A learned colleague having paid her practicing fee
received a call from the banking officer asking her some questions.
One of the questions asked by the officer was what name should be
submitted as the name paying the practicing fee. T
his issue came up because she had become married after her call
and in paying practicing fee submitted her marital name (i.e. with
her husband’s surname).
A woman upon marriage will in most cases assume another surname
which, quite automatically, renders her name different from the
name on the roll of legal practitioners maintained by the Registrar
at the Supreme Court. Most female lawyers upon marriage continue to
use their marital name to appear in court and to practice
without amending or indicating change of name in the roll of legal
practitioners. This write-up considers whether a woman can continue
to practice as a legal practitioner with her marital name without
first ensuring an amendment or indicating name change in the roll
of legal practitioners and the need for amendment of Section 2 of
the Legal Practitioners’ Act.
WHO CAN PRACTICE AS A LEGAL PRACTITIONER?
The Legal Practitioners’ Act lays the
foundation for determining who can practice as a legal practitioner
in Nigeria and provides under Section 24 that a
“legal practitioner” means a person entitled in accordance with the
provisions of the Act to practice as a barrister or as a barrister
and solicitor, either generally or for the purposes of any office
or proceedings.
Section 2 (1) of the same Act goes further to
state that:
- (1) Subject to the provisions of this Act, a person shall
be entitled to practice as a barrister and solicitor if,
and only if, his name is on the roll.
The provision of the Section 2(1) stating “If, and only if, his
name is on the roll” suggests a very strong emphasis on the “name
requirement” as determining entitlement to practice. This emphasis
was duly appreciated in the case of Okafor V. Nweke
(2007) 10 NWLR Pt 1043 at 521, where the Supreme
Court in considering the above two provisions of the Act stated
that:
“…the rule does not say that his signature must be on the
roll but his name. “J.H.C. Okolo SAN & Co” is not a legal
practitioner and therefore cannot practice as such by say, filing
processes in the courts of this country.
The court decision seems to clearly restate the law that a
person whose name is not on the roll as mandatorily stipulated
under Section 2(1) of the LPA cannot practice law
as a legal practitioner in Nigeria.
The Court of Appeal, in relying on the apex court’s decision in
Okeke’s case, and in considering a similar issue in the case of
Buhari V. Adebayo [2010] 10 NWLR pt.
1416 stated:
“For the avoidance of doubt, section 2 (1) of the Legal
Practitioners Act provides;
“Subject to the provisions of this Act, a person shall be
entitled to practice as a barrister and solicitor if, and only if,
his name is on the roll”.
Whether the name of a person is on the roll calls
for direct straight answer. Once the name requires some
explanations to bring it within the name on the roll, then the name
is not on the roll. If not on the roll, the person bearing the name
is not a Legal Practitioner and as such cannot sign an Originating
Process.
So as in the instance, since the name …in question
cannot be categorically said to be the name of a person on the roll
without strenuous factual explanations, I hold that the writ of
summons dated 25th September 2005 was not issued by a Legal
Practitioner..”
If the above decision of the Court of Appeal is to be logically
followed, the question whether the marital name of a counsel is the
name of a person on the roll is one that requires a direct
answer. It logically would follow from the decision that the
marital name of counsel not being name on the roll
cannot validly sign court processes or practice in any form
whatsoever until the roll is amended to recognize such name.
ANNOUNCING APPERANCE: IS THERE NEED TO
INDICATE?
A former way out of the confusion of the issue had been for
female counsels to indicate the title “Miss or Mrs.”. However, the
Chief Justice of Nigeria, sitting in the apex court, has since
March 2017 outlawed the practice of announcing appearances by
indicating “Miss or Mrs.” Not only does the court’s direction
aligned with the modern tenets of human rights and
non-discrimination against women, it also accords with the common
sense practice for the use of the title. Oxford
dictionary for instance states on the definition of the
word “Mrs” that it is
“The title used before a surname or full name to address or
refer to a married woman without a higher or honorific or
Professional Title”
There is therefore no need for a lawyer, who already has a
professional title of utmost honor (i.e. “Esq.”) to further
indicate “Miss or Mrs.”: which title adds no intrinsic value to her
name. Notwithstanding, some judges still hold on to the
practice.
QUERY: MISS OR MRS IS A WOMAN NOT THE SAME
PERSON?
In the construction of the LPA and determination of the
eligibility to continue practice with marital name, one argument
is, a woman is the same person irrespective of the name
change occasioned by marriage. This is so because entitlement to
practice, though established by the presence of name on the roll of
legal practitioners is conferred on the person and not on the name.
Section 24 of the Act, as already referred to,
states that a “legal practitioner” means a person…” and
Section 2(1) states “Subject to the provisions
of this Act, a person shall be entitled…”. Both provisions
relate to persons and not to just the names of the persons.
Therefore, it makes good argument that it is not that name that
is entitled to practice but the person and if, for example, “Miss
Sade Anthony” becomes married and is now “Mrs. Sade Osagie”, even
though she bears a different name, she is the same person that has
been conferred with the right to practice. The decision of the
court in the case of Buhari v. Adebayo already referred
may not aid this argument, but it is the irresistible conclusion if
a purposive interpretation of the Section is to be employed.
