(LEGAL) MATTERS ARISING: PROSPECTS OF SILK AT THE BAR
The new Nigerian Bar Association, NBA President Chief Rotimi Akeredolu SAN in an interview granted to certain media houses shortly after his inauguration wherein he highlighted his vision and programme of action for the 60,000-strong members of the association in the next 2 years raised a very important issue: the prospects of appointing Silks (SAN’s) to sit as Justices in the Appellate Courts of the Court of Appeal and the Supreme Court.
The suggestion from the learned silk and leader of the legal profession in Nigeria coming at a time when the whole system of the administration of justice in Nigeria is coming under public scrutiny and even criticism could not have been better timed.
Common Law Antecedents
The idea of members of the Inner Bar called Queens or Kings Counsel QC/KC depending on whether the Monarch is a Queen or King, in England where our modern legal system originated from, being appointed to the Bench is as old as the common law system. In fact under the English system a career on the Bench is the ultimate for a Barrister and most appointments to the Bench is usually from the rank of Q.C’s or K.C’s. And a look at some of the more distinguished English Judges both in the distant and immediate past were from the ranks of learned silk who earned their place on the Bench on the sheer merit of a distinguished career at the Bar.
The Great English Jurist, Francis Bacon was K.C, Attorney-General and later Lord Chancellor. (He was however disgraced out of office for bribery and corruption.).
* Mr. Quintin Hogg, was Q.C, Attorney-General and later Lord Hailsham of the House of Lords.
* The greatest English Judge of the 20th century Lord Alfred Thomas Denning, Master of the Rolls, the-equivalent of our President of the Court of Appeal was himself a King’s Counsel, (K.C) before he was appointed a Judge of the Queens Bench in 1943 from where he proceeded to have a most distinguished carrier acknowledged all over the world.
* The distinguished Prof. Megarry, Real Property Law author distinguished himself in both the academic and legal practice as a Professor Q.C before being appointed to the Bench.
In the earlier days of the legal profession in Nigeria, the English practices of appointing distinguished lawyers many of them Q.C and later SAN was strictly followed before the practice fell into disuse with time.
* The erudite and prodigious Dr. T.O Elias Q.C who later became the President of the International Court of Justice ICJ, was appointed directly to the Supreme Court as Chief Justice of Nigeria - the first and only of such appointment in the nation’s history.
* Justice Chuba Ikpeazu Q.C was appointed directly from the Bar first to be a Judge of the High Court of then Federal Territory of Lagos and later the Eastern region High Court.
* Late Justice Fred Anyaegbunam Q.C was appointed straight from the Bar to the Former Federal Revenue Court later re-styled Federal High Court where he rose to become one of the longest senior Chief Judge of that court.
* Justice E. Adegboyega Ademola Q.C was appointed directly from the official bar as Director of Public Prosecutions DPP to the High Court of Western Nigeria and later Western State Court of Appeal.
* Late Justice Augustine Nnamani was a distinguished academic with a Doctorate Degree in Law, was also the Federal Attorney-General, and one of the 12 silks of the 1978 set. He was appointed straight from the official Bar as Attorney-General of the Federation as a Justice of the Supreme Court.
A handful of the very old lawyers still alive still vividly recall that even after great lawyers like Chief F.R.A Williams SAN, Chief Kehinde Sofola SAN had taken silk pressure was still constantly mounted on them from official Quarters that they take appointment to come to the Supreme Court in order to enrich that court with their wealth of learning and legal knowledge. And as recent as 1990/91 this columnist recalls that Prince Bola Ajibola SAN, the then Federal Attorney-General was being pressured to take appointment as a Justice of the Supreme court rather than proceed to the ICJ to complete Nigeria’s term on that court which became vacant upon Dr. Elias’ death.
Thus from a strictly historical, the learned NBA President’s suggestion rests on a very strong wicket: it was the practice in the past from which our legal system and indeed the common law and global jurisprudence benefited immensely from.
MODERN TRENDS AT THE BAR AND BENCH
In the last 20 or 80 years for a number of reasons, this well tested practice fell into disuse though not officially abandoned. The reasons for this unfortunate development are somewhat vague and unclear and one can only hazard a “sketchy but not infallible” guess as to why this sound policy of recruitment of Judges from the college of silks was abandoned.
