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By Sylvester Udemezue
Section 9(5)(a)(vi) of the Constitution of the Nigerian Bar Association, that "The duties of the President shall include Acting as the principal spokesman of the Association". Beside this, the position of the law in Nigeria is that when a person gets called or inducted into the Nigerian Bar (during the Call-to-the-bar Ceremony, usually held at the end of the Nigerian Law School-administered Bar training program, for aspirants to the Bar who have also satisfied the mandatory requirements for induction into the Bar), that person automatically becomes a member of the Nigerian Bar Association (NBA). The NBA President [usually elected at a biennial general election organised pursuant to the provisions of the Constitution of the Nigerian Bar Association, 2015] is the overall leader of the Nigerian Bar -- the same Bar to which all lawyers in Nigeria have been called.
It is from the Nigerian Bar that a lawyer can decide to join the Bench to do the business of interpreting laws and settling disputes (although courts in Nigeria, especially of late, appear to also make, amend, repeal or revoke extant statutes and even take decisions otherwise expressly reserved for members and agencies in the executive branch of government), or gets employed in a legal education institution to teach law, or goes to court as an advocate to espouse laws, or acts as a solicitor for purposes of preparing agreements, contracts, negotiating commercial deals, registering companies, rendering other advice, etc -- look, there are many things one can do from the Bar; the opportunities are virtually limitless. The NBA is therefore the umbrella association of all Lawyers in Nigeria. See, the Bar is like the body, and we all are members of the Bar by virtue of which we all are members of the NBA, just as all Christians are said to be members and partakers in the body of Christ, the Lord and Savior. Ditto with all Muslims, in Mohammed (peace be unto him). See these court cases: NBA v. Kehinde; Chinwo v Owhonda. These cases have sealed our fate: Nigerian lawyers and the NBA are like inseparable Siamese twins, till death do us part or until the law is changed. This being the case, and as the official spokesperson for the Bar, the NBA President is deemed to speak for the Bar whenever he speaks officially; this means that, on such occasions, the Bar is said to have spoken through him or it's said that he has spoken for the Bar (whichever way you put it; you're right). And there should ordinarily be no debate about it. But we're lawyers; talking is our hobby -- debating is a culture, a way of life without which it's as if something is missing.
Meanwhile, please be reminded that the Bar (speaking through its spokesperson, the NBA President) need not be right anytime or all the time; the Bar is not all-knowing, not all-seeing and not all-powerful, nor even infallible. Hence, in speaking for the Bar, the NBA President, being human, a mere mortal man who is subject (just as we all, individually and collectively) to the frailties of the humankind, could make, and indeed sometimes makes, mistakes; he could be wrong or right or he could even be (or be thought to be) speaking absolute or plain trash. This notwithstanding, this fact remains: the NBA President, however he speaks and whenever he speaks officially, provided he speaks, is deemed to speak for the Nigerian Bar. The Bar is thus deemed to have formally spoken whenever the NBA President speaks in his official capacity.
Now, an analogy, have we forgotten that a client must take his lawyer as he finds the lawyer, so much so that the lawyer's actions and decisions, taken in his professional capacity and within the boundaries of his legal brief, binds his clien? You recall that the lawyer controls the incidents of litigation and hence reserves the right to take decisions, advance arguments, change course of action and even withdraw a pending case, on behalf of the client, even without the client's input. Let's repeat the bottom line: you must take your lawyer as you find him. So, if you have hired and retained a lawyer (just as we have hired and thus retained Mr Y.C. Maikyau, SAN as the NBA President for a tenure of 24 months) and for as long as the Lawyer-client relationship has not been terminated by either party or both parties, you're bound by your lawyer's actions, taken in the course or during the continuance of the retainership. The only option available to you when you are fed up with or are dissatisfied with your lawyer's actions, is to sack or otherwise disengage the lawyer and hire another or otherwise proceed personally pursuant to your right guaranteed by Rule 29 RPC, 2007, and section 36(6)(c) of the Constitution of the Federal Republic of Nigeria, 1999. Until then, you are bound by all actions taken by your lawyer in his professional capacity within the scope of the brief.
