Professional Documents
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Table of Content
Week/Topic Page
WEEK 4: Regulatory & Controlling Bodies & Organs of The Legal Profession
15
WEEK 7: Drafting 1 46
WEEK 14: (i) Duties of Lawyer to Court, State, Colleagues and Profession;
(ii) Contempt of Court by Lawyers 156
GOALS OF SKILLS
a. To equip students with skills to conduct interviews with clients
b. To teach students how to approach legal writing to produce error free
documents.
c. To educate students on the availability of ADR processes.
The problem of this legal system was t44hat there was shortage of qualified
personnel to man the court and shortage of court facilities which led to the
employment of lay-men without the knowledge of the law to man the legal process.
To solve this problem, the Supreme Court Ordinance of 1876 was promulgated for
the admission of persons to practice as legal practitioners in Nigeria.
The history of the development of the Legal profession is thus divided into 3 stages
as follows:
B. FULL EXEMPTION
Here a person is not to attend the Law School provided he is:
A Nigerian citizen.
Qualified to be admitted to the Nigerian Law School i.e. fulfilled all
requirements for qualifying subjects for admission into the Law School
At the time he was qualified to attend the Law school or so soon thereafter,
he lost the opportunity for reasons beyond his control.
At the time of the application for exemption he satisfies the Council that he
has acquired knowledge and experience over a period of at least 5yrs, fitting
him for enrolment and that it will be unreasonable, having regard to all
circumstances to require him to go through the Law School.
2. Mediation;
3. Conciliation
4. Litigation;
6. Arbitration.
7. Hybrids
8. Expert appraisal
TYPES OF A. D. R
1. Negotiation;
2. Mediation;
3. Conciliation
4. Arbitration.
EARLY NEUTRAL EVALUATION
This is the method where parties submit a summary of their argument on the issue
in dispute to a neutral third (3rd) party who is usually a lawyer or a retired judge
who is experienced in the area in dispute.
He evaluates the case of both parties and gives a candid opinion on the relative
strength and weakness of their respective cases.
His opinion is not binding, but it may lead to an amicable resolution of the dispute.
All documents, records and statements made in the process are confidential and
cannot be admissible as evidence.
NEGOTIATION
This entails the parties discussing and agreeing to terms or reaching mutually
acceptable resolution without the aid or intervention of a 3rd party.
ADVANTAGES
Retain relationship and goodwill
Creative problem solving
DISADVANTAGES
Lack of trust by one party can make it difficult
If there was no prior relationship, no need to maintain goodwill.
MEDIATION
The 3rd party known as the mediator is impartial and does not take decision for the
parties rather he helps and assists in identifying the issues and interests that need
to be resolved.
CONCILIATION
This is the process of settling a dispute in an agreeable manner.
It is a method by which a neutral third (3rd) party meets with the parties to a
dispute, and explores how the dispute might be resolved.
However, he may deliver his opinion as to the merit of the dispute in
necessary cases.
The conciliator is a neutral person who decides and awards nothing and he
is not bound to observe the strict rules of natural justice.
EXCEPTION-
Areas not subject to ADR/ Limitation of ADR are:
Declaration of status in matrimonial causes
Declaration of title to land
Interpretation of statutes/ documents
Injunctions
Grievous criminal offences not compoundable e.g. murder
Enforcement of fundamental human rights
Application for judicial review.
Election petition cases
ACRONYM- MLIICFJE
ACRONYM
SENTENCE KEY
DISADVANTAGES
Rigid
Costly (arb. Fees and experts)
Win lose situation
No right of appeal on merits of the case
Less expensive
Mediation results to win/win while arbitration leads to win lose
Non imposition of settlement
DISADVANTAGES.
1. Mediator does not have expert knowledge while conciliator has expert
knowledge of the dispute in issue.
2. Conciliation is statutorily recognised
3. A mediator only makes procedural suggestion on how parties can reach
an agreement while a conciliator establishes communication between
parties and brings about negotiated settlement.
Mediation has the advantage of a neutral 3rd party while negotiation does not.
Mediation is enforceable while negotiation is not.
Matter ends in a win-win
Mediation is faster as the mediator drives the process
Enforcement of settlement is easier
DISADVANTAGES
Mediation makes use of a neutral 3rd party called a mediator while early neutral
evaluation makes use of a judge or lawyer.
ADVISING ON ADR
1. RULES OF COURT
Order 25 R. 1(2) (C) of the High Court Civil Procedure Rules of Lagos State
makes provision for the promotion of amicable settlement of cases or adoption of
alternative dispute resolution.
SEE SECTION 24 HCL 2004
OBJECTIVES
To provide enhanced timely, cost effective access to justice
To reduce the frustration litigants face in court due to long delays.
PROCEDURE
1. File written request for mediation with the appropriate filing fees asking
MDCH to inform the other parties- RULES 2 &3
CONTENTS OF THE REQUEST
a. Names and addresses of the parties
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b. The nature of the dispute,
2. The Centre upon receipt of request will contact the other party.
3. Where parties agree on ADR process to adopt, a list of mediators would be
given to them.-RULE 5 a &b
4. The centre would be the venue –RULE 8
5. Parties, mediator and centre will have to enter an agreement known as
mediation agreement- RULE 4
6. Parties may be represented by a lawyer.
ARBITRATION AT AMDC
Arbitration procedure rules 2003 are deemed to be part of the arbitration
agreement, but the parties may vary the rules.
PROCEDURE
This can be done in two ways
(ARB. CLAUSE)
1. Filing a written notice at the centre addressed at the other party
indicating an intention to arbitrate.
2. Notice shall include the nature, the amount involved, remedy sought and
venue requested.
