By: Kola’ Awodein S.A.N , FCTI , FICIArb. , and Ikenna Okoli S.A.N , FCIArb.
Abstract
This article critically examines the legislative and judicial complexities surrounding the Legal Practitioners Act (LPA) Cap. L11, Laws of the Federation of Nigeria 2004, and the Legal Practitioners Amendment Decree No. 21 of 1994. It interrogates the seeming/apparent inconsistencies between the two instruments and evaluates whether they can be harmonised, particularly in the light of the Supreme Court’s decisions in Akintokun v LPDC[1] and Nwalutu v NBA & Anor[2]. The paper highlights the jurisprudential uncertainty created by these decisions, noting that while Akintokun[3] ousted the Supreme Court’s jurisdiction over appeals from the Legal Practitioners Disciplinary Committee (LPDC), Nwalutu[4] assumed jurisdiction without addressing the earlier precedent.
The article argues that the verbatim reenactment in the 2004 compilation of provisions that had already been repealed by Decree No. 21 was an inadvertent drafting error rather than a deliberate legislative act. It contends that the Supreme Court in Akintokun[5] failed to apply the saving clause in Section 2 of the Revised Edition (Laws of the Federation of Nigeria) Act, 2007, which would have preserved the provisions of Decree No. 21 and the jurisdiction conferred by it.
The paper further critiques the Attorney General of the Federation’s unilateral attempt to incorporate Decree No. 21 into the LPA 2004 as unconstitutional and lacking legislative authority. It concludes that the omission and reenactment of repealed provisions should be treated as inadvertent errors within the meaning of the saving clause, leaving Decree No. 21 enforceable. Finally, it welcomes legislative intervention through a pending Bill to properly incorporate Decree No. 21 into the LPA, thereby restoring clarity, preserving the Supreme Court’s jurisdiction, and strengthening the disciplinary framework of the legal profession in Nigeria.
However, it recognises that several cases will remain affected and must be resolved under the present legislative regime:hence, the imperative need for judicial clarity and certainty on the subject, notwithstanding the imminence of new legislation.
Introduction
1. The immediate impetus, or catalyst, for this article is the emphatic recommendation made by the current President of the Nigerian Bar Association, Afam Osigwe, SAN, to a publishing outfit that was updating its materials, that the version of the Legal Practitioners Act to be published is the one described as: “Laws of the Federation of Nigeria, 2004 Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (Revised Edition) [incorporating the provisions of the Legal Practitioners (Amendment) Decree No. 21 of 1994].”
2. The learned President of the Bar then referred to the decision of the Supreme Court in Nwalutu v NBA[6], quoting the holding of Justice Akaahs JSC, as follows:
“Any direction given by the Disciplinary Committee against a legal practitioner invariably is challenged at the Supreme Court, and this is the rationale for excluding the Chief Justice and Justices of the Supreme Court from being members of the Disciplinary Committee. Where any of the members listed in Section 11 (2) (b)-(e) is a complainant, he cannot take part in the disciplinary proceedings as such a member.
Learned counsel for the respondents are on firm ground when they argued that this Court never held that Decree No. 21 of 1994 was repealed in Aladejobi v Nigerian Bar Association (2013) 15 NWLR (Pt. 1376) 66 and Rotimi Williams Akintokun v Legal Practitioners Disciplinary Committee (2014) 13 NWLR (Pt. 1423)1. The issue which this Court dealt with in the two appeals was that an appeal from the direction given by the Disciplinary Committee should be lodged with the Appeal Committee of the Body of Benchers as provided under Section 12 (1) & (2) of the Legal Practitioners Act Cap. L11, Laws of the Federation of Nigeria 2004. The two decisions have in no way affected the composition of the Legal Practitioners Disciplinary Committee as currently constituted. The argument advanced by learned counsel for the appellant in paragraph 5.4 of his brief that the extant law dealing with the composition of the Disciplinary Committee of the Body of Benchers is Section 10 of the Legal Practitioners Act, CAP L11 Laws of the Federation of Nigeria 2004, which has the Attorney-General of the Federation as Chairman, is therefore not correct. The extant law which is in operation is the Legal Practitioners Act,2004(incorporating the provisions of the Legal Practitioners (Amendment) Decree No. 21, 1994) published as Supplementary to the Laws of the Federation of Nigeria, 2004. The Court of Appeal in Chief Andrew Oru v. Nigerian Bar Association & Anor (2016) All FWLR (Pt. 816) 543; (2016) 1 NWLR (Pt. 1493) 250 reached its decision per incuriam. The Honourable Committee was properly constituted and had the requisite jurisdiction when it sat and heard the complaint of professional misconduct against the appellant.”
(Underlining for emphasis)
Discussion
3. Accordingly, one of the key issues arising for discussion is whether the 1994 amendment to section 10 of the Legal Practitioners Act remains extant law, given the controversy surrounding its omission from the 2004 and 2007 Laws of the Federation of Nigeria, its subsequent inclusion by the Attorney-General through an undated and unnumbered gazette, and the conflicting decisions of the Supreme Court in Akintokun v LPDC[7] (holding that the amendment was impliedly repealed) and Nwalutu v NBA[8] (affirming its continued validity).
