Introduction
I will like to start this discourse by asking who among my
soon-to-be learned friends if any of them have read ‘The Merchant
of Venice’ by William Shakespeare. For those of us who might not
have read, here is a summary. A young Venetian, Bassanio needs a
loan of three thousand ducats so that he can woo Portia, a wealthy
Venetian heiress.
He approaches his friend Antonio, a merchant. Antonio is short
of money because all his wealth is invested in his fleet, which is
currently at sea. He goes to a Jewish money lender,Shylock, who
hates Antonio because of Antonio’s anti-semitic behaviour towards
him. Shylock nevertheless agrees to make the short-term loan, but
in a moment of dark humour, he makes a condition – the loan must be
repaid in three months or Shylock will exact a pound of flesh from
Antonio. Antonio agrees, confident that his ships will return in
time because of the terms of Portia’s father’s will, all suitors
must choose from among three caskets, one of which contains a
portrait of her.
If he chooses that he may marry Portia, but if doesn’t he must
vow never to marry or court another woman. The Princes of Morocco
and Aragon fail the test and are rejected. As Bassanio prepares to
travel to Belmont for the test, his friend Lorenzo elopes with
Shylock’s daughter, Jessica. Bassanio chooses the lead casket,
which contains her picture and Portia happily agrees to marry him
immediately.
Meanwhile, two of Antonio’s ships have been wrecked and
Antonio’s creditors are pressurising him for repayment. Word comes
to Bassanio about Antonio’s predicament, and he hurries back to
Venice, leaving Portia behind. Portia follows him, accompanied by
her maid, Nerissa. They disguised as a male lawyer and his clerk.
When Bassanio arrives the date for the repayment to Shylock has
passed and Shylock is demanding his pound of flesh. Even when
Bassanio offers much more than the amount in repayment, Shylock,
now infuriated by the loss of his daughter, is intent on seeking
revenge on the Christians. The Duke refuses to intervene.
Portia arrives in her disguise to defend Antonio. Given the
authority of judgment by the Duke, Portia decides that Shylock can
have the pound of flesh as long as he doesn’t draw blood as it is
against the law to shed a Christian’s blood. Since it is obvious
that to draw a pound of flesh would kill Antonio, Shylock is denied
his suit. Moreover, for conspiring to murder a Venetian citizen,
Portia orders that he should forfeit all his wealth. Half is to go
to Venice, and half to Antonio.
Antonio gives his half back to Shylock on the condition that
Shylock bequeathe it to his disinherited daughter, Jessica. Shylock
must also convert to Christianity. A broken Shylock accepts. News
that Antonio’s remaining ships have returned safely with the
exception of Shylock, all celebrate a happy ending to the
affair.
I will come to the relevance of the play before the end of this
discourse.
Suffice to say that in all of what I have said about the play,
if you forget anything, do not forget “…a pound of flesh, a pound
of flesh, a pound of flesh. Oh yes, a pound of flesh. But no drop
of blood!”
It is indeed a privilege for me to be invited to stand before
you to talk about The Law: Before, Now and In the Future. It is no
doubt a topic that we can discuss from now till tomorrow and not
conclude, for the perspectives are as wide as they are diverse.
However, because of time I will endeavor to limit the horizon of
the discourse to Nigeria. I will also broadly divide the three
periods into the following years (Before -1862 to 1975; Now-1975 to
December 8, 2017 and the Future – December 9, 2017 and Beyond). The
division is not iron cast. And some of the issues raised stretch
slightly from one period to another.
Definition
What is Law? I guess we all know what law is? A simple definition
of law is as follows – the principles and regulations established
in a community by some authority in the form of legislation or of
custom and policies recognized and enforced by judicial decisions.
The Interpretation Act defines law and says it “means any law
enacted or having effect as if enacted by the legislature of a
state and includes any instrument having the force of law which is
made under a law.”
The history and evolution of Nigerian Law cannot be divorced from
the story of the country’s nationhood. The colonial masters
introduced English Law into the Colony of Lagos upon its creation
in 1862.