MANY QUESTIONS POSED
The approach of the Court of Appeal in Buhari v.
Adebayo if followed would lead us to ask: If “Ayo Ope”
marries and becomes Mrs. “Ayo Femi” and continues practicing as a
legal practitioner as “Ayo Femi” is the name “Ayo Femi” in the roll
of legal practitioners? While this question will definitely be in
the negative, it will be too restrictive to conclude upon this sole
question. There are two questions pertinent to the issue which a
purposive approach to the section will necessitate asking: [1] Is
Mrs. Ayo Femi the same person registered under the roll of legal
practitioners as “Ayo Ope?” [2] Is Mrs. Ayo Femi a different person
from Ayo Ope under law? The answer to both questions favour the
argument that a married woman may continue to practice with her
marital name without first seeking amendment or indication of name
change on the roll. After all, if amendment is to always be
effected then what happens when a woman marries, then divorces, and
then remarries?
NEED FOR AMENDMENT OF SECTION 2 OF THE LPA
Obviously, the provisions of the Legal Practitioners’
Act create some difficulty or atleast poses questions for
failing to recognize and make provision for the circumstances of
change of name on the grounds of marriage. Indeed, when a woman
marries she abandons her father’s surname and takes the surname of
her husband, most times. This doubtlessly creates a lacuna in the
construction of the provision of Section 2 of the
Act vis-à-vis the eligibility of a married woman to
continue legal practice with her marital name without recourse to
the rigors of amendment or recognition of the name on the roll. A
more convenient approach will be for the section to particularly
confer continued eligibility to practice on a woman who is married
irrespective of the fact that she has changed to bearing her
marital name.
IN CONCLUSION
As the clamour for amendment of the Legal Practitioner’s Act
gradually gains momentum, there is need for an amendment of the
Provision of Section 2 of the Act to recognize the
change of status that comes with marriage for our female colleagues
at the bar. The Legal Practitioners’ Act should be made more
“women-accommodating” and the “male-capture” of the sections should
be gender sensitive. Reference should be to “any person” rather
than to “he” or “him” as such couching subsumes the identity of the
female gender in that of the males. The legal profession must
recognize and respect gender differences even as we move from the
era where we were all gentlemen at the bar to the era where
recognize the identity of the ladies at the bar.
Comment your reserve.
Oliver Omoredia Esq. Associate OBIAGWU
& OBIAGWU LLP 08100193573, oliveromoredia@yahoo.com
A learned colleague having paid her practicing fee
received a call from the banking officer asking her some questions.
One of the questions asked by the officer was what name should be
submitted as the name paying the practicing fee. T
his issue came up because she had become married after her call
and in paying practicing fee submitted her marital name (i.e. with
her husband’s surname).
A woman upon marriage will in most cases assume another surname
which, quite automatically, renders her name different from the
name on the roll of legal practitioners maintained by the Registrar
at the Supreme Court. Most female lawyers upon marriage continue to
use their marital name to appear in court and to practice
without amending or indicating change of name in the roll of legal
practitioners. This write-up considers whether a woman can continue
to practice as a legal practitioner with her marital name without
first ensuring an amendment or indicating name change in the roll
of legal practitioners and the need for amendment of Section 2 of
the Legal Practitioners’ Act.
WHO CAN PRACTICE AS A LEGAL PRACTITIONER?
The Legal Practitioners’ Act lays the
foundation for determining who can practice as a legal practitioner
in Nigeria and provides under Section 24 that a
“legal practitioner” means a person entitled in accordance with the
provisions of the Act to practice as a barrister or as a barrister
and solicitor, either generally or for the purposes of any office
or proceedings.
Section 2 (1) of the same Act goes further to
state that:
- (1) Subject to the provisions of this Act, a person shall
be entitled to practice as a barrister and solicitor if,
and only if, his name is on the roll.
The provision of the Section 2(1) stating “If, and only if, his
name is on the roll” suggests a very strong emphasis on the “name
requirement” as determining entitlement to practice. This emphasis
was duly appreciated in the case of Okafor V. Nweke
(2007) 10 NWLR Pt 1043 at 521, where the Supreme
Court in considering the above two provisions of the Act stated
that:
“…the rule does not say that his signature must be on the
roll but his name. “J.H.C. Okolo SAN & Co” is not a legal
practitioner and therefore cannot practice as such by say, filing
processes in the courts of this country.
The court decision seems to clearly restate the law that a
person whose name is not on the roll as mandatorily stipulated
under Section 2(1) of the LPA cannot practice law
as a legal practitioner in Nigeria.
The Court of Appeal, in relying on the apex court’s decision in
Okeke’s case, and in considering a similar issue in the case of
Buhari V. Adebayo [2010] 10 NWLR pt.
1416 stated:
“For the avoidance of doubt, section 2 (1) of the Legal
Practitioners Act provides;
“Subject to the provisions of this Act, a person shall be
entitled to practice as a barrister and solicitor if, and only if,
his name is on the roll”.