While it has always been the desire of the average Barrister under the common law to cap a distinguished career with elevation to the Inner Bar. Taken the Silk in England, was not the ultimate rather it was the bench but in Nigeria now the ultimate for successful barristers is not to end their careers on the bench.
It is to say the obvious that in Nigeria on the average a Silk is more economical buoyant than a judge even a justice of the Supreme Court. Admittedly even in England, and in the U.S there is a measure of economic sacrifice made by very prosperous lawyers in taking appointments on the Bench. But these older legal systems have in built protection for the welfare of judges. Judges in these societies hold their appointments for life unless they are undone by ill health, sudden demise or scandal. Not so in our dear country where the smallest increase in salaries and improvements in welfare packages for judges comes under intense public scrutiny. Till date quite a number of other professionals in the public service continue to question why judges should retire at 65 or 70 years of age as the case may be or be given certain ‘preferential’ treatment when all other professionals in public service retire compulsory at 60 years. Yet the same persons expect the judiciary to constantly rise to the challenge of doing justice between all manners of men without malice, ill will fear or favour.
A Nigeria Silk has no such limitations as the Nigerian judge: he can continue in practice as long as his health permit, he has no limitations on his charges for litigation where he is presumed to be dean and master of. It is of no concern to any one whether he charges N50 million merely to append his signature to a court process or N250 million to make a personal appearance in court with his team of lawyers.
So the balance of convenience and economy prosperity is heavily in favour of the Learned Silk rather than an equally brilliant colleague who prefers a career on the Bench. In fact under the present arrangement a Silk who takes appointment even on the Supreme Court will be making a very huge sacrifice; having his legal career terminated somewhat mid-stream when a number of his contemporaries might continue in lucrative practice for even three decades more before calling it quits due to age and ill-health. (Judges even die younger in Nigeria than silks). Thus silks and other successful lawyers who routinely attract fat briefs and juicy briefs find it hard to give up their liberty and prosperity for a life in government service where life is more regimented and the earnings considerably smaller. These, I humbly submit are the reasons why the old practice of appointing or even inviting Silk to the Bench slowly but steadily fell out of favour. The amount of sacrifice involved in becoming a judge for the successful average silk became too heavy to bear.
Thus any serious attempt to encourage Silks to take appointments on the Bench must tackle these concerns while at the same time not give the impression that only members of the Inner Bar possess the repository of legal knowledge to deserve a place on the Bench as this will only breed resentment from other qualified lawyers who are not silks. Such a situation can not be in the interest of Nigeria.
The point must however be made that not all lawyers, silk or no, irrespective of brilliance or learning at the law deserve a place on the Bench. Many of them simply do not have the temperament for the job: some are too brash, impatient, brilliant but not objective, to be good judges. Some can just never stop being advocates; they have read all the decisions counsel might ever cite and are not prepared to listen to counsel either explain himself or bring fresh perspectives to the decisions milord has certainly read from page to page, cover to cover several times over. Others simply talk too much and would be better off as Mr. ‘Lecturer’ rather than the honourable judges that they are while for some others their Achilles heel is their larger than life social life which they can not compromise for the straight, narrow and if I may add, lonely life-style of a judge.
RE: Almaroof Ayinde Lateef: The limits of a citizen’s constitutional right to represent himself in court.
Recently, I had the opportunity of seeing the enigmatic non-lawyer Commercial law practitioner in action prosecuting his civil case in court against a legal practitioner for the opposing side. I must say given the quality of the opposition he didn’t do badly. Citizen Almaroof Lateef, it will be recalled was the ‘Blaster’ sent to prison by the Hon. Justice M. Obadina for contempt of court. He was also on record to have written a petition against certain judicial officers for permitting only “LLB, B.L” holders from appearing as counsel in their courts.
My main interest here is not about Mr. Almaroof’s constitutional right to defend himself in person in a criminal trial. Under Section 36(6) (c) of the 1999 Constitution entitles him so. But by virtue of The Legal Practitioners Act and The Supreme Court decision in Okafor V Nweke (2007) 3 S.C (pt ii) 55 that only legal practitioners enrolled at the Supreme Court can file court processes, can a non-lawyer
(a) file court processes and sign same in his personal name
(b) appear in person in civil suits
(c) canvass arguments citing statutory and case law decisions?
