How Not To Amend Legal Practitioners Act 2004- Morohundiya
Lagos lawyer, Olakunle Morohundiya has expressed concern over the proposed amendment to the Legal Practitioners Act 2004 by the Senate.
Morohundiya faulted some of the proposed amendments being undertaken by the Senate Committee on Judiciary, Human Rights and Legal Matters on the Public Hearing of the Legal Practitioners Act 2004 (Repeal and Re-Enactment) Bill 2021.
He pointed out that the bill was chaotic and against the normal procedures needed to be followed for such an amendment.
Morohundiya said: “In the bid to be original and innovative the sponsors of the bill departed totally from the existing format and thereby made many serious monumental mistakes.”
His position was contained in a Memorandum dated November 10, submitted to the Senate Committee on Judiciary, Human Rights and Legal Matters on the Public Hearing of the Legal Practitioners Act 2004 (Repeal and Re-Enactment) Bill 2021
Morohundiya in his final submission asked that the bill be overhauled and re-aligned with the existing laws.
He also asked that appropriate consultation be made with the body of Legal Practitioners, Body of Benchers and General Council of the Bar with respect to the innovation being introduced.
Issues for determination
Morohundiya raised a number of issues for the determination of the senate committee.
He asked: “Is this an amendment or a radical total departure from the existing law?
“Did the Body of Benchers, General Council of the Bar and/or Body of Legal Practitioners agree to most of the issues newly introduced in the bill such as:
- licensing legal practitioners;
- pupillage for new legal practitioners;
- inclusion of political post holders as benchers;
- setting up standards for and inspection of law offices;
- what is the reason for pushing many sections of the existing law into schedules 1 and 2 e.g a. sections 5, 10, 11, 13, 14, 15, 16, 20, 21, 22?
- What is the reason for omitting many sections of the existing law e.g a. sections 9, 12, 17, 18, 19?
- Why devote 5 sections out of 20 sections of the bill to the body of benchers and its staffing?
Procedure for amendments
Morohundiya said when laws are being amended the normal procedure is to take the sections serially and amend them without tampering as much as possible with the sequence. This avoids confusion and many mistakes. This bill is chaotic and has scattered the numbering to the extent that the existing law is unrecognizable. One has to painstakingly go through the existing law and the bill in order to find a co-relationship. In the bid to be original and innovative the sponsors of the bill departed totally from the existing format and thereby made many serious and monumental mistakes
Bill is inelegantly drafted
According to him, schedules to laws are made pursuant to enabling sections within the law itself. Many provisions in Schedules 1 and 2 to this bill are not made pursuant to sections of the law itself, instead they are main laws themselves. The numbering within the 2 schedules is also confusing and not clear, hence it is not easy to cite them as references.
He argued that sections 5, 10, 11, 13, 14, 15, 16, 20, 21, & 22 of the existing law are not mentioned in the body of this bill but are now put in the schedules.
What law is enabling them to be in the schedule and are they properly placed given their importance? Moreover, where are the safety guards preventing those provisions from being easily tampered with when placed in a schedule unlike when they are in the main body of the law.
Section 5 of the existing law is on conferment of the rank of SAN. It has now been introduced under schedule 1, section 1( 2 )(L ) and schedule 2 item A. It has also without general consultation changed the requirement to become a SAN from 10 years post call to 15 years post call.
Section 10 of the existing law is on establishing the disciplinary committee. This has now been put under schedule 1, section 1(2) (B ) Item C.
Section 11 of the existing law is on penalties for unprofessional conduct etc. This has now been put under schedule 1, section 1(2) Item D.
Section 13 of the existing law is on the disciplinary jurisdiction of the supreme court. This power is separate and independent from the power of the body of benchers. Moreover it predates the power of the body of benchers and the establishment of both the body of benchers and the Nigerian Bar Association. This has now been removed from the main body of the bill and put as item E under Section 1(2) of schedule 1. Is the Supreme Court now subordinate to the Body of Benchers? This is extremely dangerous and an attempt to whittle down the power of the Supreme Court.
Section 14 of the existing law is on restoration of names to the roll. This has now been put under schedule 1, section 1(2) Item F.
Section 15 of the existing law is on scale of charges. This has now been put under schedule 2, Item B.
Section 16 of the existing law is recovery of charges. This has now been put under schedule 2 item B11. Section 20 of the existing law is on accounts and records for client’s money. This has now been put under schedule 2, Item C.
Section 21 of the existing law is on special provisions as to client accounts with banks. This has now been put under Schedule 2, Item C.
Section 22 of the existing law is on offences. This has now been put under Schedule 2, Item D.
Sections 9, 12, 17, 18, 19 of the existing law have been removed. They are Section 9 – liability for negligence; Section 12 – Establishment of the Appeal Committee of the Body of Benchers; Section 17 – application for taxation of charges; Section 18 – Taxation; Section 19 – Supplementary provisions on remuneration what is so important or significant about the staffing and secretariat of the Body of Benchers that it warrants devotion of 5 sections of the new bill out of the entire 20 sections. Won’t it have been better to put most of the issues on the staffing, secretary and secretariat under a schedule? In any event can’t these issues be handled by the body of benchers in the normal course of events? Do they need to be legislated on? As the bill is presently, it is more like a bill on the establishment of the body of benchers and not a bill on the legal practitioners Act.
Section 1(3) of the new bill introduces the following as additional statutory members; (n) President of the Senate (where he is a lawyer); (o) Speaker of the House of Representatives (where he is a lawyer); (p) The Chairman of the Senate Committee on Judiciary. (where he is a lawyer); (q) The Chairman of the House Committee on Judiciary. (Where he is a lawyer); (r) 30 (Thirty) Legal Practitioners nominated by the National Executive Committee of the Nigerian Bar Association . with a minimum of 15 years’ post call; Five (5) of whom shall be Law Teachers;
Question over inclusion of politicians in Body of Benchers
What value will be added to the practice of law by making these politicians members of the body of bencher?
Is membership of the Body of Benchers a title that should be bestowed on political post holders? If yes then we should include all presidents, vice-presidents, ministers, governors, deputy governors, commissioners, local government chairmen; and members of the senate, house of representative and assemblies , who are lawyers.
How Body of Benchers should be composed
Morohundiya contended that the membership of the body of benchers should be composed of lawyers chosen based on professional merits and criteria, and not political considerations and/or other non professional criteria.
He asked: “In the new Section 1(3) (r) why insist on 5 law teachers and why the 15 years post call requirement.?
Morohundiya asked that the bill be overhauled and re-aligned with the existing law. He also asked that appropriate consultations be made with the Body of Legal Practitioners, Body of Benchers and General Council of the Bar with respect to the innovations being introduced.