Tuesday 26th of October, 2021
BY: CHIEF MIKE OZEKHOME, SAN, OFR, FCIArb, LL.M, Ph. D, LL.D
INTRODUCTION
In our last two outings, we have seen that the privileges attached to the rank of SAN are more statutory than conventional. Today, we shall conclude our discourse.
THE KNOWN CRITERIA FOR THE AWARD OF THE RANK OF SAN
Consequent upon its prestigious nature, the eligibility criteria for SANS focuses on competence in advocacy, integrity and good standing in the legal profession. Paragraph 1 of the SAN Guidelines, 2018, provides for the rank of SAN to be conferred only on legal practitioners that are in full time legal practice, have distinguished themselves as Advocates and have otherwise made significant contribution to the development and growth of the legal profession. Such a candidate must be no less than 10 years post-call; and must provide evidence of judgments which he/she played a significant role in as an Advocate. This shall consist of twenty final judgments in the High Court, five in the Court of Appeal and four in the Supreme Court of Nigeria. The candidate must also be of good character and have no pending disciplinary complaint against him/her.
As regards competence, paragraph 19(1), (3), (6) and (7) of the SAN Guidelines, 2018, sets out what a candidate must possess: (a) high professional and personal integrity; (b) diversity; (c) sound knowledge of the law and excellent skill as an advocate; (d) tangible contribution to development of the law through writings and/or lectures at national or international conferences; (e) leadership qualities and loyalty to the legal profession including payment of practising fees and undertaking pro bono cases. Members of the academia are also conferred with the rank based on their scholarship, research and intellectual discourse.
THE DESIRABILITY OF EXTENDING THE SILK TO CORPORATE LAWYERS
Let me also therefore use this a dissertation to call for an amendment to the LPA and the LPPC Rules, to include elevating corporate lawyers as SANs. For me, it is inexcusable and inequitable that we award the silk to practising lawyers and scholars; yet deny our corporate lawyers, who are actively engaged in wholly commercial practice the same SAN rank. These are our colleagues in specialised and critical areas of the law, some of the areas quite recondite and novel. They generate the policies, legal frameworks, and financial platforms on which the Advocates and Scholars themselves rely. I do not mean to sound overtly radical or patronizing here. Never. I speak straight from my heart. A calm consideration of this suggestion will show its great advantages. After all, the Section on Business Law of the NBA is invariably usually headed by these accomplished Boardroom lawyers. So, why deny them of the silk, simply because they are not courtroom Advocates or classroom Professors? I humbly beg to disagree with their being sidelined. They could at least be made SANs (honoris causa), as done in England, for their great impact in the corporate world that affects all legal practitioners. Alternatively, we may coin a name for them – Senior Advocates of Commercial Practice (SACP).
THE SAN AWARD IN OTHER COUNTRIES
QCs IN ENGLAND AND WALES AS PRECURSORS
In 1994, Solicitors of England and Wales became entitled to gain rights of audience in the higher courts. Some 275 were so entitled in 1995. In January, 2020, 114 Barristers and Solicitors were appointed as Queens’ Counsel (QCs). In addition, 10 honorary QCs (Honoris Causa) were appointed. QCs and Honorary QCs are usually appointed by the Queen on the advice of the Lord Chancellor.
SUSPENSION OF THE QC RANK IN 2003
The appointment of new Queen’s Counsel was suspended in England in 2003, and it was widely expected that the system would be abolished. However, a vigorous campaign was mounted in defence of the system. Supporters included those who considered it as an independent indication of excellence of value to those (especially foreign commercial litigants) who did not have much else to rely on; and those who contended that it was a sure means by which the most outstanding Barristers from ethnic minorities could advance and overcome prejudices, as well as better represent members of an increasingly diverse society.
