd (1999) 12 NWLR Pg 254
Challenge of an award
• Within 3 months of the award being made, a right to challenge the award in court to set aside the award (s29 &30 ACA)
• Some grounds for challenging an award: award contained decisions outside the scope of reference of the arbitral panel (s29(2) ACA) – court will refer it back to arbitrator to remove such decisions or make an order stating it should be heard de novo, misconduct of an arbitrator, improper procurement of an award (s31 ACA) – ACA didn’t define misconduct but examples in case law. See s48(a) &(b) ACA for other grounds e.g. incapacity of an arbitrator, public policy, non-arbitral disputes
Enforcement of an award
• Domestic award: s31, 32 ACA – simple registration process by application in writing to the court sending the duly authenticated copy of the award or its CTC and the original arbitration agreement btw the parties or its CTC
• And then it becomes a judgment of the court
• International award: by virtue of New York Convention, all awards from member states via a simple registration process as above (s51 ACA)
• NB: s31 and s51 is subject to section 32
• Where the award is given in a language other than English, it must be interpreted
Nature of business btw the parties is the supply of audio-visual aids (DVDs, CDs and other recording and electronic mass storing devices). The parties are ABC Ltd of No 2 Owerri Road, Aba, Abia State and DVD Ventures of Shops 5-10 Wuse ultramodern market, Abuja. 2 arbitrators from the Abuja Market Guild Society, Abuja. The law is Arbitration and Conciliation Act A18 LFN 2004. Language is English
Draft an arbitration clause
A dispute has arisen btw ABC Ltd and DVD Ventures as to the quality of audio visual aids produced by DVD Ventures and supplied to ABC Ltd which has resulted in refusal by ABC Ltd to pay up its outstanding with DVD Ventures and they have agreed to arbitrate. Draft the submission clause.
1) Arbitration clause: In the event of any dispute between ABC Ltd and DVD Ventures under the supply agreement for audio-visual aids, the parties shall first submit to arbitration. The arbitration shall be governed by the Arbitration and Conciliation Act A18 LFN 2004, the language of the arbitration proceedings shall be English language and two arbitrators will be appointed by both parties from the Abuja Market Guild Society, Abuja.
2)
THIS Submission agreement made this 24th day of July, 2015
BETWEEN
ABC Ltd, a duly registered private limited company under the Companies and Allied Matters Act …(the purchaser)…….of the first part
AND
DVD Ventures (the seller)……of the second part
WHEREAS a dispute has arisen between the parties under the contract for the supply of audio-visial aids, DVDs, CDs and other record mass storage devices on 20th day of June 2015
And the parties have agreed to submit any dispute to arbitration
NOW IT IS AGREED BY FOLLOWS:
The arbitrator shall be conducted by the 2 parties appointed by the parties from the Abuja
The arbitrators shall determine the following issues:
1) The quality of the items supplied.
2) The arbitration shall take place in Abuja and shall be conducted in English language
3) The rules of Arbitration and Conciliation Act CAP A18 LFN 2004 shall apply
4) The award shall be awarded within 6 months of the appointment of arbitrators unless the parties otherwise extend the time
IN WITNESS OF WHICH the parties have executed this agreement in the manner below the day and year first above written.
The common seal of ABC Ltd is duly affixed in the presence of
…………….. ……………….
Director Secretary
Signed, sealed and delivered by
………………..
Salomon Davidson (in the name and style of DVD Ventures)
In the presence of:
Signature:
Name:
Address:
Occupation:
NATURE OF ARBITRATION
1. An agreement must be in existence containing an arbitration clause.
2. It must be voluntary
3. The arbitration clause and the subsequent award to be given by the arbitrator are binding on the parties.
4. An award is given in writing
5. Severability doctrine of the arbitration clause applies in a situation where some of the clauses in the agreement are void.
6. The arbitration clause is autonomous.
S. 1,2,12 and 57 of the Arbitration and Conciliation Act.
TYPES OF ARBITRATION CLAUSES AND THEIR LEGAL EFFECTS
1. Discretional clause: the effect of this clause is that the parties to the agreement are not bound to submit to an arbitration panel.
Example of this clause in an agreement is:
‘In the event of dispute or disagreement between the parties, it may interest the parties to resort to arbitration in resolving the dispute’.
2. Scot-v-avery clause: this clause closes the gap of discretional arbitration clause. Here the parties must go for arbitration and may only resort to the Courts to either enforce or challenge the Award of the Arbitral Panel.
A limitation of this clause is that the parties must settle using arbitration even where it is not productive or conclusive.
3. Atlantic shipping clause: this clause is tied to timing of the proceedings of the Arbitration since it must be concluded within a set time.
STAGES OF ARBITRAL PROCEEDINGS
1. Commencement of proceedings (which involves service of Notice of Arbitration and appointment of arbitrators/composition of the Arbitral Tribunal)
2. Preliminary meetings (parties agree on the venue, agenda, attendance, confirmation of the jurisdiction of the Tribunal, powers of the Arbitrators, the mode of hearing if oral or documentary, the number of witnesses, fees and deposit for cost, directional Order and the applicable rules. The Directional Order is issued after all the preliminary issues have been agreed upon.)
3. Pre-hearing review (it involves setting down the matter for hearing, confirming compliance with Directional Order-payment, filing and exchange of pleadings, narrowing and joining issues in dispute, and confirming the date, venue and mode of hearing.)
4. Hearing (this is similar to the process in the Courts)
5. Award
6. Enforcement
HOW TO ENFORCE ARBITRAL AWARD
This is done by filing a Motion on Notice supported with an Affidavit praying the Court to enforce the Award as the Judgment of the Court.