Please send all written comments to THE SQUIB Editor-in-Chief.
The new Nigerian Bar Association, NBA President Chief Rotimi Akeredolu SAN in an interview granted to certain media houses shortly after his inauguration wherein he highlighted his vision and programme of action for the 60,000-strong members of the association in the next 2 years raised a very important issue: the prospects of appointing Silks (SAN’s) to sit as Justices in the Appellate Courts of the Court of Appeal and the Supreme Court.
The suggestion from the learned silk and leader of the legal profession in Nigeria coming at a time when the whole system of the administration of justice in Nigeria is coming under public scrutiny and even criticism could not have been better timed.
Common Law Antecedents
The idea of members of the Inner Bar called Queens or Kings Counsel QC/KC depending on whether the Monarch is a Queen or King, in England where our modern legal system originated from, being appointed to the Bench is as old as the common law system. In fact under the English system a career on the Bench is the ultimate for a Barrister and most appointments to the Bench is usually from the rank of Q.C’s or K.C’s. And a look at some of the more distinguished English Judges both in the distant and immediate past were from the ranks of learned silk who earned their place on the Bench on the sheer merit of a distinguished career at the Bar.
The Great English Jurist, Francis Bacon was K.C, Attorney-General and later Lord Chancellor. (He was however disgraced out of office for bribery and corruption.).
* Mr. Quintin Hogg, was Q.C, Attorney-General and later Lord Hailsham of the House of Lords.
* The greatest English Judge of the 20th century Lord Alfred Thomas Denning, Master of the Rolls, the-equivalent of our President of the Court of Appeal was himself a King’s Counsel, (K.C) before he was appointed a Judge of the Queens Bench in 1943 from where he proceeded to have a most distinguished carrier acknowledged all over the world.
* The distinguished Prof. Megarry, Real Property Law author distinguished himself in both the academic and legal practice as a Professor Q.C before being appointed to the Bench.
In the earlier days of the legal profession in Nigeria, the English practices of appointing distinguished lawyers many of them Q.C and later SAN was strictly followed before the practice fell into disuse with time.
* The erudite and prodigious Dr. T.O Elias Q.C who later became the President of the International Court of Justice ICJ, was appointed directly to the Supreme Court as Chief Justice of Nigeria - the first and only of such appointment in the nation’s history.
* Justice Chuba Ikpeazu Q.C was appointed directly from the Bar first to be a Judge of the High Court of then Federal Territory of Lagos and later the Eastern region High Court.
* Late Justice Fred Anyaegbunam Q.C was appointed straight from the Bar to the Former Federal Revenue Court later re-styled Federal High Court where he rose to become one of the longest senior Chief Judge of that court.
* Justice E. Adegboyega Ademola Q.C was appointed directly from the official bar as Director of Public Prosecutions DPP to the High Court of Western Nigeria and later Western State Court of Appeal.
* Late Justice Augustine Nnamani was a distinguished academic with a Doctorate Degree in Law, was also the Federal Attorney-General, and one of the 12 silks of the 1978 set. He was appointed straight from the official Bar as Attorney-General of the Federation as a Justice of the Supreme Court.
A handful of the very old lawyers still alive still vividly recall that even after great lawyers like Chief F.R.A Williams SAN, Chief Kehinde Sofola SAN had taken silk pressure was still constantly mounted on them from official Quarters that they take appointment to come to the Supreme Court in order to enrich that court with their wealth of learning and legal knowledge. And as recent as 1990/91 this columnist recalls that Prince Bola Ajibola SAN, the then Federal Attorney-General was being pressured to take appointment as a Justice of the Supreme court rather than proceed to the ICJ to complete Nigeria’s term on that court which became vacant upon Dr. Elias’ death.
Thus from a strictly historical, the learned NBA President’s suggestion rests on a very strong wicket: it was the practice in the past from which our legal system and indeed the common law and global jurisprudence benefited immensely from.
MODERN TRENDS AT THE BAR AND BENCH
In the last 20 or 80 years for a number of reasons, this well tested practice fell into disuse though not officially abandoned. The reasons for this unfortunate development are somewhat vague and unclear and one can only hazard a “sketchy but not infallible” guess as to why this sound policy of recruitment of Judges from the college of silks was abandoned.