4. The issue to be addressed and answered here is complicated and not simple, namely, the fundamental question of, what is, the subsisting law that essentially governs the procedure of disciplining erring legal practitioners.
5. Is it the provisions of the Legal Practitioners Amendment Act (Decree No. 21) of 1994, which deals inter alia with the composition and powers of the Legal Practitioners Disciplinary Committee (LPDC) and stipulates that appeals against the direction of the LPDC must go directly to the Supreme Court or the provisions of Section 10 (7) of the Legal Practitioners Act, Cap. L11 as contained in the revised laws of the Federation 2004 (LFN 2004, which provides for a different composition of the LPDC with the Attorney General of the Federation (AGF ) as its Chairman, and also stipulates that appeals from the direction of the LPDC lie first to the Appeal Committee of the Body of Benchers?
6. It is the very provisions of LPA Cap. L11, Laws of the Federation 2004, that the Supreme Court applied in Akintokun (following its earlier decision in Aladejobi v NBA) in peremptorily declining jurisdiction to entertain the appeal filed directly to the Supreme Court from the direction of the LPDC in that case.
7. This matter is compounded by the somewhat confusing decisions, taken together, of the Supreme Court in Aladejobi v NBA, Akintokun v LPDC and Nwalutu v NBA.
8. The challenge posed by the decisions of the Supreme Court in these cases is not at all insignificant, as will be demonstrated in this article.
9. The Supreme Court in Akintokun had held that the valid, extant, and applicable legislation is the LPA Cap. L11, LFN 2004 and that the provisions of Decree No. 21 of 1994 (which it had found were inconsistent with the former) were inapplicable and of no effect.
10. Sometime thereafter in 2014, the then Attorney-General of the Federation (AGF), learned Senior Advocate, Mohammed Adoke, felt obligated to take certain steps purportedly to address what he believed was a crisis. Indeed, it was a crisis, as the decision generated considerable controversy and confusion.
11. The AGF then proceeded, of his own accord, to direct the publication and gazetting of what was styled as follows:
“Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (Revised Edition) [incorporating the provisions of the Legal Practitioners (Amendment) Decree No. 21 of 1994], published as supplementary to the Laws of the Federation of Nigeria, 2004 by the Federal Ministry of Justice, Abuja.”
12. The AGF also wrote a foreword to the said publication, which bears full reproduction hereunder to fully and fairly appreciate the background and circumstances of this matter involving all legal practitioners and the legal profession, and which remains of concern as it is still unresolved.
13. Below is the AGF’s Foreword:
“In keeping with the constitutional responsibility of my office as the Chief Law Officer of the Federation and the mandate of the Federal Ministry of Justice to ensure the legislation in the public domain are comprehensive certain and predictable, I have found it extremely imperative to harmonise the Legal Practitioners Act, Cap. L11, LFN with the Legal Practitioners (Amendment Decree, 1994, No. 21).
From all indications, the Legal Practitioners (Amendment) Decree 1994, (No. 21) was not “repealed “or “spent “but was inadvertently “omitted “and not” incorporated “into the Legal Practitioners Act, Cap. L11, LFN 2004, during the period of review, compilation and codification.
The fact that the Legal Practitioners (Amendment) Decree 1994, (No. 21) is still an “existing “law has been upheld by the Supreme Court in the case of ROTIMI WILLIAMS AKINTOKUN V LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (LPDC) (2014); SC. 111/2006 decided on Friday, the 16th day of May 2014. Usually, all subsisting to existing Acts are taken into consideration during general law review, compilation and codification. The effect is that the Legal Practitioners Act, Cap. L 11, LFN, 2004, in its present form, is incomplete. This has caused a very serious lacuna, which this revised edition is meant to cure. By virtue of Section 2 of the Revised Edition (Laws of the Federation of Nigeria) Act, 2007, “any inadvertent omission, alteration or amendment of any existing statute shall not affect the validity and applicability of the statute.”
By virtue of Section 22(1) of the Interpretation Act, Cap. 123, Laws of the Federation of Nigeria 2004 “ where an enactment is amended by the insertion or omission of words or by the substitution of words for other words then on printing the enactment at any time after the amendment takes effect, the person authorised to print the enactment shall, if so directed by the Attorney General of the Feder and print the enactment as so amended.
To this end, therefore, I have directed the Federal Government Printer to print the Legal Practitioners Act, Cap. L11, LFN, 2004, as a supplement to the Laws of the Federation of Nigeria, 2004.
In line with the provisions of Section 22 (2) of the Interpretation Act (supra), the Federal Government Printer has included special side notes as indicators of the amendment of the Principal Act.
I therefore recommend this Revised Edition of the Legal Practitioners Act CAP. L 11, LFN, 2004 to the Bar and the Bench, and indeed to all institutions and persons seeking to know the current status of the Legal Practitioners Act and to the general public for use and appropriate guidance.
SIGNED
Mohammed Bello Adoke S. A. N., CFR
Honourable Attorney General of the Federation and Minister of Justice”
14. When the then learned Attorney-General of the Federation (AGF), M. Adoke, SAN, signed off on an undated statement titled “Foreword” ,as aforementioned, in which he confirmed his direction to the Federal Government Printer to print what he described as a supplement to the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria (LFN) 2004, incorporating the Legal Practitioners Amendment Decree No. 21 of 1994, he appeared, with respect, to have acted unlawfully and in violation of the law, as he possessed no such powers under the Interpretation Act upon which he relied nor under any circumstances whatsoever.