The Court may refuse to enforce the award on the application of any of the parties on founded grounds.
S. 31 OF THE ARBITRATION AND CONCILIATION ACT
HOW TO CHALLENGE AN ARBITRAL AWARD
It is by filing an application to the High Court within 3 months from the date of the making of the award.
The application should be by a Motion on Notice supported with an Affidavit exhibiting the certified true copy of the Award and the Arbitration Agreement.
The Court may Order some part or the whole Award to be set aside
S. 29 of the Arbitration and Conciliation Act.
MEDIATION
It is a step ahead of Negotiation.
It is consensual, voluntary and agreeable settlement reached by the disputing parties based on a third party who is autonomous settling the dispute.
The mediator is usually a third party agreeable to and respected by the parties who must be neutral in his approach to the dispute.
ROLES AND FUNCTIONS OF MEDIATORS:
Mediators can contribute to the settlement of disputes by creating favourable conditions for dealing with them. This can occur through:
1. Providing an appropriate physical environment – This is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
2. Providing a procedural framework – This is through conduct of the various stages of mediation process.
3. Improving the emotional environment – They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.
CHARACTERISTICS OF MEDIATION
The principal characteristics of mediation are –
1. Mediation is a non-binding procedure controlled by the parties
2. Mediation is a confidential procedure
3. Mediation is an interest-based procedure –
KEY QUALITIES OF THE MEDIATION PROCESS
1. Voluntary – A party can leave at any time for any reason, or no reason.
2. Collaborative – As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.
3. Controlled - Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on a party.
4. Confidential – Mediation is generally confidential. Mediation discussions and all materials developed for mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement.
5. Informed – The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained..
6. Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favour the interests of any one party over another.
7. Self-Responsible and Satisfying – Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options..
HOW DOES MEDIATION WORK
This has to do with the steps in mediation (mediation process).
There are six (6) steps to a formal mediation –
1. Introductory remarks;
2. Statement of the problem by the parties;
3. Information gathering time;
4. Identification of the problems;
5. Bargaining and generating options; and
6. Reaching an agreement.
. INTRODUCTION:
i. Put parties at ease
ii. Explain the ground rules and the mediation process
2. TELLING THE STORY
i. Each party tells their story
ii. No interruptions
3. IDENTIFYING THE FACTS AND ISSUES
i. Mediator helps to identify facts and issues
ii. Clarifies facts and issues with parties
4. IDENTIFYING ALTERNATIVE SOLUTIONS
i. Everyone thinks of solution
ii. Solutions are listed
5. REVISING AND DISCUSSING SOLUTIONS
i. Mediator helps parties review solutions
ii. Solutions agreeable to both sides are identified
6. REACHING AN AGREEMENT
i. Agreement is written down
ii. A clause is inserted to cover a breach by either party.
THINGS A MEDIATOR MUST KNOW IN CARRYING OUT A SUCCESSFUL MEDIATION
1. The underlying interest of the parties
2. The position of the parties which may be either weak or strong.
3. The rule of impartiality applies despite a party’s relationship with the mediator
4. The parties can appear themselves or through their representatives or legal practitioner.
5. Experience in the process of mediation is preferable
6. A mediator is to facilitate Resolution of the disputes by the parties
7. He is not to impose his decision but help the parties to reach an amicable settlement
8. The final Resolution is not binding until reduced into a formal agreement
9. The term of settlement is easily enforceable because it is agreed by the parties.
METHODS OF ENFORCING THE TERMS OF SETTLEMENT
It is by filing an Originating Summons asking the Court to interpret the agreement and to enforce it.
ETHICAL STANDARD FOR MEDIATORS
1. Knowledgeable: he should have sufficient proficiency on the subject-matter
2. Honourable: he should earn the respect and confidence of the parties
3. Good listener with a high analytical skills
4. Impartial facilitator who will move the parties towards amicable Resolution of the dispute
5. Facilitates Resolution of the disputes timely ensuring confidentiality
6. He should not impose or propose decision on the parties, but rather adopt techniques to help the parties arrive at their mutually agreeable solutions
7. Ensures that the Resolution by the parties is reduced into an agreement in writing with all the terms/points of Resolution clearly spelt out.
8. Display leadership skills and control the proceedings.
WEEK 17: (i) REMUNERATION OF LEGAL PRACTITIONERS; (ii) DUTIES OF LAWYER ON CHARGING OF CLIENTS
Rule 49 RPC
EFFECT OF SPECIAL AND GENERAL RETAINER
i. Special retainer: this means a Lawyer is engaged on a particular matter of a client.
EFFECT: the Lawyer can only represent adverse clients on other matters not related to the special retainer.
ii. General retainer: this means the Legal Practitioner represents a client on all his matters.
EFFECT: the Legal Practitioner cannot represent adverse party against the interest of his client. Also note that where the retainer is in respect of litigation, the legal practitioner must charge separate professional fee for each item of work he handles for the client (Rule 49(2)(a)). A lump sum paid to the LP by the client for all litigations undertaken on behalf of the client shall not be sufficient remuneration
TYPES OF FEES
1. SCALE FEE
These are fees charged under Scales I and II Legal Practitioner (Remuneration for Legal documentation and other land matters) order in non-contentious matters. Fees here are fixed and can neither be disputed nor varied by the court.
2. FIXED FEE
This is fee charged for specified class of works, such as writing letters, writing a will, incorporation of business entities. Fixed fee is charged for simple non-contentious works and is usually a flat rate. Usual in terms of CAC briefs
3. HOURLY RATE FEE
This is fee charged on hourly rate for the number of hours spent on the client’s work. The time spent must be commensurate and reasonable to the work done (used in the USA).
