Emerging Trends in the Nigerian Bar Association Stamp and Seal Scheme

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August 11, 2017

Estine Okolo

Abstract

The Legal Profession is a noble one. The infiltration of the profession by quacks had become a cause for concern not only for the genuine practitioners but for the public in general. The introduction of the Nigeria Bar Association stamp and seal scheme was a bold step by the association to stem the rate at which impostors posed as legal practitioners. The stamp and seal scheme introduced thereafter came with several challenges and despite judicial pronouncements on the proprietary of the seal by the apex court, there are still several issues which require clarifications and possibly review, especially as it affects the scheme. This paper examines issues surrounding the introduction of the stamp and seal, and the challenges being faced by lawyers. Reference was made to the Rules of Professional Conduct for Medical & Dental Practitioners, especially as it was designed to impact on the experience of members. After a careful consideration of   the issues, suggestion was made for possible review of the stamp and seal scheme.

ISSUES IN THE SCHEME

 At the National Executive Committee meeting of the Nigerian Bar Association held on the 14th November 2014, the Nigerian Bar Association approved the affixing of stamps and seals on legal documents to be prepared by lawyers.[1] Over the years, the provision on stamp and seal had been part of the Rules of Professional Conduct for Legal Practitioners. Before now, the requirements had been on paper without corresponding implementation or attempts at ensuring its usage. Specifically, Order 10 of the Rules of Professional Conduct for Legal Practitioners states as follows;[2]

A Lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any   government department or ministry  of any Corporation shall not sign or file a legal  document  unless there is affixed on any such document a seal and stamp approved by  the Nigerian Bar  Association. For the purpose of this rule, Legal documents shall include pleadings, affidavit, depositions, applications, instruments, agreements, deed   letters, memoranda, report, Legal   opinion or

⃰ Estine Okolo is a Legal Practitioner

[1]Tochukwu Anaenugwu , The Nigerian Bar Association Stamp and Seal Scheme 2015 .www.aluko-oyebode .com accessed on 10th July 2017

[2] Rule 10(1)&(2) of Rules of Professional Conduct for Legal Practitioners 2007

any similar documents. If without  complying with the requirements of this rule, a  lawyer signs or file any legal document    as defined in sub rule (2) of the rule and in any of the  capacities mentioned in sub rule  (1), the document so signed or filed shall be deemed not to have been properly signed   and filed[1]

Considering the fact that the incidence of fake lawyers were increasing on a daily basis, with the resultant effect of damaging the reputation of members of the profession, there was no better time for the implementation of the scheme than when it was made practically effective. At different times, there had been several instances where the involvement of fake lawyers in advocacy in particular and practice of law in general up to the Superior Courts of Records was of public knowledge.

No doubt, at inception, like every worthy policy, the Nigeria Bar Association stamp/seal scheme was not without its challenges. The challenges had far reaching implications on the entire legal process. It is a basic requirement that the national and the branch dues, as well as the stamp fees must be paid before the stamp can be issued.  The policy is aimed at strengthening legal practice, promotes professionalism, enhances the integrity of legal practice and discourages quackery in the profession. There was mixed feeling within the legal community when the Supreme Court appears not to have been definite on its decision with regard to the provisions of Order 10 of the Rules of Professional Conduct as it affect the non fixing of seal  in a court process by a counsel  in the case of Mega Progressive Peoples Party  v  INEC & Othrs. [2] The Supreme Court, per T Mohammed JSC held as follow;

The issue of Bar stamp raised by Dr Ayeni is in a circular which has been issued by   The Honourable Chief Justice of Nigeria to all heads of courts for the betterment of   the legal practice in Nigeria. The circular has not metamorphosed into a practice  Direction. It cannot be  said to be a compulsory requirement for filing process in a   court of law. Section 10 of the Legal Practitioners Rules of Professional Conduct   relied upon by Dr Ayeni is directory and not mandatory in nature. Failure to affix the  Nigerian Bar Association stamp can not in my view invalidate processes filed in Court.

