Are lawyer’s document without NBA seal incompetent or irregular?
By: Hameed Ajibola Jimoh Esq.
WHO IS STILL ARGUING THAT A LAWYER’S DOCUMENT PREPARED FOR HIS CLIENT WITHOUT AFFIXING THE NBA SEAL IS INCOMPETENT/IRREGULAR?!
It remains a great surprise to me to still find some opinions against the validity and or legality of the recently amended Rules of Professional Conducts for Legal Practitioners, 2020-herein after referred to as RPC, 2020 (which seeks to amend the 2007’s Rules of Professional Conducts for Legal Practitioners-herein after referred to as the 2007 RPC), which was made by the Chairman of the Bar Council- the Chairman of the Bar Council being the Honourable, the Attorney-General of the Federation the 2007’s Rules of Professional Conducts for Legal Practitioners-herein after referred to as the 2007 RPC).!Quite more surprising it is to me that many if not all of these persons who form these opinions are legal practitioners, with due respect to them! The argument among other arguments is that the Chairman of the Bar Council lacks the statutory powers to make any such amendment without the resolution of the Bar Council in that regard since the Legal Practitioners’ Act, 2004 has only conferred powers of rules of professional conducts on the Bar Council. It was also the argument that there is no RPC except the 2007’s RPC (despite the facts that the amended 2020’s RPC has been gazette)! Some if not all of these lawyers have called for a disregard of the said RPC 2020! These lawyers (with due respect to them)have refused, rejected and or neglected to approach a court of law to challenge the RPC, 2020, being criticized for reasons best known to them! It is a great surprise to me that these arguments still continue till date despite that none of the critics have applied to a court of law to set aside this RPC, 2020, hence, this paper to express how surprised I have been when I hear and or see some of these lawyers challenging a law such as the RPC, 2020, verbally and calling for a disregard of such subsidiary law which enjoys the presumption of genuineness under our Evidence Act, 2011, without applying to a court of law to set aside the said law being challenged! This paper begs to defer on the submission of those lawyers, with due respect to them that the 2020’s amendment (which has not been set aside by a competent court of law) is illegal and should be disregarded and or discountenanced and that only the 2007’s RPC is valid and legal (despite the fact that the same power that ushered in the 2007’s RPC is the same power that has ushered in the 2020’s RPC)! This paper further advises these lawyers to take prompt step in a court of law by applying to set aside the said law with no waste of time, else, until them, the said RPC 2020, remains presumed valid and legally made and all other issues surrounding it that are being raised by the critics remain internal issues!
The gazette purportedly amending the 2007’s RPC is marked S.I N0.15 of 2020 issued by AGF and dated September 3, 2020, which reads in part, “In exercise of the powers conferred on me by section 12(4) of the Legal Practitioners Act Cap L11, LFN 2004 and of all other powers enabling me in that behalf, I, Abubakar Malami, SAN, Attorney General of the Federation and Minister of Justice and President, General Council of the Bar, make the following rules: “The Rules of Professional Conduct for Legal Practitioners, 2007 is amended by deleting the following rules, namely: 9(2), 10, 11, 12 and 13. “These rules may be cited as the Rules of Professional Conduct for Legal Practitioners (Amendment) Rules, 2020.”
First and foremost, it is my humble submission that since the 2020’s amended RPC has been gazetted, it enjoys the presumption of genuineness of law as a subsidiary legislation made pursuant to the Legal Practitioners Act until it is set aside by a competent court of law. More so, a court of law is an umpire and would not require any proof of invalidity unless such issue is made as a suit or complain before it to adjudicate, else, the court and of course the law would assume that all is well with the amended 2020’s RPC! It must also be borne in mind by those who wish to oppose the 2020’s amended RPC while upholding the 2007’s RPC, with due respect to them, that one cannot eat his cake and still have it and no one can be heard and or allowed to blow hot and cold at the same time as the defect being complained of against the 2020’s RPC is likely to extend to the 2007’s RPC thereby having the tendency of annulling the 2007’s RPC and thereby collapsing both the 2020’s RPC and the 2007’s RPC! If I am to recommend, I shall humbly recommend a new RPC properly made in good conscience while discarding the 2020’s amended RPC and the 2007’s RPC or any other RPC somewhere in existence.