While it has always been the desire of the average Barrister under the common law to cap a distinguished career with elevation to the Inner Bar. Taken the Silk in England, was not the ultimate rather it was the bench but in Nigeria now the ultimate for successful barristers is not to end their careers on the bench.
It is to say the obvious that in Nigeria on the average a Silk is more economical buoyant than a judge even a justice of the Supreme Court. Admittedly even in England, and in the U.S there is a measure of economic sacrifice made by very prosperous lawyers in taking appointments on the Bench. But these older legal systems have in built protection for the welfare of judges. Judges in these societies hold their appointments for life unless they are undone by ill health, sudden demise or scandal. Not so in our dear country where the smallest increase in salaries and improvements in welfare packages for judges comes under intense public scrutiny. Till date quite a number of other professionals in the public service continue to question why judges should retire at 65 or 70 years of age as the case may be or be given certain ‘preferential’ treatment when all other professionals in public service retire compulsory at 60 years. Yet the same persons expect the judiciary to constantly rise to the challenge of doing justice between all manners of men without malice, ill will fear or favour.
A Nigeria Silk has no such limitations as the Nigerian judge: he can continue in practice as long as his health permit, he has no limitations on his charges for litigation where he is presumed to be dean and master of. It is of no concern to any one whether he charges N50 million merely to append his signature to a court process or N250 million to make a personal appearance in court with his team of lawyers.
So the balance of convenience and economy prosperity is heavily in favour of the Learned Silk rather than an equally brilliant colleague who prefers a career on the Bench. In fact under the present arrangement a Silk who takes appointment even on the Supreme Court will be making a very huge sacrifice; having his legal career terminated somewhat mid-stream when a number of his contemporaries might continue in lucrative practice for even three decades more before calling it quits due to age and ill-health. (Judges even die younger in Nigeria than silks). Thus silks and other successful lawyers who routinely attract fat briefs and juicy briefs find it hard to give up their liberty and prosperity for a life in government service where life is more regimented and the earnings considerably smaller. These, I humbly submit are the reasons why the old practice of appointing or even inviting Silk to the Bench slowly but steadily fell out of favour. The amount of sacrifice involved in becoming a judge for the successful average silk became too heavy to bear.
Thus any serious attempt to encourage Silks to take appointments on the Bench must tackle these concerns while at the same time not give the impression that only members of the Inner Bar possess the repository of legal knowledge to deserve a place on the Bench as this will only breed resentment from other qualified lawyers who are not silks. Such a situation can not be in the interest of Nigeria.
The point must however be made that not all lawyers, silk or no, irrespective of brilliance or learning at the law deserve a place on the Bench. Many of them simply do not have the temperament for the job: some are too brash, impatient, brilliant but not objective, to be good judges. Some can just never stop being advocates; they have read all the decisions counsel might ever cite and are not prepared to listen to counsel either explain himself or bring fresh perspectives to the decisions milord has certainly read from page to page, cover to cover several times over. Others simply talk too much and would be better off as Mr. ‘Lecturer’ rather than the honourable judges that they are while for some others their Achilles heel is their larger than life social life which they can not compromise for the straight, narrow and if I may add, lonely life-style of a judge.
RE: Almaroof Ayinde Lateef: The limits of a citizen’s constitutional right to represent himself in court.
Recently, I had the opportunity of seeing the enigmatic non-lawyer Commercial law practitioner in action prosecuting his civil case in court against a legal practitioner for the opposing side. I must say given the quality of the opposition he didn’t do badly. Citizen Almaroof Lateef, it will be recalled was the ‘Blaster’ sent to prison by the Hon. Justice M. Obadina for contempt of court. He was also on record to have written a petition against certain judicial officers for permitting only “LLB, B.L” holders from appearing as counsel in their courts.
My main interest here is not about Mr. Almaroof’s constitutional right to defend himself in person in a criminal trial. Under Section 36(6) (c) of the 1999 Constitution entitles him so. But by virtue of The Legal Practitioners Act and The Supreme Court decision in Okafor V Nweke (2007) 3 S.C (pt ii) 55 that only legal practitioners enrolled at the Supreme Court can file court processes, can a non-lawyer
(a) file court processes and sign same in his personal name
(b) appear in person in civil suits
(c) canvass arguments citing statutory and case law decisions?
Please send all written comments to THE SQUIB Editor-in-Chief.
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