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The
seal and stamp policy is a top-notch one which is essentially aimed at
restoring sanity to the legal profession. After engaging lawyers to prepare
documents, some non-lawyers reproduce the precedents in subsequent transactions
without seeking the lawyers’ approval. There are even instances where clients
would connive with paralegals get precedents of legal agreements and execute
same without the knowledge of the legal practitioner whose name is on the
document. Also, non- lawyers around our court premises engage in preparing legal
documents. This policy is a commendable one!
seal and stamp policy is a top-notch one which is essentially aimed at
restoring sanity to the legal profession. After engaging lawyers to prepare
documents, some non-lawyers reproduce the precedents in subsequent transactions
without seeking the lawyers’ approval. There are even instances where clients
would connive with paralegals get precedents of legal agreements and execute
same without the knowledge of the legal practitioner whose name is on the
document. Also, non- lawyers around our court premises engage in preparing legal
documents. This policy is a commendable one!
In
reaction to the seal and stamp policy, a lawyer on a social media platform
asked whether membership of the NBA is compulsory. My simple response is:
“there is an automatic membership of the NBA upon being called to the Bar”. As
long as one has elected to join and remain within the noble profession, he is a
member and must comply with the regulations set by the body. See Chinwo v Owhonda (2008). Every legal
practitioner is bound by the directive of the Association.
reaction to the seal and stamp policy, a lawyer on a social media platform
asked whether membership of the NBA is compulsory. My simple response is:
“there is an automatic membership of the NBA upon being called to the Bar”. As
long as one has elected to join and remain within the noble profession, he is a
member and must comply with the regulations set by the body. See Chinwo v Owhonda (2008). Every legal
practitioner is bound by the directive of the Association.
The
Rules of Professional Conduct (RPC) is a subsidiary legislation made pursuant
to a statutory enactment. The RPC gives the NBA powers to approve seal and
stamps. There is no doubt that the policy has the force of law and is
therefore, binding on all members of the Association. This analysis would
consider the validity, viability, queries, prospect, constraints and other
attendant issues relating to this policy.
Rules of Professional Conduct (RPC) is a subsidiary legislation made pursuant
to a statutory enactment. The RPC gives the NBA powers to approve seal and
stamps. There is no doubt that the policy has the force of law and is
therefore, binding on all members of the Association. This analysis would
consider the validity, viability, queries, prospect, constraints and other
attendant issues relating to this policy.
Is the NBA’s directive in compliance
with the RPC?
with the RPC?
The
provisions of Rule 10 of the Rules of
professional conduct 2007make it mandatory for every lawyer to sign and
file only documents which have the seal and stamp of the NBA:
provisions of Rule 10 of the Rules of
professional conduct 2007make it mandatory for every lawyer to sign and
file only documents which have the seal and stamp of the NBA:
(1) “A lawyer acting in his capacity as a
legal practitioner, legal officer or adviser of any Governmental department or
ministry or any corporation, shall not sign or file a legal document unless
there is affixed on such documents a seal and stamp approved by the Nigerian
Bar Association”
legal practitioner, legal officer or adviser of any Governmental department or
ministry or any corporation, shall not sign or file a legal document unless
there is affixed on such documents a seal and stamp approved by the Nigerian
Bar Association”
(2)
For the purpose of this rule,
“legal documents” shall include pleadings, affidavit, depositions,
applications, instruments, agreements, deeds, letters, memoranda, reports,
legal opinions or any similar documents.”
For the purpose of this rule,
“legal documents” shall include pleadings, affidavit, depositions,
applications, instruments, agreements, deeds, letters, memoranda, reports,
legal opinions or any similar documents.”
