X-raying Fight Between Courtroom Lawyers, Academics Over SAN Rank

By Ise-Oluwa Ige

X-raying Fight Between Courtroom Lawyers, Academics Over SAN Rank

In this piece, Ise-Oluwa Ige distils the major issues in an on-going controversy amongst lawyers in different fields of practice in the country on the appropriateness of restricting the conferment of the prestigious Rank of Senior Advocate of Nigeria (SAN) to certain category of lawyers, contends that even though there are two sides to the argument, both appear to be saying the same thing and advises that the Legal Practitioners Privileges Committee (LPPC) would do well if it could religiously follow its conferment guidelines to avoid needless controversy in future. Background

The Nigerian Bar Association, NBA is presently divided over who should be conferred with the prestigious rank of the Senior Advocate of Nigeria (SAN). Members of the inner bar already wearing the rank are as divided on the issue as members of the outer bar who are scrambling to be recognised with the coveted title.

The fresh controversy which has pitched the Nigerian lawyers on both sides of the divide was provoked by an opinion article written by a respected human rights activist and prominent member of the inner bar, Mr Ebun-OluAdegboruwa (SAN) on October 5, 2022.

In the article, Adegboruwa advised the Legal Practitioners Privileges Committee (LPPC) headed by the Chief Justice of Nigeria to consider restricting the award of the prestigious title to only lawyers who are into active courtroom advocacy (litigation practice).

He argued that academics who rarely attend courts have no business struggling with courtroom‘Advocates’ for the award of the prestigious rank.

He therefore suggested a radical review of the basic criteria for the award of the rank as they affect academics, retired SANs, remunerations paid by senior lawyers who desire to become SANs, among others.

Adegboruwa stokes hot controversy

For the academics, Adegboruwa, SAN, said: “It is my own personal view that the award of SAN to law teachers should be abolished outright. The Silk cannot be an inheritance, whereby the SAN does not appear in court ten years post conferment.

“But if the award to law teachers must continue, then they are either given another designation or they must frontload at least five trials in contested cases in the High Court, three contested cases in the Court of Appeal and two contested cases in the Supreme Court.

“Why should a law teacher apply for the rank of SAN if he has never practiced and has no intention to ever practice law?”, he queried rhetorically.

On Post SAN award and the retired SAN, Adegboruwa, SAN said: “In my set, we were about forty and it has subsequently ballooned to seventy and above. The question that I have been asking myself ever since is this: where are the Senior Advocates? I go to court virtually every day and I see the same sets of people in court. Does it not then mean that there are young, active and dynamic Senior Advocates who are no longer in active legal practice?

“That has defeated the purpose of the award. The LPPC should fix a five-year mandate upon Senior Advocates such that if after five years of the award, no single trial is conducted, then the rank should be withdrawn until there is compliance,” he suggested.

Adegboruwa is of the view that a senior lawyer who can’t pay his or her junior very well is not deserving of the rank. Left to him, “No Senior Advocate should merit the rank if he has any counsel in his firm who earns less than N150,000 monthly and after the award, he should submit a yearly salary scale of all his junior lawyers and other employees.”

He is also of the view that a lawyer who distances himself from the activities of the NBA should not be considered for the honours.

Hear him: “For all categories of awardees, none should be considered for the rank if he/she is not an active member of any of the Sections of the Nigerian Bar Association, has not attended at least five consecutive meetings of his local NBA and provide concrete evidence of active participation in NBA affairs.”

Although the issues raised by Adegboruwa on the conferment of SAN rank on all categories of lawyers are serious and debatable, none however is as controversial as the one on his position regarding academics who are approaching the LPPC in droves with applications to be made SANs.

The Adegboruwa article came few days after the LPPC, (the awarding authorities of the rank of SAN) released a list of 62 legal practitioners approved for the conferment of prestigious rank of the Senior Advocate of Nigeria (SAN).