4. PERCENTAGE FEE
This is fee charged based on the value of the transaction, the higher the value the more the percentage charged and the lower the value the lower the percentage charged. It is common in property transactions especially the sale of land.
5. APPEARANCE FEE
This is fee charged for each appearance in court to represent a client. The distance of the law firm from the court as well as the standing of the legal practitioner at the Bar often determines the fee charged as appearance fee. OKONEDO – EGBAREGBEMI V. JULIUS BERGER. Common in law firms in rural areas. The legality of appearance fees has been an issue due to the way cases are adjourned in Nigeria (judge not sitting).
6. CONTINGENT OR SUCCESS –BASED FEE
This is fee charged after the success of the action. The solicitor agrees with the client on the amount he will be paid based on the amount they actually recover. Where no such amount is recovered, he may earn nothing.
Under the common law, contingent fees are prohibited, whereas it is banned under Rule 50(2) RPC for criminal matters. It is only permitted in civil cases -R.50(1) RPC
Is there any place for Pro bono?
• Yes
• Mandatory for the award of the rank of SAN by the LPPC
• Pro bono services means no remuneration: s9(2) LPA & Rule 52(1) RPC
• Usually to family (special relationship/indigent persons)
• Pro bono services could be in contentious and non-contentious case
• The mere fact that the case is pro bono does not take away professional negligence and liability. However, the legal practitioner can exclude, by agreement, professional negligence and liability in respect of pro bono cases.
Oyekanmi v NEPA: The Supreme Court held that where a bill of charges did not contain sufficient particulars of the items of work done but there were surrounding circumstances which made the bill litigable despite the defect, the bill of charges may still ground an action for recovery of professional charges of a legal practitioner unless it is so defective that it is incurably bad.
CONTENT OF A BILL OF CHARGES
• The name and address of the Legal Practitioner
• The name and address of the Client
• Nature of the brief
• Date and particulars of principal items and cost
• Method of payment
• The information that failure to pay, legal action will be taken against him.
• Signature, date and name of the Legal Practitioner
FBN V. NDOMA-EGBA
OYEKANMI V. NEPA
PROCEDURE FOR THE RECOVERY OF PROFESSIONAL FEES
i. Prepare a Bill of Charges
ii. Deliver and serve a signed Bill of charges to the client
iii. If after 1 month the client failed to pay, sue to recover fees in High Court
iv. Bill of charges may be taxed if objectionable or applied for by the client within1 month of the receipt of the Bill.
S. 16(2), S. 17(1) OF THE LPA, OYEKANMI V. NEPA
COURT WITH JURISDICTION-
The Court having jurisdiction is the High Court.
TAXATION OF BILL OF CHARGES
• The client is to apply within 1 month of receipt of the Bill to the Court for it to be taxed. After one month, either party can apply. No application after 12 months unless one can show a good reason for taxation
• It is taxed by an officer of the Court based on R. 52 of RPC. See S. 17 and 19 of the LPA
• Formal compliant by client that fees charges are not commensurate with services rendered.
REMUNERATION OF LEGAL PRACTITIONER AND RECOVERY OF PROFESSIONAL FEES
DETERMINANTS IN CHARGING PROFESSIONAL FEES ARE:
I. If it is a contentious work (e.g. litigation) - R. 52 of the RPC
II. If it is a non-contentious work, the fees to be charged will be based on the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order 1991,which is the scale charges.
SCALE OF CHARGES UNDER THE LEGAL PRACTITIONERS (REMUNERATION FOR LEGAL DOCUMENTATION AND OTHER LAND MATTERS) ORDER 1991 are divided into THREE:
SCALE 1
It relates to remuneration for services on sale or purchase of land and mortgage transactions.
RULES FOR CHARGING UNDER SCALE 1 ARE:
a. If a Legal practitioner represented both the mortgagor and mortgagee, he is to charge the mortgagee FULL fees and HALF of the mortgagor’s Legal Practitioner’s fees.
R. 2 Part III of Scale 1 the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order 1991
b. Perusing a draft on behalf of several parties with distinct interest, if the consideration is above N100, 000 his fee is N2, 500.
R.3 Part III of Scale 1 under the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order 1991.
c. In a sale by auction, the legal practitioner to the auctioneer is not allowed to charge any fees where he will be paid a commission.
R. 6 Part III of scale 1 under the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order 1991.
2. SCALE 2
It applies to fees to be charged for Leases and agreement to lease
RULES FOR CHARGING UNDER SCALE 2 are
a. The lessee’s legal practitioner fee is half the lessor’s legal practitioner fees.
R. 2 Part II of scale II of the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters Order 1991.
b. A Legal practitioner acting for both the Lessor and Lessee is to charge the full fee of the lessor’s legal practitioner fee and half of the lessee’s legal practitioner’s fee.
R. 1 PART III SCALE II OF THE LEGAL PRACTITIONERS (REMUNERATION FOR LEGAL DOCUMENTATION AND OTHER LAND MATTERS ORDER 1991.
SCALE 3: It deals with non-contentious legal work which no scale is provided for in the Order or where legal practitioner elects to charge his fees under Scale III notwithstanding the provisions for the legal work in Scale I and II
Examples are incorporation of companies, searches at Land Registry, bailing of suspects etc.