Furthermore, by virtue of section 148(1)(a) of the Evidence Act, 2011, it is provided thus ‘148. The Court shall presume the genuineness of every document purporting to be- (a) the Official Gazette of Nigeria or of a State:’. Furthermore, in the case of ONWUKA v. OKOLI & ORS (2017) LPELR-43957(CA) the meaning of a “gazette” was defined by the Court thus “Gazette simply means a journal or newspaper, especially an official one for an organization or institution. The Wikipedia defines gazette as an ‘authoritative report or guide that informs readers concisely about a complex issue and presents the issuing body’s philosophy on the matter.’ It is meant to help readers understand an issue, solve a problem, or make a decision.” Per MUKHTAR, J.C.A. (Pp. 16-17, Paras. E-A). Also, in the case of OGUNDIPE v. THE MINISTER OF FCT & ORS. (2014) LPELR-22771(CA, the meaning of a “gazette” was defined thus “A gazette is an official publication of the Federal Government of Nigeria or a State in which the official acts of the government e.g. appointments, notices and other legal matters are reported.” Per ADUMEIN,J.C.A. (P.54,paras.C-D). Furthermore, in the case of N.E.C v Wodi (1989) 2 NWLR (Pt.104) Pg444 at 454 Para. B, the Court had to decide on the Presumption of official gazette and it was held as follows ‘Again, under section 112 now 113 of the Evidence Act, all notifications, appointments and other official communications of the Government of the Federation and of a State which appear in the Official Gazette of the Federation and of a State may be proved by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to convey. Per Kolawole, JCA. In this same case law (i.e. N.E.C v Wodi (supra) at Pg 444 at 454 Para. A, the court held on whether official gazette need to be produced from proper custody before it can be presumed genuine thus ‘It has been held that under section 115 now 116 of the Evidence Act, official Gazette of the Federation and of a State do not have to be produced from proper custody before they can be presumed genuine. Per Kolawole, JCA. Also, in the case of: Imade v. Mil. Admin., Edo State (2001) 6 NWLR (Pt 709) pg. 491, para F; pg. 493, para. C the Honourable Court had to decide on the presumption as to Gazette and held thus ‘On the use and validity/ admissibility of an official gazette. It is trite that an official gazette is the main vehicle of communicating Acts of both the Federal and State governments. Official Gazettes are published weekly. All other gazettes which are not published weekly are called extra-ordinary gazettes which are used to announce Acts, proclamations or other actions of government of an urgent nature. Ignorance of the contents of a gazette is no excuse.(Per Ibiyeye. J.C.A.) A gazette is the strongest weapon available to government to revoke a licence issued by the same government and any such revocation which is bona fide, is valid and final. A court of law has not the jurisdiction to question the legality of such revocation in the gazette.(Per Tobi, J.C.A). Furthermore, in the case of OUR LINE LTD v. SCC NIGERIA LTD & ORS. (2009) LPELR-2833(SC), the apex Court had to decide on the meaning of “Official Gazettes”; how it is proved and when it takes effect; whether notice made by gazette is conclusive and its evidential value held thus “Official Gazettes are a class of official documents which Section 113(a)(i) of the Evidence Act CAP 112 of the Laws of the Federation of Nigeria 1990, made provision for as part of the provisions made for documentary evidence under the Act. The Section states – The following public documents may be proved as follows: (a) Acts of the National Assembly or laws of a State legislature, proclamations, treaties or other acts of State, Orders, notifications, nominations appointments and other official communications of the Government of Nigeria or of any State thereof or of any Local Government – (i) Which appears in the Federal Gazette or the Gazette of a State, by production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify: (ii) ……………. (iii) …………… (iv) …………… A Gazette therefore serves as official communication of the Government of Nigeria or of any State thereof or of any Local Government. As documentary evidence, the contents of a Gazette, as stated in the law, is prima facie proof of any fact of a public nature, which the Gazette is intended to notify. The subject to be tested for credibility, weight or cogency to determine its acceptability. In this respect, the weight to be attached to a document, like the Official Gazette in the present case, is a matter of inference to be drawn from established facts and in this regard both the trial Court and the Appellate Court are in the same position when the question involved, is the proper weight to be attached to the document. See Attorney General, Oyo State v. FairlakesHotels Limited (1989) 5 N.W.L.R. (pt. 121) 255 at 282 – 283; Ayeni v. Dada (1978) 3 S.C. 35 at 61 and Akinola v. Oluwo (1962) 1 All N.L.R. 224; (1962) 1 S.C.N.L.R. 352.” Per MAHMUD MOHAMMED, J.S.C (Pp. 28-30, paras. G-B). Finally on this proposition of the presumption of the genuineness of a gazette, in the of NEC & ORS. v. WODI (supra) held on the ADMISSIBILITY OF A GAZETTE : Whether the content of an official gazette can be admitted in evidence thus “For the purpose of complying with section 112(1)(a) of the Evidence Act, it is enough for the Gazette to be brought forth simply without a witness producing the Gazette and testifying under the sanctity of an oath. The Supreme Court has laid it down that – “It is perhaps just as well to point out here that since Notice 1258 in the October Gazette dealt with facts of a public nature and of which it was the intention of the Government to notify the public, once the document (i.e. the October Gazette containing the notice) was produced before a court – whether of first instance or appellate grade – then unless the contents of that notice are irrelevant to the matter in issue that court, having the document before it, ought to take account of it and, if need be, admit it in evidence under sections 115 (limb A) and 112(1)(a) of the Evidence Act.” The Supreme Court further observed as follows:- “Following the above principles of the law of evidence we think that their Lordships of the Court of Appeal ought to have admitted the document (the October Gazette) in evidence or, at least, looked at and regarded it as evidence and, in refusing to do so, we consider that they erred in law. In exercise of our general powers under section 22 of the Supreme Court Act and in keeping with the above principles of the law of evidence we not only looked at but also admitted in evidence (neither counsel at the hearing of the appeal objecting) the document (the October Gazette) as exhibit SC (1)”. (See Ogbunyiya and others v. Okudo and others (1979) 3 L.R.N. 318, 322, 324, 325.)” Per KOLAWOLE, J.C.A. (Pp. 15-16, paras. F-F).