REFORMING THE QC RANK
The government’s focus thereafter switched from abolition to reform; and, in particular, reform of the much-criticised “secret soundings” of Judges and other establishment legal figures upon which the old system was based. This was held to be inappropriate and unfair, given the size of the modern profession. They also feared a possible source of improper government patronage (since the final recommendations were made by the Lord Chancellor, who is also a member of the government). It was also found to be discriminatory against part-time workers (especially women) and ethnic minorities.
In November, 2004, after much public debate in favour of and against retaining the title, the government announced that appointments of Queen’s Counsel in England would be resumed but that future appointees would be chosen, not by the government, but by a nine-member panel, chaired by a lay person. This would include two Barristers, two Solicitors, one retired Judge, and three non-lawyers. Previously, the appointment had remained a royal one made solely on the advice of the Lord Chancellor. However, they no longer comment on individual applications. The Lord Chancellor supervises the process and reviews the panel’s recommendations in general terms, to be satisfied that the process as operated is fair and efficient.
HOW THE REFORMS LIBERALISED THE QC AWARD IN ENGLAND
When application forms under the new system were released in July, 2005, appointment of a whopping 175 new Queen’s Counsel was announced on 20th July, 2006. Of the 175 appointed, 33 were women; 10 were ethnic minorities; and 4 were Solicitors. Six people were also appointed QC Honoris Causa (this is given to recognise those in the profession who have made a major contribution to, and impact on, the law of England and Wales, outside the courtroom).
Under the new dispensation, a Barrister that desires to be conferred the title of QC must have a minimum of twelve years’ experience at the Bar. The title is mostly restricted to practising Barristers, except for a few exceptional cases. A QC must also have a history of honesty, discretion and diligent dealings with both professional colleagues, their clients and also the courts.
As at 2017, there were about 17,000 Barristers in England and Wales, of which approximately 10% were QCs. Can we say this of Nigeria, or anything near it?
IRELAND AND SENIOR COUNSEL
The Irish Free State came into existence in December, 1922, as a dominion within the British Commonwealth of Nations. Shortly after the Courts of Justice Act, 1924, came into effect, Chief Justice Hugh Kennedy, in conjunction with the Bar Council of Ireland, revived the issue of patents of precedence, which had been used in the 18th and 19th Century as an alternative to a patent as KC. Under the Free State patent wording, the recipient would be styled “Senior Counsel” (SC). According to the view held at the time, the “privilege of patent” was part of the royal prerogative within the Free State.
Of about 2,300 Barristers registered with the Bar Council of Ireland, about 325 (well above 10%) are SCs. On 1st September, 2020, the cabinet approved the first batch of 37 recommendations of the LSRA Advisory Committee. These were appointed Senior Counsel the following day, including the first 17 Solicitors. The wording “approved the first batch of 37 recommendations of the LSRA advisory committee” signifies that every recipient recommended by the LSRA advisory committee were approved.
QCs IN CANADA
In Canada, the honorary title of Queen’s Counsel (QC), is used to recognize Canadian lawyers for exceptional merit and contribution to the legal profession. Queen’s Counsel appointments are formally made by the provincial Lieutenant-Governor from members of the Bar of the relevant province, on the recommendation of the provincial Attorney General.
The practice of making Queen’s Counsel appointments is not consistent across Canada, and the eligibility criteria vary. Reforms have attempted to depoliticize the award, making it a recognition of merit and community service. Committees composed of representatives of the Bench and the Bar screen candidates and advise the relevant Attorney General on appointments.
Nationally, the Canadian government discontinued Federal Queen’s Counsel appointments in 1993, but resumed the practice provincially in 2013. In 2015 alone, 102 lawyers were given their silks, joining the ranks of the Queen’s Counsel — a centuries-old tradition that honours outstanding legal careers and is still carried out by many provinces, as well as the federal government. Nigeria’s Gbenga Shoyole, QC (my classmate at Ife) and Dr Foluke Oyedeji-Laosebikan, QC, are some outstanding Nigerian lawyers conferred with the rank of QCs (SAN) in faraway Canada.