PRINCIPLES FOR ASSESSMENT UNDER SCALE III
a. The complexity, novelty and difficulty of the matter
b. The skill, labour, specialised knowledge, expertise and responsibility involved on the part of the solicitor
c. Value of the property involved
d. The number and importance of the documents prepared
e. The importance attached to the transaction by the client
f. Places to be visited where the transaction or a part of it will take place.
g. The time expended by the lawyer in the transaction
h. Special exertion of devotion towards that transaction e.g. in election petition
Quantum meruit cases: where LP may not have direct instruction from a client but rendered services which ultimately benefited the client. The law may presume a quasi-contractual relationship between the LP and the client, which entitles the LP to his professional fees and other expenses based on the quantum of legal work he did for the client (Oyo v Mercantile Bank Ltd). Also where a LP is unable to complete a legal work for his client, owing to no fault of his, he may bring an action for recovery of the professional fees on quantum meruit basis.
Assuming you act for Mrs Adaku Bimpe Shehu and using the case study given in week 12 of Property Law Practice, prepare your Bill of Charges to be submitted to your Client in carrying out the instruction in question 7 (a).
MAJI & CO
BARRISTERS AND SOLICITORS OF THE SUPREME COURT OF NIGERIA
NO 15 VIRBES STREET
MARINA -LAGOS STATE.
OUR REFERENCE: PHONE:
DATE: 11 MAY, 2012
[pic]
To,
Mrs Adaku Bimpe Shehu No 5 North Avenue Apapa Lagos.
Dear Madam,
RE: NEGOTIATION OF MORTGAGE LOAN
BILL OF CHARGES
Sequel to your instruction to negotiate a mortgage loan on your behalf, we are pleased to inform you of its successful completion.
Find attached our invoice below for your prompt response.
|Principal item |Date |Cost # |
|1. |Application for Loan |5/04/2012 |20,000 |
|2. |Deducing title | |6/04/2012 |10,000 |
|3. |Postage of application | |6/04/2012 |5,000 |
| |letter | | | |
|4. |Transportation | |5-6/04/2012 |20, 000 |
|5. |Miscellaneous | | ,, |10,000 |
| |Expenses | | | |
| | | |Amount received as deposit |Nil |
| | | |Total |65,000 |
Kindly pay the sum of sixty-five thousand naira (65,000) into account No. 304070113 belonging to Maji Sunday & Co at First Bank PLC.
Thank you for the anticipated cooperation.
Yours faithfully,
………………
Maji Sunday Esq.
(Principal partner)
MAJI & CO
BARRISTERS AND SOLICITORS OF THE SUPREME COURT OF NIGERIA NO 15 BROAD STREET WUSE ZONE II ABUJA.
OUR REFERENCE: PHONE: DATE: 11 MAY, 2012
[pic]
To,
Mrs Kayuba Ada,
No 20 Gimbia Street,
Garki,
FCT Abuja.
Dear Madam,
RE: SUIT NO LK/CV/2012 MRS KAYUBA ADA V. AGRICULTURAL BANK
BILL OF CHARGES
|S/N |Particulars |Date |Cost # |
|1. |Preparation of |10/01/1012 |20,000 |
| |originating processes | | |
|2. |Filing of the process |11/01/2012 |10,000 |
|3. |Interviewing of clients and witnesses |10/01/2012 |20,000 |
|4. |Appearance fees (10 times) |10-15/ 04/2012 |50,000 |
|5. |Professional fees | |50,000 |
|6. |Transport |11/01/2012 |10,000 |
| | |Total |610,000 |
| |Amount paid as deposit |12/01/2012 |200,000 |
| |Balance C/D | |410,000 |
Kindly pay the balance of four hundred and ten thousand naira only (#410,000) into Account number 304070113 with First Bank PLC belonging to Maji & Co.
We thank you for your prompt response.
Yours sincerely,
…………………
Maji Sunday (Principal Partner) For: Maji & Co.
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO.
BETWEEN:
1. EDOGWU MEPPI
2. MAJI SUNDAY PLAINTIFFS
(carrying on Legal practice under the
name and style of Maji & Co)
AND
MRS KAYUBA ADA ………………………………………….. DEFENDANT
STATEMENT OF CLAIM
1. The plaintiffs are the principal partners of Maji & Co, a firm of Legal Practitioners duly registered as a business name under the Companies and Allied Matters Act 2004 with Registration Number: 545747 and with its registered place of business at No. 15 Broad Street Wuse II Abuja.
2. The defendant is a business woman and supplier of agricultural products of No. 14 Garki II Abuja.
3. The plaintiffs were briefed by the Defendant on the 10 day of January 2012 to prosecute an action to recover the balance of N7, 000, 000.00 from her business partner Agricultural Bank Plc, the plaintiffs letter of instruction is hereby pleaded.
4. The defendant’s case was instituted in Court and duly completed on the 20th day of April 2012 as suit No FCT/CV/2012 MRS KAYUBA ADA V. AGRICULTURAL BANK, the judgment certificate is pleaded.
5. The defendant paid the sum of N200,000 as deposit to enable the plaintiffs carry out the instruction.
6. The plaintiffs aver that they never entered into any contingent fee arrangement with the defendant.
7. The plaintiffs have served on the defendant personally, a Bill of Charges duly signed and dated the 11 day of May 2012 to pay the balance of N410,000, the Bill of Charges is hereby pleaded.
8. The defendant has refused to pay after 1 month of its service and a demand letter was sent to the defendant, the letter is hereby pleaded.
9. The Plaintiff hereby claims against the defendant as follows:
a. The payment of the sum of N410, 000 balance by the defendant as contained in the Bill of Charges.
b. Interest rate of 10 percent from the date of failure to pay after the 1 month grace until judgment is delivered and satisfied.
DATED THE …… DAY OF JUNE 2012
……………………..
Sandra Okundaye
Counsel to the Plaintiffs
Whose Address for Service is at No. 2
Idowu Taylor Street Wuse Zone 6 Abuja.
