Contributing Factors (I):
Contracting Market for Legal Services

It is axiomatic that one cannot
give what he does not possess or have.  Ironically, most lawyers only
apply that saying to intellectual matters forgetting or ignoring the fact that
it applies just as well to economic circumstances.  The senior lawyer or
firm that is earning little cannot afford to pay their younger colleagues any
reasonable income.  Why do some lawyers and firms earn such poor income?
 Several factors account for this and one of these is the contracting size
of the Nigerian legal services market.  This contraction which has
insidiously been creeping in on us over the years is caused, in part, by the
unceasing, widespread and unregulated encroachment into the Nigerian legal
services market by Nigerian non-lawyers as well as foreign lawyers and law


At the very base level, the level
which affects most lawyers whether in the urban or rural branches, there is,
illustratively, serious and persistent encroachment by non-lawyers and touts
into the legal services market as it relates to land transactions, to the
detriment and disadvantage of lawyers.  Lawyers in literally all branches
of the NBA, both cosmopolitan and provincial branches (a term that was
generously donated recently to me by the Okitipupa NBA Branch), feel the impact
and brunt of and lament these encroachments.  At the upscale level,
in-house counsel positions in multinational companies are increasingly being
taken over and occupied by foreign lawyers who have not been called to the
Nigerian Bar and are not licensed to practice or offer legal services in

Foreign law firms are also
increasingly taking over a disproportionate share of the Nigerian legal
transaction market, with the active connivance of governments, at the Federal
level mostly and sometimes at the States levels, and also with the complicity
of some of our colleagues.  In some instances, governments are, perhaps,
unwitting accomplices, and this occurs mostly when multilateral credits or aids
are taken from foreign donors and/or agencies with the collateral
conditionality which requires the engagement of donor country consultants and
foreign law firms to manage the transaction, ostensibly because Nigerian
lawyers, as we hear so often, are not experienced, have never handled such
transactions, do not have the discipline to handle such transactions and cannot
be trusted to handle them.  In some other instances, government officials,
with the support of some of us, boldly pronounce, even without prompting from
those multi-lateral agencies and donors that they, the government officials,
find Nigerian lawyers unfit and totally inexperienced and undisciplined to
handle certain transactions.

I have always found these excuses
by Nigerian governments and their officials totally inexplicable and untenable
and indeed insulting to and demeaning of the intellect and capabilities of
Nigerian lawyers and it is rather unfortunate that some of us join in mouthing
and condoning these feckless excuses.  Happily, and thanks in part to
Awolowo v The Hon Mallam Usman Sarki & another (1966) LPELR-25290 (SC),
these excuses are not applied to court litigation matters and this is rather
ironic.  Ironic in the sense that Nigerian lawyers who can be trusted to
argue matters in court, no matter how recondite or novel, cannot be trusted by
their governments and some private sector organizations and individuals to handle
novel/recondite and/or complicated transactions.  How will the Nigerian
lawyers gain experience when they’re so excluded from those transactions and in
instances where they’re not totally excluded or banished, they’re fed crumbs
and assigned low-level reviews of Nigerian law portions of the deal by the
foreign lawyers and their firms, with the active connivance of Nigerian
governments, organizations and persons?

Just before leaving the issue of
court litigation, I must mention that a multinational company operating in
Nigeria, about a year or two ago, engaged a foreign counsel to negotiate an
out-of-court settlement with the Nigerian government in a matter that was then
pending in Court.  That may perhaps have signalled a creeping encroachment
even into the court litigation arena by foreign lawyers and firms which, if
unchecked and nipped in the bud, could blossom into a full-blown incursion
similar to what we’re experiencing in transactions.  In the broader
dispute resolution arena, there’re unchecked incursions by foreign law firms
and lawyers notably in arbitration matters.  I am aware of instances where
parties to arbitral proceedings that are conducted in Nigeria engage foreign
counsel to represent them in those proceedings and in matters that Nigerian counsel
are very capable of handling.  

