MUSINGS ON LEGAL PRACTICE IN NIGERIA
The Legal profession in Nigeria is about 134 years old; Mr Nash Hamilton Williams having been the first person to be enrolled at the Supreme Court on February 20, 1886.[1] The Legal Profession was at the forefront in the fight against brutal dictatorships as measured by the efforts of such persons as Chief Gani Fawehinmi, Femi Falana, Olisa Agbakoba, Clement Nwankwo[2] and a host of other unsung heroes. It was and still is the conscience of the nation. However and despite remarkable success stories which have not been fully highlighted here, the profession is still very much emerging. Among others, this is evidenced by the fact that despite its relatively long history, many if not most lawyers practicing in Nigeria only have skills for general legal practice; skills that are not transferable for technical and emerging areas of law like blockchain, taxation, intellectual property, sports law, medical law, technology law, etc which a fast developing country that is part of a global market really needs. While general practice of itself had been successful over the years, its relevance is likely to wane in coming years as many more Nigerians and foreigners living and/or transacting business in Nigeria require specialist legal services. It is therefore apposite for legal practitioners to ponder on their roles in the profession in projecting the future of the profession.
Now, it is conveniently argued among many legal practitioners these days that the market for professional legal services is oversupplied and as a result of this, the earning power of many lawyers has been eroded. “An increase in the supply of a commodity will cause the price to fall and the quantity demanded to increase, while a decrease in supply will cause an increase in the price but a fall in the quantity demanded.”[3] Permit me, to quickly test the proposition that Nigeria has too many lawyers. Nigeria has an estimated population of over 200,000,000 (two hundred million[4]) and just about 105,406 (one hundred and five thousand, four hundred and six) persons called to the Nigerian bar based on official records available on the Nigeria Bar Association’s website[5] (without considering those who have died, sought greener pastures in other professions, countries, etc). Thus, there is just about one lawyer to about two thousand Nigerians. Can it thus be seen that the legal profession still needs more manpower? Perhaps, the challenge is that there are too many lawyers in the market doing the same thing and thus they command low professional fees commensurate with the fact that their skills are ‘commonplace’ since they are competing for limited briefs while leaving few lawyers with specialist skills to command the big briefs.
This background having been laid, who then is a lawyer? I will define a lawyer as a legal compliance and advisory professional who helps clients to make pragmatic choices/decisions in respect to governmental policy directions, their business, personal lives, etc, based on governing legal framework and expected changes thereto. His work schedule could involve litigation, policy advisory, taxation, intellectual property, corporate practice, etc or a number of these. I will highlight in the paragraphs below, my roles in the emerging market of Nigerian legal profession.
Arguably, the foremost of my roles in this emerging market is to ensure the defence of the rule of law which in simple terms means the governance of a group of people based on laid down laws and not the vagaries of an individual. Where rule of law is the order of the day in any nation, rights be they fundamental, proprietary (real, personal, intellectual[6]) or otherwise as defined by the law are protected, investors are encouraged to put their investments in that country. While it is good to define rights and duties (in our constitution and our other bodies of laws) that align with the goals of our nation in the 21st century, I have the role to ensure that these rights and duties are complied with by agents of the State and do not just end in the statute books. This, in my opinion is the spirit of the Rules of Professional Conduct for Legal Practitioners 2007. Rule 1 in defining the general responsibility of a lawyer enacts that: “A lawyer shall uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.” By upholding the rule of law, I will be ensuring that jungle justice becomes a thing of the past in Nigeria. Investors will be more assured about their investment in Nigeria and will be more committed to investing more of their funds into our economy. Nigerians of ‘minor’ ethnic groups or who do not support prevailing political views, are less likely to feel disenfranchised as they know that they are being governed by established laws. I will thus be contributing to building a Nigeria that works for all.