Furthermore, in my humble submission, if to strictly apply the law, it would be wrong and having the effect of rendering any court process or document filed while affixing any seal or purported approved NBA seal without any law in support of such act! This is more so because there is no foundation for affixing any seal on any such process as such legal requirement has been repealed and or cancelled! The word ‘cancelled’ used in the RPC 2020, has been carefully used which according to the online Merriam Webster Dictionary, means among other meanings, ‘to destroy the force, effectiveness, or validity of: ANNUL’. That is why it surprises me why the NBA (with due respect) is playing the game of calling members of the NBA to continue to apply for NBA seal and I ask “WHY?’! NBA as a professional association of lawyers must be seen to promote the rule of law and not rule by force or rule by whims! This is important for me to say because for NBA to continue to approve seal and urge members to disregard the RPC, 2020, when same has not been set aside by a court of law or repealed by the authorized authority is to say the least a sort of ‘illegal rascality’! Where did the NBA (a private professional organization) derive such powers and or authority from?! I dare ask! One cannot really place something on nothing and expect it to stand! Such directive to members of the NBA to disregard the RPC, 2020, and to continue to apply and use the approved seal where the law (which created the foundation for such use of the seal) has been presumed destroyed by the RPC, 2020, is unlawful and an act of illegality! Therefore, it is my humble submission that since the RPC, 2020 has been made and enjoys the presumption of genuineness and or validity, any court process or “Legal documents” including pleadings, affidavits, depositions, applications, instruments, agreements, deed letters, memoranda, report, legal opinions or any similar documents filed after the coming into force of the RPC 2020 without affixing NBA seal is valid and must be held to be competent and regular and any such document filed affixing the NBA seal remains (legally) incompetent, irregular (though, it may be regarded as irregularity by the court curable by removing such seal on the original copy of the seal) since there is no foundation in law for such act of affixing the seal and since no seal is recognised any more by the same law under which the seal was made to exist! Also, I humbly submit that the provision of Order 2 Rule 9 of the High Court of Federal Capital Territory-Abuja, 2018, which provides that court processes in the court must bear the approved NBA seal has been overtaken by the event of the RPC, 2020, which is a specific and a later law on the subject! More so, no law confers the power to make laws binding lawyers in their professional capacity on the Honourable the Chief Judge of the High Court of FCT, since the practice of the law and the legal practitioners’ matters are statutory contained in the Exclusive Legislative List, so, there must be a statutory delegated authority on the Honourable the Chief Judge to act, else, His Lordship’s acting in that respect (with due respect) is ultra vires of His Lordship’s powers as the Legal Practitioners Act (a Federal statute) has never conferred such law making for legal practitioners on His Lordship, rather, what the Attorney General of the Federation and Minister of Justice and President, General Council of the Bar has made becomes the law and overrides any provision contained in any other law or judicial precedents made prior to the amendment!
Furthermore, I must say here that if the NBA should continue to call for a disregard of this RPC 2020, whereas the said law has not been either canceled or set aside by the court of law or by the Attorney General of the Federation and Minister of Justice and President, General Council of the Bar, then, what NBA is doing is calling for illegality and setting a bad precedent (which also misleads members of the association who are professionals), the act which I urged the NBA to desist from! Therefore, NBA must stop issuing and calling for application for an approved NBA seal relying on RPC as this would be misleading the unsuspecting members! I must also state here that I am not making my submissions as a friend of the Honourable the Attorney-General of the Federation in any way rather, as a lawyer and a human and socio-economic rights activist that believe in doing the right thing in the right way and for the need to avoid some persons to mislead others thereby leading to anarchy and lawlessness!
Finally, it is my humble submission that since the RPC, 2020 has been made and enjoys the presumption of genuineness and or validity, any court process or “Legal documents” including pleadings, affidavits, depositions, applications, instruments, agreements, deed letters, memoranda, report, legal opinions or any similar documents filed without affixing NBA seal is valid and must be held to be competent and regular and any such document filed affixing the NBA seal remains (legally) incompetent, irregular (though, it may be regarded as irregularity by the court curable by removing such seal on the original copy of the seal) since there is no foundation in law for such act of affixing the seal and since no seal is recognised any more by the same law under which the seal was made to exist! Also, NBA is humbly advised to stop issuing and calling for application for an approved NBA seal relying on RPC as this would be misleading the unsuspecting members and trading on illegality in contravention of its Constitution of the Association to promote the rule of law! I wish this wise counsel would guide all and sundry!
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