15. In paragraph 2 of the said Foreword, the AGF stated that the Legal Practitioners Amendment Act (Decree No. 21 of 1994) was not “repealed” or “spent” but was inadvertently “omitted” and not incorporated into the Legal Practitioners Act, Cap. L11, LFN 2004, during the period of review, compilation, and codification.
16. The AGF further stated that “the fact that Decree No. 21 is still an ‘existing law’ has been upheld by the Supreme Court in the case of Rotimi Akintokun v. LPDC (2014) SC/111/2006, decided on the 16th of May 2014.” That statement to his knowledge (as he appeared as an amicus in that case) was patently false.
17. The Supreme Court, in Akintokun v LPDC, had in fact decided that the Legal Practitioners Amendment Act (Decree No. 21 of 1994) could not stand alongside the provisions of the Legal Practitioners Act, Cap. L11, LFN 2004, with which it was in conflict, and that, being an earlier statute, it had been impliedly repealed, rendered invalid, and was of no effect.
18. Notwithstanding this clear judicial pronouncement, the learned AGF still stated in the Foreword, inter alia, that Decree No. 21 of 1994 remained an existing law.
19. Indeed, by virtue of the Supreme Court’s decision in Akintokun v LPDC, the provisions of Decree No. 21 of 1994 were invalidated and could not therefore properly be described as an existing law at that time, let alone one capable of incorporation into any statute.
20. Furthermore, the provision of the Interpretation Act relied upon by the AGF to justify his purported direction, namely section 22 thereof, does not avail him, as that section addresses an entirely different scenario and cannot be pressed into service to justify the restoration of an alleged “omission” during the compilation of laws, as he sought, perhaps understandably, to do.
21. Section 22 of the Interpretation Act provides as follows:
“Where an enactment is amended by the insertion of or omission of words or by the substitution of words for other words, then on printing the enactment at any time after the enactment takes effect, the person authorised to print the enactment shall, if directed by the Attorney-General of the Federation, print the enactment as so amended.”
22. The AGF then stated incongruously and inexplicably that he had consequently “directed the Federal Government Printer to print Decree No. 21 of 1994 , as supplementary to the LPA , Laws of Nigeria, 2004”.
23. This direction by the AGF appears, with great respect and in context, to be quite surprising, apart from the fact that, however construed, it is clearly not in consonance with his powers under section 22(1) of the Interpretation Act.
24. As of 1994, when the Legal Practitioners Amendment Act, then known as Decree No. 21 of 1994, was enacted, it was duly printed. There was therefore no need or basis for the AGF, more than ten years later, to direct the Federal Government Printer to print it again. In any event, what the AGF directed to be printed was not Decree No. 21 at all, but an entirely different document, wholly outside the purview of section 22 of the Interpretation Act and unknown to law.
25. This action of the AGF in the publication and gazetting of a purported piece of legislation lacking legislative authorisation raised significant concerns among legal scholars and the public. By circumventing established legislative procedures, the act undermined the constitutional doctrine of separation of powers and set a dangerous precedent for future executive action.
26. The current Nigeria Bar Association President’s perhaps well-meaning suggestion to publish the said document called “Legal Practitioners Act Cap. L11 Laws of the Federation 2004, Revised Edition incorporating the Legal Practitioners Amendment Decree No. 21 of 1994”, which is no more than a mere executive memorandum at best, appears dead on arrival and must be resisted.
27. It is our respectful view that the action of the AGF in gazetting and causing to be printed the so called “Legal Practitioners Act, Cap L11, Laws of the Federation 2004 incorporating Decree No. 21 of 1994 constitutes a naked usurpation of the legislative power of the National Assembly in plain sight, under the dubious cover of carrying out the functions of his office under Section 22 of the Interpretation Act.
28. For the avoidance of doubt, the provisions of Section 22 of the Interpretation Act do not give the AGF such power as he regrettably, arrogated to himself and purportedly exercised here. The act of incorporation is not, and cannot be, an executive act, as the AGF did here. It is and must be a legislative act for it to have any legitimacy.
29. This misguided step has continued to cause (both within and outside the legal profession) so much confusion, furore and disruption. It has also, regrettably, led the current President of the Nigeria Bar Association, Mr Afam Osigwe S. A. N., to be persuaded to push for its publication as the authentic, extant Legal Practitioners Act.
Examining the Supreme Court’s decisions in Akintokun and Nwalutu and their impact.
30. It is now necessary to consider certain decisions of the Supreme Court itself, which appear with utmost respect, to have muddled the waters and introduced a measure of confusion as to the correct legal position on the subject under consideration.
31. The Supreme Court in Akintokun v LPDC held that the provisions of Decree No. 21 of 1994 were invalid and unenforceable in light of the subsisting provisions of the later LPA Cap. L11 LFN 2004, which were held to be in irreconcilable conflict with the provisions of Decree No. 21 and thus not applicable. But in Nwalutu v NBA, the Supreme Court applied the provisions of the very same Decree No. 21 of 1994 to decide the case before it.