FOR SERVICE ON:
Mrs Kayuba Ada
No 3 Imo Close
Jabi, Abuja
WEEK 18: LEGAL PRACTITIONERS ACCOUNTS; LEGAL PRACTITIONERS ACCOUNTS RULES – always in exams
Either asked to draft cash book, ledger or calculate the remuneration in the exams.
Legal Practitioners’ Accounts Rules 1964 – a subsidiary legislation of the Legal Practitioners Act. Meant to regulate the way legal practitioners handle money (client money, trust money)
LPAR is divided in 5 parts:
Part I – Rules 1 and 2 deals with definition of major terms used in the LPAR
Part II - Rules 3-12 deals with clients’ accounts (how they should be handled and dealt with by legal practitioner
Part II - Rules 13-20 dealing with trust accounts
Part IV - Rules 21-22 dealing with the inspection of the legal practitioners’ account books
Legal practitioners are expected to keep certain type of accounts and these books can be inspected
Part V – Rule 23 dealing with exemption clauses (persons exempted from complying with the provisions of the rules) – persons in the Federal or State employment or in full time employment with statutory or local authorities
Part I – definition of terms in LPAR
Rule 2 defines:
• Client as persons on whose account the Legal Practitioner holds or receives client’s money
• Client’s money includes money held or received by a Legal Practitioner on account of a person for whom he is acting. Client’s money shall not include trust money
• Client account means a current or deposit account at a bank in the name of the Legal Practitioner, the title of which the word ‘client’ appears
• Trust money means money held or received by Legal Practitioner which is not client money and which is subject to a trust of which the Legal Practitioner is a trustee whether or not he is solicitor trustee of the trust
• Trust bank account: a current or deposit account the title of which the word ‘trustee’ or ‘executor’ appears kept at a bank in the name of the trustees of the trust and kept solely for money subject to a particular trust of which the Legal Practitioner is a solicitor trustee (i.e. LP is one of the trustees)
• Solicitor trustee means a LP who is a sole trustee or who is a co-trustee with his partner, clerk or servant or with more than one of such persons
• Controlled trust means a trust in which the LP is a sole trustee or co-trustee with one or more of his partners or his clerk or servant
LPAR 1964 provides that all legal practitioners should keep proper books of account in relation to their practice.
Major books of accounts
LPAR provides that LP should keep separate accounts of their client’s money (client account), trust account and personal account. LP may also have law firm’s account
Reason for keeping these separate accounts:
• The necessity of keeping clients’ money separate from that of the LP both in the bank and in the books kept by him
• It enables the LP to assess the value of his practice at any given time
• It enables the LP to know debtors and creditors at a glance
• In case of partnership, partners know what the partnership is worth and the amount due to them individually
• It helps the LP to know the amount belonging to a particular client at any given time (keeping proper cash books and ledger relating to dealing with each client since client account will have various clients’ money in it)
• Helps to differentiate btw one client’s money from another
• Helps for assessment of individual or partnership tax at the end of the financial year
Sources of client’s money
1) Conveyancing – a major source of client’s money in most firms of LPs e.g. purchase land on behalf of client or client gives LP a particular property or estate to sell. Get proceeds of sale for onward transmission to the client
2) Litigation: LP going to court on behalf of client to recover money owed on behalf of the client. Money may be paid to LP before being transferred to client
3) Negotiation for compensation e.g. compensation for personal injury
4) Executorship and trust: LP made a trustee and trust money may be paid/released to the LP
5) Investment management: some LPs act as investment managers e.g. buying and selling shares on behalf of their clients.
6) Agency work: e.g. in FCT, lawyers act as estate agent managing blocks of shops, estates collecting rent from persons occupying the property
7) Fees on account: money received in advance of legal work e.g. before carrying out the legal work, the money doesn’t belong to LP, still regarded as client’s money
Finds other sources of LPs getting client’s money
General rules relating to dealing with client’s money
• Rule 3 LPAR provides that LP must keep a single client’s account in which he should deposit all client’s money in his possession or as many accounts as he deems fit
• Client’s money received must be banked without delay (the day the money is received or the next working day if money received after bank opening hours or week days or public holidays)
• Rule 3 LPAR: only client’s money may be paid into client’s account
CIRCUMSTANCES WHERE A LEGAL PRACTITIONER MAY PUT NON-CLIENT’S MONEY INTO CLIENT ACCOUNT (EXCEPTIONS) ARE:
• Trust money: circumstances where it may be paid into client’s account e.g. LP to client A and LP creates a trust for A and assigns a particular amount of money to the trust. Before creating a separate trust account, the LP can pay the money given by A to the client’s account: Rule 4(a)
• A nominal sum belonging to the LP, which is required for the opening of or maintaining of the client’s account e.g. no money in a particular account but know you’ll need the account in future, LP can pay his own money into the client account to maintain the account. As soon as money comes into the account from the client, LP should withdraw his own money from the account: Rule 4(b) LPAR
• Money accidentally or mistakenly withdrawn from the client’s account: Rule 4(c) LPAR
• Cheque which includes client money and trust money/personal account. Cheque to be split and paid into the separate accounts. If cheque is/cannot be split, then pay first into client’s account and then withdraw the amount for trust money and pay into trust account: Rule 4(d) LPAR
• Money required to be split btw client and trust account or btw other accounts and withdraw the part meant for the trust and pay into trust account
Cannot withdraw money client’s account. However, there are exceptions:
• On the instruction of the client
• If it is required for a payment of a debt due to the LP or expenses incurred by him. But before he can withdraw, must expressly get the client’s permission to withdraw that particular amount
• If it is required for payment of LP’s costs provided a bill of charges has been drafted and given to the client and the client agrees to the amount stated on the bill and charges and permits LP to withdraw that amount from the client account
• For transfer into another account e.g. case of where cheque is for both client and trust account – need to withdraw the part belonging to the trust
• Trust money required for execution of a particular account or to be transferred to a bank account specifically meant for a trust e.g. client wants trust to be set up with money to be drawn from the client’s account