On the list were 9 Professors of Law including Kathleen Okafor, Muhammed Abdulrasaq, Amokaye Gabriel, Ismail Olatunbosun, Abdullahi Zuru, Joy Ezeilo, Theodore Bala-Maiyaki, Olaide Gbadamosi and Chimezie Okorie. The high number of academics considered for the award of the title and arguably one of the highest since 1975 when the SAN rank was instituted, might have influenced Adegboruwa’s write-up.

As the opinion article began to trend, junior lawyers who are into courtroom advocacy were hurling abuses on Adegboruwa on social media for suggesting that the criteria should be made stricter after he had been honoured with the rank.

There were also lawyers in the academia including Olanrewaju Fagbohun SAN, Ernest Ojukwu SAN, Edoba Omoregie SAN and Paul Idornigie SAN who disagreed totally with Adegboruwa’s view even as some of them wondered why such suggestion should come from somebody who passed through the four walls of the University to receive training which equipped him not only to practice law but also to be considered for the prestigious title.

There were also prominent members of the inner bar including Mike Ozekhome (SAN) who disagreed totally with Adegboruwa on his view regarding what should be the basic criteria for the award of the rank. But there were also few lawyers who hailed Adegboruwa’s position.

Some academics conferred with SAN title are unknown—Okutepa (SAN)

One of such lawyers is a popular member of the inner bar, Mr Jibrin Okutepa, SAN. According to Okutepa the present mode of giving the award to academics in some cases is not in line with the provisions of the guidelines rolled out by the Legal Practitioners Privileges Committee for giving the award.

He argued that whereas, the guidelines only empower the Legal Practitioners’ Privileges Committee ((LPPC) to confer the rank on academics in exceptional cases where such academics have made “substantial contributions to the practice of law through teaching, research and publications that have become major source of reference by legal practitioners, judges, law teachers and law students” but that contrary to the prescription of the LPPC guidelines, not only are most of the academics on whom the rank is conferred are largely unknown, their publications are neither not well known nor are major sources of reference by legal practitioners, judges, law teachers and law students.

He further argued that academics are appointed as SANs based on point system in violation of the provisions of the guidelines.

“The points are given based on the quantity of publications submitted by the applicant rather than on the requirement that the publications must be major reference material by legal practitioners, judges, law teachers and students.

“So all an academic needs to do to qualify is to bring a bagful of publications and score more points than other applicants. This is totally unacceptable. This explains why many of the academics as well as their publications are largely unknown.

“Of equal importance is the fact that even though the academics do not go through rigorous process advocates go through to take silk, they utilize the rank in court,” he added.

Okutepa though conceded that there are great academics who met the criteria for the award including great academics like Professor Ben Nwabueze, SAN, Prof Itsey Sagay, SAN, Prof Omotola, SAN and such other iconic legal giants, whose books are not only used by all, they and their books remain living encyclopaedia of unquestionable authorities nationally and internationally.

Okutepa further recommended the importance of a study of the United Kingdom’s model and guidelines for the award of Queen’s Counsel given that Nigeria adopted the SAN title from the country.

Law professor disagrees with Okutepa, Adegboruwa

But a Law scholar, Professor Olusesan Oliyide has disagreed with some Senior Advocates of Nigeria pushing for partial exclusion of academics from the award of the SAN title on the account that their arguments were not only pedestrian but also full of fallacy.

Prof Oliyide documented his position on the issue which he shared widely. In the statement which was seen by Vanguard, the law scholar said he not only aligned with the arguments shared by the likes of Olanrewaju Fagbohun, SAN, Ernest Ojukwu, SAN, Edoba Omoregie, SAN and Paul Idornigie, SAN on the issue but that he is adopting them as if they were his own.