3. Respondent has 10 days to reply and he can counter claim fulfilling the
same condition as above.
SUBMISSION TO ARBITRATE
1. It can be initiated at the centre by filing submission to arbitrate signed by
both parties (nature and amount).
2. Filing fee should also be paid.
3. Where parties have not agreed on arbitrator, there will be one as prescribed
by the rules. Same procedure applies to appointment as stated above.
4. A hearing should be held in front of parties except where one party fails to
attend after reasonable notice was served
5. Arbitral tribunal should make award within 1 month or 3 months in
exceptional situations or extend it if it is expedient to do so, state reasons and
date and place,
6. Parties can come to settlement during arbitration and ask arbitrator to make
the settlement the award
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LMDC has practice direction on mediation which is binding on parties
OBJECTIVES OF LMDC
Enhance access to justice by the provision of ADR
Minimise frustration and delay in justice
Serve as focal point for promotion of ADR
Promote effective functioning of ADR
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foster the cause of justice, maintain a high standard of professional conduct, and shall
not engage in any conduct which is unbecoming of a legal practitioner.
EXAM HINT-
You will be given scenarios and asked to identify whether it amounts to misconduct
and the rules that have been breached. This can come in any of the courses including
LIP.
Note particularly all the rules with exceptions.
LIST OF RULES
R.1- general responsibility of a lawyer
R.2- duty as to admission in the legal profession
R.3- aiding in the unauthorised practice of law (common in land matters)
R. 4 -Avoidance of Intermediary in the Practice of the Law.
R.5 -Association for Legal Practitioners.
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R.55- enforcement of rules
CLASS ACTIVITIES/ EXERCISES
TASK- P.118(CURRICULUM)
Scenario 1
A-· I practice as a Law Officer in the Ministry of Justice, Cross Rivers State. I have a
degree in Law from Ahmadu Bello University, Zaria in 1973 but was not opportune
to go to the Nigerian Law School. Is it right that I have a right of audience in Court?
May have a full exemption
Scenario 2
I studied in England and was called to the English Bar in 1969 and have been
practicing there till date. I was recently invited to handle a matter that involves a
sensitive public interest in Nigeria in a Nigerian court. Do I have a right of
appearance in a Nigerian Court?
Scenario 3
I am a Nigerian. I studied Law at a university in London and I want to Practice Law
in Nigeria. What should I do to achieve this? What happens if I go ahead to practice
law in Nigeria in my current situation?
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The proper ADR method to be engaged here is negotiation. This is because this is a
case involving a supermarket which will endeavour not to be tainted in bad image
and since the issue of vicarious liability might come, the management may want a
quick settlement so as to put the dispute behind them and move on with business.
This is mostly achieved through negotiation.
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Week 4
Lesson plan
Explain & discuss legal framework, powers, functions and composition of
regulatory & controlling bodies & organs of the legal profession
Explain the various exclusive rights of a legal professional in Nigeria
Explain limitations/restrictions of these rights
Discuss & explain conducts that amount to the impersonation of a lawyer and
the sanctions for impersonating a lawyer
Controlling bodies
BODY OF BENCHERS
Legal Practitioners (Amendment) Act section 3 (1) establishes the Body of
Benchers as a body of legal practitioners of the highest distinction in the legal
profession in Nigeria with the responsibility for the formal call to the Bar of
persons seeking to become legal practitioners. The Body is a body corporate with
perpetual succession and a common seal. It consists of
Chief Justice of Nigeria (Honourable Justice Mahmoud Muhammad) and all
Justices of the Supreme Court;
The Chief Judge of the High Court of the Federal Capital Territory (NB: this is
like a State High CT)
A person may leave the Body if he or she resigns voluntarily or if he ceases to hold
the office by virtue of which he was appointed or if removed for misconduct or other
sufficient ground. The quorum for meeting of the Body shall be 10 members. The
Body of Benchers is juristic i.e. can sue or be sued in its own name.
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NB: not all judges are members of the body of benchers. Aspirants to the bar must
be sponsored by 2 members of the body of benchers before one can be called to the
Nigerian Bar.
Issuance of certificate to call to bar to new wigs – s4(4) LPA (As Amended)
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LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE – committee of the body of
benchers
The committee was established by section 10 (1) of the Legal Practitioners Act
1962. It is a committee of Benchers who have the responsibility to determine and
consider charges brought against legal practitioners in Nigeria who have
misbehaved. Membership includes a Chairman who is not the CJN or a Justice of the
Supreme Court, the President of the Court of Appeal and one Justice of the Court of
Appeal, two Chief Judges, two AGs one of whom may be the AG Federation and four
members of the Nigerian Bar Association who are not concerned with the
investigation of a complaint or a decision by the Association to lay a complaint
against a legal practitioners before the Committee.
Its functions include:
Consideration and determination of complaints brought against legal
practitioners e.g. lawyer converting client’s money for personal needs; use of
certificate of occupancy in their possession for their own personal needs
Restoration of names which have been struck off (in rear circumstances
where the person has shown remorse and lived a clean life for many years),
or cancellation of a suspension of practice – s14 (1)(b) LPA.
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The head of faculty of law of any recognised university in Nigeria whose
course of legal studies is approved by the Council as sufficient for admission
to the Nigerian Law School
15 legal professions not less than 10 years post call nominated by the NBA
Functions
Responsibility for legal education – professional training of aspirants to the
bar and discipline of aspirants. Includes accreditation of Law faculties &
training at Nigerian Law School. Now a joint team between the NUC (Nigerian
Universities Commission) and CLE to issue accreditation
The Council is vested with a statutory duty of issuing a qualifying certificate
to any Nigerian that successfully completes an academic year of practical
training in the Nigerian Law School.