At this juncture, and by way of continuing the analogy, let us have recourse to a brief discussion of the lawyer’s right to control incidents of litigation (this discussion is usually undertaken as a part of NLS' Professional Ethics and Skills Module). Rule 24(4) of the RPC, 2007 is to the effect that, 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. Rule 24(5) RPC. The basis of the Counsel's right to control incidents of trial is the presumption of the client's confidence in the counsel. See Edozien v. Edozien (1993) 1.N.W.L.R. (pt 272) 678 at 693. It is a right, not a duty. See Orisharinu v. Mefun 1937 (13) NLR 187. In Adewunmi v. Plastek Nig. Ltd (1986) 2 N.S.C.C. 85, Hon Justice Kayode Eso JSC said this: -
"Counsel has authority, except he is expressly limited, to withdraw the record, to call or refuse to a call a witness, to determine the order in civil proceedings in which to call his witness, to decide what particular questions to ask a witness unless his client insists on the line of questioning in which case counsel will have a discretion to accept such· instruction or withdraw from the case. Counsel can consent to arbitration, to a compromise, to a verdict, to a reduction of damages. A lawyer can settle a client's case out of court, he can compromise it in court or out of court. A lawyer is a professional and vis-a-vis a client, he is on contract, and his professional skill, hired by the client, is to be employed at his discretion. After all, he is employed to deal with learned men, in learned surroundings and he himself is learned, while the client, even if he is a lawyer himself is not learned for the purpose of the case".
However, and this must be pointed out, the wide scope of the power conferred on a counsel to control incidents of trial has been limited to technical matters and not admission of facts. See: Abidogun v. Arowo-Mokun (1990) 6 N.W.L.R. (pt 158) 618 at 628; Difa v. The state (1997) N.W.L.R 224 at 226; Mosheshe General Merchants Ltd. Vs Nigeria Steel Products ltd. (1987) LN.W.L.R. Part 55 at page 110; N.N.S.C. v Sabana (1988) 2 NWLR page 23; Babajide Ali v. Aisa 1966 ALL.N.L.R. 249; Bello Akanbi & Others v. Mamudo Alao (1988) ALL.N.L.R. 242; and Alhaji Abba Gana v. Alhaji lerma & Anr. SS.C. 102/1983 (Unreported); Elike v. Nwakwoala, (1984), .A.N.L.R. 505 . In the English case of Strauss v. Francis (1866) LRI QB 379, Blackburn J. pronouncing on the authority of a counsel over a case, said:
"Few counsel, I hope, would accept a brief on the unworthy theme that he is simply to be the mouthpiece of his client. Counsel, therefore, being ordinarily retained to conduct a cause without limitation, the apparent 'authority with which he is clothed when he appears to conduct the case is to do everything which, in the exercise of his discretion, he may think best for the interest of his client in the conduct of the cause".
Thus, in representing a client in court, counsel need only to announce his appearance for such client and court will automatically presume that the counsel so appearing has the authority of the client he Claims to represent. Courts do not inquire into counsel's authority to appear. Tukur v. Govt. of Gongola State (1988) 1 NWLR 39 (pt 68) or ALL. N.L.R. 42. [Please see the Handbook on Professional Ethics and Skills of the Nigerian Law School].