In
furtherance of this rule, the official release of the NBA clearly states that from
April 1, 2015, the possession of the new seal and stamp will compulsorily
supersede even the payment of annual practising fee to the NBA by qualified
lawyers who seek to engage in legal practise in Nigeria. From that date, every
document filed by a lawyer shall be deemed to be improperly
signed or filed except it is affixed with the unique stamps issued by the NBA
to the lawyer.
furtherance of this rule, the official release of the NBA clearly states that from
April 1, 2015, the possession of the new seal and stamp will compulsorily
supersede even the payment of annual practising fee to the NBA by qualified
lawyers who seek to engage in legal practise in Nigeria. From that date, every
document filed by a lawyer shall be deemed to be improperly
signed or filed except it is affixed with the unique stamps issued by the NBA
to the lawyer.
The word “lawyer” is
not defined by any law in force. Black’s Law Dictionary, Sixth Edition, defines
a lawyer as “any person licensed to practise law”. This is in effect, has the
same meaning as a legal practitioner. See
Section 24 of the Legal Practitioners Act (LPA).
not defined by any law in force. Black’s Law Dictionary, Sixth Edition, defines
a lawyer as “any person licensed to practise law”. This is in effect, has the
same meaning as a legal practitioner. See
Section 24 of the Legal Practitioners Act (LPA).
Can the directive be extended to
lawyers in corporate employment?
lawyers in corporate employment?
The NBA official
release further states that documents covered are pleadings, affidavits,
depositions, applications, instruments, agreements, deeds, letters, memoranda,
reports, legal opinion, and to leave no one in doubtthat it intends to cover
every document, it mentioned ‘any similar document.’While accredited lawyers in
private practice will be given green stamps bearing their unique enrolment
number, their counterparts in public or corporate employment will be assigned a
red version.
release further states that documents covered are pleadings, affidavits,
depositions, applications, instruments, agreements, deeds, letters, memoranda,
reports, legal opinion, and to leave no one in doubtthat it intends to cover
every document, it mentioned ‘any similar document.’While accredited lawyers in
private practice will be given green stamps bearing their unique enrolment
number, their counterparts in public or corporate employment will be assigned a
red version.
Rule 8 of the RPC reads:
(1) “A lawyer, whilst a servant or in a
salaried employment of any kind, shall not appear as advocate in a court or
judicial tribunal for his employer except where the lawyer is employed as a
legal officer in a government department.”
salaried employment of any kind, shall not appear as advocate in a court or
judicial tribunal for his employer except where the lawyer is employed as a
legal officer in a government department.”
(2) A lawyer, whilst a servant or in a
salaried employment, shall not prepare, sign, or frank pleadings, applications,
instruments, contracts, deeds, letters, memoranda, reports, legal opinion or
similar instruments or processes or file any such document for his employer.”
salaried employment, shall not prepare, sign, or frank pleadings, applications,
instruments, contracts, deeds, letters, memoranda, reports, legal opinion or
similar instruments or processes or file any such document for his employer.”
A
careful perusal of the wordings of Rule
8(1) of the RPC suggests that any lawyer in salaried employment i.e. a
lawyer in corporate employment shall not appear as an advocate, prepare or even
sign any legal document for his employer. The rule is very clear and dismisses
of every ambiguity. To this end, there is a conflict between the directive of
the NBA and the provisions of the enabling legislation. The provision of red
stamps for lawyers in corporate employment is antithetical to Rule 8 of the
RPC.
careful perusal of the wordings of Rule
8(1) of the RPC suggests that any lawyer in salaried employment i.e. a
lawyer in corporate employment shall not appear as an advocate, prepare or even
sign any legal document for his employer. The rule is very clear and dismisses
of every ambiguity. To this end, there is a conflict between the directive of
the NBA and the provisions of the enabling legislation. The provision of red
stamps for lawyers in corporate employment is antithetical to Rule 8 of the
RPC.