Prof Oliyide who said he had followed, with keen interest, the ongoing debate about the aptness of conferring the highly esteemed status of SAN on distinguished academics said it was not in doubt that the arguments of learned silks: Ebun-OluAdegboruwa, Jibrin Samuel Okutepa, AbiodunOwonikoko, among others admittedly, have been as forceful as those of learned silks: Olanrewaju Fagbohun, Ernest Ojukwu, Edoba Omoregie, Paul Idornigie, et al.

He however posited that as forceful as they were, the arguments of Ebun-OluAdegboruwa and his likes smacked of resounding fallacy and appeared a little bit pedestrian while those of the latter (Fagbohun and his supporters) were also not only forceful but were as convincing as they projected the truth and nothing but the truth regarding the subject.

Prof Oliyide further argued that contrary to the positions taken by the two sides of the divide, an academic also qualified as an Advocate within the meaning of the word.

“Having said that, there appears to be a missing link in the arguments of both schools, which is: simple understanding of who an advocate is. An advocate has been generally, and indisputably, described as ‘a person who publicly supports or recommends a particular cause or policy’.

“Within the context of this suitable definition, it will, certainly, be wrong, as learned silks Adegboruwa, et al, will want the public to believe, that the SAN status should be the exclusive preserve of lawyers who have distinguished themselves in litigation.

“Undoubtedly, academics who have, through their top-notch teaching, research and publications, made substantial contributions towards expanding the frontiers of jurisprudence, eminently deserve to be conferred with the SAN rank,” he argued.

Prof Oliyide also disagreed with the suggestion, in certain quarters, that the SAN rank is a “follow-follow” exercise, blindly, modelled after the position in England.

The law scholar argued that contrary to the view, the Nigerian SAN rank is a reward system that was wisely fashioned by our forbears as a way of encouraging distinction in law practice in Nigeria, adding “If the reward mechanism is similar to that in England, so be it.”

The erudite law professor said he was and will always vehemently oppose the suggestion proffered by some that the current English position where academics are recognised as Honourary QCs should be adopted because the English position suggested, albeit wrongly, that academics are not advocates.

He said academics are certainly advocates but that the only difference between them and litigation lawyers is that the realm of their advocacy, unlike that of litigation lawyers, transcends the frontiers of the courtroom.

He therefore argued that the Nigerian position is much better and should be sustained with the modification that much more slots should be reserved for academics.

Making his position clearer, he said: “By way of emphasis, the arguments of Adegboruwa, SAN, et al, suggest that, whereas a litigation lawyer who cites Sagay on contract in court, in support of his case, is entitled to the rank of SAN, but the renowned Professor Itsejuwa Sagay, the accomplished author of the book, is not. That seems a thoroughly uneventful argument.”

Prof Oliyide thereafter maintained that there is an inexhaustible list of names in the academia whose works have become reference points all over.

He argued that courts globally have continued to rely on the expertise and depth of accomplished academics to assist in reaching decisions especially in classicus cases.

“The argument here is accentuated by the global culture of the courts inviting accomplished academics as amici curiae in knotty-cases before them.

In Nigeria, we cannot remember how many times the Supreme Court had invited Professor Jelili Omotola, SAN, as amicus curiae, to guide it on the interpretation of the Land Use Act. This was, definitely, in recognition of his outstanding scholarship and knowledge enhancing understanding of land law.”

He equally responded to the suggestion by Adegboruwa and Okutepa, that Professorship should be the zenith to be attained by an legal academic in Nigeria.

He said the argument that the apogee of the career progression of a law academic should be the rank of Professor is inapt and disappointing because there is a clear difference between a Law Professor and a Law Professor who doubles as SAN.

He said a Professor of Law is one who has attained distinction in teaching, research and community service and has generally met the requirements specified for promoting academics in the University where he works while a Law Professor who doubles as SAN has attained distinction in teaching, research and community service and has, additionally been certified as contributing meaningfully towards the progression of the legal profession, by virtue of the depth, profundity, pervasiveness and creativity exhibited in his teaching and research output.

He said such scholar has not only shaped legislative reforms, judicial thinking but also the opinions of litigation lawyers and academics like him, through his exemplary scholarship.