The Supreme Court ordinance of 1876 established a Supreme Court
for the Colony of Lagos and the court applied the common law of
England, the doctrines of equity and statutes of general
application in force in England. The Supreme Court also applied
local laws and customs which were not repugnant to natural justice,
equity and good conscience, and not incompatible with law. Appeals
from the courts of each of the British settlements went to the West
African Court of Appeal. Further appeal went to the Judicial
Committee of the Privy Council. In 1900, the Protectorate of
Southern Nigeria was formed with its own Supreme Court, which
exercised jurisdiction throughout the Southern Protectorate.
The Northern Protectorate was established by the Northern
Nigerian Order in Council 1899 and a Supreme Court was established
for the Northern Protectorate in 1900 to exercise both original and
appellate jurisdictional powers in both civil and criminal
matters.
Amalgamation of the two Protectorates took place on January 1,
1914 to form the territory known as Nigeria. The Supreme Court
Ordinance of 1914 established the Supreme Court for the country
whilst the Provincial Court Ordinance established the Provincial
Courts. The decisions of the Provincial Courts went to the Supreme
Court on appeal.
Nigeria became Federal State in 1954 when the Constitution of
that year was enacted, which Constitution established three
regions- Northern, Eastern and Western Region.
Upon attainment of independence, the court system remained the same
but the Judicial Committee of the Privy Council remained the
highest court in Nigeria. On October 1, 1963, Nigeria became a
republican state and the Judicial Committee of the Privy Council
ceased to be the highest court in Nigeria. The Federal Supreme
Court was changed to the Supreme Court of Nigeria and became the
highest court in the land.
After the success of the military coup of 1966, the Constitution
(Suspension and Modification) (No. 5) Decree 1966 established the
Advisory Judicial Committee composed of the heads of the various
courts in the regions. The Federal Revenue Court was established
for the Federation in 1973 by the Federal Revenue Court Decree. The
Federal Revenue Court ( which is the present day Federal High
Court) had both civil and criminal jurisdictions on matter such as
copyright, admiralty and matters relating to the revenue of the
country. The Federal Court of Appeal was established in 1976.
The Trade Disputes Act of 1976 established the National
Industrial Court to deal with labour disputes.
The above is the genesis of the reception of English law
into Nigeria.
Prior to that time however, there already existed among various
tribes of what was to later become known as Nigeria, systems of
government and laws in the forms of customs and religious
traditions, including Islamic law in Northern Nigeria. In the words
of A. E. W. Park.
“…before 1862 there had been in existence in the territory a
full system of local customary law. Any attempt to abolish that law
would have been both futile and contrary to the well established
British policy of preserving as far as was compatible with imperial
rule the institutions of newly dependent territories. Consequently
the continued administration of customary law was both permitted
and encouraged… the sources of law established for the colony so
long ago set a pattern for the whole of Nigeria which has remained
basically unchanged ever since.”
Nigerian legislations are contained in statutes of the
legislative bodies of Nigeria, while case law is contained in
judicial decisions by the superior courts of record. Judicial
decisions over time form precedents.
In other words, before law was given to us by the Colonialists,
the Court System was uncomplicated and simple. It was essentially
customary. The practice of it was not as profession. Now it is a
profession. It is now largely complicated and diverse. The future
promises to be even more so.
The evolution of law in Nigeria is perhaps not the major
interest of our discourse. It would seem to me that what is and
should be of major concern to us, as I leave the erudite
Professors, Associate Professors, senior lecturers and lecturers of
this great institution to continue to impact knowledge on that from
within, is the actual practice of the law out there by the legal
practitioner, post-Nigerian Law School, that is.
What was it, what is it and what it is likely to be in
the future?
Who is a legal practitioner? By Section 24 of the Legal
Practitioners Act, Cap L11 2004, legal practitioner is defined as
“a person entitled in accordance with the provisions of this Act to
practice as a Barrister and Solicitor either generally or for the
purpose of any particular office or proceedings” while Section 2(1)
of the Act states thus: “subject to the provisions of the Act, a
person shall be entitled to practice as a Barrister and Solicitor
if and only if his name is on the roll.”
Training
Let us start with training. In the past all lawyers and judges were
trained abroad. Nigeria’s first university did not even start with
a Faculty of Law.
