Are The Legal Practitioners Rules Of Professional Conduct Valid?

By Abubakar D. Sani, Esq.

This thought-provoking, if not outrightly provocative, question
is fueled by the seeming ambiguity in relevant legislations
pertaining to the subject, and not merely a desire to play the
Devil’s Advocate. Nevertheless, it is surely startling to challenge
the very basis of discipline, etiquette, probity and accountability
in the supposedly noblest of professions.  And why, you may
ask, will anyone(least of all, a legal practitioner of over three
decades standing) raise such a poser? I assure everyone that the
motivation is completely altruistic, prompted by no more than the
demands of critical thinking, and a quest (at the risk of
immodesty)for excellence. So, here goes.

Regulatory Over-view

That the 1999 Constitution is the grundnorm of our laws
is trite. By virtue of Section 4(3) and Item 49 of the
Exclusive Legislative in the Second Schedule to the
Constitution, the National Assembly possesses the
exclusive power to regulate “Professional occupations as may be
designated by (it)”. The Assembly exercised that power in
relation to the legal profession by enacting the Legal
Practitioners Act, Cap. L. 11, LFN 2010
(“LPA”).I believe that, beyond Section 1
of the LPA, one would be hard-pressed to find any
provision which specifically authorizes any person or body to enact
the Rules of Professional Conduct in the Legal
Profession (“RPC”). This has been the position for more
than half a century (since 1962, to be precise) when the LPA was
first enacted.

As for the aforesaid Section 1 thereof, it merely provides that:
“(1) there shall be a body to be known as the General Council
of the Bar (in this Act referred to as “the Bar Council”) which
shall be charged with the general management of the affairs of the
Nigerian Bar Association (subject to any limitations for the time
being provided by the Constitution of the Association) and with any
functions conferred on the Council by this Act or that
Constitution;

“(2) The Bar Council shall consist of:-

• The Attorney-General of the Federation who shall be the
  President of the Council;
• The Attorneys-General of the States; and
• Twenty members of the Association

History of the RPC

The Legal Practitioners Rules of Professional Conduct were first
enacted by the General Council of the Bar in November,1967, and
were amended in1979; this amendment bears the imprimatur of the
then Attorney-General of the Federation, Dr. (subsequently Hon.
Justice) Augustine Nnamani, and was published in the Official
Gazette of the Federation dated 18^th January, 1980.The
current edition of the RPC was made in 2007, by Hon. Bayo Ojo, SAN,
the then Attorney-General of the Federation. Both versions of the
Rules were apparently made pursuant to Section 1 of the LPA(see the
Preamble thereto, which proclaims: “for general information,
that the General Council of the Bar . . .  in furtherance of
the aims and objects of the Nigerian Bar Association under the
Constitution of the Association as referred to in Section 1
of the Legal Practitioners Act and for maintenance of the
highest standards of professional conduct, etiquette and discipline
in terms of that Constitution, has made the rules of professional
conduct in the profession as are set out hereunder”.

The NBA Constitution

It can be seen that apart from the LPA, the authority of the Bar
Council to enact the RPC is supposedly derived from the NBA
Constitution which proclaims one of its aims and objects as
“the maintenance of the highest standard of professional
conduct, etiquette and discipline”(see Section 3(1)
(f) of the NBA Constitution 2015). This presumed power is
clearly not a blank cheque, however, as Section 6
of the same Constitution categorically qualifies it, inter
alia, as follows: “the statutory powers of the General
Council of the Bar as provided pursuant to the Legal Practitioners
Act shall not include:-

• any control over the budget or finance of the Nigerian Bar
  Association;
• the power to appoint representatives of the Association to
  any Statutory, Executive/Judicial or other bodies;
• the power to issue any statements purporting to express the
  view of the Association upon any matter affecting the interest of
  the Legal profession generally;
• the power to make any arrangements whatsoever (including
  the drawing up of an agenda or choice of venue) for the Annual
  General meeting or any other General Meeting of the
  Association”.