32. Akintokun itself relied on an earlier case of Aladejobi v NBA[9], where the Supreme Court categorically held that an appeal does not lie directly to the Supreme Court from a direction of the LPDC but lies first to the Appeals Committee of the Body of Benchers.
What effect, therefore, does the case of Nwalutu v NBA (on which the NBA President relies) have, and how should it be properly construed?
33. The Supreme Court in Nwalutu v NBA will appear to have followed its much earlier decision in Okike v NBA[10] (though it did not refer to it) in entertaining an Appeal which was filed directly to the Supreme Court from the direction of the LPDC, though the only issue that arose was whether the LPDC itself was properly constituted in taking disciplinary proceedings against Obiajulu Nwalutu.
34. It is noteworthy that the question of whether the Supreme Court has jurisdiction to entertain an appeal directly from the direction/decision of the Legal Practitioners Disciplinary Committee (LPDC) to the Supreme Court did not appear to have been raised as a specific issue in the Nwalutu case.
35. The case dealt only with the question of whether the LPDC was properly constituted. The case was ultimately decided on that basis, with the Court holding that the LPDC was improperly constituted, as the appellant had urged. The appeal was allowed, and the LPDC’s direction suspending the appellant for five years was set aside.
36. The Supreme Court, per Kumayi Bayang Akaahs JSC, in Nwalutu v NBA, reasoned thus:
“Any direction given by the Disciplinary Committee against a legal practitioner invariably is challenged at the Supreme Court, and this is the rationale for excluding the Chief Justice and Justices of the Supreme Court from being members of the Disciplinary Committee. Where any of the members listed in Section 11 (2) (b)-(e) is a complainant, he cannot take part in the disciplinary proceedings as such a member. Learned counsel for the respondents are on firm ground when they argued that this Court never held that Decree No. 21 of 1994 was repealed in Aladejobi v. Nigerian Bar Association (2013) 15 NWLR (Pt 1376) 66 and Rotimi Williams Akintokun v. Legal Practitioners Disciplinary Committee (2014) 13 NWLR (Pt. 1423)1. The issue which this Court dealt with in the two appeals was that an appeal from the direction given by the Disciplinary Committee should be lodged with the Appeal Committee of the Body of Benchers as provided under Section 12 (1) & (2) of the Legal Practitioners Act Cap. L 11. Laws of the Federation of Nigeria 2004. The two decisions have in no way affected the composition of the Legal Practitioners Disciplinary Committee as currently constituted. The argument advanced by learned counsel for the appellant in paragraph 5.4 of his brief that the extant law dealing with the composition of the Disciplinary Committee of the Body of Benchers is Section 10 of the Legal Practitioners Act, CAP L 11 Laws of the Federation of Nigeria 2004, which has the Attorney-General of the Federation as Chairman, is therefore not correct. The extant law which is in operation is the Legal Practitioners Act 2004 (incorporating the provisions of the Legal Practitioners (Amendment) Decree No. 21, 1994) published as Supplementary to the Laws of the Federation of Nigeria, 2004. The Court of Appeal in Chief Andrew Oru v. Nigerian Bar Association & Anor (2016) All FWLR (Pt. 816) 543;(2016) 1 NWLR (Pt. 1493) 250 reached its decision per incuriam. The Honourable Committee was properly constituted and had the requisite jurisdiction when it sat and heard the complaint of professional misconduct against the appellant.”
37. This reasoning is with respect confusing and thus flawed, for the reasons stated below.
Reasons why this holding is difficult to understand or follow
38. Once His Lordship, Akaahs JSC, held in the above-quoted portion of the judgment in Nwalutu that the effect of the decisions of the Supreme Court in Aladejobi and Akintokun was that, the Supreme Court lacked jurisdiction to entertain an appeal directly from a direction of the LPDC, why did the Court not raise the issue of whether or not it has jurisdiction to entertain the Appeal in the case ( which was lodged directly from the decision of the LPDC ) suo motu and apply those decisions, since they had not been overruled, instead of proceeding to assume jurisdiction and entertain a direct appeal to the Supreme Court from the direction of the LPDC?
39. This inconsistency is clearly inexplicable and underscores the argument that the portion of the judgment of Akaahs JSC quoted by the NBA President is confusing or, at best, muddies the issue.
40. Why did His Lordship Akaahs JSC also hold , that , learned appellant Counsel was right in stating that Aladejobi and Akintokun did not state that the 1994 amendments had been repealed when in fact this is precisely what the Court apparently held, in striking out the appeals in the two cases, as incompetent, having been lodged directly to the Supreme Court from the direction/decision of the LPDC , consistent with the provisions of Decree No. 21, which Decree it held was invalid and not enforceable. ? This, of course, means that Decree No. 21 stood impliedly repealed.
41. How could His Lordship state that the submission of Counsel for the respondent that the extant law on the composition of the LPDC is Section 10 of LPA, Cap. L11, LFN 2004, which has the Attorney General of the Federation as Chairman, is not correct, when that is precisely what the Section provides?