Until the early sixties, practically all Nigerian lawyers and
Judges weretrained abroad and admitted to the Inns of Court in
England before they returned to Nigeria. It was within that period,
which I have classified as past that the situation changed with the
establishment of the first generation universities in Nigeria when
training of lawyers began in Nigeria following the creation of the
Nigerian Law School.
In the present training is predominantly in Nigeria, even though
a good number of our students still go abroad to study Law before
coming to Nigeria to attend the Nigerian Law School.
For the future, there is already a suggestion that the Nigerian Law
School be abolished and that its academic programmes be taken by
various accredited universities while the Council of Legal
Education should continue to conduct the examinations and the Body
of Benchers continue to supervise compliance with other necessary
conditions for the admission of new wigs.
Globalization, ICT and the march of science and technology is
another phenomenon which will definitely impact on the new wigs are
being trained in the future. Invariably, training of lawyers in the
future, in terms of physical contacts between the Tutors and the
Students and attendance at lectures will be seriously challenged in
the future. The power of the internet, teleconferencing, video
conferencing, and the like, is bound to make inroads into the
methodology of the training of lawyers.
Law offices and practice
In the past, law firms were few and dominated by foreign law firms
that opened in Nigeria, remnants of (or successors of) which can
still be found in one or two big cities in Nigeria. The likes of
Irving & Bonnar, founded by Britons in 1917 (and which still
exists as Bentley Edu & Co) and Burke & Co., attest to
this.
As more and more Nigerians went to England to study law and
returned to Nigeria, partnerships between Nigerians and between
foreigners and Nigerians began to spring up. The first indigenous
partnership came into being in the country in 1948 when three
friends, Chiefs Bode Thomas, Rotimi Williams and Remi Fani-Kayode
formed “Thomas, Williams and Kayode & Co.”
There was also “Michael, Chris and Samuel” which was formed by
Chief Chris Ogunbanjo, Michael Odesanya and Chief Samuel Ladoke
Akintola in 1950, to mention just these two. But no sooner had
those partnership began to take root than most of them began to
split and became one – Principal Law Firms.
And so, the past (remember the categories of past, present and
future for the purpose of this discourse) began with predominately
foreign law firms, developed into significant partnerships and
ended with predominantly one-principal law firms.
At present, the legal practice has remained predominantly
one-Principal Law Firms. This was boosted by the decision which
overruled the requirement of having qualified for certain number of
years before a legal practitioner could begin to appear at the
Court of Appeal and the Supreme Court.
However, in the present there has been a return to partnerships
in law practice. So many partnership have been formed and the
number is increasing yearly. This has been driven by globalization
and the consequential need for synergy and specialization.
For those who would like to be big players in the practice of
law in the future, the only way to go is partnership. Partnership
enables
practitioners to specialize in various areas of their passions and
competencies. Partnerships make it easy for law firms to be
relevant and more proficient in wider areas of legal practice. For
those who will beeligible for the cross-border, big ticket briefs
of the future, partnership is the way to go.
This issue inextricably leads to the next, which is –
Specialization
In the past, scope of practice was very limited in line, of course,
with the size and diversity of the economy. And so, virtually every
legal practitioner laid claim to being able to practice in
virtually all areas of law. You only found lawyers rejecting
certain briefs, not because they considered that they were not good
in a particular area, but usually due to
The present started initially on the same note, but in the last
20 years legal practitioners especially in big cities and
commercial centres are increasingly being forced to specialize. We
now have legal practitioners and law firms that are into Admiralty
Practice, Communication Law, Oil and Gas Practice, Defence of
Accused Persons, Constitutional and Election Litigation Matters,
Alternative Dispute Resolution (ADR) Specialists, Insolvency
Practitioners, to mention but a few. It is now becoming more and
more predictable to know the pool of lawyers andlaw firms out of
which those to handle certain litigations and consummatecertain
transactions will be chosen. And legal practitioners are
alreadypositioning themselves and are taking advantage.
It is, however, a development that has crept into our legal
system almost unnoticed by majority of Nigerian legal
practitioners. It is the way to go in the future. Those who do
‘jack of all trade’ as it were within the legal profession would
soon realize that, they are getting only the ‘crumbs’.
Only tested and trusted specialists would win the big ticket briefs
of thefuture.