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Rule 10 (1) of the same RPC 2007
(quoted above) which requires approved seal and stamp on all legal documents
plainly applies to a “lawyer acting in
his capacity as a legal practitioner”, in this case, lawyers not in
salaried employment, “legal officer or
adviser of any governmental department or Ministry or any corporation…”
which simply means a legal officer or legal adviser of any government
department or government ministry or corporation. The ordinary and grammatical
interpretation of this provision excludes lawyers in corporate employment who
the NBA has now mandated to apply for red seals. This is an express violation
of the provisions of the legislation regulating the conduct of legal
practitioners. Also, corporate governance demands that all correspondence must
emanate from the office of the company secretary which invariably compliments
the position of Rule 8 of the RPC.If
the NBA does not extend the seal and stamps to lawyers in corporate employment,
it would create more opportunities for those of us in private practice as
against the current trend where in-house counsels retain personal clients and
provide them with legal services which do not require appearing in court or
filing processes.
(quoted above) which requires approved seal and stamp on all legal documents
plainly applies to a “lawyer acting in
his capacity as a legal practitioner”, in this case, lawyers not in
salaried employment, “legal officer or
adviser of any governmental department or Ministry or any corporation…”
which simply means a legal officer or legal adviser of any government
department or government ministry or corporation. The ordinary and grammatical
interpretation of this provision excludes lawyers in corporate employment who
the NBA has now mandated to apply for red seals. This is an express violation
of the provisions of the legislation regulating the conduct of legal
practitioners. Also, corporate governance demands that all correspondence must
emanate from the office of the company secretary which invariably compliments
the position of Rule 8 of the RPC.If
the NBA does not extend the seal and stamps to lawyers in corporate employment,
it would create more opportunities for those of us in private practice as
against the current trend where in-house counsels retain personal clients and
provide them with legal services which do not require appearing in court or
filing processes.
Should the stamp and seal be issued in
the name of firms?
the name of firms?
The
official release of the Association stating that the seal and stamp are for
individual lawyers is apt and in compliance with Rule 10 which states: “A lawyer” and not “firm of lawyers”. I am yet to see any seal and stamps issued in the
name of law firms and I doubt if the NBA would toe that line despite invitation
by some for seals in the name of their firms.
official release of the Association stating that the seal and stamp are for
individual lawyers is apt and in compliance with Rule 10 which states: “A lawyer” and not “firm of lawyers”. I am yet to see any seal and stamps issued in the
name of law firms and I doubt if the NBA would toe that line despite invitation
by some for seals in the name of their firms.
The
hurdle which any seal and stamp issued in the name of a firm would be unable to
cross is that the definition of a legal practitioner under the LPA allows for
only individual lawyers whose names are on the roll to sign processes. This has
been established by the apex court and followed in a plethora of authorities.
The sweeping effect of the decision of the apex court in Nweke v Okafor is very fresh in our minds. The NBA is therefore,
urged not to consider any application in the name of a firm.
hurdle which any seal and stamp issued in the name of a firm would be unable to
cross is that the definition of a legal practitioner under the LPA allows for
only individual lawyers whose names are on the roll to sign processes. This has
been established by the apex court and followed in a plethora of authorities.
The sweeping effect of the decision of the apex court in Nweke v Okafor is very fresh in our minds. The NBA is therefore,
urged not to consider any application in the name of a firm.
What is the penalty for non-compliance
with this policy?
with this policy?
While
Rule 10 (3)of the RPC 2007 states
that any document not in compliance with sub-rule (1) shall be deemed not to
have been properly signed or filed, Rule
55 of the RPC reads:
Rule 10 (3)of the RPC 2007 states
that any document not in compliance with sub-rule (1) shall be deemed not to
have been properly signed or filed, Rule
55 of the RPC reads:
“If a lawyer acts
in contravention of any of the rules or fails to perform any of the duties
imposed by the rules, he shall be guilty of a professional misconduct and
liable to punishment as provided in the Legal Practitioners Act, 1975”
in contravention of any of the rules or fails to perform any of the duties
imposed by the rules, he shall be guilty of a professional misconduct and
liable to punishment as provided in the Legal Practitioners Act, 1975”
Rule
10 is a specific sanction on the issue of a legal document which violates the
seal and stamp policy while the latter is a general rule applicable to all the
provisions of the rules. It is trite law that where there is a specific
provision and a general provision, the specific takes precedence.