• If LP paid his own money to open the account or maintain the account
• A withdrawal of money from client’s account against an un-cleared cheque (un-cleared cheque meant for LP’s personal fees/expenses) is not a breach of the rules, but becomes a breach retrospectively where the cheque is dishonoured (cheque bounces) but where the cheque is cleared, it is not a breach of the rules
Trust account
Similar rules apply to this account
Inspection and enforcement
Procedure 1
Rule 21(1): in order to ascertain whether these rules have been complied with, the Br Council acting on their own motion or written statement transmitted to them on behalf of a branch of the NBA or written complaint by third party (e.g. a client of the LP) provide that a LP should produce at a time and place his books of account (cash book, ledger, books detailing the expenditure and dealings with client’s money) bank passbooks, loose leaf bank statements, statements of account, vouchers and any other necessary documents for inspection by an accountant appointed by the Bar Council and such an accountant shall write a report to the Bar Council and that report may form the basis for any disciplinary action by the Legal Practitioners Disciplinary Committee
Rule 21(2): production of the books by the LP must be done at a time and place to be fixed by the Bar Council
Rule 21(3): In any case, which a branch of NBA requires the inspection should be made, duty of such branch to transmit to Bar Council a statement of all relevant information in their possession and a request that such an inspection be made
Rule 21(4): Before instituting an inspection for a complaint lodged by a 3rd party, the Bar Council shall require prima facie evidence that a ground for complaint exists and may require a payment of a reasonable sum to cover the costs of inspection and cost of legal practitioner against whom the complaint is made and the Bar Council may deal with such fees as it deems fit before going further to require LP to submit documents for investigation.
Procedure 2
Rule 22(1): In a case where Bar Council exercises its power (on its own motion or request by branch of NBA), the Council may in their discretion ask the LP to deliver to the council within such time a certificate of an accountant appointed by the LP. In such a case, examination of the books of the LP is conducted by an accountant appointed by the LP. Such inspection by the accountant must be based on the written instruction given by the Bar Council. However where the LP fails to appoint the accountant within the stipulated time, the Bar Council can appoint an accountant
Rule 22(2): every requirement made by the Bar Council shall be made in writing under the hand of the Secretary and sent by post to the last known address of the LP or address stated on his roll on his/her Call to Bar and the document is deemed to have been received on the 10th day after posting
State the statutory provisions that regulate how a LP should handle money in his practice
Legal Practitioners Act 2004 and Legal Practitioners Accounts Rules 1964
List and explain three sources of client money: investment management, litigation, conveyancing
List the major books of account relevant to legal practice in Nigeria: ledger, cash book, journal
State the obligatory bank accounts to be kept by a legal practitioner; client account, trust account, personal trust, firm/partnership account
Define any 4 of the following:
Client, client money, client account, trust money, trust bank account, solicitor-trustee
List 4 circumstances where money which is not client’s money may be paid into client’s account
Give 3 conditions under which money may be drawn from a client’s account
Mention 5 of the books that may be inspected by the Bar Council
Rule 10(1) LPAR provides that every LP shall at any time keep proper written up books and accounts as may be necessary to show all dealing with client’s money held, received or paid by him, and any other money dealt with by him through a client account and to distinguish such money held, received or paid by him on account of such separate client and to distinguish such money from other money held, received or paid by him on any other account
Rule 10(2): All dealings referred in para 1 shall be recorded in (a)(i) a clients’ cash book or clients’ column on the credit and debit side as may be appropriate of a cash book, and (ii) a client’s ledger or a clients’ column on the credit side or debit side (as may be appropriate) of a ledger and no other dealings shall be recorded in such clients’ cashbook and ledger or, as the case may be, in such clients’ columns and
(b) all dealings of the legal practitioner relating to his practice as a solicitor other than those referred to in para 1(a) of the Rule shall (subject to compliance with the provisions of Part III of these Rules) be recorded (as may be appropriate) in such (if any) other columns of a cash book and ledger as the legal practitioner may choose to maintain.
Classification of transaction
Classification of entries of a particular nature in proper account. If it is personal, head it the name of the particular client. If impersonal e.g. property, head it in the name of the property
Reasons for classification
• It makes the LP accounts to be tidy – separate books for accounts that are personal and impersonal in nature
• It makes for easy reference
• It is easier to inspect
Types/Class of transactions
• Personal account/transactions: account, which stands in the name of individuals, partnerships and companies. It shows the LP dealings with other persons and it is drawn up in the other person’s name. Head it in the name of this person e.g. Adamu & Enterprises’ cash book for the month of July
• Impersonal account: These are accounts, which record the LP dealings with properties and items of expenditure and it may be headed with these properties and expenditures. Impersonal account is further divided into real and nominal accounts. Real account are accounts of tangible transactions e.g. purchase of land, building, machinery etc. Nominal accounts are intangible expenditures like rent, wages, insurance premiums, discounts
Structure of the cashbook
• A cash book must be headed (will show the type of account) e.g. Fatima’s cash book
• Must have 4 columns in preparing cash book:
• The first column of the cash book is the date column: DATE
• The second column consist of the particulars: PARTICULARS
• The third column is the debit column: DEBIT
• The fourth column is the credit column: CREDIT
RULES GUIDING ENTRIES INTO THE CASH BOOK
• All monies received must be debited i.e. all incomes
• All expenses are credited i.e. all the money spent or designated to be spent are posted in the credit column
• The balance carried down will be entered under PARTICULARS but its value will be posted under the side with the lesser value
• The balance carried down is the difference btw the total sum on the debit side and the total sum on the credit side
• The balance brought down is the last entry in the cash book and it is also written under PARTICULARS but the value is written down under both the debit and credit side
• The figure must be the same. If the figures are different that means the account is not balanced.