• Adesokan, LLM, FCIArb (UK), SAN
Introduction
I will like to start this discourse by asking who among my
soon-to-be learned friends if any of them have read ‘The Merchant
of Venice’ by William Shakespeare. For those of us who might not
have read, here is a summary. A young Venetian, Bassanio needs a
loan of three thousand ducats so that he can woo Portia, a wealthy
Venetian heiress.
He approaches his friend Antonio, a merchant. Antonio is short
of money because all his wealth is invested in his fleet, which is
currently at sea. He goes to a Jewish money lender,Shylock, who
hates Antonio because of Antonio’s anti-semitic behaviour towards
him. Shylock nevertheless agrees to make the short-term loan, but
in a moment of dark humour, he makes a condition – the loan must be
repaid in three months or Shylock will exact a pound of flesh from
Antonio. Antonio agrees, confident that his ships will return in
time because of the terms of Portia’s father’s will, all suitors
must choose from among three caskets, one of which contains a
portrait of her.
If he chooses that he may marry Portia, but if doesn’t he must
vow never to marry or court another woman. The Princes of Morocco
and Aragon fail the test and are rejected. As Bassanio prepares to
travel to Belmont for the test, his friend Lorenzo elopes with
Shylock’s daughter, Jessica. Bassanio chooses the lead casket,
which contains her picture and Portia happily agrees to marry him
immediately.
Meanwhile, two of Antonio’s ships have been wrecked and
Antonio’s creditors are pressurising him for repayment. Word comes
to Bassanio about Antonio’s predicament, and he hurries back to
Venice, leaving Portia behind. Portia follows him, accompanied by
her maid, Nerissa. They disguised as a male lawyer and his clerk.
When Bassanio arrives the date for the repayment to Shylock has
passed and Shylock is demanding his pound of flesh. Even when
Bassanio offers much more than the amount in repayment, Shylock,
now infuriated by the loss of his daughter, is intent on seeking
revenge on the Christians. The Duke refuses to intervene.
Portia arrives in her disguise to defend Antonio. Given the
authority of judgment by the Duke, Portia decides that Shylock can
have the pound of flesh as long as he doesn’t draw blood as it is
against the law to shed a Christian’s blood. Since it is obvious
that to draw a pound of flesh would kill Antonio, Shylock is denied
his suit. Moreover, for conspiring to murder a Venetian citizen,
Portia orders that he should forfeit all his wealth. Half is to go
to Venice, and half to Antonio.
Antonio gives his half back to Shylock on the condition that
Shylock bequeathe it to his disinherited daughter, Jessica. Shylock
must also convert to Christianity. A broken Shylock accepts. News
that Antonio’s remaining ships have returned safely with the
exception of Shylock, all celebrate a happy ending to the
affair.
I will come to the relevance of the play before the end of this
discourse.
Suffice to say that in all of what I have said about the play,
if you forget anything, do not forget “…a pound of flesh, a pound
of flesh, a pound of flesh. Oh yes, a pound of flesh. But no drop
of blood!”
It is indeed a privilege for me to be invited to stand before
you to talk about The Law: Before, Now and In the Future. It is no
doubt a topic that we can discuss from now till tomorrow and not
conclude, for the perspectives are as wide as they are diverse.
However, because of time I will endeavor to limit the horizon of
the discourse to Nigeria. I will also broadly divide the three
periods into the following years (Before -1862 to 1975; Now-1975 to
December 8, 2017 and the Future – December 9, 2017 and Beyond). The
division is not iron cast. And some of the issues raised stretch
slightly from one period to another.
Definition
What is Law? I guess we all know what law is? A simple definition
of law is as follows – the principles and regulations established
in a community by some authority in the form of legislation or of
custom and policies recognized and enforced by judicial decisions.
The Interpretation Act defines law and says it “means any law
enacted or having effect as if enacted by the legislature of a
state and includes any instrument having the force of law which is
made under a law.”
The history and evolution of Nigerian Law cannot be divorced from
the story of the country’s nationhood. The colonial masters
introduced English Law into the Colony of Lagos upon its creation
in 1862.