Responsible for continuing legal education (note: NBA is also responsible for
this). See rule 11 of the Rules of Professional Conduct. This is mandatory for
law professionals e.g. workshops/sessions at the NBA Conference. Rule 11(4)
RPC provides the required credit hours for every year are: 24 hours for LPs
of up to 5yrs post call; 18hours for LPs of not up to 10yrs but more than 5yrs
post-call; and 12 hours for LPs of above 10yrs post call
Incidental powers to do such other things – for purposes of performing its
functions e.g. prescribing good conduct for aspirants to the NLS, conditions
for admission into the law school. See Okonjo v CLE.
Appointment as DG of NLS
He is the holder or a former holder of the officer of a profession in a faculty of
law in a Nigerian University; or
He is qualified for appointment as a professor in a faculty of law at a Nigerian
University
He is a legal practitioner who has on or before the date of his application
been in active practice for not less than 10yrs
Also Note the overriding supervisory power of the Attorney General of the
Federation over the CLE. The Federal Ministry of Justice is the supervisory body for
the CLE – gives directives of a general character
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Appeal, Five Chief Judges of States, Chief Judge of the Federal High Court, Five Legal
Practitioners who are Senior Advocates of Nigeria.
Functions include
1. Confers the rank of Senior Advocate of Nigeria on deserving legal
practitioners in Nigeria
2. Makes rules relating to Senior Advocates of Nigeria, with the approval of the
Body of Benchers
3. May withdraw the rank of SAN from holder either absolutely or for a short
period of time. Find examples of this:
Note: the guidelines for conferment of SAN 2013 replaced the 2011 guidelines.
Study the 2013 Guidelines
Conditions for SAN: 10 years post call, must have been actively practising as
an advocate in Nigeria for 10years before application
Pay a non-refundable processing fee (was N300,000 this year), must cite at
least 17 contested cases handled of which at least 3 Supreme Court, 6 Ct of
Appeal, 8 High Court cases. Citations of the law reports should be given and
Certified True Copy if unreported
Where it is manifest that the applicant himself has conducted the case from
the High Court up to the Supreme Court provided that where the applicant
submits cases in which he has appeared only at the Supreme Court he will be
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Practitioners Privileges Committee the candidate is adjudged to be of the
following disposition:
(f) Touting for briefs or engaging in any form of canvassing for cases.
3. A candidate must:
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7. A candidate should have or be a partner in chambers considered by the
Legal Practitioners Privileges Committee to have good and up to date
facilities including a good quality law library with good working
environment. There must be at least five full time junior legal practitioners
and other paralegal or support staff in full time salaried employment
Note that a SAN shall not appear or settle documents before an inferior CT.
See Ct of Appeal decision in ECWA v Ijesha (1999) 13 NWLR (pt 653) 368.
The case was not taken to the Supreme CT.
Privileges of SAN: These are contained in section 5(7) Senior Advocates of Nigeria
(Privileges and Functions) Rule 1979
The exclusive right to sit in the Inner Bar or where there are no faculties for
the Inner Bar on the first row of the seats available for legal practitioners
The right to mention any cause or matter listed for mention and not for
hearing, and any motion in which he is appearing, out of its turn on the cause
list for the day
SANs shall not engage in, or agree to be engaged in drafting any instrument
where the appropriate or prescribed fees are less than N400. They can do so
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gratuitously or if the instruments are connected with parliamentary
processes.
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governing bodies of the legal profession and actively participates in decision-
making. Every enrolled legal practitioner is qualified to be a member
however membership is not compulsory
The substance of the body is provided for by the LPA which stipulates that a legal
practitioner shall pay a practicing fee before being given a right of audience in court
practicing fees shall be paid over to the association: see S.8(2) LPA.
Rule 10 RPC: all legal documents signed by legal practitioners to have seal and
stamp of NBA.
Created by section 1 (1) of the Legal Practitioners Act. The membership consists
of the Attorney-General of the Federation who is the President of the Council, the
AGs of the States, 20 legal practitioners nominated by the Nigerian Bar Association,
seven of whom shall not be less than 10 years standing at the bar. The quorum for
the meeting of the council shall be 8 members. The functions of this body are:
Making and review of the Rules of Professional Conduct
The taking of security by legal practitioners for the payment of their fees and
the allowance of interest with respect to security
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Chief Justice of Nigeria as Chairman
Next most senior Justice of the Supreme Court as Deputy Chairman
President of the CT of Appeal
5 retired Justices of the Supreme CT or CT of Appeal selected by the Chief
Justice
Chief Judge of the Federal High CT
President of the National Industrial Court
5 Chief Judges of States to be appointed by the CJN in rotation to serve for
2yrs
1 Grand Kadi to be appointed by CJN to serve in rotation for 2yrs
1 president of the Customary Ct of Appeal to be appointed by CJN to serve in
rotation for 2yrs
5 members of the NBA of not less than 15yrs post call and at least 1 or them
must be a SAN
2 persons who in the opinion of the CJN are of unquestionable integrity
(must not necessarily be legal professionals)
Functions
Recommendation of persons for appointment as judicial officers
Persons for removal as judicial officers
Disciplinary powers e.g. for misconduct (negligent, unintentional)
Control general policy and administration
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Uzodinma v Commissioner of Police: the CT held that the sole warrant of
the constitutional provision in relation to legal representation is to safeguard
the interest of a litigant. The appellant was charged in the Grade I Area Court,
Otukpo with theft contrary to s287 Penal Code. The appellant engaged a
counsel to represent him at the trial CT. The CT declined the counsel the right
of audience in accordance with s390 Criminal Procedure Code. The appellant
was convicted and sentenced to 2yrs’ imprisonment. On appeal, the CT
upheld his claim that his fundamental right to legal representation under
s36(6)(c) CFRN 1999 (as amended) was breached
No longer an exclusive right as in Osahon v Federal Republic of Nigeria:
Ribadu (EFCC) wanted to prosecute in the Federal High CT. Supreme CT
Held that the Nigerian Police can prosecute in any CT but advisable that the
Police who want to prosecute at the Supreme Ct should be called to the
Nigerian Bar. Academics argue that this second phrase is only obiter (but
obiter from the Supreme CT is very persuasive). Also, in the Constitution, one
can appear to represent himself (Constitution states that “legal practitioner
or any other person or authority”) as this encompasses the right to a fair trial
– issue that a lay litigant cannot understand the technicalities of CT such as
how to call cite cases, all witnesses, swear affidavits etc.
