Can the LPPC Sanction Senior Advocates of Nigeria?
The rank of Senior Advocate of Nigeria (SAN) is awarded by the Legal Practitioners Privileges Committee (LPPC) to a legal practitioner with a minimum of 10 years post-call experience who is deemed to have achieved distinction in the profession. It is a privilege. The Committee is 15-strong, made up of the Chief Justice (the Chairman); one Justice of the Supreme Court; the Attorney-General of the Federation; the President of the Court of Appeal; five Chief Judges of the States; the Chief Judge of the Federal High Court and five Legal Practitioners who are Senior Advocates of Nigeria (See Section 5(2) & (3) of the Legal Practitioners Act).
Powers of the LPPC
Section 5(7) of the LPA empowers the LPPC, with the approval of the Body of Benchers (a version of the Act says the National Council of Ministers) “to make rules as to the privileges to be accorded to Senior Advocates of Nigeria, as to the functions of a legal practitioners which are not to be performed by a Senior Advocate, as to the mode of appearance before courts by a Senior Advocate and generally, but without prejudice to the foregoing, for ensuring the dignity of the rank of Senior Advocate of Nigeria”.
Pursuant to this provision, the LPPC has, over the years enacted at least 4 Guidelines for the conferment of the rank – in 2011, 2013, 2016 and, the latest, in 2018. All of them, without exception, bore the imprimatur of only one member of the LPPC – its Chairman, the Honourable Chief Justice of Nigeria. This is crucial, as we shall soon see.
Critique of the Guidelines
It will be recalled that the Guidelines were made pursuant to powers conferred under Section 5(7) of the LPA. This makes them a subsidiary instrument within the meaning of the Interpretation Act. By virtue of Section 27(2) of the Act, “where a body established by an enactment comprises three or more persons and is empowered to make subsidiary instruments, any such instrument may be executed under the hand of any two of the members thereof, as may be authorized by such body generally for that purpose or specially on any particular occasion”.
To the extent that only the Chairman – out of the 15-odd members of the LPPC – signed all the known Guidelines as aforesaid, it is clear that they stand imperiled by virtue of this provision of the Interpretation Act. In making this submission, I concede that the Act uses the word ‘may’ in relation to the mandate which it prescribes for the authentication of the Guidelines. This, prima facie, suggests a permissive – as opposed to an imperative – mandate. It is, however, trite law that it is not in all circumstances that that is necessarily the case: in certain contexts, the word ‘may’ connotes an imperative mandate. See AMASIKE vs. REG – GEN. OF C. A. C (2010) All FWLR pt.541 pg. 1406 @ 1488G, SC
I believe that the latter is the case in this context, i.e., the word ‘may’ used in Section 5(7) of the LPA in relation to the rule-making (or Guideline-enacting) powers of the LPPC, imposes an obligation that such Guidelines should bear the imprimatur of at least two members of the LPPC.
Beyond the foregoing, however, even more disturbing, in my opinion, is the so-called “disciplinary jurisdiction” which the latest Guidelines issued by the LPPC – those of 2018 – purport to confer on it. This is contained in Paragraph 25 thereof, which, for purposes of clarity, is as follows: “The Legal Practitioners Privileges Committee in the exercise of its disciplinary jurisdiction shall have the power to impose any or more or collectively the following sanctions on any legal practitioner holding the rank, namely:
- Withdrawal of the rank of Senior Advocate of Nigeria;
- Suspension of the rank for a period of not less than six months;
- Issuance of letter of reprimand;
- Payment of costs; and
(2) The Legal Practitioners Privileges Committee shall have the powers to take further appropriate steps or sanctions in carrying out any disciplinary actions against any Senior Advocate of Nigeria.”