Miss Fatima was enrolled on August 31st 1984. On 1st September 1984, her parents gave her 28k for a private legal practice. On 2nd Sept, she paid 2,400 for a year rent for office accommodation to Mr John, the landlord. On 3rd Sept, office furniture for 1,500 and typewriter for 5k and stationery for 800 and practice book for 5000
On 4th September, opened a current account for 1k. On 5th Sept car for 12,000 and paid insurance premium of 1,500. She kept sum of 3k for petty cash. Draft her cashbook
|DATE |PARTICULARS |DEBIT |CREDIT |
|01-09-2008 |CAPITAL |28,000 | |
|02-09-2008 |OFFICE ACCOMODATION | |2,400 |
| |OFFICE FURNITURE | |1,500 |
| |TYPEWRITER | |5,000 |
| |STATIONERY | |800 |
| |BOOKS | |5,000 |
| |CURRENT ACCOUNT | |1,000 |
| |CAR | |12,000 |
| |INSURANCE PREMIUM | |1,500 |
| |IMPREST ACCOUNT | |3,000 |
| |BALANCE C/D |4,200 | |
| |BALANCE B/D |32,200 |32,200 |
LEDGER
The Ledger is the opposite of the cashbook as far as the rules guiding the posting of entries into it is concerned. Make sure each entry is in a different ledger
The structure of the edger
• The first column of the ledger is the date
• The second column is PARTICULARS
• The third column is Debit
• The fourth column Credit
Rules guiding entries into the ledger
• Each transaction has a separate ledger account unlike cashbooks
• All incoming funds are to be credited i.e. money received
• All outgoing funds are be debited i.e. money spent
CAPITAL ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|05/01/2008 |CASH | |28,000 |
RENT ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|02/05/2008 |CASH |2,400 | |
FURNITURE ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
| |CASH |1,500 | |
Tunde Ojo was called to the Nigerian Bar on 2nd November 2014. After the Call to Bar, he approached his father for assistance to start his practice. On November 6, 2014, his father gave him N1million and on the same day, his mother gave him N500,000. The following day, November 7, his uncle in the USA sent some dollars to him which exchanged to N250,000. On that same day, his friend, Dr Tayo Ade, gave him N250,000. On Nov 8, he paid N300,000 for office accommodation and bought a second-hand car for N400,000. On Nov 9, he bought a desktop computer for N70,000 and a set of office furniture for N200,000. He bought law books for N50,000 and a complete set of Laws of the Federation 2004 for N200,000. On Nov 10, he bought 4 black suits at the rate of N15,000 each and 3 pairs of black shoes for N7,000 each. On Nov 11, he opened an account with Zenith Bank Plc and deposited N100,000 for the running of the office. On Nov 15, he bought stationery N50,000 for the office. Draw Tunde Ojo’s cashbook and ledger
TUNDE OJO’S CASHBOOK
|DATE |PARTICULARS |DEBIT |CREDIT |
|06/11/2014 |CAPITAL |1,000,000 | |
|06/11/2014 |CAPITAL |500,000 | |
|07/11/2014 |CAPITAL |250,000 | |
|07/11/2014 |CAPITAL |250,000 | |
|08/11/2014 |OFFICE ACCOMMODATION | |300,000 |
|08/11/2014 |CAR | |400,000 |
|09/11/2014 |COMPUTER | |70,000 |
|09/11/2014 |OFFICE FURNITURE | |200,000 |
|09/11/2014 |BOOKS | |50,000 |
|09/11/2014 |LFN 2004 BOOKS | |200,000 |
|10/11/2014 |4 BLACK SUITS | |60,000 |
|10/11/2014 |3 BLACK SHOES | |21,000 |
|11/11/2014 |ACCOUNT | |100,000 |
|15/11/2014 |STATIONERY | |50,000 |
|30/11/2014 |BALANCE C/D | |549,000 |
|30/11/2014 |BALANCE B/D |2,000,000 |2,000,000 |
LEDGER ACCOUNT
CAPITAL ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|06/11/2014 |CASH | |1,000,000 |
CAPITAL ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|06/11/2014 |CASH | |500,000 |
CAPITAL ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|07/11/2014 |CASH | |250,000 |
CAPITAL ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|07/11/2014 |CASH | |250,000 |
RENT ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|08/11/2014 |CASH |300,000 | |
CAR ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|08/11/2014 |CASH |400,000 | |
COMPUTER ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|09/11/2014 |CASH |70,000 | |
FURNITURE ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|09/11/2014 |CASH |200,000 | |
LAW BOOKS ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|09/11/2014 |CASH |50,000 | |
BOOKS ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|09/11/2014 |CASH |200,000 | |
SUIT ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|10/11/2014 |CASH |60,000 | |
SHOES ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|10/11/2014 |CASH |21,000 | |
CURRENT ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|11/11/2014 |CASH |100,000 | |
STATIONERY ACCOUNT
|DATE |PARTICULARS |DEBIT |CREDIT |
|15/11/2014 |CASH |50,000 | |
WEEK 19 – LEGAL RESEARCH, OPENING AND CLOSING FILES
Legal research
• To seek information concerning legal matters
• Need to identify relevant case law, statutes etc applicable to a specific case
• Sometimes research assigned to junior in chambers, research assistant or any counsel
• Every lawyer should always research, especially on novel cases
Functions of legal research
• Before client interview, helps acquaint with position of law on subject matter
• Determine if the client has a case
• Helps in preparation for ADR or preparation for trial e.g. know how strong your case is so you know what position to take in Negotiation etc
• Gives lawyer an overview of applicable law and decide on what action to take
• Helps to think on your feet e.g. so that the lawyer can adequately answer questions asked by a judge
• Particular applications of law to particular case/facts
• Before research, lawyer must analyse the legal problem to ascertain type of law applicable to the problem e.g. common, statutory, customary, Islamic law
• Also establish facts and circumstances of each case to help narrow down the research
• Could be manual or electronic research
• Index useful in manual research
Sources of material
• Primary sources – generated by governmental bodies/agencies e.g. statutes, case law, regulations, bye-laws, rules, guidelines, law reports etc. These sources are mandatory and binding. If case law, hierarchy of court. Decision of courts of coordinate jurisdiction is only persuasive on each other (FHC, SHC, National Industrial Court)
• Secondary sources – these do not emanate from government bodies. Analysis of laws and legal problems by learned authors or commentaries by experts e.g. textbooks. They are not binding, only persuasive
• Tertiary sources – provide information on where to locate the primary and secondary sources, which must have been identified e.g. index of cases. These are not to be cited.
