Law

Disquiet over Malami’s amendment of RPC

Lawyers have condemned an amendment carried out on the 2007 Rules of Professional Conduct (RPC) for Legal Practitioners by the Attorney General of the Federation (AGF), Abubakar Malami (SAN). They said he lacked the requisite powers to unilaterally amend the law without recourse to the Nigerian Bar Association (NBA). AKEEM NAFIU reports

 

Lawyers were at the weekend unanimous that an amendment of 2007 Rules of Professional Conduct (RPC) carried out by Justice Minister and Attorney-General, Abubakar Malami (SAN) without recourse to layers’ umbrella body—the Nigerian Bar Association (NBA) was illegal, null and void.

 

The lawyers, however, expressed disapproval of the reported amendment of the 2007 Rules of Professional Conduct (RPC) for Legal Practitioners by Malami. According to the lawyers, the AGF had acted beyond his powers in amending the law which was the prerogative of the General Council of the Bar of which Malami is a member.

 

Malami was recently reported to have unilaterally amended the 2007 Rules of Professional Conduct (RPC) for Legal Practitioners. He was also reported to have said the amendment was made in the exercise of the powers conferred on him by Section 12(4) of the Legal Practitioners Act as Attorney-General of the Federation and Minister of Justice and President of General Council of the Bar.

 

In the amendment, provisions relating to the Nigerian Bar Association (NBA) “Stamp and Seal” as well as Bar Practicing Fees (BPF) for government lawyers were said to have been deleted. In essence, Rules 9 (2), 10, 11, 12 and 13 were affected by the new amendment. Prior to the amendment, Rule 9(2) prohibits legal practitioners from claiming that he has paid his Bar Practicing Fees (BPF) when he is actually in default. Rule 10 deals with stamp and Seal.

 

Rule 11 provides for Mandatory Continuing Legal Education, Rule 12 provides for Annual Practicing Certificate while Rule 13 provides for Notice of Legal Practice upon setting up a private legal practice.

 

 

Suit against AGF’s action

 

The purported amendment of the 2007 Rules of Professional Conduct for Legal Practitioners has become a subject of litigation with a former Vice-President of the Nigerian Bar Association (NBA), Mr. Monday Ubani, filing a suit at the Federal High Court in Lagos to challenge the propriety of the AGF’s action.

 

The AGF, NBA Trustees and the General Council of the Bar were listed as the first, second and third defendants in the suit filed by Ubani and nine other lawyers. While questioning the powers and responsibility of the AGF to unilaterally alter, amend and make any rules of professional conduct without a proper meeting of the General Council of the Bar, Ubani is asking the court to declare the purported amendment carried out on the 2007 RPC for lawyers as unlawful and unconstitutional.

 

Specifically, the plaintiffs are seeking “an order of this honourable court, declaring the unilateral amendment and the gazetting of Rules, 9(2), 10, 11, 12 and 13, of the Rules of Professional Conduct for Legal Practitioners 2007, on the 3rd of September 2020, via the statutory instrument No. 15 of 2020, by the 1st defendant herein, as illegal, unlawful, unconstitutional and therefore null and void and of no effect whatsoever.

 

“An order restraining the 1st defendant whether by himself in his official capacity or personal capacity, his agents, servants, employees, or howsoever and by whatever name called, from unilaterally altering, amending and or making rules of professional conduct for Legal Practitioners in Nigeria.”

 

The plaintiffs argued that by the clear and unambiguous provisions of Sections 1(1&2) and 12 (4) of the Legal Practitioners Act, the 1st defendant alone in his capacity as the President of the General Council of the Bar, cannot unilaterally amend or make Rules of Professional Conduct for lawyers.

 

It was further argued that where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority will follow the requirement to the details. No date has been fixed for the hearing of the suit.

 

Lawyers speak

 

Some senior lawyers have equally spoken with one voice in rejecting the purported amendment to the 2007 Rules of Professional Conduct for Legal Practitioners Lawyers by the Attorney General of the Federation.

 

The lawyers while speaking on the issue at the weekend faulted the premise upon which Malami claimed to have derived his power to carry out the amendment. According to them, the only body statutorily recognized by the Legal Practitioners Act to amend the law is the General Council of the Bar and as such the AGF as an individual cannot lawfully perform the task.

 

Speaking on the issue, a Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, faulted the AGF’s action saying there was no basis for it. He said: “I think the Bar has told the Attorney General of the Federation (AGF), Abubakar Malami (SAN) it will not accept the amendment and I don’t think I have a contrary view.

 

“Besides, I don’t think there is any reason for the AGF to carry out such action. The rules were not made by lawyers themselves but by the Council of the Bar. So, I don’t think the AGF has the power to unilaterally amend the law. Even, if he has the power to do so, he needs to consult with people.”

 

Ahamba was echoed by another member of the Inner Bar, Chief Mike Ozekhome, who also faulted AGF’s action. The silk said only the General Council of the Bar (GCB) can legally amend the Rules of Professional Conduct (RPC) for Legal Practitioners.

 

Ozekhome said: “No, the Attorney- General of the Federation (AGF) cannot single-handedly amend the Rules of Professional Conduct (RPC) for Legal Practitioners.