I do not believe that there’s any
aspect of legal services, including transaction and arbitral matters, that we
cannot find capable Nigerian lawyers to handle.  I also believe that, if
we must involve foreign counsel in delivery of legal services in Nigeria, there
must be open dialogue and negotiations led by the NBA and our Attorney General
of the Federation/Trade Ministry with relevant foreign Bar Associations and
their countries’ trade negotiators.  This is standard practice in
developed and developing countries where Bar Associations work with Trade
Ministries in market access negotiations as it relates to legal services. A
limited access principle whereby foreign lawyers must be led by Nigerian
lawyers, the Nigerian lawyers being the ones to nominate, agree with and assign
portions of the assignment to the foreign lawyers and firms, could be put on
the table in such negotiations.

Incidentally, I speak from
well-heeled and vindicated experience.  At the time of the first Nigerian
international spectrum auction which ushered GSM services into Nigeria in 2000,
the same arguments of novel and recondite transaction were raised against my
engagement as the Counsel for the transaction, but thank Heavens and the
strong-will of the Board and Executive Management of the Nigerian
Communications Commission (“NCC”) that was led respectively by Alhaji Ahmed
Joda and Engr Ernest Ndukwe, OFR, I was retained for the assignment and I
turned out to be the only lawyer in the 5-man Auction Control Team that
conducted the spectrum auction which has remained a landmark Nigerian
transaction and the template for subsequent such transactions beyond Nigeria.
 The License and other transaction documents and framework which I
prepared then, in conjunction with NCC in-house Counsel, all Nigerians,
including Michael Ikpoki who later joined MTN and rose to become its first and
only Nigerian Managing Director, Osondu Nwokoro, currently the Legal Director
of MNTel and Josephine Amuwa, currently a Director at NCC, remains, up till
date, the model and template for such transactions. Not even our then
detractors and traducers could find fault in them.

Exactly the same scenario played
out when we had the responsibility for preparing the Nigerian Communications
Act, 2003 – the subsisting regulatory framework for the Nigerian communications
industry.  Naysayers rose and claimed, at the time, that no Nigerian
lawyer had the experience or skill to prepare such a landmark legislation; they
indeed they went as far as hiring foreign firms who prepared drafts of the
legislation for them.  Again, we working with the same set of NCC in-house
Counsel that I mentioned earlier who worked with me during the GSM Auction –
defeated them solely because we produced a far superior and unsurpassable
legislation, entirely and wholly Nigerian-made!  As at date, almost 15
years after the passage of that Act, no fault has been found in the legislation
and no amendment has been made thereto.

To summarize, I propose that the
NBA intervene to protect the Nigerian legal services market for the Nigerian
lawyers by pushing back on the encroachment of the market by non-lawyers and
foreign lawyers and law firms – both at the base and upscale levels.
 Every land transaction that is handled by a non-lawyer results in loss of
income to the Nigerian lawyer.  Each legal position that is occupied in
multinational organizations by foreign lawyers amounts to a lost opportunity
and loss of income for the Nigerian lawyers; ditto in respect of Nigerian transactions
particularly Nigerian financed transactions that are handled by foreign law
firms and also arbitral proceedings that are conducted in Nigeria.  Of
course, I’m aware of the globalization of services and our commitments to the
World Trade Organization, but then these commitments and the globalization
trends should be domestically regulated in a manner that do not prejudice and
marginalize the Nigerian lawyers in the way that they’re currently totally
prejudiced, marginalized and excluded.  Incidentally, we would not be the
only ones to have such domestic regulations in place; in developed and other
developing countries, they’re such regulations which, in varying degrees,
regulate the influx of foreign lawyers and firms into their respective domestic
market, as I’ve pointed out earlier. By championing such protective measures,
the NBA would, in some ways, be guaranteeing decent income and opportunities
not to mention skills development, not only for the Nigerian young lawyers but
for Nigerian lawyers generally.

It may also serve us well for the
NBA to actively develop, maintain and constantly update at its National
Secretariat, a verifiable database of Nigerian lawyers who have specialized
knowledge and skills in various areas of law, either through practice or by
education.  Such a database would come in handy not only to blunt the
constant put-down by Nigerian governments and their officials against Nigerian
lawyers but also to positively assist such Government Agencies and
private-sector in identifying skilled lawyers that could assist them in
handling these so-called complex and “novel” transactions and matters.