DO WE REALLY HAVE A GLUT OF SANS IN NIGERIA?
The rank of SAN is a pedigree intended to engender expectations of excellence, not only in advocacy, but also advisory legal services. Its rarity therefore makes it a most-sought-after rank in the legal profession. Since its inception in 1975 (aside 1976, 1977 and 1994 when there were no conferments), the LPPC has conferred only 616 candidates with the prestigious rank of SAN. Of course, this rarity could be seen as an attempt to protect and preserve the uniqueness and prestige of the rank of SAN. However, on the other side of the coin, it can be viewed as a deliberate circumscription and denial of qualified candidates of the prestigious rank. This denial of deserving ones is what my thesis has been all about.
The clear and obvious answer to the question of whether we have a glut of SANs in Nigeria is NO. The number of legal practitioners that have so far been conferred the rank of SAN since the inception of the LPPC is just 616. This is certainly miniscule compared with Nigeria’s population of over 212.6 million. Of course, this automictically means that the number of practising SANs are even not enough because the ratio of practising legal practitioners and practising SANs is quite disproportionate. Let us do some arithmetic and data analysis here.
CONCLUSION
THE NUMBER OF QUALIFIED APPLICANTS ELEVATED ARE TOO FEW
Although the number of advocates called to the Inner Bar in one year significantly increased to 72 in November, 2020, this figure is still quite insignificant when compared with the hundreds of qualified legal practitioners that apply for the honour every year; or when compared to those appointed annually as QCs in England and Wales; or/and other parts of the world. It seems to me to amount to injustice when candidates who apply are deemed qualified, after passing through the needle’s eye by going through all the various rigorous filtration processes; yet denied the SAN rank for several subterranean reasons, other than merit. People from humble backgrounds like me who do not have these god-fathers, long societal reach and connections would forever be denied being made SAN. God forbid! I hereby humbly call for wholesome DEMOCRATISATION of the SAN space in Nigeria.
THE TALE OF 197,000 LAWYERS AND 616 SANS!
What is beyond dispute is the fact that over 197,000 law school graduates have passed through the Nigerian Law School to become legal practitioners. But, only 616 have made it to become SANs. This means that Nigeria has only conferred a 0.31% of legal practitioners with the rank of SAN. The glaring statistics of 0.31% SANs out of the overwhelming pool of qualified legal practitioners is a dismal and saddening outing. Compare this with that of 10% OF 17,000 Barristers in England made QCs, and you would weep.
HOW MANY SANS REALLY PRACTISE IN COURTS?
Of the 616 legal practitioners so far conferred with the prestigious rank of SANs since 1975, a great number of them have since peacefully departed this world to go and join their Creator. Many are teachers in our universities, and who never really advocate in courts of law. Many others are no longer engaged in active legal practice for age or health-related reasons. Till date, there are still some states in Nigeria that do not have a single RESIDENT SAN, let alone LGAs. Ekiti State, as educated as its indigenes are, produced the first RESIDENT SAN only in 2020, in the person of Chief Obafemi Adewale, SAN, a former General Secretary of the NBA. This is not good enough. Let the LPPC open up new vistas and broaden the frontiers of the award of SAN; and accord the silk to all those who are deserving and have been adjudged eminently qualified with distinction by the LPPC itself, without any known pending petitions and cases bordering on professional misconduct or infamous conduct. The heavens will not fall. There is no pond of SANs in Nigeria, let alone a floodgate or torrent of SANs. The sky is large enough for all the birds to fly. LET US REFORM THE RANK NOW BEFORE THE RANK RANKLES US TO OUR ANKLES. I beg to respectfully submit.
SERIOUS AND TRIVIAL
“Pastor wey promise say Nigeria go better don run go Canada last week. Trust no man”.
THOUGHT FOR THE WEEK
“Let us realize that: the privilege to work is a gift, the power to work is a blessing, the love of work is success!” (David O. McKay).
