Thursday, November 19, 2009

RETAINING THE RANK OF SENIOR ADVOCATE OF NIGERIA,


What started off as pockets of protests amongst a few radical lawyers and a handful of others frustrated in their legitimate quest to be admitted to the rank of the inner Bar has all of a sudden developed a life of its own metamorphosising into a movement that has a whole class of lawyers in its fold. I am talking of no other than the movement for the abolition of the rank of senior Advocates of Nigeria, ironically led by certain Elders of the otherwise conservative Premier Branch, the Lagos Bar. This movement coming at a time when even the Supreme Court had occasion to berate certain members of the inner Bar thus "what kind of country is this where senior Advocates of Nigeria are used to mess up the judiciary? We will not allow this kind of practice. This is wrong", in a recent failed attempt by embatted Anambra Politician Dr Andy Uba to unseat Peter Obi as Governor of Anambra State. The time has come to take a very critical but objective look at the rank of senior Advocate of Nigeria SAN and its continued relevance to both the legal profession and the administration of Justice in Nigeria. Yes, the highly coveted rank of SAN is seriously under attack and justifiably so. Several reasons, some of them self-inflicted are responsible for the bad blood and negative reaction that the otherwise lofty status generates in recent times.
Some of the reasons include:
i. The sheer arrogance and pomposity many in the inner Bar unusually display both in and out of court. The recent botched attempt to register the Body of Senior Advocates of Nigeria incorporated is a clear manifestation of this tendency.
ii. The disposition only to take the privileges and advantages without a corresponding willingness to provide leadership and make sacrifices. Example, the SAN'S ARE AUTOMATIC National Executive Committee NEC members but only a handful ever turn up for meetings, members of the Inner Bar have been lobbying seriously to be made Court of Appeal and Supreme Court justices at the expense of other judges who rose through the ranks yet, there are no guarantees that a SAN will readily make a better judge. The rank of NBA Presidency is now conventionally reserved for silks at times in the face of more committed non-SANs with a track record of service to the Bar. Yet, when a proposal was made for the SANs to pay more for annual practicing fees, the silk resisted strongly inspite of dominating the commanding heights of the profession.
iii. The silks dominate the mega briefs in the profession, charging huge fees for services which a competent non-silk will perform excellently for infinitely lesser fees.
iv. Unlike in the past, many silk cannot be credited with distinction in any area of the law and quite a number after getting the award show no interest in the development of the law but rather venture into areas completely unrelated to law like business and politics yet at every opportunity are quick to remind others that they are Senior Advocates of Nigeria. On the other hand, there are many lawyers completely sold out to the law and its practice who are strangely denied the award yearly.
v. Closely related to the last consideration is the emergence of instances in the legal profession where God Fathers who have the ability to make their children, wards and protegees SAN at the expense of more experienced, much older and more competent lawyers. Thus the highly exalted rank of SAN has been hit by the infamous Nigeria factor reduced to the status of political favours to be dished out to loyal cronies and at other times to the highest bidder.
vi. There is also the issue of application fee which the authorities explained unconvincingly as being necessary to weed out unserious applicants and unconfirmed miscellaneous expenses necessarily incidental to obtaining the award.
vii. The last two factors have ensured a succession of SAN's in some families and chambers.
viii. Opponents of the rank insist that the privileged status works, against the attainment of equity and justice by the courts as many judges are easily overwhelmed by the mere presence of a SAN in a cause or matter to tilt the balance of justice unfairly in favour of the Senior Advocate.
ix. Still some of our more radical and egalitarian colleagues question the justification of a special class within the rank of lawyers pointing out the classlessness of the American Bar. They also point out to the fact that in Ghana, the status of Senior Advocate of Ghana has since been abolished and that even in England the country of Origin of the Queens Counsel there are on going debates as to the continued relevance of the rank to modem day dispensation of justice.
x. Finally, the involvement of quite a few silk in unwholesome and unethical practice and conduct constitutes very bad advert for the rank of SAN. These arguments are formidable and very thought provoking for quite a few of us who still believe in the retention of the rank in spite of all odds. Yes, we see the great abuse to which many a Silk has subjected the exalted rank to nor do we play the Ostrich about the mediocrity that has come to be associated with the rank in recent times, but to the extent that the rank of Senior Advocates of Nigeria is built on the ideals of excellence and distinction to which all legal practitioners, should aspire to, so long will some of us desire the retention of those ideals. The fact that we might not attain such a rank in our life time is another matter, indeed to dwell on that can only rob ones analysis of objectivity which unfortunately is in very short supply on this debate. Many on both sides of the argument maintain their positions either based on where they are now or might end up, let us strive to raise this very serious debate above personal and parochial considerations of I, me and myself, or what is in it for me?