This case is one of the earliest cases on the implication of the stamp and seal scheme introduced by the Nigerian Bar Association. Shortly after then, there was another opportunity for the Supreme Court to decide on similar issue like the one mentioned above and it did not waste time to expatiate on the law. The Supreme Court decision in Senator Bello Yaki & other v Senator Aliyu Abubakar Bagudu & Oth[3] appears to have thrown more light on the earlier decision of the Court on the issue of seal. The Cross –appeal was initiated with the intention that the court will determine the fate of a notice of appeal, filed without the stamp /seal of a legal practitioner

[1] Rule 10 (3) of Rules of Professional Conduct for Legal Practitioners  2017

[2] SC/655/2015

[3] SC/722/15

affixed to the process. The sole issue which the cross appellant asked the court to determine was whether the Court of Appeal was right to have held that the failure to affix a seal to a legal document amounts to a violation of Order 10 of the Rules of Professional Conducts and makes such a document incompetent. The Supreme Court per Ngwuta  JSC held thus;

                       The legal document so signed and or filed is not null and void or incompetent like

                        the case of a court process signed in the name of a corporation or association

                       (even of lawyers) as in the case of Okafor v Nweke (2007) 10 NWLR ,(Pt 1043) SC

  1. The document is deemed not to have been properly signed or filed but not

                       incompetent as the 2nd respondent assumed. It is akin to a legal document or

                       process filed at the expiration of the time allowed  by the rules or extended by the

                      Court .In the case at hand, the process filed in breach of rule 10(1) can be saved

                      and its signing and filing regularized by affixing the approved seal and stamp on it.  

Justice Mary Peter Odili JSC reinforced this assertion in her own words thus[1]

                       Any non compliance with the rule 10(2) of RCP with the circular of the Chief

                      Justice of Nigeria as reiteration is visited with the sanction that the process is

                      without competence. It cannot be excused by talking of  in alienable right of a

                      litigant to appeal as that right has to be exercised within the necessary prescribed    

                      Rule of legal practise.

 It has been said that the two decisions, (I mean Senator Bello Yaki & Another  v Senator Aliyu Abubakars case  and the earlier case of Mega Progressive Peoples Party  v  INEC & Others  are not in conflict but rather, the latest of the cases  provides analytical reasoning for the decision reached by the court in the earlier case.[2]

Beyond these Supreme Court Judgments, there are still several numbers of issues which are yet to be resolved. They are either begging for answers or clarifications. The Legal Practitioners Act provides on the right to practise as Legal Practitioner thus;[3][4]

[1] Senator Bello Yaki & others v Senator Aliyu Abubakar Bagudu (supra)

[2] Feyitola Oyeti, Implication of the Supreme Court Decision on non compliance with Rule 10 of the Rules of Professional Conduct on use of  Authenticating Stamp and Seal. Accessed on 16th

[3] Section 2(1)(2)(3)(4) of Legal Practitioners Act 2004

(1)Subject to the provisions of this Act, a person shall be entitled to practise

                         as a barrister and solicitor, if and only if his name is on the roll

                         (2)If an application under this subsection is made to the Chief Justice by or on   

                          behalf of any person appearing to him to be entitled to practise as an advocate   

                          in any country where the legal system is similar to that of Nigeria and

                         (3) (a) Person for the time being exercising the functions of the following offices ,

                             that is the Office of the Attorney General ,Solicitor General, or Director of Public    

                              Prosecution of  the Federation or of a State.

                        (b) such offices in the Civil Service of the Federation of a State as the Attorney  

                         General of the Federation or of the State as the case may be, may by order

                        specify, shall be entitled to practise as a barrister and solicitor for the purposes of

                         that office

                       (4) A certificate signed by or by a person authorised either generally or

                       specifically in that behalf by any of the persons mentioned in paragraph (a) of the  

                        last foregoing subsection stating that a particular individual is exercising the

            function of a particular office, shall without prejudice to any other means of proof

                       …

When the Legal Practitioners Act is placed side by side with the Rules of Professional Conducts for Medical and Dental Practitioners, the differentiations in terms of the various stamps being issued to the different categories of lawyers appears to create a separate groups for lawyers, it is selective and may impact negatively on the laudable scheme, if not now or in the nearest future.  As earlier mentioned, the essence of the stamp and seal scheme is to curb incidence of quacks and fake lawyers in the practice of law and the society in general. Most importantly, considering the duration it normally takes for the production of the seal and making them available to lawyers, there is need for specific provision that the courts should accept the production of receipt of payment of the relevant fees pending the production and dispatch of the seal to the respective legal practitioners who have applied for them. Even though there is no express provision on this, the practice has been on but it requires legal backing.   Chances are that the likely aftermath of the imposition of different seal will create an element of superiority on the part of lawyers in one aspect of practice on the others. The differentiation of the stamp scheme is an infraction on the provisions of the Legal Practitioners Act and the Constitution of Nigeria as amended.  It is a trite law that the provisions of a regulation or a rule cannot override an Act of the National Assembly.