42. How could His Lordship after referring to the Supreme Court cases of Aladejobi and Akintokun, (without disagreeing with the decisions) which undeniably were decided on the basis that the Legal Practitioners Amendment Decree No. 21 of 1994 (Decree No. 21) had ceased to have effect, justifiably proceed, in the same breath, to agree with learned counsel for the appellant that the extant law is “ the Legal Practitioners Act, Cap. L11, LFN 2004, incorporating the provisions of the Legal Practitioners Amendment Decree No. 21 of 1994?” This is more so when, as at the relevant time there is, in fact and in law no such legislation as described in existence anywhere?
43. The danger posed by the reasoning in Nwalutu, especially the failure to expressly and clearly overrule Akintokun and Aladejobi (with which it can be rightly argued it is in conflict, is that a different panel of the Supreme Court, can prefer and apply Akintokun, having regard to the divergent findings of the two cases as to what is the extant law on the subject and particularly because to all intents and purposes, the Legal Practitioners Act, Cap. L11, LFN 2004, incorporating the provisions of the Legal Practitioners Amendment Decree No. 21 of 1994, is entirely not a legislation at all .
Summary of the decisions in Akintokun and Nwalutu
44. The Supreme Court in Akintokun[11] held that the extant law on the subject is the Legal Practitioners Act, Cap. L 11 Laws of the Federation of Nigeria, as duly approved by the National Assembly by virtue of the Revised Edition (Laws of the Federation of Nigeria) Act, 2007.
45. The Supreme Court in Akintokun also held that the Legal Practitioners Amendment Decree No. 21 stood impliedly repealed as of 2004 when the Legal Practitioners Act. Cap. L11 LFN was enacted.
46. However, in Nwalutu[12], the Supreme Court held that the extant law on the subject is the Legal Practitioners Act, Cap. L11,Laws of the Federation 2004, incorporating the Legal Practitioners Amendment Decree No. 21 of 1994, published as Supplementary to the Laws of the Federation 2024.
47. Nwalutu apparently implied that the Legal Practitioners Amendment Decree No. 21 is alive and well.
48. So, on the very pertinent, important, significant, and topical question of what the valid and extant law on the subject is, the Supreme Court has offered different views.
49. The question, therefore, is: What, in the light of these seemingly irreconcilable positions of the Supreme Court, is the applicable and operative Legal Practitioners legislation?
Resolving the Challenge
50. It is important to note that a full Court of seven members, including the present Chief Justice of Nigeria (CJN), sat and decided the case of Akintokun v LPDC. In that case, the Supreme Court extensively reviewed the relevant laws and concluded that Decree No. 21 was unenforceable and had been impliedly repealed. A careful examination of the case shows that the decision was not taken lightly.
51. The Court was not persuaded by the arguments of all the counsel that the provisions of Decree No. 21 were inadvertently omitted in the enactment of the Legal Practitioners Act, Cap. L 11, LFN 2004, and that in that circumstance it should be given its full effect. Doing so, they argued, will preserve the provision stating that appeals from the LPDC should go to the Supreme Court, thereby empowering the Supreme Court to entertain the appeal and to overrule the preliminary objection challenging its jurisdiction.
52. The Supreme Court in Akintokun further held that the aforementioned Legal Practitioners Act, Cap. L11, LFN which had been approved by the National Assembly by the Revised Edition ( Laws of the Federation of Nigeria ) Act 2007 (Revised Edition 2007) and took effect in May 2007,had on the state of judicial authorities rendered the provisions of Decree No. 21 of 1994 unenforceable as the provisions under the two legislations are repugnant to each other and could not stand meaningfully together.
53. The Supreme Court therefore held that it had no jurisdiction to entertain Akintokun’s appeal as his appeal against the direction of the LDPC ought to go to the Appeal Committee of the Body of Benchers as provided in LPA, Cap. L11, LFN 2004.
54. On its face, this reasoning appears logical and difficult to fault. But we would submit, with respect that the Supreme Court, as will be shown below, is arguably wrong.
How the Supreme Court got it wrong in Akintokun[13]‘s case
55. In the authors’ respectful view, the position adopted and the decision reached by the Supreme Court in Akintokun may be attributable to the fact that the most compelling interpretative arguments were, regrettably, not fully canvassed before the Court by the learned counsel who appeared in the matter. Equally, and with the utmost respect, the Court may not have had the benefit of a comprehensive engagement with the interpretive difficulty presented by the case, particularly given that it raised a fundamental and far-reaching jurisdictional question concerning the regulation and discipline of legal practitioners. This is notwithstanding the eminence of the Justices who constituted the panel: Mahmud Mohammed, Ibrahim Tanko Muhammad, John Afolabi Fabiyi, Suleiman Galadima, Mary Ukaego Peter-Odili, Musa Dattijo Muhammad, JJSC, and Kekere-Ekun JSC (now CJN).
56. Rather than limit itself to the consideration of just the belaboured obvious point that there was an inadvertent omission, in discounting the provisions of Decree No. 21 in respect of the Legal Practitioners Act, Cap. L11, LFN 2004, in relation, in particular , to the question of where appeals should lie from the direction of the LPDC, learned Senior Counsel, with respect, should have, in the circumstances, adopted a different approach and perhaps a more compelling argument, especially in the face of the inconsistencies between the provisions of the two pieces of legislation.