Whether the name of a person is on the roll calls
for direct straight answer. Once the name requires some
explanations to bring it within the name on the roll, then the name
is not on the roll. If not on the roll, the person bearing the name
is not a Legal Practitioner and as such cannot sign an Originating
Process.
So as in the instance, since the name …in question
cannot be categorically said to be the name of a person on the roll
without strenuous factual explanations, I hold that the writ of
summons dated 25th September 2005 was not issued by a Legal
Practitioner..”
If the above decision of the Court of Appeal is to be logically
followed, the question whether the marital name of a counsel is the
name of a person on the roll is one that requires a direct
answer. It logically would follow from the decision that the
marital name of counsel not being name on the roll
cannot validly sign court processes or practice in any form
whatsoever until the roll is amended to recognize such name.
ANNOUNCING APPERANCE: IS THERE NEED TO
INDICATE?
A former way out of the confusion of the issue had been for
female counsels to indicate the title “Miss or Mrs.”. However, the
Chief Justice of Nigeria, sitting in the apex court, has since
March 2017 outlawed the practice of announcing appearances by
indicating “Miss or Mrs.” Not only does the court’s direction
aligned with the modern tenets of human rights and
non-discrimination against women, it also accords with the common
sense practice for the use of the title. Oxford
dictionary for instance states on the definition of the
word “Mrs” that it is
“The title used before a surname or full name to address or
refer to a married woman without a higher or honorific or
Professional Title”
There is therefore no need for a lawyer, who already has a
professional title of utmost honor (i.e. “Esq.”) to further
indicate “Miss or Mrs.”: which title adds no intrinsic value to her
name. Notwithstanding, some judges still hold on to the
practice.
QUERY: MISS OR MRS IS A WOMAN NOT THE SAME
PERSON?
In the construction of the LPA and determination of the
eligibility to continue practice with marital name, one argument
is, a woman is the same person irrespective of the name
change occasioned by marriage. This is so because entitlement to
practice, though established by the presence of name on the roll of
legal practitioners is conferred on the person and not on the name.
Section 24 of the Act, as already referred to,
states that a “legal practitioner” means a person…” and
Section 2(1) states “Subject to the provisions
of this Act, a person shall be entitled…”. Both provisions
relate to persons and not to just the names of the persons.
Therefore, it makes good argument that it is not that name that
is entitled to practice but the person and if, for example, “Miss
Sade Anthony” becomes married and is now “Mrs. Sade Osagie”, even
though she bears a different name, she is the same person that has
been conferred with the right to practice. The decision of the
court in the case of Buhari v. Adebayo already referred
may not aid this argument, but it is the irresistible conclusion if
a purposive interpretation of the Section is to be employed.
MANY QUESTIONS POSED
The approach of the Court of Appeal in Buhari v.
Adebayo if followed would lead us to ask: If “Ayo Ope”
marries and becomes Mrs. “Ayo Femi” and continues practicing as a
legal practitioner as “Ayo Femi” is the name “Ayo Femi” in the roll
of legal practitioners? While this question will definitely be in
the negative, it will be too restrictive to conclude upon this sole
question. There are two questions pertinent to the issue which a
purposive approach to the section will necessitate asking: [1] Is
Mrs. Ayo Femi the same person registered under the roll of legal
practitioners as “Ayo Ope?” [2] Is Mrs. Ayo Femi a different person
from Ayo Ope under law? The answer to both questions favour the
argument that a married woman may continue to practice with her
marital name without first seeking amendment or indication of name
change on the roll. After all, if amendment is to always be
effected then what happens when a woman marries, then divorces, and
then remarries?
NEED FOR AMENDMENT OF SECTION 2 OF THE LPA
Obviously, the provisions of the Legal Practitioners’
Act create some difficulty or atleast poses questions for
failing to recognize and make provision for the circumstances of
change of name on the grounds of marriage. Indeed, when a woman
marries she abandons her father’s surname and takes the surname of
her husband, most times. This doubtlessly creates a lacuna in the
construction of the provision of Section 2 of the
Act vis-à-vis the eligibility of a married woman to
continue legal practice with her marital name without recourse to
the rigors of amendment or recognition of the name on the roll. A
more convenient approach will be for the section to particularly
confer continued eligibility to practice on a woman who is married
irrespective of the fact that she has changed to bearing her
marital name.
IN CONCLUSION
As the clamour for amendment of the Legal Practitioner’s Act
gradually gains momentum, there is need for an amendment of the
Provision of Section 2 of the Act to recognize the
change of status that comes with marriage for our female colleagues
at the bar. The Legal Practitioners’ Act should be made more
“women-accommodating” and the “male-capture” of the sections should
be gender sensitive. Reference should be to “any person” rather
than to “he” or “him” as such couching subsumes the identity of the
female gender in that of the males. The legal profession must
recognize and respect gender differences even as we move from the
era where we were all gentlemen at the bar to the era where
recognize the identity of the ladies at the bar.
Comment your reserve.
Oliver Omoredia Esq. Associate OBIAGWU
& OBIAGWU LLP 08100193573, oliveromoredia@yahoo.com