• Hybrid sources is referred to in some textbooks but not discussed in class
Opening case files
• When law firms are briefed to handle any case, file is to be opened
• Contains file number and particulars of the client
• A new file must be opened for each case
• Full Name of the client, address, other contact information, occupation, date file is opened, name of court, professional fees, copies of all communication btw lawyer and clients, all processes filed in court etc
• Should be updated with progress on the case and filed in a manner that will ensure easy access or retrieval by colleagues in firm e.g. endorsed with adjournment dates and what happened in court on each day
• Every instruction received from client should be confirmed in writing to avoid ambiguity and file all correspondence
• Essential that even paperless law firms should also have paper backup
• Note different filing systems that may be adopted
• Examples of filing systems are alphabetical, topical (subject matter), numerical (per year), geographical (where the court is, type of court) etc
Matters to be dealt with when closing a file
1) Fee: how much the client has paid and how much is outstanding
2) Custody of documents: which document for lawyer to keep and which documents should be returned to the client
3) Right to keep original documents and photocopies
4) Length of period for keeping the files
5) Self-assessment/Audit: how did lawyer fare/do in handling in particular case e.g. by sending questionnaire the client
Generally case file belongs to the client.
The Act of closing a file
• Once a case/transaction is concluded, the legal practitioner should close the file in respect of that case/transaction.
• Note that the file meant to be closed here is the file opened for a particular case or transaction i.e. brief handled for a client by the lawyer and not the client’s own file with the firm or the lawyer. If client has a retainership file, the retainship file is also separate
• Client’s own file is a file usually opened by the lawyer/firm in the name of the individual/corporate client particularly where client is a retainer client and it generally remains open until the retainership is terminated
• A file is usually closed only when the case or other brief in respect of which the file was opened has been concluded, completed or brief is otherwise brought to an end
• When a file is closed, two parallel lines will be drawn across the face of the file and the word “CLOSED” in upper case letters written in between the said parallel lines
• The file is then tied up with ribbons and placed in the file case. Case file would usually have the suit number and name of the parties to the suit or the subject matter of the file written on its spine for easy future identification and retrievals
• Such a file is then filed on the shelve or is kept in the cabinet or a separate room (if any) meant for closed files otherwise called archive
• It is usual for the lawyer or law firm to keep an index or register of closed files
Fees
• At the closing of a file, the solicitor usually writes a letter to the client informing him of closing of his file and demand for his outstanding fees, if any.
• Such letters are usually accompanied with a bill of charges for any outstanding fees or a receipt for payments already made as the case may be
Custody of documents
• The case file and documents are generally the property of the client and may be surrendered to the client whether or not he demands for them e.g. original certificate of occupancy, marriage certificate
• In practice, however, the files and documents are retained by the lawyer or law firm on behalf of the client and the file or any document therein will be made available to the client whenever the need arises
• Note that the original copies of documents given to the lawyer or law firm should be returned to the client and acknowledgment of receipt thereof obtained from the client and retained by the lawyer
• It is however good practice for the lawyer to make and retain photocopies before returning originals to the client
Length of period for keeping closed files
• There is no statutorily prescribed requirement for the length of time within which a file or document should be kept by a lawyer or law firm before they are destroyed
• However, files and documents are usually kept for such length of time as the storage capacity and facilities available to Counsel or firm can accommodate
• It has been suggested that the length of time should be at least a year longer than limitation period for particular type of action or subject matter. Also allow time for all appeals and extension of time to appeal, case sent back for re-trial after going to the Supreme Court. NB: length of appeal period is vital in answering this question for exams
• Also note Legal Practitioners Accounts Rules: Rule 10(5) – preserve for at least 6yrs from date of last entry
• After retaining for a reasonable time and after notice to the client that the lawyer intends to destroy the file, the file may be destroyed by shredding, burning or any other way
• Some files may however, by worth keeping but note that original and important documents are not to be destroyed.
Self-assessment/audit
• It is an uncommon but good practice for a lawyer or law firm to do self assessment or self audit by sending a form of questionnaire to a client to fill and return
• This will usually ask the client questions, the answers would help the lawyer to improve his services in the future
Draft letter to client for closing the file
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