57. The argument that they all wholly advanced – that the relevant provision of the 1994 amendment stipulating that appeals should lie to the Supreme Court, which on its face appears inconsistent with section 12(1) of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria 2004 (which provides that appeals lie to the Appeal Committee of the Body of Benchers), was merely omitted and should therefore be enforced – appears illogical upon close examination. Mere reliance on the fact of an omission, without more, raises a fundamental question: how can effect be given, simultaneously and fully, to the provisions of the omitted Decree No. 21 and those of the Legal Practitioners Act, LFN 2004, with which the former is irreconcilably inconsistent?
58. It may have been a different matter, it seems to us, if the omitted provisions of Decree No. 21 of 1994 were not as it occurred here, inconsistent with the provisions of the Legal Practitioners Act LFN 2004.
59. Thus, the challenge of the Supreme Court was how to give effect to inconsistent provisions of two laws. It understandably concluded that it could not legally and validly do so. The provisions of the latter law must be regarded as having impliedly repealed the provisions of the earlier Decree No. 21 of 1994. with which it was inconsistent.
60. The Counsels’ argument and the Supreme Court’s view of the matter, it is submitted, should clearly have been different.
61. That there is an inconsistency between the provisions of the Legal Practitioners Act, Cap. L11, LFN 2004 and the Legal Practitioners Amendment Decree No. 21 of 1994 on the question of where an appeal lies from the direction of the LPDC, is not in doubt.
62. The failure by the Supreme Court, in exercising its interpretative Jurisdiction to properly construe and apply the relevant provisions of the applicable laws to address the challenge in this case, led to its erroneous decision to decline jurisdiction in Akintokun’s case, we would argue.
63. It was also , we would argue , the failure of Counsel, to address this apparent inconsistency and its impact, and deemphasise the argument relating to the admittedly obvious “omission of Decree No. 21“ by all learned Counsel, was perhaps why the Supreme Court thoughtfully dismissed Counsel’s contention, taking the position, that in the light of the aforementioned inconsistency, the relevant provisions of the earlier in time Decree No. 21 of 1994 stipulating that appeals go to the Supreme Court, could not stand with the applicable provision of the Legal Practitioners Act Cap. L11, LFN 2004, stipulating that appeals lie to the Appeals Committee of the Body of Benchers.
64. It is submitted with respect that, properly understood, the matter was not merely a case of an omission; it was more than that.
65. What has happened might have answered that description of an omission which should just be restored and enforced, except that the relevant provisions of the Cap. L11 under consideration here conflicted with the provisions of Decree No. 21 of 1994, both as to the question of where an appeal lies from the direction of the LPDC, as well as the composition of the LPDC itself. And it was this challenge that gave the eminent Justices of the Court in Akintokun much anxiety , as reflected in the lead judgment, which lamented their helplessness in the circumstance.
66. In one instance, Tanko Mohammed JSC, in his lead judgment, stated as follows at page 87 of the Report, thus:
“…On matters of initiating an appeal from the LPDC, Decree No. 21 of 1994 conferred the right of appeal on any person to whom such a direction relates, direct to the Supreme Court. Section 12 of Cap. L11 2004 LFN establishes or RE-ENACTS an Appeal Committee of the Body of Benchers. It provides: there shall be a committee to be known as the Appeal committee of the body of benchers (in this Act referred to as “The Appeal Committee“, which shall be charged with the duty of hearing appeals from any direction given by the Disciplinary Committee. Subsection (5 ) thereof provides as follows: ( 5) The person to whom such a direction relates may, at any time within 28 days from the date of service on him of the Notice of the direction, appeal against the direction to the Supreme Court, and the Appeal Committee may appear as respondent to the appeal and, for the purpose of enabling directions to be given by the Supreme Court as to cost of the appeal before that Court and of proceedings before the Disciplinary Committee, the Appeal Committee shall be deemed to be party to the appeal before the Supreme Court whether or not it appears on the hearing of that appeal “ Thus it is not the Supreme Court that LIFTED the two subsections as above out of the blues and inserted them in the Act. It must have been done by a person/persons having authority so to do. It is immaterial to me by whichever means the two subsections found their way into the Act whether through the process of fresh enactment, re- enactment, amendment or repeal, howsoever, once the legislature validates same. This, of course, is part of law-making, which is not the business of this Court. It is neither also the business of this Court to dig into, or fish out who did it and whether it was rightly or wrongly done. The business of this Court, and of course of any other Court, is to interpret and or apply the law as it is. This is what we did in Aladejobi’s case. “
67. In Akintokun, the Court also appeared unduly constrained by its earlier decision in Aladejobi v NBA, mainly because four of the seven Justices who constituted the full panel in Akintokun (thereby forming a majority) had also sat on, and were party to, the unanimous decision in Aladejobi. As noted earlier, it is striking that four of the five members of the Aladejobi panel also participated in Akintokun, with Fabiyi, JSC, delivering the lead judgment in the former.