Personally as a litigant/accused
Must be properly attired – Rule 36(a) Rules of Professional Conduct. In
High CT, you should be properly dressed with wig and gown and no wig and
gown for magistrate CT. Note R. 36(f) RPC – no wig and gown when
conducting cases where he is a party or giving evidence – Fawehinmi v NBA
(1989) 2 NSCC 1 e.g. lawyer giving evidence cannot enter the witness box
with the wig and gown
(3)Preparation of documents in probate s22(1)(d) & (4) LPA
Section 22(1)(d) LPA: if any person other than a legal practitioner prepares
for or in expectation of reward any instrument relating to immovable
property, or relating to or with a view to the grant of probate or letters of
administration, or relating to or with a view to proceedings in any CT of
record in Nigeria is guilty of an offence.
He shall be guilty of an offence and liable, in the case of an offence under
paragraph (a) of this subsection or a second or subsequent offence under
paragraph (d) of this subsection, to a fine of an amount not exceeding N200
or imprisonment for a term not exceeding two years or both, and in any
other case to a fine of an amount not exceeding N100.
(4) Preparation of conveyancing instrument: s22(1)(d) LPA; ss4&5 Land
Instruments Preparation Laws of the Western Region of Nigeria 1959
Section 4 LIPL: no person other than a legal practitioner shall either directly
or indirectly for or in expectation of any fee, gain or reward draw or prepare
any instrument
Section 5(1) LIPL: an agreement entered into after the commencement of this
Law to pay a fee or reward to any person, other than a legal practitioner, in
consideration of such person drawing or preparing any instrument is void
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Under no circumstances should a legal practitioner succumb to the practice
of rubber stamping landed documents prepared by a non-lawyer for any
reward: Rule 3(1) & (2) RPC 2007
Rule 10(3) RPC 2007: any document signed or filed by a legal practitioner
without compliance with the requirement of the rule is not properly signed
or filed
(5)Appointment as a AG/Minister or Commissioner for Justice – ss150 &195 1999
Constitution
The Federal AG is the chief law officer of the federation while the state AG is
the chief law officer of the state. Only a legal practitioner can be appointed
an AG and Minister of Justice. Must be 10yrs post call
(6) Statutory declaration of Compliance under s35(3) CAMA
To satisfy the requirement for the formation of a company under the CAMA, a
legal practitioner is expected to comply with a statutory declaration before
the incorporation of any company in Nigeria
The provision of the CAMA expressly state that a legal practitioner must
statutorily declare in the prescribed form that all the requirements of the Act
have been complied with before the documents can be accepted for
registration
(7) Appointment as a notary public - must have paid practising consistently for
7years
Section 2(2) Notaries Public Act Vol 11 CAP N141 Laws of the Federation
of Nigeria 2010 stipulates that the Chief Justice of Nigeria may admit any
legal practitioner considered as fit as notary. The criteria for fitness are not
specified. Typically in practice, two requirements for admission must be
complied with: (1) an applicant is required to pay his practising fees for a
period of 7 uninterrupted years within the time specified for payment of
practising fees; (2) the applicant must be attested to by the Chief judge of the
State where he practises.
An applicant applies to the Chief Justice of Nigeria with a detailed Curriculum
Vitae accompanied with all credentials and the proof of payment of
practising fees for 7 consecutive years
(8) Appointment as an SAN
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(2) Failure to comply with stipulated laws: through the combined effect of s24
LPA which provides for entitlement to practise for the purpose of any
particular proceedings and s2(2) LPA which empowers the Chief Justice to
grant a warrant to an applicant upon fulfilment of the requirement, a foreign
legal practitioner engaged by a client in Nigeria is given right of audience in
the CT before which his client is appearing
(3) A Legal Practitioner as a Litigant: where a LP is in Ct as a litigant, he cannot
appear both as a party and as a counsel for himself. An advocate cannot
appear for another party in the same suit where he is a litigant irrespective of
the relationship that exists btw them. Where the LP is a litigant in a civil case,
though he may be permitted to speak from the Bar, he is disallowed from
robing as a barrister and in criminal case, he can only conduct his case from
the dock. A LP who is a litigant cannot be said to represent himself in CT but
only conducts his case in person just like any other litigant – Fawehinmi v
NBA
(4) Notary public: a notary public is precluded from exercising his duties and
functions in any proceedings or matter when he has an interest: s19 NPA
2010
(5) Engaging in business: rule 7 RPC. Exception: rule 7(3) RPC. See below
(6) Salaried employment: rule 8 RPC – Where a LP is a servant or engaged in a
salarised employment of any kind, he is disqualified from appearing as an
advocate in Ct. A LP who is employed as a legal officer in a government
department is free from any limitation to appear as an advocate on behalf of
the government. Thus, a LP cannot take up full time employment and at the
same time represent his employer in CT. Where a LP is a director of a duly
registered company, he is prohibited from appearing as an advocate in Ct or
judicial tribunal on behalf of his employer (Rule 8(3) RPC). A LP who is in
full salarised employment may nonetheless represent his employer where
the law provides that such employer may be represented by an officer or
agent. He is however unauthorised to wear his barrister’s robes.