One more thing, this time in respect of the relationship between the NBA President and the Bar, the opinion of the bar is neither sacrosanct nor immune from error. Thus, the opinion of the NBA President, for the Bar, on behalf of or in behalf of the Bar, is liable to be either highly applauded or thoroughly celebrated or otherwise severely criticized, vehemently opposed, loudly mocked, or even outrightly attacked, including from within the Bar itself, by its disillusioned, or dissatisfied, or disenchanted or dissenting members (4DM). But that is all we can do, and the extent we can go, and it changes nothing because the fact remains unchanged, that the Bar is taken to have spoken as soon as the NBA President has finished speaking officially. As I have already said, the NBA President is the elected leader of the Bar, the official, formal head of all Nigerian lawyers, including all Benchers (starting with the Chairman of the Body of Benchers), the Hon AGF, all AG's of the States of the Federation, all members of the LPDC, LPPC, LPRC, GCB, BOSAN, BOB, CLE, NACL, CLASFON, MULAN, EBF, EGBE AMOFIN, MIDWEST BAR, LOAN, NALT and any other and all other associations and groups, known and unknown, within the Bar, including even the ill-fated, now dead-buried-mourned-and-forgotten-because-originally-born-to-fail Law Society of Nigeria (LSN). I hope carcass of the dead LSN would never rear its head again, save as a body within and submissive to the overall leadership and authority of the NBA President who is the undisputable leader of the only Bar in Nigeria. Note the difference between THE LEADER and A LEADER. The NBA President is THE LEADER, by law!
Now, regarding the 25 February 2023 presidential elections in Nigeria [please I need to be brief, in line with the rules of Concision, Precision and Clarity] the NBA President's official, public speech or statement (if he has made any speech at all, and in his official capacity) represents the position of the Nigerian Bar. There should have been no need for any debate about this because we had on July 12, 2022 voluntarily and overwhelmingly given him our mandate, to act ON and IN our behalf on any and all things concerning the Bar, as the Bar may lawfully engage in. We are, therefore, estopped (recall the doctrine of Equitable Estoppel) from purporting to pick and choose as to which of the official statements of the NBA President represents the voice of the Bar and which doesn't. The House of Lord's judgment in Central London Property Trust Ltd v High Trees House Ltd  KB 130 is a famous English contract law decision in the High Court. It reaffirmed and extended the doctrine of promissory estoppel in contract law in England and Wales. That position has since been adopted, and is now applicable to Nigeria. The relationship between Nigerian lawyers on the one hand and the NBA President on the other, is contractual (a social contract) and binding, although the contract is revocable through impeachment (some will call it "removal from office") of the NBA President. But, even if the NBA President happens to be proposed at any time (if that time should ever come) to be impeached with a view to revoking the contract, yet, pending the success of such a contract revocation through impeachment, his official speeches remain binding on the Bar. One may say this is very fortunate or very unfortunate, but the truth remains that it remains the truth, the only truth and nothing but the truth.
Is it everything that we Lawyers must argue about? Nawaaooo!! See the interpretation of section 134(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999, regarding a condition precedent to a candidate being declared winner of a presidential election in Nigeria, which interpretation and understanding of the terms used, is, I submit, (as the first step) all a matter of simple English Language grammar, and (as the second step) a prudent application of the Literal Rule of Statutory Construction, one won't believe (you better believe ooo) that Nigerian lawyers are still on the matter, arguing upandan (up and down) and falling over one another, over what is the correct interpretation, even while the lawyers formally engaged by the contending political parties and their candidates have started smiling their way to the bank on their fat briefs, arising from the upshots of the just-concluded elections. My humble suggestion: I think this type of seasonal professional engagements/briefs should be rotated around (in order to get to people like us) in the spirit of federal character. But, Knock, Knock Knock, is anyone listening, please?
Anyway, back to the present discussion, and still on the "CONCLUDING PART" [I hope my conclusion is not too long, because, as you know, I am a man of few words], it appears naturally a traditional part of lawyers' business to argue and disagree (virtually over everything and something over nothing). Perhaps, this is why Joyce Carol Oates , an American writer, once declared that “a lawyer is basically a mouth, like a shark is a mouth attached to a long gut. The business of lawyers is to talk, to interrupt one another and to devour [one another] if possible". Well, if that is the case, then llet the debate continue even as the fact and the law remaineth extant!
Sylvester Udemezue (Udems).
(6 March 2023)
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