While it may be arguable, albeit controversially, that no procedural impropriety arose from this overlap, it is respectfully submitted that the situation is troubling, particularly considering the far-reaching consequences of Aladejobi, which effectively divested the Supreme Court of jurisdiction in favour of a yet-to-be-established Appeal Committee of the Body of Benchers, thereby generating considerable controversy and uncertainty.
68. Indeed, the empanelling of a substantially different set of Justices to re-examine the issue might have been more helpful. Instead, four of the same Justices, namely Ibrahim Tanko Muhammad, John Afolabi Fabiyi, Suleiman Galadima, and Musa Dattijo Muhammad, JSC, who had sat in Aladejobi again, constituted part of the panel in Akintokun, and they also formed a majority of the seven-member full panel in that case.
69. Little wonder, then, that one of them, Tanko Muhammad JSC, who delivered the lead judgement in Akintokun,readily stated at page 91 of the Report as follows:
“My lords, in view of what I have so far said, I find it difficult to depart from or overrule my earlier stand on Aladejobi’s case. It is my belief that no two laws or provisions of an enactment or enactments on the same subject which are in conflict shall be allowed to coexist. I still hold the view that the provisions in the 2004 Laws of the Federation relating to the disciplining of erring Legal Practitioners, as contained in Cap. L11, LFN, 2004 are the ones that will regulate appeals from the directions of the Legal Practitioners Disciplinary Committee of the Body of Benchers”. (Underlining for emphasis).
The compelling argument that might have changed the Supreme Court’s mind and made the difference.
70. In the authors’ respectful view, the more appropriate and engaging argument that should have been canvassed before the Supreme Court was that Section 10(7) of the LPA, Cap. L 11, LFN as contained in the compiled 2004 laws (which provides for appeals to be made to the Appeals Committee of the Body of Benchers, a provision which the Decree No. 21 of 1994 had rightly repealed and deleted), was effectively, an inadvertent alteration and amendment of the provisions of Decree No. 21 of 1994 within the proper meaning and intendment of Section 2 of the Revised Edition (Laws of the Federation of Nigeria ) Act, 2007, and would therefore not affect the validity and applicability of Decree No. 21 of 1994 especially its provision that appeals from the direction of the LPDC should lie to the Supreme Court.
71. Sections 1 and 2 of the Revised Edition (Laws of the Federation of Nigeria) Act, 2007, which approved the Revised Laws of the Federation 2004, provide as follows:
1. Approval of the Revised Edition of the LFN 2004. The laws of the Federation of Nigeria compiled and published in 2004 under the authority of the Attorney General and Minister of Justice are hereby approved by the National Assembly.
2. Existing statutes unaffected by inadvertent omission, etc. Any inadvertent omission, ALTERATION and AMENDMENT of any existing statute shall not affect the validity and applicability of the statute.”
(Emphasis supplied)
72. There can be no question that during the consolidation exercise of the Laws of the Federation by the Law Reform Commission, led by the eminent Jurist Emmanuel Ayoola JSC, which culminated in the Legal Practitioners Act, Cap. L 11 Laws of the Federation 2004, a few provisions that had previously been repealed prior to, and by Decree No. 21 of1994, were inadvertently re-inserted. Those provisions are plainly inconsistent with Decree No. 21 and constitute a clear departure therefrom.
73. What reinforces this submission is that Sections 10, 11, and 12 of Cap. L11, LFN 2004 reproduced word-for-word the exact provisions of Sections 10, 11, 12 of the Legal Practitioners Act, Cap. 207, Laws of the Federation 1990 as amended.
74. Because these very provisions of LPA, Cap. 207 LFN, 1990, were amended as early as 1994 by Decree No. 21 of 1994. It is evident that their re-enactment word-for-word (as it was in 1990 and prior to their specific amendment in 1994), in Cap. L11, LFN 2004 (ten years later) is arguably an unintentional oversight and apparent drafting errors by the Law Reform Commission that compiled the laws and presented the same to the AGF for the approval of the National Assembly in 2007 by the provisions of the Revised Edition ( Laws of the Federation of Nigeria ) 2007.
75. In the authors’ respectful opinion, this oversight is the source of the problem, and the solution is simple. Otherwise, it appears absurd that a compilation and codification exercise would result in such profound and drastic change to the existing order, particularly as it affects the Supreme Court’s jurisdiction.
76. It is submitted that the circumstances are clearly more consistent with the argument that their re-enactment in the manner highlighted was an unintentional and inadvertent oversight and apparent drafting errors.
77. In fairness to the Supreme Court and for all the commendable industry of all the counsel that appeared before the Court, it is unfortunate that such an interpretation of Section 2 of the Revised Edition of the Laws of the Federation of Nigeria 2007 Act was not urged or presented to the Court.
78. It is submitted that this reenactment word-for-word in LPA (Cap. L11, LFN 2004, of the same provisions that were amended, including by repeal by Decree No. 21 of 1994 (the provisions of which Decree were also omitted), qualifies as an inadvertent amendment and alteration, within the true and proper meaning and intendment of Section 2 of the Revised Edition of the Laws of the Federation of Nigeria 2007 Act.
79. It is submitted that applying the provisions of Cap. 11, LFN 2004, which has altered the subsisting provisions of Decree No 21 of 1994, stipulating that appeals lie to the Supreme Court, has obviously led to an absurd and unintended result that contradicts the established legal framework for this purpose in Decree No 21.