Applying the principle of statutory interpretation known as
expressio unius est exclusio alterius, it would appear
thatthese express limitations on the powers of the Bar Council over
the general management of the affairs of the NBAsuggest
that, to the extent that they are silent to on the conduct,
discipline and etiquette of legal practitioners, the Council may
legitimately regulate them: I believe that this would be a
suggestio falsio, however, as in my view, the key words
are those of Section 1(1) of the LPA, which simply
charge the Council “with the general management of the affairs
of the NPA”. It is trite that the object of every statutory
interpretation is to determine the intention of the Legislature;
this is to be deduced from the words used in the enactment.

In this regard, I doubt that anything in the entire provisions
of the LPA (not just Section 1 thereof) even remotely suggests that
the National Assembly intended to empower the Bar Council
tomicro-manage the behavior of every legal practitioner in Nigeria
in the way the RPC evidently does. I believe I am reinforced in
this view by the fact that the aforesaid provisions of the LPA are
general, whilst those of the NBA Constitution which enjoin the NBA
to pursue the highest standards of etiquette, discipline, etc. are
special. The legal effect of this is commonly expressed in the
maxim generalia specibus derogant, or general things
derogate from special things. This means that “where there are
two enactments, one making specific provisions, and the other
general provisions, the specific provisions are impliedly excluded
from the general provisions”: see ATT-GEN. OF THE FED.
Vs. ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472 and
INAKOJU vs. ADELEKE (2007) 4 NWLR pt. 1025 pg. 423
@ 629.

In my opinion, the Council over-reached itself and exceeded its
powers by purporting toprescribe a code of conduct for everylegal
practitioner in Nigeria, as opposed to just their umbrella body,
the NBA, which I believe is its specific remit under the LPA. I
submit that directing the general management of an entity or group
is vastly different from purporting to dictate or control how
individual members of that organization or group behave or make
personal choices.I believe that the latter is what the RPC
represents and is its entire raison d’etre. The question
is: does it have that power under the law? From the foregoing
analysis, I humbly submit that the answer is an unequivocal
‘no’.

I believe that this conclusion is supported by the provisions of
Section 27(3) of the Interpretation Act which
stipulate that “where a body established by an enactment
comprises three or more persons and is empowered to make subsidiary
instruments, any such instrument may be executed under the hand of
any two of the members thereof as may be authorized by such body
generally for that purpose or specially on any particular
occasion”.This is because, whilst at all material times the
Bar Council consisted of 57 members, only Chief Bayo Ojo, SAN, the
then Attorney-General of the Federation signed the RPC
2007. This, of course, assumes that the Bar Council
possessed the requisite vires, vel non, to make
the Rules. It didn’t, and,in my view, it still doesn’t.

Conclusion

The inevitable conclusion to be drawn from the foregoing is that
the RPC is ultra vires the General Council of the Bar,
invalid, null and void. This is regrettable, of course, but it is
not beyond remedy. By way of a solution, I humbly recommend bold,
proactive action by the NBA (in General Meeting), debating and
adopting a brand-new RPC, in furtherance of the said aims and
objectives of its Constitutionto maintain the highest standards
of professional conduct, etiquette and discipline among
Nigerian lawyers. I believe that this would be consistent with
Section 10(2) of the Interpretation Act, which
provide that: “An enactment which confers power to do an act
shall be construed as also conferring all such other powers as are
reasonably necessary to enable that act to be done or are
incidental to the doing of it”; See ATT-GEN. OF
CROSS-RIVER STATE vs. OJUA (2011) All FWLR pt. 594 pg. 151
@ 169F. I posit that the General Council of the Bar simply has no
role to play in this, as we are eminently capable of regulating
ourselves, especially as the structures for enforcing infractions
of the Rules (Legal Practitioners Disciplinary Committee, Appeal
Committee of the Body of Benchers, etc) are already directly
provided for by the LPA.