In upholding and observing the rule of law, I must consider it my responsibility to test the strengths of our laws in courts.[7] The Supreme Court observed in Adegoke Motors Ltd. v. Adesanya per Oputa JSC that:
We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.[8]
Related to this, is the need to participate in ensuring speedy determination of disputes. Unfortunately, disputes in Nigerian courts take unnecessarily long time for it to be fully resolved partly because legal practitioners seem to benefit from protracted legal disputes and thus encourage their clients to remain steadfast with their position without a desire to shift grounds despite the sometimes obvious defects in their positions. Oguntade JSC in Longe v. First Bank of Nigeria Plc[9] observed:
The Plaintiff’s suit was filed on 4–07–02 about a month after he was purportedly removed. All the Defendant needed to do on being served with the summons was rescind the ill-advised action and follow hereafter the prescription under Section 266. Within a few weeks thereafter, the Defendant would have been able to effectually remove the Plaintiff. What could have been done within 3 months has been made to last eight years.
Unfortunately too, arbitration which in early years was appreciated for the speed with which it dispenses disputes is equally suffering from this challenge in Nigeria. It has thus been observed that:
Things are changing and arbitration is catching up with litigation in lack of speed even though the rules are not complex and are devoid of technicalities associated with court proceedings. A widely held view is that this state of affair is attributable in part to the increasing domination of arbitral proceedings by lawyers.[10]
I must carry out my responsibilities to my clients with the understanding that long drawn legal battles can and do wary clients, tie down the subject matter of dispute and make it to lose its real value over the years. Thankfully, there are a number of medium via which parties to a dispute can come to amicable settlements be that through mediation, pre-trial conference, plea bargaining, etc; options which I have the responsibility to highlight to my clients.[11] Lagos State for instance already has in its Civil Procedure Rules provisions that can aid speedy dispensation of some defined class of cases,[12] case management conference which can be a forum for amicable settlement. I must play my role in the dispute resolution process to not just protect my clients but also help the arbiter to come to a well-considered judgement[13] as quickly as possible. By playing my role in the speedy dispensation of justice, I will be increasing faith in the judiciary in order to reduce the likelihood of such urban myth that justice delayed is justice denied and thus ensure that the wheel of justice not just grinds, but it equally grinds quickly.
Furthermore, no other person is better suited to suggest changes in our laws than a lawyer who interfaces with the law regularly or has had cause to test the law either administratively or in the court room or has carried out academic research on the law. Opining on a similar point, Adekeye JSC once commented that:
Since the issue of locus standi on the Bill of Lading derives from Section 375 (1) of the Merchant Shipping Act, and is thereby statutory, it requires a radical change in law — which is a legislative act, for the courts to revisit and overrule their previous decisions on the matter. I must quickly explain that revisiting or overruling its previous decisions by an apex court is not a random exercise. This court will surely revisit or overrule its previous decisions to curb perpetration of injustice. Where the cases are based on legislations or statutes it obviously requires an amendment to the particular statutes to overrule such cases. I however encourage the learned counsel for the Appellant to continue to lead the crusade for a change in that particular statute so as to eradicate any inherent injustice[14] in implementing Section 375(1) of Merchant Shipping Act 1990.[15]
Writer Robert Schuller observed in the fifth of his ten commandments of possibility thinking that: “Some of the greatest ideas are impossible because they are illegal today. You should never violate the law, but do not reject an idea because it is illegal. You might be able to get the law changed!…. A lot of laws on the books today need to be changed.”[16] The beauty of the human race is the ability to change in order to adequately meet new realities. I constantly have to interface with a number of Nigerian law and case laws which are inimical to our growth projections. Lawyers must lead the charge to ensure our nation delivers 21st century results by breaking free from policy framework as defined by our laws that are best suited for the 20th and sadly also the 19th centuries. Our laws and interpretation thereof by the judiciary must encourage entrepreneurship, protect the creative industry,[17] innovative thinking among individuals and the federating units, competition among states,[18] prepare for our future while meeting today’s needs, etc. Every lawyer should consider it his/her responsibilities to suggest changes to the laws guiding his/her area of practice that he/she believes is inhibiting growth or has proved difficult in practice. Lawyers should not be complaining about challenges with specific laws or policy directions of governments like laymen. Lawyers should take further steps by submitting memoranda to and lobbying the relevant law-making body, the Executive or the agency involved in order to ensure that the relevant sections of the law are amended or new laws are enacted to take care of observed lacunas for greater effectiveness and efficiency.[19]
