SAN: Lawyers move into the trenches over title

Lately, the award of Senior Advocate of Nigeria has been mired in controversy. FRIDAY OLOKOR presents the differing views of lawyers on the issue.

Many issues have continued to confront the nation’s judiciary, one of which is the debate on the abolition of the rank of Senior Advocate of Nigeria, conferred on legal practitioners, who have excelled in the practice of law. While some schools of thought believe that the process has been abused, others contend that it should be retained. Surprisingly, one man who has led the crusade against the exercise is an octogenarian, Mr. Tunji Gomez, who is now better christened the chief abolitionist.

The grand old man of the bar was a member of the legal team that defended the late Chief Obafemi Awolowo during his treason trial in the First Republic. As the chairman of a Movement for the Abolition of SAN, Gomez has always used the annual conference of the Nigerian Bar Association to launch a crusade against the SAN award. He did so in 2009 during the NBA conference in Lagos.

Like the trustees of the NBA, the octogenarian went to court with four other lawyers, calling for the cancellation of all the privileges attached to the status of SAN. In a suit filed at the Federal High Court, Lagos, Gomez and the other plaintiffs; Foluso Fayokun, Seth Ahamaefule, Peter Okoye and Chief E.A. Otokhina are asking for an order of perpetual injunction restraining the defendants, their agents or privies from awarding the rank and title of SAN or any similar rank to any legal practitioner in Nigeria in the year 2011 or any time thereafter.

The Legal Practitioners Privileges Committee, the Attorney-General of the Federation and Minister of Justice, the Lagos State Judicial Service Commission and the chairman of the Lagos branch of the NBA, Mr. Chijioke Okoli, were listed as defendants in the suit, where they are asking for an order declaring the provision of Section 5.1 of the Legal Practitioners Act and the Legal Practitioners Rules, which established and regulate the award of SAN, null and void for being inconsistent with the provisions of the Nigerian constitution and Articles 3 (1) and 19 of the African Charter on Human and Peoples Rights.

Despite the suit, the LPPC has released the list of 30 recipients for 2011. As expected, the list has generated ripples among the conservative and progressive forces in the legal profession. By virtue of Section 5(2) of the Legal Practitioners Act, it is the LPPC that confers the rank of SAN on a legal practitioner of not less than 10 years of post-call experience, who has achieved distinction in the legal profession in such manner as the committee may from time to time determine.

A lawyer and rule of law advocate, Dame Carol Ajie, faulted the list, saying the recipients belonged to the conservative group of lawyers. She said, “A cursory look at the present list of 32 SANs covering years 2010 and 2011, will reveal that they are all invariably members of the conservative bar and that sends a wrong signal capable of restricting constitutional and jurisprudential growth, bearing in mind that it is the progressives who are the more proactive members of the Nigerian Bar and who support and catapult legal development through those concepts constantly placed at the doorsteps of members of the legal profession and the larger society.”

Ajie, a fellow of Georgetown Law Centre, Washington DC, expects that the SAN list in the years ahead would include names that reflect the progressive and creative members of the bar. She stated, “If I have contributed significantly to the development of law and have distinguished myself and my colleague has not and is conferred with the rank, you begin to think that your law is sound and stronger and edifying.

“The law empowering the LPPC has set out the criteria for the conferment of the status under Section 5(2) (supra); let us use the standard to choose and pick deserving members of the profession, who have applied and have earned it and thereby maintain the prestige and zest that come with the SAN rank.”

A renowned legal practitioner and human rights crusader, Mr. Babatunde Oshilaja, shares similar sentiments. He was called to the Bar in 1978 after graduating from the University of Ife (now Obafemi Awolowo University, Ile-Ife). He faulted the procedure for the conferment of SAN, saying the whole exercise smacked of deceit and insincerity. “There should be a written examination by all applicants as the Joint Admissions and Matriculation Board does for entry into universities. Let us be writing examination for everybody to test their legal skills. This would no longer give room for godfatherism, gifts of cash and jeeps,” he suggested.

According to him, he lost faith in the SAN award as far back as 1997 when the likes of a former Attorney-General of the Federation and Minister of Justice, Dr. Olu Onagoruwa, was robbed of the award because he was vocal against the government of the late Gen. Sani Abacha and his refusal to defend the Supreme Court justices, who were accused by the late MKO Abiola of taking bribes in a case between him and the Federal Government.

“Onagoruwa lost because he was against Abacha’s government. He told the world that Abacha’s decree did not pass through his table but was hired out to military consultants. MKO Abiola went to court against the Supreme Court justice, who he accused of taking bribe. They expected him to defend them as the AGF, but unfortunately, he did not have the powers. If a lawyer with a PhD could be denied, then there is no frankness in the system,” Oshilaja said.