Written By Abubakar D. Sani, Esq.

By Abubakar D. Sani, Esq.

This thought-provoking, if not outrightly provocative, question
is fueled by the seeming ambiguity in relevant legislations
pertaining to the subject, and not merely a desire to play the
Devil’s Advocate. Nevertheless, it is surely startling to challenge
the very basis of discipline, etiquette, probity and accountability
in the supposedly noblest of professions.  And why, you may
ask, will anyone(least of all, a legal practitioner of over three
decades standing) raise such a poser? I assure everyone that the
motivation is completely altruistic, prompted by no more than the
demands of critical thinking, and a quest (at the risk of
immodesty)for excellence. So, here goes.

Regulatory Over-view

That the 1999 Constitution is the grundnorm of our laws
is trite. By virtue of Section 4(3) and Item 49 of the
Exclusive Legislative in the Second Schedule to the
Constitution, the National Assembly possesses the
exclusive power to regulate “Professional occupations as may be
designated by (it)”. The Assembly exercised that power in
relation to the legal profession by enacting the Legal
Practitioners Act, Cap. L. 11, LFN 2010
(“LPA”).I believe that, beyond Section 1
of the LPA, one would be hard-pressed to find any
provision which specifically authorizes any person or body to enact
the Rules of Professional Conduct in the Legal
Profession (“RPC”). This has been the position for more
than half a century (since 1962, to be precise) when the LPA was
first enacted.

As for the aforesaid Section 1 thereof, it merely provides that:
“(1) there shall be a body to be known as the General Council
of the Bar (in this Act referred to as “the Bar Council”) which
shall be charged with the general management of the affairs of the
Nigerian Bar Association (subject to any limitations for the time
being provided by the Constitution of the Association) and with any
functions conferred on the Council by this Act or that
Constitution;

“(2) The Bar Council shall consist of:-

• The Attorney-General of the Federation who shall be the
  President of the Council;
• The Attorneys-General of the States; and
• Twenty members of the Association

History of the RPC

The Legal Practitioners Rules of Professional Conduct were first
enacted by the General Council of the Bar in November,1967, and
were amended in1979; this amendment bears the imprimatur of the
then Attorney-General of the Federation, Dr. (subsequently Hon.
Justice) Augustine Nnamani, and was published in the Official
Gazette of the Federation dated 18^th January, 1980.The
current edition of the RPC was made in 2007, by Hon. Bayo Ojo, SAN,
the then Attorney-General of the Federation. Both versions of the
Rules were apparently made pursuant to Section 1 of the LPA(see the
Preamble thereto, which proclaims: “for general information,
that the General Council of the Bar . . .  in furtherance of
the aims and objects of the Nigerian Bar Association under the
Constitution of the Association as referred to in Section 1
of the Legal Practitioners Act and for maintenance of the
highest standards of professional conduct, etiquette and discipline
in terms of that Constitution, has made the rules of professional
conduct in the profession as are set out hereunder”.

The NBA Constitution

It can be seen that apart from the LPA, the authority of the Bar
Council to enact the RPC is supposedly derived from the NBA
Constitution which proclaims one of its aims and objects as
“the maintenance of the highest standard of professional
conduct, etiquette and discipline”(see Section 3(1)
(f) of the NBA Constitution 2015). This presumed power is
clearly not a blank cheque, however, as Section 6
of the same Constitution categorically qualifies it, inter
alia, as follows: “the statutory powers of the General
Council of the Bar as provided pursuant to the Legal Practitioners
Act shall not include:-

• any control over the budget or finance of the Nigerian Bar
  Association;
• the power to appoint representatives of the Association to
  any Statutory, Executive/Judicial or other bodies;
• the power to issue any statements purporting to express the
  view of the Association upon any matter affecting the interest of
  the Legal profession generally;
• the power to make any arrangements whatsoever (including
  the drawing up of an agenda or choice of venue) for the Annual
  General meeting or any other General Meeting of the
  Association”.