A close look at the Legal Practitioners Act and the Rules of Professional Conduct 2007 shows that there is no provision as to specification of the distinction reflected in the different seals issued to the various categories of legal practitioners. It is possible that within a period of twelve calendar month or fifteen months a lawyer can move from employment in a corporate organization, to a government agency and to private practise and vice versa.

The nature of Legal employment is that it gives room for mobility of its practitioners. The question to ask  then is, why must a lawyer apply for different seal to suit the seal requirement of his job each time  he has to move from one job to another? On several grounds, even though the differentiation of the seal seems laudable, it is fraught with its problems and short comings. It has been argued that it is and indirect way of discouraging lawyers in paid employment from getting involved in any form of practice that will amount to additional income for them, since they  already have a fixed income.

The yearly ritual of having to apply for a seal, irrespective of whether those of the previous year have being exhausted is an issue worthy of consideration. Does it not amount to unnecessary financial waste if lawyers have to apply for seal every year when in actual fact they have not exhausted the ones issued the previous years. It is a waste too many especially in the current poor economic situation in the country.

One of the Rules of Professional Conduct is to the effect that;[1]

                    A Lawyer assigned to defend an indigent prisoner shall not ask to be excused except

                    for substantial reason , but shall exert his best effort in defence of the accused .

    In the same vein, yet another part of the rule provides;[2]

                   The professional fees charged by a lawyer for his services shall be reasonable and

                 commensurate with the services rendered; and accordingly , the lawyer shall not

                charge fees which are excessive or so low as to amount to undercutting, provided that

               a reduced fees or no fee at all may be charged on the ground of special relationship or

               indigence of a client

[1] 38(b)of Rules of Professional Conduct for Legal Practitioners 2007

[2] Rule 52(1)of  Rules of Professional Conduct for Legal Practitioners 2007

Assuming a lawyer who is not ordinarily allowed to be involved in any form of practise except in the course of his official duties is assigned a case by the court to conduct on pro bono basis or that he elects to do a matter on pro bono basis, based on the indigence of the person involved, if the issue of sealing is considered, it might ultimately be impossible for such a lawyer to conduct such a case. Considering the decision in Yaki’s case, it will be impossible for a lawyer with a separate class of seal to represent an indigent client if the requirement is that a seal of one nature must be used. To my mind, this is not a good signal that justice should be promoted. A lot of indigent persons will suffer when they cannot afford to pay for a lawyer who is empowered by virtue of the class of seal he is expected to use in defending them. It will likely result in a situation where even the just will suffer because of finance when in actual fact they have an option of defence which the scheme has indirect shut against them.

Obviously with this arrangement, it will  impossible for a lawyer in one form of employment apart from private practise to represent or conduct a matter for his parents (whether mother or father) who probably made sacrifices and denied themselves  the luxuries of life to ensure the lawyer is educated. It is an aspect that Nigerian Bar Association should address. This is borne out of the penchant for lawyers to raise objection on the nature of seal used.

When compared to the provisions of the Rules of Professional Conducts for Legal Practitioners, the Rules of Professional Conduct for Medical and Dental Practitioners   appears to promote the idea of boosting the capacity and experience of the Medical and Dental practitioners than that of legal practitioners. As at the time of writing this piece, the proposed Bill on the Legal Practitioners Act has been trending. Reference to pupil age by new wigs did not address the issue of allowance or any form of payment for such participation which is expected to be for 2 years.

Under part E and aspects of Private Medical or Dental Practice which is  about private practice by registered practitioners who are in full employment as consultants in the Public Service. It provides as follows;[1]

Medical Practitioners and Dental Surgeons who are in full time employment in the Public   –Service  in Nigeria are free to employ their spare time and unofficial hours to engage in private Medical or Dental Practice  for remuneration as follows

  1. A registered practitioner in full time employment in the public service shall not engage himself in extra-mural private practice during official duty time under any circumstance.

b. A registered practitioner who holds the appointment of consultant status or a Medical or Dental Officer of more than ten years post registration experience

[1] Rule 49 of Rules of Professional Conduct for Medical & Dental Practitioners

may run one private consulting clinic which will open for business only during periods when he is not on official duty.

  1. A consultant or a registered practitioner of similar status as described in (b) above shall offer in-hospital care to his private patients only with the public hospital in which he is in full employment. It is unethical for a registered practitioner in full time employment in the public service to give in –hospital care, that is investigatory, admission and institutional care to patients outside the hospital in which he is in full employment.
  2. A registered practitioner of more than 10 years post registration who is in full time employment in public service , but is not engaged in clinical responsibilities in a public hospital may engage outside the official duty hour in clinical practise in an institution owned and run by full time private practitioner or hold consultation only in his consulting clinic.