 

But I learnt he has since denied doing so. Only the General Council of the Bar (GCB) can amend the Rules of Professional Conduct (RPC). The GCB comprises of the Attorney-General of the Federation, the 36 Attorneys – General of the 36 states of Nigeria and 20 Legal Practitioners representing the NBA. So, no Attorney-Gen-eral can unilaterally, whimsically or capriciously amend the rules, no matter how well intentioned.”

 

Executive Director of the Socio-Economic Rights and Accountability Project (SERAP), Mr. Adetokunbo Mumuni said the AGF had no power to unilaterally amend the Rules of Professional Conduct for Legal Practitioners. He said: “When the AGF said he is amending the Rules of Professional Conduct for Legal Practitioners, he said he was exercising the powers by virtue of Section 12 (4) of the Legal Practitioners Act.

 

What does the section said? Section 12 (4) of the Legal Practitioners Act said the body that could amend the Rules of Professional Conduct for Legal Practitioners shall be a General Bar Council. This means an individual cannot act in place of the Council.

 

“The Council must meet to decide or propose any amendment to the law. So, it is in this context that I said that the Attorney General of the Federation has no right to exercise the powers he said he exercised. The power can only be exercised by a General Bar Council. This means a combination or a body of people who will meet to decide on such issue.

 

“So, in essence, if the legislation says the General Bar Council have to meet on such issue and there have been no such meeting, the Attorney General of the Federation cannot put himself in the position of the General Bar Council”.

 

The convener, Mission Against Injustice in Nigeria (MAIN), Mr. Ige Asemudara, also countered the AGF’s action, saying the purported amendment was of no importance. He said: “My quick reaction is that the Honourable Attorney General of the Federation lacks the power to unilaterally amend the Rules of Professional Conduct for Legal Practitioners.

 

Even the NBA has no such power. “The only body empowered by the Section 12(4) of the Legal Practitioners Act, purportedly relied upon by the AGF, is the General Council of the Bar.

 

Only that Council can amend the Rules of Professional Conduct, not anyone else. By law, the General Council of the Bar established by Section 1 of the Legal Practitioners Act (LPA) has the general management of the Bar.

 

“The AGF is only one member of the General Council of the Bar that has not less than 50 members including the 36 state Attorneys General and twenty members nominated from the NBA.

 

Conservatively, the General Council of the Bar requires a minimum of 8 members to form a quorum in transacting its businesses including amending the Rules of Professional Conduct (RPC). This does not mean that you will not serve notice of the meeting on all the over 50 members. It is their prerogative as members to attend or not to attend.

 

The AGF has obviously acted ultra vires and this seems to be like a decline into dictatorship. “Beyond that, Rules 9 (2), 10, 11, 12 and 13 purported to have been amended derive their strengths from and sometimes replicated in the provisions of the Legal Practitioners Act. So, the AGF’s purported amendment is of no moment.” Mr. Kabir Akingbolu, the AGF’s action does not portray him in good light.

 

He said: “The positions of both the Nigerian Bar Association (NBA) and the Attorney-General of the Federation (AGF) are wrong. By law, only the General Council of the Bar can amend the Rules of Professional Conducts for lawyers in Nigeria, and this group is made up of fifty seven members, comprised of the Attorney General of the Federation, the Attorneys General of all the thirty six states of the Federation and 20 members drawn from the Nigerian Bar Association.

 

“Unfortunately and without any reason or justification, the AGF went ahead to amend the Rules without the concurrence or inputs of the General Council of the Bar. As a matter of fact, the General Council of the Bar has not met since 2015 that the AGF came into office, let alone pass a law or rules.

 

This is too sad and unbecoming of someone who calls himself an AGF. “Again, the AGF is by the ridiculous and derisive amendment, excluding government lawyers from not paying practicing fees. This, I submit is highly ludicrous and totally laughable. The reason is that every lawyer ought to renew his practice licence yearly. So if they fail to so renew, can they practice?

 

I think not. Medical Doctors and Nurses irrespective of being in private or government hospitals, pay for their practice licence yearly. “The question to then ask is: what are the interests of the AGF? It’s surely personal. If we are not in military regime, how can anyone act carelessly that way to amend the law in such a casual manner? Too absurd.

 

“On the other hand, the NBA’s position is too self-serving in the sense that there are so many corruption or distasteful practices in the NBA rearing their ugly heads but the NBA saw nothing wrong. The elections were alleged to have been rigged spanning over six years and nothing was done.

 

The president that led the NBA between 2018 and 2020 had criminal charge of N3 billion hanging on his neck and the NBA did not tell him to step aside that it is disgraceful to be led by a corruption suspect.

 

“The AGF made the Federal Government flout many orders of court by the ill-advice he gives perpetually which fact he confirmed before the Senate on the grounds of national security being superior to rule of law; very ludicrous pontification. I agree and believe that the AGF should be reported to his appointor.

 

“Some people filed action against Aondoaka sometimes ago and the court disqualified him from holding any public office again and that judgement stands till date having not been set aside. So, something has to be done fast about the acts and conducts of the AGF but not the way the NBA is doing it parochially.”

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