10 is a specific sanction on the issue of a legal document which violates the
seal and stamp policy while the latter is a general rule applicable to all the
provisions of the rules. It is trite law that where there is a specific
provision and a general provision, the specific takes precedence.
By
extension, if and when a lawyer contravenes this regulation by either filing a
writ without a seal or seeking to tender a document which does not bear a seal
approved by the NBA, will the court apply the principle in NWEKE V OKAFOR and deems the writ as incurably bad or the documents
inadmissible? These are scenarios which are yet to be tested in court. However,
the principle of substantial justice may not allow the courts to adopt a
similar principle as that laid down in NWEKE
v OKAFOR. In any case, the
provisions of section 1(2) of the
Evidence Act 2011 (as amended) may persuade the court to reject any
document without the approved seal since the RPC is a subsidiary legislation
which has the force of law.
extension, if and when a lawyer contravenes this regulation by either filing a
writ without a seal or seeking to tender a document which does not bear a seal
approved by the NBA, will the court apply the principle in NWEKE V OKAFOR and deems the writ as incurably bad or the documents
inadmissible? These are scenarios which are yet to be tested in court. However,
the principle of substantial justice may not allow the courts to adopt a
similar principle as that laid down in NWEKE
v OKAFOR. In any case, the
provisions of section 1(2) of the
Evidence Act 2011 (as amended) may persuade the court to reject any
document without the approved seal since the RPC is a subsidiary legislation
which has the force of law.
On
July 30, 2015 an application was challenged in an Ogun State election petition
tribunal panel on the ground that the application did not carry the stamp and
seal approved by the NBA. The applicant argued that the directive of the Chief
Justice of Nigeria (CJN) provides that the courts are to set up guidelines
towards the enforcement of this policy. The tribunal upheld the argument. With
due respect, the reasoning of the tribunal is most untenable in the face of a
subsidiary legislation (the RPC) in force. What mechanism is required to be put
in place by the court or tribunal as the case may be in the enforcement of this
policy? The process merely entails application to the NBA and the seal and
stamp shall be issued by the Association. We can only await a decision on this
issue by a superior court.
July 30, 2015 an application was challenged in an Ogun State election petition
tribunal panel on the ground that the application did not carry the stamp and
seal approved by the NBA. The applicant argued that the directive of the Chief
Justice of Nigeria (CJN) provides that the courts are to set up guidelines
towards the enforcement of this policy. The tribunal upheld the argument. With
due respect, the reasoning of the tribunal is most untenable in the face of a
subsidiary legislation (the RPC) in force. What mechanism is required to be put
in place by the court or tribunal as the case may be in the enforcement of this
policy? The process merely entails application to the NBA and the seal and
stamp shall be issued by the Association. We can only await a decision on this
issue by a superior court.
Is there a conflict between the RPC 2007 and the Entitlement
to practice as Barristers and Solicitors (Federal Officers) Order 1992?
to practice as Barristers and Solicitors (Federal Officers) Order 1992?
The provisions of Rule 8 and 10 (1) of the RPC and Rule 1 (2) of the
Entitlement to practice as Barristers and Solicitors (Federal Officers) Order seem to be stating different things while they both
derive their efficacy from the same principal legislation (the LPA).
Entitlement to practice as Barristers and Solicitors (Federal Officers) Order seem to be stating different things while they both
derive their efficacy from the same principal legislation (the LPA).
While
Rules 8 and 10 of the RPC (quoted
above) state that any legal officer in a government department can appear as an
advocate in a court or tribunal, the latter suggests that only law officers in
the Federal Ministry of Justice shall practice as barristers and solicitors.