An exemption for university lecturers who can also be in private practice and
work as well [Regulated and Other Professions (Private Practice Prohibition)
(Law Lecturers Exemption) (No. 2) Order of 14th September 1992]. A lecturer
(now a judge) raised the issue that the Order does not cover lecturers in the
Nigerian Law School (decision is awaited. It is either at the CT of Appeal or
Supreme CT). Inconsistent with the fact that Council of Legal Education has
issued a circular requiring lecturers to be in active private practice
(7) Retired judicial officers don’t have a right of audience in any court or tribunal
both during and after their appointment (R6(3) RPC). See s318(1) CFRN for
definition of judicial officer and so a magistrate can practice after retirement
(8) Even after retirement: s292(2) CFRN. Judicial officer can be a consultant.
(9) After retirement, judicial officer must not sign pleadings but can practice as a
solicitor or legal consultant alone or in partnership 6(4) RPC. Can still be
addressed as Justice: rule 6(5) RPC
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(10) Exceptions – retired judicial officer may appear to personally
represent himself if he has no other disability. See Hon Justice Atake v
Afejuku (1994) 12 SCNJ 1
(11) SANs – see above
(12) Public officers – where a LP is a public officer, he may be by virtue of
such responsibility be prohibited from engaging in private practice except
farming: section 2(b) Code of Conduct for Public Officers in the CFRN 1999
(as amended)
Impersonating a legal practitioner s22(1(a) – (d) LPA
Practices or holds out
Takes or uses title Legal Practitioner
Wilfully takes or uses any name, title, addition, description falsely implying
or pretends he is a Legal Practitioner
Prepares any instrument related to immovable property, probate, letters of
administration or connected to proceedings in any CT of record in Nigeria is
guilty of an offence
he shall be guilty of an offence and liable, in the case of an offence under
paragraph (a) of this subsection or a second or subsequent offence under
paragraph (d) of this subsection, to a fine of an amount not exceeding N200
or imprisonment for a term not exceeding two years or both, and in any
other case to a fine of an amount not exceeding N100.
Engagement in business - Rule 7(1) of the RPC states that unless permitted by
the General Council of the Bar (hereinafter referred to as the “Bar Council”), a
lawyer shall not practice as a legal practitioner at the same time as he practices any
other profession.
Rule 7(2) states that a lawyer shall not practice as a legal practitioner while
personally engaged in –
(a) The business of buying and selling commodities;
Rule 7(3) states that for the purpose of this law, “trade or business” includes all forms
of participation in any trade or business but does not include –
(a) Membership of the Board of Directors of a company which does not involve
either executive, administrative or clerical functions;
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court or judicial tribunal for his employer except where the lawyer is employed as a
legal officer in a Government department.
Rule 8(2) a lawyer, whilst a servant or in a salaried employment, shall not prepare,
sign, or file pleadings, applications, instruments, agreements, contracts, deeds, letters,
memoranda, reports, legal opinion or similar instruments or processes or file any such
document for his employer.
Rule 8(3) a director of a registered company shall not appear as an advocate in court
or judicial tribunal for his company.
Rule 8(4) a lawyer in a full-time salaried employment may represent his employer as
an officer or agent in cases where the employer is permitted by law to appear by an
officer or agent, and in such cases, the lawyer shall not wear robes.
Rule 8(5) an officer in the Armed Forces who is a lawyer may discharge any duties
devolving on him as such officer and may appear as a Court Martial as long as he does
so in his capacity as an officer and not as a lawyer.
The rules of professional conduct is made for the maintenance of the highest
standard of professional conduct etiquette and discipline in terms of the
constitution of the Nigerian Bar Association known as The Legal Practitioners Act
(LPA), 2004; The Rules of Professional Conduct for Legal Practitioners (RPC),
2004.
The lawyer owes entire devotion to the interest of the client, warm zeal in the
maintenance and defence of the client’s rights and exertion of his utmost learning
and ability, to the end that nothing be taken or be withheld from him save by the
rules of law legally applied. No fear of judicial disfavour or public unpopularity
should restrain him from the full discharge of his duty.
A lawyer should take full instructions from the client before advising him. Advice
should be based on merit; a lawyer should always inform the client concerning the
progress of his case and where there is conflict between the client and the lawyer in
respect of the exact instructions given to the lawyer, the instruction of the client
must prevail. It may be oral or written or both but it is advisable that it should be in
writing.
A lawyer shall inform the client that his claim or defence is hopeless if he
considers it to be so. Where an action is statute-barred and counsel did not
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advise his client not to take the action, he could be indemnified in costs – Bello
Raji v. X (1946) 18 NLR 74.
A lawyer shall not handle a legal matter, which he is not competent to handle
without associating a lawyer with him who is competent except the client objects or
neglect a matter entrusted on him or handle a legal matter without adequate
preparation. Lecturer thinks that the exception means that the client objects to the
skilled lawyer chosen (Mr A) and not that the client objects to having any skilled
lawyer because if the client does so, the lawyer should reject the brief.
A lawyer has the duty to disclose to his client any conflicting interest. That is, a
lawyer that has accepted a brief from his former client cannot use it against him
except where the client, after full disclosure, still wants the lawyer he can act
notwithstanding conflict of interest.