Moreover, as the Nigeria legal profession moves ahead into the next level, I also need to pay attention to becoming a specialist who has superior skills not just from an understanding of the workings of the legal profession but also from an understanding of the specific industry within which my clients operate and the needs of my clients. Thus for example, it is not enough for me to understand the laws that guide the maritime industry, I need to go ahead to understand the industry including the register of the industry. By doing this, I can gain greater credibility among industry players who will be more willing to entrust their briefs to me. I must utilise inter and multidisciplinary approaches in providing solutions to the challenges of my clients. For instance, in suggesting ways to make Nigeria’s micro pension work better,[20] I borrowed insights from the ‘World Economic Forum’s White Paper on We Will Live to 100: How we can afford it?[21]’ which is a specialist study on building a good pension system. Without doubt, the legal profession is a noble one. However as learned as we are, we do not know everything and must be humble enough to admit our deficiency and learn from industry experts in that field in order to be effective in serving them.
Besides, I have the role to ensure my business structure is sustainable. I need to utilise a business structure that can encourage growth, support larger number of legal practitioners and sustainable profit in legal practice than many of the present day law firms can support. Commenting on the importance of a good business structure, it was observed that: ‘While extraneous factors such as poor infrastructure and adverse government policies can affect businesses significantly, inefficient business structures can also be a significant challenge.’[22] It is without doubt that a lawyer cannot transact his business via a company.[23] However, the business structures open to legal practice in the light of the present state of the law include sole-proprietorships, partnerships, associateships, limited partnerships and limited liability partnerships.[24] I am of the considered opinion that despite the success stories of sole-proprietorships (as measured by its omnipresence in the Nigeria legal space and its propensity to propel legal entrepreneurship) in Nigeria, its legal profession needs more sustainable business structures that can enable it to be more financially robust, benefit from economy of scale, have the proclivity to survive the death of the proprietor. These are the advantages partnerships like Templars, Aluko and Oyebode, associateships, limited partnerships like Olaniwun Ajayi LP, Dele Adesina LP to name but a few, and limited liability partnerships (examples of which we do not seem to have in Nigeria’s Legal Practice space) offer and which make them more and more attractive to legal practitioners who are not just thinking about themselves but about their legacies. I once commented on the best business model for lawyers that:
… lawyers need to enter into strategic partnerships and/or associations with the aim of building law firms that will overtime grow to become institutions that will not just meet the demands of their clientele but also those of their employees, regulatory agencies and their Corporate Social Responsibilities.[25]
In conclusion, I have my roles as a lawyer in the emerging market of the Nigerian legal profession well cut out for me. I am alive to these roles which as highlighted above include the defence of the rule of law, assisting in the speedy administration of justice, being at the forefront in effecting changes in the law, specialising in one or more areas of law, ensuring my business model is sustainable, to name but a few. Fulfilling these roles, will go a long way in making the legal profession market in Nigeria more robust.
[1] G U Oputa, The Legal Practitioner Client Relationship (2nd Edition, Justice Watch) 1
[2] Ibid [200]
[3] David J. Anderson, The Economics of West Africa (Revised Edition, Macmillian) 107–108
[4] ˂www.worldometers.info/world-population/nigeria-population/˃ accessed on 29 January, 2020.
[5] ˂www.nigerianbar.org.ng/index.php/abtus˃ last accessed on the 29th of January, 2020.
[6] Oluwakemi Adeyemi ‘The Option of Copyright Mortgage in Financing Nollywood’ < https://medium.com/@aolulaw17/the-option-of-copyright-mortgage-in-financing-nollywood-1-8f084c67bd3d> published on 4th, May, 2019.