Returning to the theme of excellence the rank was instituted in 1975 and has been warded almost yearly ever since till date, taking a random sample of the first half of the awards between 1975 - 1992, perhaps we may detect any awardee to whom distinction could not be ascribed, Chief F.R.A. Williams, Mr. Kehinde Sofola, Chief G.O.K Ajayi. Prof. Ben. Nwabueze, Chief Olisa, Chukurah, Mr. A. N.Anyemene, Sir Clement Akpamgbo, Chief Ladosu Ladipo, Prof. A. B. Kasunmu, Chief R. A. Fani-Kayode, Mr. Fidelis Nwadialo, Mr. Abayomi Sogbesan, Dr Mudiaga Odje, Chief Toye Coker, Chief Mrs. Tolake Solanke, Mr. E. O, Sofunde, Mr. L. N. Mbanefo and Chief Wole Olanipekun. Let someone point out any one of these 20 SANs some of whom are dead but many of whom are still living who were not lawyers of the highest distinction. So the rank of SAN was undoubtedly at inception linked with excellence, which is a high and lofty ideal to which we should all aspire. So if in the other half of the award, excellence and distinction have now fled, yes there is a problem but the problem cannot be innate in the rank since it was not part of it at inception, it was a problem that arose with time. In other words the problems now associated with the rank of SAN are of recent origin and can thus be tackled from source. The reasons responsible for the fall from the Olympian heights of the status of SAN include:
a. The dethronement of merit in the selection process.
b. The emphasis on loyalty and affluence above competence.
c. The emergence and pervading influence of Godfathers.
d. The emphasis on technical number of cases over quality of
cases and advocacy; which some lawyers have described as the preference for quantity over quality.
e. The ever-present issue of Geographical spread. These factors are neither exhaustive nor do exist in water tight compartments so will be examined together as they in fact tend to overlap.
The most damaging factor responsible for the bad light in which the rank of SAN is now seen by a large section of society, legal and non-legal alike is the obvious dethronement of merit in the elevation of lawyers from the Outer Bar to the Inner Bar. As lawyers in society, we are natural light bearers and the whole society watches with rapt attention everything we do both individually and collectively. How many times have our clients asked us why Mr. Lagbaja who has a reputation as a good lawyer is not a SAN why Chief Tamedu who is reputed to be an excellent advocate both within the legal and non-legal circles is yet to be conferred with the exalted rank. Recall, the general embarrassment to the whole profession of the non-award of silk to the indefatigable activist, quintessential law publisher and consummate advocate. Chief Gani Fewhinmi for several years until
less than 10 years. Now, if it is non-lawyers who recognize the competence of our members for the award, imagine us learned colleagues who know a lot more equally deserving colleagues who have not been accorded the award. Very senior colleagues who have contributed to the profession as advocates, who have themselves trained other lawyers even SANs, who have developed the law both in court, books, journals and even membership of critical committees yet for strange reasons have never been thought good enough for the award. I will not on grounds of decorum mention any of the living but I think there can be no greater indictment of the award, that
persons such as the late Mr. Fola Sasegbon one of the pioneers of the shipping and Maritime law practice in Nigeria or Prof. Jadesola Akande, a first rate constitutional law author and teacher were not rewarded with the award in their lifetimes but at every award there is a substantial number of awardees of modest abilities and anonymous contributions to the development of the law, whose main claim to distinction is the affluence of their practice and their loyalty to one of the awarding Godfathers. But the question is the silk a reward for wealth and commercial balance sheet of practice or professional ability or competence?
This is where some of use have a serious problem with the revised Guidelines with the emphasis on the opulence of applicants chambers as opposed to quality of advocacy. It is in fact conditions such as this that promote the emergence of God fathers who are ready to invest in the applicant for personal gains by making available to him finances, a well furnished chambers and an offer of partnership that is more technical than substantial. This approach puts at an undue advantage lawyers with deep pockets over their less materially endowed colleagues but more able and committed to forensic advocacy. It is submitted that there should be a reversion to the old criteria that places professional ability over material well-being.
Equally, counter productive is undue emphasis now placed on the technical number of appearances in both the Supreme Court and the Court of Appeal. A counsel may have none or very few cases in the Supreme Court but may never the less be a Superior advocate both in the written and oral form to a lawyer who sleeps in the Supreme Court.
Thank God for the written address system that has been adopted in most of the Jurisdiction in the nation at the High Court level, all applicants should be required to submit a copy of the Written Address filed under their hands along side copies of the decisions submitted for application to the Privileges committee for assessment. That should be a most revealing exercise.