In some cases of conflicting interest; the brief must be refused. A lawyer will not be
permitted to act against his former client when he has obtained confidential
information while acting for him, which would be improper and prejudicial to use
against him in the service of an adversary. Otherwise, there is no rule that a lawyer
cannot act against his former client – Onigbongbo community v. Minister of Lagos
Affairs & 31 Others. In Re Chief FR.A. Williams 1972 2 U.I.L.R. 235 (SC).
Conversely, a judge should not preside over a case in which he had previously
served as counsel or rendered legal advice unless he had fully disclosed this to
the parties – Olue v. Enenwali 1976 2 SC 23.
Client has freedom of choice of legal practitioner. A Client may terminate his brief to
counsel at any time when he no longer has confidence in him. A client can change his
lawyer whether for good cause or not. It doesn’t absolve the client of any fees he
incurred to the lawyer before termination. Where a counsel is debriefed, he owes
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the court a duty to make a final appearance before the court for a formal withdrawal
of his representation – Okonedo – Egharegbarni v. Julius Berger Nig. Ltd (1995) 5
N.W.L.R. (pt 398) 679 at 699. Lawyer should have agreement with client in writing
and even if agreement is oral, then the lawyer is bound by the agreement.
A lawyer must preserve his client’s confidence in the performance of his duty and
must not disclose any information without his client’s consent – R v. Egbuabor
(1962) 1 All NLR 287 – Where original and translated version of statement of
accused to the police was being produced and read in court, accused denied that
it is correct. He said what he told the police was that he was sick and could not
get up. Defence Counsel then said “I do not object to the statement being
tendered. My original instruction was that accused went to tap palm wine on the
day ‘in question”. It was held in fairness to counsel it should be said that apart
from this lapse he seems to have done his best for the appellant, and we do not
suggest that he was guilty of any conscious dereliction of his duty to his client.
That cannot alter the fact that by his unauthorised disclosure and his abstention
from cross-examination he implied that he himself doubted if the evidence to be
given by his client was to be relied on, and it was a miscarriage of justice, as
understood in this country that he should have continued to represent the appel-
lant without the appellant’s being aware that the counsel to whom he looked to
present his case had, from his point of view, gone over to the enemy.
In the circumstances we consider that the conviction must be set aside, but there
was a substantial case against the appellant, and the order we make is that the
conviction is quashed and the appellant is to be retried before another Judge of
the Western Region High Court.
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1) It does not extend to suppression of a crime or fraud – Annesley v. Earl of
Anglesea (1743) L.R.Q.B 317.
A lawyer can only withdraw from employment, once assumed, for good cause
and after reasonable notice to the client.
“Good Cause’ includes where the client insists upon an unjust or immoral counsel
in the conduct of his case, or if he persists over the lawyer’s remonstrance in
presenting frivolous defence, or if he deliberately disregards an agreement or
obligation as to fees and expenses”. Upon withdrawal, lawyer should refund such
part of the retainer as has not been clearly earned.
A lawyer has the duty to take instructions from a client in chambers and not the
client’s house except for urgent reasons e.g. where the client is ill, where it has to do
with family relations, etc.
A lawyer who collects money for his client, or is in position to deliver property on
behalf of his client, shall promptly report and account for it and shall not mix such
money or property with or use it as, his own.
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A lawyer has the duty to accept a brief in the court in which the lawyer practices,
subject to payment of proper professional fee otherwise called the cab bank rule –
Rondell v. Worsley (1967) 3 All ER 993. The rule provides that special
circumstances may justify his refusal, at his discretion to accept a brief e.g. personal
interest, conflicting interest, religious grounds, etc. Refusal on other grounds may be
unprofessional conduct. It is therefore his duty to undertake defence of a crime
regardless of the guilt of the crime except those of suspicious circumstances e.g.
personal interest, non-payment of fees, etc. – Udo v. The State (1988) (Pt. 82) 316;
Udofia v. The State (1988) 2 NEEIII.
The basis of the Counsel’s right (not duty) to control incidents of trial is the
presumption of the client’s confidence in the counsel – Edozien v. Edozien (1993)
1.N.W.L.R. (pt 272) 678 at 693.
A lawyer has a duty to thoroughly investigate and marshal out facts stated by client
including interview of potential witnesses for his client or for the opposing side. It is
not inadvisable that counsel should meet his client’s witnesses for the first time in
court.
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Charges means any charges (whether by way of fees, disbursements, expenses or
otherwise) in respect of anything done by a legal practitioner in his capacity as a
legal practitioner – section 19 of the LPA.
DIVISION OF FEES
A lawyer shall not share the fees of his legal services except with another lawyer
based upon the division of service or responsibility – Rule 53.
LETTER WRITING
Practitioners are required to draft letters of various kinds, ranging from a covering
letter to a letter before a civil action. In drafting letters, the conventions governing
letter writing such as layout, salutation and complimentary close must be adhered
to. Since the practitioner acts on behalf of a client in a professional capacity, the
letter should be written in plain English. It should never be conversational; thus,
can’t, won’t, they’re, and so on, should not be used. Such an informal style of writing
is inappropriate. In Weston v. Central Criminal court, Courts Administrator
(1977) 1 QB 32 at 39, the Court of Appeal observed that the letter was discourteous
and rude.
Every letter should bear a date. The day should be written in figures, the month in
words and the year in figures. The month and year should not be abbreviated but be
written in full. Dates should not be punctuated. However, it is permissible to insert a
comma after the month. The month should be written out in words, while the day
and year should be written in figures.
A letter must bear a heading or caption, for example, if a client is being informed
about progress in a suit, then the heading of the letter will be the suit number and
the parties to the suit
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Letters written for a firm should be written in either the first person singular, that is
“I” or in the first person plural “We”. Where it is intended that the letter should be
read only by the addressee, the expression ‘Strictly Private and Confidential’,
should be written on it.