“In this regard, I recall, with nostalgia, how Professor Omotola, while stressing an argument against a decision of the Supreme Court, in the course of teaching us in class, would retort: “I feel like going to wake (His Lordship, Hon. Justice) Idigbe from his grave.

“He would have given the correct interpretation of that statute”. Are we suggesting that such a personage who felt so strongly about the cause of law advancement, was undeserving of the SAN rank?”

He added that the suggestion, in some other quarters that conferring the SAN rank on academics is a demonstration of the “title-craze tradition” is incorrect.

According to him, conferring the SAN rank on academics is a highly commendable reward system meant to encourage excellence and distinction among law academics.

“It is a worthy legacy of our progenitors and it behoves on us all, not only to uphold the sanctity of the legacy, but also to ensure that many more conferment slots are reserved for deserving academics than presently are.

Also supporting Prof Oliyide on various counts is a prolific writer, human rights activist and respected member of the inner bar, Mike Ozekhome (SAN).

He said he humbly disagreed with his colleagues pushing for partial exclusion of certain academics from enjoying the SAN rank.

He argued that the word advocate covers all lawyers who find themselves in different areas/fields of practice, wondering why transactional lawyers are not even accommodated by the LPPC to enjoy the SAN rank.

His exact words: “There exists this lingering fear (even if pretentiously not expressed openly and publicly), that there are, in existence, too many SANs.

“Predicated on this unproven and fallacious fear, there appears to be a deliberate and sustained pruning down, over the years, of the number of legal practitioners that are elevated to the Inner Bar, even after meeting all the statutory requirements and sundry laid down criteria for such elevation.

“It is this needless fixation and mindset that has collectively kept the SANs’ docket brimming with unending applications by numerous disappointed applicants, who continue to apply year after year.

“There is also this mythical fear that awarding the revered honour to too many Lawyers may water down its legendary importance, defang it, shred it of its fabled aura and myth; probably cheapen it; and ultimately subject it to charlatanism and quackery.

“Most respectfully, I do not agree with these views, as attractive as they appear to be on the surface of it. Nor do I entertain these unhealthy fears.

“Due to no fault of theirs, some legal practitioners find themselves applying, again and again, to acquire the exalted Silk, year after year; some for between five and twelve years.

“Taking Silk is a legitimate aspiration, as every Lawyer looks forward to wearing the much admired toga of distinction,” he added.

He concluded by saying that medical doctors go for specialised courses to be made Consultants whilst in the field of Engineering, practitioners within its rank, study very hard to acquire Fellowships.

He said he saw no reason why lawyers should be denied the rank if qualified or excluded based on the narrow interpretation of the word ‘advocate’.

Conclusion

A clinical study of the arguments from both sides of the divide indicates that all the lawyers are largely saying the same thing regarding the partial exclusion or inclusion of academics from the category of lawyers who should be conferred with the prestigious rank of Senior Advocate of Nigeria save that they were dressedin different expressions.

For instance, it is the position of all lawyers from both sides that academics who have made “substantial contributions to the practice of law through teaching, research and publications which have become major source of reference by legal practitioners, judges, law teachers and law students should be considered for the prestigious SAN rank as contained in the guidelines for the award of the title.

The only point of departure is that those in the camp of Adegboruwas are opposed to admitting into the inner bar scholars in the academia who though may parade a long list of academic articles published ineither standard or predatory journals yet, whose such contributions are not major source of reference by legal practitioners, judges, law teachers and law student.

It therefore appears that the on-goingcontroversy over who should be awarded or restricted from enjoying the prestigious rank of Senior Advocate of Nigeria is needless.

Besides, the LPPC would do well if it could evolve a reliable grading system for academics whose contributions to knowledge and legal development in the country are only academic publications so that only qualified candidates who actually meet the conditions spelt out in the conferment guidelines would survive the mill.

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