It is unethical for a registered practitioner engaged in Public Health institution to demand and or receive money from hospital patient under any guise whatsoever either before or in the course of  attending to such patient.

Also the provision with regard to private practice by Non Consultants registered Practitioners who are in full employment in the public service goes thus[1]

A Medical Practitioner or Dental Surgeon who does not have the status of a consultant may engage in clinic practice outside his official duty hour in an institution owned and run full time by Private Practitioners. It is unethical for a registered practitioner who is not a consultant or less than ten years of post registration and who is in public service to own or run any private medical institution

To my mind , the provisions in the Rules of Professional Conduct  for Medical & Dental Practitioners is clearer , definite and seems to promote and encourage its members to acquire relevant experience through active practical involvement in their trade . With this provision, medical personnel will continue to acquire diverse experience in the course of their involvement in private practice, distinct from lawyers in certain  paid establishment and corporate organizations whose involvement in the course of their employment are in most restricted and narrowed to several non legal connected functions. Some do nothing important related to legal practice except to attend meetings, with a few drafting and even run errands that are not legal related.

[1] Rule 50 of Rules of Professional Conduct for Medical & Dental Practitioners

More often than not, after disengaging from employment, such lawyers still have to learn the ropes from lawyers in private practice before adapting to the new legal environment they will found themselves.

Another issue worthy of strengthening out as regard the stamp and seal is whether the Rules of Professional Conduct for Legal Practitioners can amend, alter or vary the provisions of the Constitution of Nigeria (1999) as amended.[1]

The constitutional provision is to promote access to justice and the right of litigants to a legal practitioner of one’s choice.

Any subsidiary legislation that attempts to halt or put an impediment to the above mentioned section of the Constitution is an affront on the constitution of Nigeria 1999 (as amended). It is doubtful whether the rule will stand if there is a conscious effort to challenge the rules on the grounds that it violates the provisions of the constitution which is the ultimate law of the land.

CONCLUSION

The introduction of Nigeria Bar Association Stamp and Seal scheme was a watershed in the history of legal practice in Nigeria. However despite the successive judicial pronouncements on the subject matter, many grey areas pertaining to the scheme have left more questions than answers. The aftermath of its introduction is that it has shown that the legal profession is one that is ready not only to promote the integrity of its members but also to eradicate a situation where quacks parade themselves as its practitioners .Even then, several issues are waiting to be addressed and as several lawyers await clarifications and improvements on the scheme, it is hoped that all the grey areas will be addressed by the relevant organ.

 RECOMMENDATIONS

  1. Yearly purchase of seal, irrespective of whether it has been exhausted or not should be dispense with. In other words the seals should be requested for and purchase based on the need of a lawyer.
  2. The distinction of the seal should be eradicated as it is discriminatory because members can change their place of work several times in a year.

3 NBA should throw more light on conduct of pro bono for family members and indigent people as it affects the different types of seal which is issued to different practitioners.

  1. Future amendments of the Rule should reflect provisions contained in the Medical & Dental Practitioner Council, because of the needed experience for all categories of lawyers.

[1] Section 36 (6) (c ) of the Constitution of Nigeria 1999 as amended is to the effect that that every person who is charged with a criminal offence shall be entitled to defend himself in person or by a Legal Practitioner of his choice

  1. There is no certainty that the Stamp and Seal Scheme will really curtail the incidence of fake lawyers. Every Court in Nigeria should be connected to a system and network for verification of lawyers appearing before them.
  2. There is need for express provisions on the court to recognise and accept receipt of payment of relevant fees and stamp fees before the real stamps are made available by the Nigerian Bar Association.

                                                              REFERENCES

  1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
  2. Court Papers without Mandatory Stamp/Seal Void 19th November 2015 Edition of Vanguard Newspapers
  3. Electoral Act 2010 (as amended)
  4. Legal Practitioners Act Cap C11 LFN 2004(as amended)
  5. Lawyers express concern over NBA Stamp/Seal Policy, published in the 20th 2015 Edition of Nations Newspapers
  6. Medical and Dental Practitioners Act Cap M8 LFN 2004 (as amended)
  7. Rules of Professional Conduct for Medical & Dental Practitioners
  8. Rules of Professional Conduct for Legal Practitioners 2007

Estine Okolo is an Attorney at Law based in Osogbo, Osun State

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