80. We submit that the broad language of Section 2 of the Revised Edition of the Laws of the Federation of Nigeria 2007 Act is intended to preserve the existing and sensible provisions, such as Decree No. 21, even after, the compilation and codification exercise.
81. Accordingly, it is submitted that the provisions of Decree No. 21 of 1994, which were subsisting as at the commencement date of Cap. L11, LFN, 2004, remain unaffected by virtue of the aforementioned Section 2 of the Revised Edition of the Laws of the Federation of Nigeria 2007 Act and remain valid, applicable and enforceable.
82. The clear and significant implication of this contention is that the provisions of Decree No. 21 remain in full force and effect and necessarily prevail over any contrary provisions of LPA Cap. L11, LFN 2004.
83. It is submitted that the aforementioned provisions of the LPA, Cap. L11, LFN, 2004, must be properly construed as constituting an amendment of the provisions of Decree No. 21.See the judgment of Tanko Muhammad, JSC in Akintokun,where his Lordship appeared to have recognised that there was an amendment of Decree No. 21 by the LPA, Cap. L11, LFN 2004, when he stated at page 69 of the Report, as follows:
“ ‘The Decree repeals the Legal Practitioners (Amendment) Decree 1990, as amended.’ A fortiori, this Decree did not amend the 1994 Decree. Thus, up to 1998, Decree No. 21 of 1994 was not affected by any amendment. It appears also that there was no further amendment by any Decree or Act which altered the position of legal practice as contained in Decree No. 21 of 1994 until the emergence of the 2004 Act, as contained in Cap. L11 of the Laws of the Federation of Nigeria 2004.”
84. This particular holding in the lead judgment lends some weight to the argument that the emergence of LPA, Cap. L11 altered and amended the position already established by Decree No. 21 of 1994.
Was it a deliberate action or an unintentional oversight?
85. It is submitted that the provisions of Sections 10, 11, and 12 of Cap. L11, LFN 2004, were an inadvertent alteration and amendment of the provisions of Decree No. 21 due to an unintentional oversight.
86. Respectfully, if the Supreme Court had appreciated that these provisions of Cap L11, vesting jurisdiction in the Appeals Committee of the Body of Benchers, stripping the Supreme Court of its vested jurisdiction and established order by the provisions of Decree No. 21, were an inadvertent alteration and amendment of the subsisting provisions of Decree No. 21 within the proper meaning of Section 2 of the Revised Edition of the Laws of the Federation of Nigeria 2007 Act, it would have had no difficulty whatsoever in validating the aforementioned provisions of Decree No. 21 and would have entertained Akintokun’s case as it had undoubted jurisdiction to do so.
But the later case of Nwalutu avoided the question, and even though it appeared to have applied the provisions of Decree No. 21, it did so without giving any reasons whatsoever for ignoring the conflicting provisions between the two or for preferring to apply the earlier provisions of Decree No. 21 of 1994 rather than the provisions of the later LPA, Cap L11, LFN 2004, which are in conflict, thus making its decisions really unhelpful in the circumstances.
Section 2 of the Revised Edition of the Laws of the Federation of Nigeria 2007 Act is a Saving Clause
87. It is submitted that the clause, being a saving clause, should be interpreted as a broad declaration of legislative intent to avoid any unintended consequences, especially as here, the implied repeal of a prior statute.
88. In Akintokun, it is submitted that the Supreme Court should have interpreted the clause to preserve the original provisions of Decree No. 21 from the effect of a genuine but accidental amendment during the review and consolidation process.
89. Regrettably, neither the learned Counsel in Akinkotun, including the AGF, and the President of the Bar (both of whom appeared as amici curiae), nor the Supreme Court itself paid sufficient attention to the words “Alteration and Amendment”, the two key words of the applicable statute that properly construed, should have made the difference, and allowed true and proper effect to those provisions of Decree No. 21 of 1994 which stipulate that appeals lie to the Supreme Court from the decision of the LPDC. From this perspective, the Supreme Court would have had no difficulty in exercising its undoubted jurisdiction in Akintokun.
Resolution of the Controversy
90. The provisions of the Legal Practitioners Bill presently before the National Assembly, particularly those relating to appeals from the decisions of the LPDC and the constitution of the LPDC, especially with respect to the involvement of Justices of the Supreme Court, mirror the position under Decree No. 21 of 1994. If enacted in their current form, these provisions will finally resolve the uncertainty and controversy surrounding the proper appellate forum for appeals from the LPDC’s decisions or directions.
91. However, it is still imperative to harmonise the seeming inconsistencies in the two legislations and resolve the judicial uncertainties currently prevailing, which will affect so many pending cases of misconduct which will be governed by the present legislative regime, except in the unlikely event that the new law is made retrospective.
[1] (2014) LPELR-22941(SC)
[2] (2019) LPELR-46916(SC)
[3] Supra
[4] Supra
[5] Supra
[6] Supra
[7] Supra
[8] Supra
[9] (2013) LPELR-20940(SC)
[10] (2005) LPELR-2450(SC)
[11] Supra
[12] Supra
[13] Supra