The foregoing is amplified by Paragraph 26(1) of the said Guidelines which provides as follows, inter alia:
“The Legal Practitioners Privileges Committee shall have the power to withdraw the rank from any person holding the rank of Senior Advocate of Nigeria, if in the opinion of the Committee, such person is: (c) “convicted by a court of law for any offence which in the opinion of the LPPC is incompatible with the honour and dignity of the holder of the rank such as an offence relating to breach of trust, theft or other criminal offences.”
I believe these provisions are anomalous for a number of reasons. First of all, by virtue of Section 10 of the LPA, only the Legal Practitioners Disciplinary Committee is competent “to consider and determine any case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be subject of proceedings under this Act.” The LPDC consists of 49 members – made up of the Attorney-General of the Federation (its Chair), the Attorney-Generals of the 36 States of the Federation and 12 legal practitioners of not less than ten years’ standing appointed by the Body of Benchers on the nomination of the Nigerian Bar Association. See Section 10(2) of the LPA.
These provisions of Section 10(1) of the LPA are explicit and unambiguous: the LPDC possesses the exclusive power to consider and determine any case where it is alleged either that a legal practitioner has misbehaved in that capacity or, that for any other reason, he or she should be the subject of disciplinary proceedings under the LPA. I believe these provisions, given their natural grammatical construction, include Senior Advocates of Nigeria – who, after all, are legal practitioners first and foremost. I believe that to suggest otherwise would be to recognize two sets of regimes for the purposes of disciplinary proceedings against legal practitioners – one for ‘ordinary’ lawyers and the other for Senior Advocates. This would be patently inconsistent with the express language of Section 10 of the LPA.
This is all the more so, because whilst the former (i.e., the one for non-SANs) is contained in a principal, enabling statute, the other, i.e., for SANs, is expressed as a subsidiary instrument – the LPPC Guidelines, as aforesaid. It is trite law that a subsidiary legislation derives force from the principal, enabling statute. In OLANREWAJU vs. OYEYEMI (2001) 2 NWLR pt. 696 pg. 229 @ 255, the Court of Appeal held that “A subsidiary legislation cannot expand or curtail a substantive statute. It must be within the authority derived in the main, enabling statute”. The same court held in KENNEDY vs. I.N.E.C. (2009) 1 NWLR pt. 1123 pg. 614 @ 642D, that “A subsidiary legislation cannot contradict or override the principal legislation”.
I submit that the anomaly between the disciplinary remit of the LPDC under the LPA and that of the LPPC under the Guidelines are more real than imagined. This is because, to give just one example, whilst the Guidelines empower the LPPC to withdraw the rank upon mere report of the conviction of an awardee, under Section 11(5) of the LPA, a counsel will not be treated as convicted, “unless the conviction stands at a time when no appeal or further appeal is pending or may (without extension of time) be brought in connection with the conviction.”
The difference is obvious. Suffice it to say that to the extent that the LPA confers the LPDC with the exclusive power of exercising disciplinary control over ALL lawyers in Nigeria, the principle of expressio unius est exclusio alterius applies to invalidate a similar power conferred on the LPPC over Senior Advocates under the said Guidelines. “It is trite that where a statute mentions specific things, those things not mentioned are not intended to be included”: P.C.H.S. LTD vs. MIGFO NIG. LTD. (2012) All FWLR pt. 642 pg. 1615 @ 1643D, S.C.
The mere fact that the LPPC awards the rank of SAN no more authorizes it to sanction silks than the fact that the Council of Legal Education admits Counsel to the Bar authorizes it to discipline them: both are obviously suggestio falsi. Only the LPDC is competent to sanction or discipline Senior Advocates either in terms of the relevant Guidelines or otherwise; those Guidelines are ultra vires the LPPC – even assuming, without conceding, that they are structurally valid, in terms of their authentication, as aforesaid.
The situation would have been different if, like the LPDC, the disciplinary powers of the LPPC over SANs were spelt out within the LPA itself. In that case, the maxim, specialibus generalia derogant (special things derogate from general things) would have applied to validate the Guidelines.
Abubakar D. Sani, Esq.