No letter must be dispatched unsigned. A letter must be signed either by the writer
or on his behalf.
There are two types of letters namely Simple (social or informal) letters and
Business (official or formal) letters.
Simple letters are those written to friends and relatives conveying a personal
message while business letters are more formal than simple letters.
CHECKLISTS OF GUIDELINES FOR STANDARD LAWYER’S LETTER TO CLIENT
To write a good letter, one would have to look at the parts of a letter which are:
1) Letterhead – This contains the names, address, references, and
qualifications of the writer. It must be simple and sober.
2) Date – The applicable mode in Nigeria is: the day, month (written in words),
and year e.g. 4 December 2009.
4) Status of the letter – The word private and confidential (if necessary) should
be included.
5) Name and address of the recipient – Identify the reader by name, title or
both.
6) Salutation – The level of familiarity would consider what to salute with e.g.
Dear Sir, Dear Mr. ABC.
7) Subject head – This should give a summary of what the letter contains. It is
recommended to be in sentence style capitalisation and not in capital letters
except where absolutely necessary e.g. My Expectation In Law School.
8) Body of the letter – This is the bulk part of the letter which can be grouped
under the following heads:
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10)Name and signature of the writer – It is advisable to always sign on top of
the name. When signing on behalf of someone, you must indicate it by adding
the word “for”. For example, For: Mr. ABC. However, the expression “pp” is
used in some cases.
12)Copies – This is used where there is need to notify other persons about the
message in the letter. It is known as the distribution list. (CC is the short form
of Copies). It is also used to notify the recipient that same copy has been sent
to other persons. But where a blind copy is to be sent to other persons,
nothing should be shown on the letter.
4. A good letter should have only one paragraph but where several paragraphs
are necessary, each paragraph should contain only one idea distinct from
other paragraphs.
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Refusal is also justified in special circumstances e.g. against your personal
interest (such as when the lawyer’s life will be at stake i.e. must be an
imminent threat if he accepts the brief he can refuse the brief, refusal on
religious or cultural grounds etc); conflict of interest – must disclose this
special interest to the client and the client decides whether or not to continue
with the lawyer
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NB: Breach of these duties may result to professional negligence: Rule 14(5)
(considered as professional misconduct). Professional misconduct may be gross
misconduct which may lead to suspension or striking off from the register of
lawyers
Skills
Interviewing a client
Logical sequence
Flexible (individual differences)
Good atmosphere
Empathy
Stages of interviewing
Listening
Deep mental analysis: paying attention to what client is saying and
what he is not saying, fixing the client’s information into a particular
sphere of law to get the defence or claim
Body language displayed (nervous, apprehension, fidgety or speaking
too quickly)
Reluctant to reveal information
Your own behaviour
Questioning
Asking open, narrow, leading (to suggest a particular answer in the
question you are asking the person and mirror questions
(confirmatory question: to confirm what the client has said)
Advising
Avoid jargon: avoid giving the client legalistic terms
Explain in layman’s terms
Summarise all the options again if necessary – don’t tell a client what
to do, assist the client in knowing the implication of each option
Discuss fees and expenses
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Week 6
Duties of the lawyer to the client
Privilege and confidence of the client: Rule 19 RPC
All oral or written communication made by a client in the normal course of
engagement are privileged and cannot be communicated or revealed to a 3rd
party by the legal practitioner
The scope: may not reveal client’s secret, use the confidential information to
the advantage of the client
This duty extends to employees, associates and persons whose service are
utilised by the legal practitioner
The lawyer is also under an obligation not to communicate upon the subject
of controversy or negotiate or compromise the matter with the other party
who is represented by a lawyer, he can only deal with the lawyer
He cannot use the confidence or secret of his client to the advantage of
himself or of a 3rd party
Section 192 Evidence Act 2011 also provides for non-disclosure of
confidential information relating to communication to the legal practitioner
in the course of briefing, the content of written document and the advise
given to the client
Section 192(3) E.A: even after the termination of the relationship, the rule
still applies – this is even more onerous than the RPC
Section 193 E.A.: provides that the above provisions shall apply to
interpreters and the clerks of the legal practitioners
Exceptions
He may reveal with the consent of the client after a full disclosure
When it is permitted by the RPC (e.g. when consent of the client after full
disclosure) when required by law (e.g. Money Laundering Prohibition Act –
reveal communication if it amounts to money laundering)or by a court order
When the confidence is about the commission of a crime and disclosure is
necessary to forestall it
A lawyer may reveal such communication when it is necessary to recover his
professional fees
He may also reveal when defending himself or associates against an action of
wrong conduct or negligence instituted by the client against the legal
practitioner
Rule 15(4) RPC: where the information relates to the perpetuation of fraud
and he has warned the client to desist or rectify it and he refuses, then he is
under an obligation to reveal the fraud to the affected person or tribunal,
except the communication is privileged. This provision makes it seems that
where such information is privileged that the lawyer is not under an
obligation to reveal. Rule 15(4) must be read in conjunction with the
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exceptions created under Rule 19 i.e. where the information is to as to the
commission of crime, the legal practitioner can reveal the information even
though privileged. NB: this covers where the crime is committed or still being
committed
Money Laundering (Prohibition) Act 2011: Section 6: provides that financial
institutions are under the obligation to report suspicious transactions to the
appropriate authorities and to keep surveillance on them. Section 7: such
record are to be kept for a period of 5yrs even after the serving relationship
with the customer. See section 4: non-financial institutions including lawyers
are under obligations to report suspicious transactions e.g. where large sums
of money is involved and the source of the money cannot be verified. Section
8 - The records referred to in section 7 of this Act shall be communicated on
demand to the Central Bank of Nigeria, or the National Drug Law
Enforcement Agency and such other regulatory authorities, judicial persons
as the Commission may, from time to time, by order published in the gazette,
specify.