The Supreme Court ordinance of 1876 established a Supreme Court
for the Colony of Lagos and the court applied the common law of
England, the doctrines of equity and statutes of general
application in force in England. The Supreme Court also applied
local laws and customs which were not repugnant to natural justice,
equity and good conscience, and not incompatible with law. Appeals
from the courts of each of the British settlements went to the West
African Court of Appeal. Further appeal went to the Judicial
Committee of the Privy Council. In 1900, the Protectorate of
Southern Nigeria was formed with its own Supreme Court, which
exercised jurisdiction throughout the Southern Protectorate.
The Northern Protectorate was established by the Northern
Nigerian Order in Council 1899 and a Supreme Court was established
for the Northern Protectorate in 1900 to exercise both original and
appellate jurisdictional powers in both civil and criminal
matters.
Amalgamation of the two Protectorates took place on January 1,
1914 to form the territory known as Nigeria. The Supreme Court
Ordinance of 1914 established the Supreme Court for the country
whilst the Provincial Court Ordinance established the Provincial
Courts. The decisions of the Provincial Courts went to the Supreme
Court on appeal.
Nigeria became Federal State in 1954 when the Constitution of
that year was enacted, which Constitution established three
regions- Northern, Eastern and Western Region.
Upon attainment of independence, the court system remained the same
but the Judicial Committee of the Privy Council remained the
highest court in Nigeria. On October 1, 1963, Nigeria became a
republican state and the Judicial Committee of the Privy Council
ceased to be the highest court in Nigeria. The Federal Supreme
Court was changed to the Supreme Court of Nigeria and became the
highest court in the land.
After the success of the military coup of 1966, the Constitution
(Suspension and Modification) (No. 5) Decree 1966 established the
Advisory Judicial Committee composed of the heads of the various
courts in the regions. The Federal Revenue Court was established
for the Federation in 1973 by the Federal Revenue Court Decree. The
Federal Revenue Court ( which is the present day Federal High
Court) had both civil and criminal jurisdictions on matter such as
copyright, admiralty and matters relating to the revenue of the
country. The Federal Court of Appeal was established in 1976.
The Trade Disputes Act of 1976 established the National
Industrial Court to deal with labour disputes.
The above is the genesis of the reception of English law
into Nigeria.
Prior to that time however, there already existed among various
tribes of what was to later become known as Nigeria, systems of
government and laws in the forms of customs and religious
traditions, including Islamic law in Northern Nigeria. In the words
of A. E. W. Park.
“…before 1862 there had been in existence in the territory a
full system of local customary law. Any attempt to abolish that law
would have been both futile and contrary to the well established
British policy of preserving as far as was compatible with imperial
rule the institutions of newly dependent territories. Consequently
the continued administration of customary law was both permitted
and encouraged… the sources of law established for the colony so
long ago set a pattern for the whole of Nigeria which has remained
basically unchanged ever since.”
Nigerian legislations are contained in statutes of the
legislative bodies of Nigeria, while case law is contained in
judicial decisions by the superior courts of record. Judicial
decisions over time form precedents.
In other words, before law was given to us by the Colonialists,
the Court System was uncomplicated and simple. It was essentially
customary. The practice of it was not as profession. Now it is a
profession. It is now largely complicated and diverse. The future
promises to be even more so.
The evolution of law in Nigeria is perhaps not the major
interest of our discourse. It would seem to me that what is and
should be of major concern to us, as I leave the erudite
Professors, Associate Professors, senior lecturers and lecturers of
this great institution to continue to impact knowledge on that from
within, is the actual practice of the law out there by the legal
practitioner, post-Nigerian Law School, that is.
What was it, what is it and what it is likely to be in
the future?
Who is a legal practitioner? By Section 24 of the Legal
Practitioners Act, Cap L11 2004, legal practitioner is defined as
“a person entitled in accordance with the provisions of this Act to
practice as a Barrister and Solicitor either generally or for the
purpose of any particular office or proceedings” while Section 2(1)
of the Act states thus: “subject to the provisions of the Act, a
person shall be entitled to practice as a Barrister and Solicitor
if and only if his name is on the roll.”
Training
Let us start with training. In the past all lawyers and judges were
trained abroad. Nigeria’s first university did not even start with
a Faculty of Law.
Until the early sixties, practically all Nigerian lawyers and
Judges weretrained abroad and admitted to the Inns of Court in
England before they returned to Nigeria. It was within that period,
which I have classified as past that the situation changed with the
establishment of the first generation universities in Nigeria when
training of lawyers began in Nigeria following the creation of the
Nigerian Law School.