[7] Oluwakemi Adeyemi ‘Is the Jurisdiction of a High Court after an Arbitral Hearing Original and is There Need to Seek Leave to Appeal A Judgement in Such a Situation: A Review of MTN Communications Ltd. V. Hanson (2017) 6 SC (Pt. VI) 11’ <https://medium.com/@aolulaw17/is-the-jurisdiction-of-a-high-court-after-an-arbitral-hearing-original-and-is-there-need-to-seek-95abe2451be> published on 29 July, 2019.
[8] (1989) 3 NWLR (Pt. 109) 250 at 274–275; cf The Registered Trustees of the Airline Operators of Nigeria v. NAMA (2014) 2 SC (Pt. II) 157 at 190–191 per Okoro JSC.
[9] (2010) 2–3 SC (Pt. III) 61 at 110; cf Oyeyemi & 5 Ors. V. Owoeye & Anor (2017) 2–3 SC (Pt. IV) 117
[10] Justice Ephraim Akpata JSC, The Nigerian Arbitration Law in Focus (Obosa Akpata & Olusola Adegbonmire ed, 2nd edn, West Africa Book Publishers Limited 2019) 11
[11] Rules of Professional Conduct 2007, Rule 15(3)(d).
[12] High Court of Lagos State (Civil Procedure) Rules 2019, Order 59.
[13] Rules of Professional Conduct 2007, Rules 15(1), 30.
[14] Underlining added.
[15] Basinco Motors Ltd. V. Woermann-Line [2009] 6 MJSC (Pt. 1) 66 at 99–100.
[16] Robert Schuller, Tough Times Never Last, But Tough People Do (Thomas Nelson Edition 1983) 120–121.
[17] Oluwakemi Adeyemi, ‘The Option of Copyright Mortgage in Financing Nollywood’ ˂ https://medium.com/@aolulaw17/can-section-17-of-the-copyright-act-validly-have-a-retrospective-effect-1-a-review-of-adeokin-c86c607fc366˃ published on 17 September, 2019.
[18] Oluwakemi Adeyemi, ‘The Case for the Regulation of Hire Purchase by States’ ˂www.linkedin.com/pulse/case-regulation-hire-purchase-states-oluwakemi-stephen-adeyemi/˃ published on 1 February, 2019; Oluwakemi Adeyemi, ˂https://medium.com/@aolulaw17/state-pencoms-vis-%C3%A0-vis-pencom-under-the-pension-reform-act-2014-and-the-1999-constitution-as-a3b8b2ebb211˃ published on 1 August, 2018.
[19] Oputa (n 1) 202.
[20] Oluwakemi Adeyemi, ‘Making Micro Pension Work’ ˂https://medium.com/@aolulaw17/making-micro-pension-work-1-98783f026dec˃ published on 28 May, 2019.
[21] World Economic Forum, ‘White Paper on We Will Live to 100: How we can afford it?’ ˂http://www3.weforum.org/docs/WEF_White_Paper_We_Will_Live_to_100.pdf˃ accessed on 15 May, 2019.
[22] Chinedu Ezomike & Samuel Bamidele, ‘Critical Tax Considerations for Mergers and Acquisitions’ Business Day (Lagos, 15 May, 2018) 9
[23] Rules of Professional Conduct 2007, Rule 5(5).
[24] Oluwakemi Adeyemi, ‘Limited Liability Partnerships as Veritable Vehicles for Carrying on Business’ <https://medium.com/@aolulaw17/limited-liability-partnerships-as-veritable-vehicles-of-carrying-on-business-fa8edb0d55d9> published on June 1, 2018.
[25] Oluwakemi Adeyemi, ‘Building a 21st Century Law Firm The Challenges and Opportunities for Young Lawyers in Nigeria’ <https://medium.com/@aolulaw17/building-a-21st-century-law-firm-the-challenges-and-opportunities-for-young-lawyers-in-nigeria-6a40cfee6145> published on June 16, 2018.