But Chief Afe Babalola (SAN) sees the exercise from a different dimension. He warns against pegging the number of candidates by the LPPC. According to him, increasing the number of SANs will improve public confidence in the judiciary. Babalola said, “I have said it once and will say it again; it is my own view that whoever is qualified to be awarded SAN should be given. In England, where we borrowed the idea, there is no pegging of the number of candidates who apply to be Queens’ Counsel. Whoever is qualified is given the award.”

He reasoned that by lifting the restriction on the number of recipients, Nigeria will be able to follow the English practice if SANs are appointed judges. He said, “That automatically improves the quality of judges because SANs should be people who are seasoned in the legal practice. The best judges are those who have practised law and not those who came from the law school and rose through the ranks as magistrates to become judges. When you peg the number, what is the yardstick for pegging a few who are qualified? There is no reason for such. The best judges in the world are practitioners of law. When SANs are appointed judges, the quality of judges would be improved and people will have confidence in the legal system. There is no basis for pegging the number of candidates for SAN, who should be given the award annually. If 100 people are qualified, give it to them; if 50 are qualified, give it to them. By pegging, we have a backlog.”

But for Mr. Tayo Oyetibo (SAN) and a former Edo State Attorney-General and Commissioner for Justice, Mr. Omoruyi Omonuwa (SAN), the last beneficiaries of the SAN award deserved it. For Oyetibo, “Not everybody can be satisfied with whatever name that is released every year. There are some people among the recent beneficiaries who are long overdue to get it. For me, I have nothing against the list.”

Omonuwa said, “Those who got it this time got it on merit. Those who got it truly deserved it; if you follow the process, they went through a very rigorous procedure. Once you are qualified, you get it. The previous measures gave room for all kinds of things; but the last set truly deserved it because they are all completely qualified.”

The chairman, Abuja branch of the NBA, Afam Osigwe, concurred, but advised the LPPC to publish the scores of the recipients in subsequent editions to engender public confidence in the system.

He said, “In the absence of any outcry or objection to their being shortlisted for the final consideration, one is at a loss as to why their making the final list would suddenly become objectionable. It is however understandable that people are asking questions as to why some persons made the final list and some others did not. This, you would agree, has more to do with the process of their emergence rather than the quality of the persons chosen for the award. “

But other legal practitioners, especially those who belong to the human rights movement, differ entirely.

One of such lawyers is Mr. Kayode Ajulo, the executive director of Egalitarian Mission Africa. He described the list of recipients as a “coat of many colours.” He recalled that late in 2009, there were suggestions that the coveted rank of SAN be scrapped because of alleged compromise and bastardisation of the LPPC. He expressed surprise as to why people like Mr. Femi Falana, who had contributed so much to the legal profession especially in human rights and social justice, had been ignored.

He said, “Falana is an enigma, an inspiration to many young lawyers, and I am proud to have worked with him to resolve many seemingly constitutional crises.”

Two other human rights lawyers, Ugochukwu Osuagwu and Charles Ogboli, from the law firm of Victory and Rose Associates wonder whether the suit instituted by the NBA against the LPPC, Chief Justice of Nigeria and Attorney-General of the Federation over the non-compliance with Section 7 of the Legal Practitioners Act would be resolved. They said, “What the NBA did by asking the court to decide if the LPPC complied with Section 7 of the LPA is in order. If the right procedures for selecting SANs are allowed to be breached, then the integrity of the process is questioned and the respect for the status of SANs in future may be lost. Let the issues relating to the compliance with the law on the appointment of the SANs be resolved first. We are not interested in personalities of the SANs so long as due procedures for it are followed.”

Another legal practitioner and executive director of Human Rights and Accountability Initiative, Mr. Peter Odia, alleged that the process of SAN award was laden with politics and corruption. He said, “The credibility of the 2010/2011 SAN award is an issue. Since the award started in 1975, only about 350 applicants have been given the award thereby denying thousands of other applicants, this has led to politicising the whole process. More importantly, it confers undue advantage on the awardees at the detriment of the non-SANs.”

Odia is particularly not happy that the exercise does not allow for a level-playing ground for everybody as every privilege the rank confers discriminates against the non-SANs. He said, “No matter how brilliant, diligent and hardworking you may be as a lawyer, the society sees you as not successful simply because you are not a SAN. Your success is measured by the award. Because of the discrimination associated with a non-silk, all the plum briefs from election petitions, oil industries, multi-nationals and government patronage go to members of the ‘silk.’ The way out is for the SAN award to be abolished.”