In the present training is predominantly in Nigeria, even though
a good number of our students still go abroad to study Law before
coming to Nigeria to attend the Nigerian Law School.
For the future, there is already a suggestion that the Nigerian Law
School be abolished and that its academic programmes be taken by
various accredited universities while the Council of Legal
Education should continue to conduct the examinations and the Body
of Benchers continue to supervise compliance with other necessary
conditions for the admission of new wigs.
Globalization, ICT and the march of science and technology is
another phenomenon which will definitely impact on the new wigs are
being trained in the future. Invariably, training of lawyers in the
future, in terms of physical contacts between the Tutors and the
Students and attendance at lectures will be seriously challenged in
the future. The power of the internet, teleconferencing, video
conferencing, and the like, is bound to make inroads into the
methodology of the training of lawyers.
Law offices and practice
In the past, law firms were few and dominated by foreign law firms
that opened in Nigeria, remnants of (or successors of) which can
still be found in one or two big cities in Nigeria. The likes of
Irving & Bonnar, founded by Britons in 1917 (and which still
exists as Bentley Edu & Co) and Burke & Co., attest to
this.
As more and more Nigerians went to England to study law and
returned to Nigeria, partnerships between Nigerians and between
foreigners and Nigerians began to spring up. The first indigenous
partnership came into being in the country in 1948 when three
friends, Chiefs Bode Thomas, Rotimi Williams and Remi Fani-Kayode
formed “Thomas, Williams and Kayode & Co.”
There was also “Michael, Chris and Samuel” which was formed by
Chief Chris Ogunbanjo, Michael Odesanya and Chief Samuel Ladoke
Akintola in 1950, to mention just these two. But no sooner had
those partnership began to take root than most of them began to
split and became one – Principal Law Firms.
And so, the past (remember the categories of past, present and
future for the purpose of this discourse) began with predominately
foreign law firms, developed into significant partnerships and
ended with predominantly one-principal law firms.
At present, the legal practice has remained predominantly
one-Principal Law Firms. This was boosted by the decision which
overruled the requirement of having qualified for certain number of
years before a legal practitioner could begin to appear at the
Court of Appeal and the Supreme Court.
However, in the present there has been a return to partnerships
in law practice. So many partnership have been formed and the
number is increasing yearly. This has been driven by globalization
and the consequential need for synergy and specialization.
For those who would like to be big players in the practice of
law in the future, the only way to go is partnership. Partnership
enables
practitioners to specialize in various areas of their passions and
competencies. Partnerships make it easy for law firms to be
relevant and more proficient in wider areas of legal practice. For
those who will beeligible for the cross-border, big ticket briefs
of the future, partnership is the way to go.
This issue inextricably leads to the next, which is –
Specialization
In the past, scope of practice was very limited in line, of course,
with the size and diversity of the economy. And so, virtually every
legal practitioner laid claim to being able to practice in
virtually all areas of law. You only found lawyers rejecting
certain briefs, not because they considered that they were not good
in a particular area, but usually due to
The present started initially on the same note, but in the last
20 years legal practitioners especially in big cities and
commercial centres are increasingly being forced to specialize. We
now have legal practitioners and law firms that are into Admiralty
Practice, Communication Law, Oil and Gas Practice, Defence of
Accused Persons, Constitutional and Election Litigation Matters,
Alternative Dispute Resolution (ADR) Specialists, Insolvency
Practitioners, to mention but a few. It is now becoming more and
more predictable to know the pool of lawyers andlaw firms out of
which those to handle certain litigations and consummatecertain
transactions will be chosen. And legal practitioners are
alreadypositioning themselves and are taking advantage.
It is, however, a development that has crept into our legal
system almost unnoticed by majority of Nigerian legal
practitioners. It is the way to go in the future. Those who do
‘jack of all trade’ as it were within the legal profession would
soon realize that, they are getting only the ‘crumbs’.
Only tested and trusted specialists would win the big ticket briefs
of thefuture.
• Adesokan, LLM, FCIArb (UK), SAN
Read more https://nairalaw.com/the-law-profession-before-now-and-in-the-future-by-adesokan-san/