In respect of the observations about the domineering influences of SAN's in the administration, this argument is neither here nor there. A large number of judicial officers I have had the privilege of appearing before for well over 23 years .are not in the least intimidated by even the "Ancient" SAN; they accord them all the rights and privileges befitting their elevated status but by the same taken hold them to the highest standards possible as leaders of the Bar, errors and omissions that would have been over looked for lower ranking lawyers are with SAN's strictly viewed. Submissions and applications made in bad faith usually on grounds of Senior Advocates standing rather than on law and procedure, are politely but firmly refused at times with punitive costs.
It is a fairly common phenomenon for certain silks to vow not to appear before certain junior judges when the major "sin" of the judicial officers that qualifies them for the "Junior" status is the refusal to indulge learned SAN's erroneous submissions and professional excesses.
Even the comparison with American Republicanism is misplaced. Nigeria and USA have radically different historical and cultural roots. The Americans started off as a persecuted settlers Haven. So from the onset the philosophy of the New world was to reject the Order of the Old world. Here, most although not all, our traditional customs were based on a well-established social stratification that recognizes nobility, integrity and success through hard work. Thus our practice of modem day republicanism must naturally flow from our historical and cultural background. And as for Ghana jettisoning the rank, our local realities are certainly different and we cannot be expected to follow blindly our West African brothers. After all it is different strokes for different folks.
The issue of national spread is an extremely sensitive one, which goes to the root of our existence as a nation. In any case, it is a constitutional provision all that can be said at this stage is that the policy must be applied responsibly so as not to undermine the spirit of excellence that ought to pervade the award of silk.
Ultimately, the most formidable argument of the abolitionists is ironically its weakest and albatross. The argument that since the rank of SAN has been highly abused and no longer connotes distinction to many, the same should be abolished. This is an extremist argument obviously inspired by anger and frustration but which if followed to its logical conclusion will only result in absurdity; a reductio ad absurdum.
In all sincerity, what institution, office or area of our rational life has not been plagued by abuse, corruption and mediocrity? Is it our values, education, admissions into schools, appointments of public officers even judges, elections both at general elections. Even now at the Bar, Police, religion, politics and government even our corporate existence, as a nation is not free from the ills of corruption nepotism or mediocrity. We might as well in creating the Utopian society go all the way abolishing these ills, abolish the Nigerian State as well.
The reasonable and practical solution to this serious problem is not the lazy and absurd throwing away of the baby and with the bath water as being suggested but a reinvention of the rank of SAN; be it from the point of view, criteria for appointment membership of privileges committee, status, duties and privileges etc, all aimed at ensuring that only the best are appointed and remain in the rank of SAN. There is nothing that says a strict code of conduct cannot be devised for members that erring members be sanctioned by way of suspension even outright permanent demotion to the outer Bar of errant members. That I submit is the only way of creating a rank or office that will stand the test of time not the lazy and destructive tendency to pull down everything a vocal section of society cannot lay its hands upon.

SAN: not a do or die affair.
For several reasons, such as limited number of appointment (to guarantee quality) life-span (which is entirely in the hands of Providence), fortune/Luck, several other factors all beyond human control, it should be obvious that not all brilliant lawyers will take silk in their life-time. Conversely, not every one who takes silk is permitted by Almighty God to live long enough to enjoy the rich benefit of the lofty title. A few years ago, a very brilliant classmate and colleague who had taken silk only a few years earlier passed on in a ghastly car accident.
These things are simply beyond us. But what is within our power while we still breathe is to excel in our stations in life and by extension areas of legal practice. Thankfully we have many unsung heroes who nonetheless excelled, and have continued to excel even without taking silk. Speaking for myself, I met or at least heard of the following non-silk who achieved distinction at the Bar or in the academic without taking silk, Pa J. A. Cole, Prince G. M. Boye, Chief R, A. Akinyemi, Mr. Fola Sasegbon, Mr. Adenugba Adesina, Mr. Fred Egbe, Mr. Alao Aka- Basorun, Chief A. A. Oguntuase, Prof. B. O. Iluyomade, Prof. Jacksola Akande, Prof. Abiola OJo amongst others who all passed to the great beyond. Amongst the living we have Chief Chris Ogunbanjo, Mrs. Hairat Balogun, Chief Badru Olaogun, Mr. Chiobi Ekpechi, Prince Yemi Adefulu, Senator Dipo Odie Jirin, Chief I. O. Ajijola, Prince T. A. Awosanya, Prof. U. U. Uche, Chief V. A. Odunaiya and several others who have achieved the greatest distinction in various aspects of the legal profession be it advocacy, solicitor practice, academics, legal publication and scholarship yet without the coveted silk status.
I do not believe that the history of the legal profession in Nigeria can be written without inscribing the above names and several others in gold though they never took silk (the living may yet do so).
I am fully persuaded that our watchword ought to be excellence and distinction with or without silk.

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