Applying the principle of statutory interpretation known as
expressio unius est exclusio alterius, it would appear
thatthese express limitations on the powers of the Bar Council over
the general management of the affairs of the NBAsuggest
that, to the extent that they are silent to on the conduct,
discipline and etiquette of legal practitioners, the Council may
legitimately regulate them: I believe that this would be a
suggestio falsio, however, as in my view, the key words
are those of Section 1(1) of the LPA, which simply
charge the Council “with the general management of the affairs
of the NPA”. It is trite that the object of every statutory
interpretation is to determine the intention of the Legislature;
this is to be deduced from the words used in the enactment.

In this regard, I doubt that anything in the entire provisions
of the LPA (not just Section 1 thereof) even remotely suggests that
the National Assembly intended to empower the Bar Council
tomicro-manage the behavior of every legal practitioner in Nigeria
in the way the RPC evidently does. I believe I am reinforced in
this view by the fact that the aforesaid provisions of the LPA are
general, whilst those of the NBA Constitution which enjoin the NBA
to pursue the highest standards of etiquette, discipline, etc. are
special. The legal effect of this is commonly expressed in the
maxim generalia specibus derogant, or general things
derogate from special things. This means that “where there are
two enactments, one making specific provisions, and the other
general provisions, the specific provisions are impliedly excluded
from the general provisions”: see ATT-GEN. OF THE FED.
Vs. ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472 and
INAKOJU vs. ADELEKE (2007) 4 NWLR pt. 1025 pg. 423
@ 629.

In my opinion, the Council over-reached itself and exceeded its
powers by purporting toprescribe a code of conduct for everylegal
practitioner in Nigeria, as opposed to just their umbrella body,
the NBA, which I believe is its specific remit under the LPA. I
submit that directing the general management of an entity or group
is vastly different from purporting to dictate or control how
individual members of that organization or group behave or make
personal choices.I believe that the latter is what the RPC
represents and is its entire raison d’etre. The question
is: does it have that power under the law? From the foregoing
analysis, I humbly submit that the answer is an unequivocal
‘no’.

I believe that this conclusion is supported by the provisions of
Section 27(3) of the Interpretation Act which
stipulate that “where a body established by an enactment
comprises three or more persons and is empowered to make subsidiary
instruments, any such instrument may be executed under the hand of
any two of the members thereof as may be authorized by such body
generally for that purpose or specially on any particular
occasion”.This is because, whilst at all material times the
Bar Council consisted of 57 members, only Chief Bayo Ojo, SAN, the
then Attorney-General of the Federation signed the RPC
2007. This, of course, assumes that the Bar Council
possessed the requisite vires, vel non, to make
the Rules. It didn’t, and,in my view, it still doesn’t.

Conclusion

The inevitable conclusion to be drawn from the foregoing is that
the RPC is ultra vires the General Council of the Bar,
invalid, null and void. This is regrettable, of course, but it is
not beyond remedy. By way of a solution, I humbly recommend bold,
proactive action by the NBA (in General Meeting), debating and
adopting a brand-new RPC, in furtherance of the said aims and
objectives of its Constitutionto maintain the highest standards
of professional conduct, etiquette and discipline among
Nigerian lawyers. I believe that this would be consistent with
Section 10(2) of the Interpretation Act, which
provide that: “An enactment which confers power to do an act
shall be construed as also conferring all such other powers as are
reasonably necessary to enable that act to be done or are
incidental to the doing of it”; See ATT-GEN. OF
CROSS-RIVER STATE vs. OJUA (2011) All FWLR pt. 594 pg. 151
@ 169F. I posit that the General Council of the Bar simply has no
role to play in this, as we are eminently capable of regulating
ourselves, especially as the structures for enforcing infractions
of the Rules (Legal Practitioners Disciplinary Committee, Appeal
Committee of the Body of Benchers, etc) are already directly
provided for by the LPA.

Written By Abubakar D. Sani, Esq.