Others in the civil service of the Federation shall not be entitled to that
privilege. It reads:
Rules 8 and 10 of the RPC (quoted
above) state that any legal officer in a government department can appear as an
advocate in a court or tribunal, the latter suggests that only law officers in
the Federal Ministry of Justice shall practice as barristers and solicitors.
Others in the civil service of the Federation shall not be entitled to that
privilege. It reads:
“Any person holding
office in the Civil Service of the Federation, other than law officers in the
Federal Ministry of Justice shall not practice as a barrister or solicitor in
Nigeria while still a holder of that office.”
office in the Civil Service of the Federation, other than law officers in the
Federal Ministry of Justice shall not practice as a barrister or solicitor in
Nigeria while still a holder of that office.”
It
is an established principle that where legislation is specific on a subject and
another is general, the former shall be given priority. It is however,
instructive to note that while the Entitlement
to practice as Barristers and Solicitors (Federal Officers) Order is a 1992
legislation, the RPC was enacted in 2007. The RPC being a latter legislation
takes precedence and accords more with reason. Support is drawn from the
provisions of Section 144 of the Electoral Act 2010 (as amended) which provides
that a legal officer of the Independent National Electoral Commission (INEC)
can represent the Commission at the tribunal or in court. This is unarguably in
consonance with Rules 8 and 10 of the RPC.
is an established principle that where legislation is specific on a subject and
another is general, the former shall be given priority. It is however,
instructive to note that while the Entitlement
to practice as Barristers and Solicitors (Federal Officers) Order is a 1992
legislation, the RPC was enacted in 2007. The RPC being a latter legislation
takes precedence and accords more with reason. Support is drawn from the
provisions of Section 144 of the Electoral Act 2010 (as amended) which provides
that a legal officer of the Independent National Electoral Commission (INEC)
can represent the Commission at the tribunal or in court. This is unarguably in
consonance with Rules 8 and 10 of the RPC.
At a time when the legal
profession is not having it smooth, the
seal and stamp policy for lawyers is a laudable one which is in the interest of
lawyers as it will restore sanity and pride into the profession. It will
prevent sharp practices and impersonation of lawyers by non-lawyers. However, the
centralization of the scheme has made it difficult for so many lawyers to get
their applications treated within the shortest possible time. The NBA should
consider a decentralization of the scheme and allow branches being
representatives of the national body to approve seal and stamps for their
branch members.
profession is not having it smooth, the
seal and stamp policy for lawyers is a laudable one which is in the interest of
lawyers as it will restore sanity and pride into the profession. It will
prevent sharp practices and impersonation of lawyers by non-lawyers. However, the
centralization of the scheme has made it difficult for so many lawyers to get
their applications treated within the shortest possible time. The NBA should
consider a decentralization of the scheme and allow branches being
representatives of the national body to approve seal and stamps for their
branch members.
The
interpretation of Rule 8 of the RPC in clear terms exempts lawyers in salaried
employment i.e. lawyers in corporate employment from preparing or signing legal
documents. In consonance with this provision, the NBA should limit the seal and
stamp to legal practitioners in private practice and law officers in government
departments.
interpretation of Rule 8 of the RPC in clear terms exempts lawyers in salaried
employment i.e. lawyers in corporate employment from preparing or signing legal
documents. In consonance with this provision, the NBA should limit the seal and
stamp to legal practitioners in private practice and law officers in government
departments.
On a final note, there is the need to also consider the up-and-coming
lawyers in the decisions of the NBA. If the annual
practising fee varies according to the year of call, it is most appropriate
that the same scale be adopted for the seal and stamp policy. This policy can
be subsumed under the annual practicing fee considering its recent upward
review.
lawyers in the decisions of the NBA. If the annual
practising fee varies according to the year of call, it is most appropriate
that the same scale be adopted for the seal and stamp policy. This policy can
be subsumed under the annual practicing fee considering its recent upward
review.
By- @TanimolaAnjorin Esq.,