NB: if the client in murder trial admits that he is guilty, cannot reveal this but cannot
canvass a defence based on his innocence. Can use mitigating factors such as
involuntary intoxication etc
Also see Rule 19(3)(c): a lawyer may reveal the intention of his client to commit a
crime and the information necessary to prevent the crime.
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Rule 20(5): If in the course of the trial, it becomes apparent that his
testimony will be required to uphold the course of justice, it will not be
prejudicial to his client, he may leave further conduct of the trial to other
counsel and testify
But under Rule 20(5) he can testify for other parties and continue to
represent his client except where his testimony will be prejudicial to his
client’s case – this is strange since there are rare cases where the testimony
will not be prejudicial to the client
Allow other persons to represent the client where he is about to testify or
believes he will testify but where impossible to get other counsel, he may
testify and continue to represent the client but he must not try to show the
veracity of his testimony: Rule 20(6)
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Where the client insists on an unjust or immoral course of conduct of his case
e.g. he wants the lawyer to bribe a judge
If he persists in pressing a frivolous case against the lawyer’s advice
If the client deliberately disregards an agreement or obligation to pay fees or
expenses: Rule 21(2)
A lawyer who is withdrawing from employment should give reasonable
notice to the client to enable him get another lawyer: Rule 21(3)
If the withdrawal occurs after full payment of fees, the lawyer should return
the part of the fees that has not been earned: Rule 21(4)
Conflict of interest
Where there exists such conflict a lawyer is duty bound to disclose such:
Rule 17(1)
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A lawyer while representing his client should not allow his personal,
proprietary, financial or business interest to conflict with the interest of his
client: Rule 17(2)
A lawyer shall not acquire proprietary interest in the cause of action or
subject matter of litigation which he is conducting for a client: R17(3)
He may however, acquire a lien granted by law to secure his fees and
expenses or contract with a client for a reasonable contingent fee in a civil
case
For a lien: must be a CT order to this effect, the lawyer cannot
unilaterally have a lien on the client’s landed property. Different from
the lien on the client’s documents where the lawyer can have a lien
unilaterally). Section 16 Legal Practitioners Act provides procedure
(give client a bill of charges, allow a period of 1 month to elapse
before instituting an action in CT)
NB: a contingent fee i.e. when say damages are paid in a civil matter,
then the lawyer will be paid his fees
A lawyer should not accept a brief where the subject matter is likely to affect
the interest of an existing client unless the two parties consent: R17(4)
A lawyer shall not appear as counsel for a client in a matter where he himself
is a party: R17(5)
The above rules also extend to the lawyer’s associates, partners and affiliates
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A lawyer’s first duty is to uphold the law, this supersedes his duty to his
client, therefore, he must refuse to participate or aid conducts that are
unlawful: R15(1)
Where the client insists on perpetuating illegality, a lawyer must withdraw
his employment: R15(2)
A lawyer shall not agree with his client to carry out any act which may bring
disrespect to a judge or compromise any public holder: R15(3)(a)
Agree to file a suit which is meant to annoy, harass or injure another person:
R15(3)(b)
A lawyer shall not fail to inform his client about the option of ADR
mechanism before resorting to or continuing litigation on behalf of his client:
R15(3)(d)
Representing clients competently
A Lawyer shall not handle a legal matter which he knows or ought to know
that he is not competent to handle without associating with a lawyer
competent to handle it unless the client objects
Handle a legal matter without adequate preparation
Neglect or abandon a legal matter entrusted to him
Attempt to exonerate himself from or limit his liability to his client from his
personal misconduct: R16
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WEEK 7: DRAFTING 1 (I) BASIC DRAFTING PRINCIPLES; (II) LETTER WRITING
CONTENTS – also draft a legal opinion
BASIC PRINCIPLES IN DRAFTING
Drafting is a form of communication in permanent form. The art of legal writing.
Drafting is a legal composition. Thus, an important skill that every legal practitioner
needs to possess. Documents are drafted in English language, because it is the
language of the law in Nigeria.
Standard British English, and plain English, should be used in drafting documents.
Therefore, law graduates should have acquired sufficient knowledge of English
grammar in the course of their education.
It is used to prepare the following documents:
1) Pleadings;
2) Agreements;
3) Reports;
4) Letters;
5) Legal opinion;
6) Memorandum; etc
3. The description of the case to which the legal action is confined; and
Every legislative sentence must contain a legal subject and a legal action. The action
that is of the legal subject is linked to the subject by using a connective between the
legal subject and the legal action. The connective would depend on if the legal action
is mandatory, prohibitory or permissive. If it is a mandatory action, then a
connective expression as “shall” would be used; of prohibitory, “shall not” would be
used; and if permissive “may” or “may not” would be used.
Most legislative sentences are qualified and subject to cases and conditions, which
must precede the legal subject and not action.
George Coode’s order for drafting legislative sentence is arranged thus:
CASE – CONDITION – LEGAL SUBJECT – LEGAL ACTION
a) THE LEGAL SUBJECT
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The legal subject must necessarily be a person who is conferred with the rights, power,
privilege, obligation or liability to carry out a legal action.A legal subject cannot be a thing
because it is only a person that can be conferred with rights, powers, privileges etc.
b) LEGISLATIVE ACTION
This is the action required of the subject and this action is linked to the subject by using a
connective. The connective depends on whether the legal action imposed on the subject is
mandatory, permissive or prohibitory. For instance, the connective expression “shall” is
mandatory. “May” or “may not” is permissive, while “shall not” is prohibitory.
c) THE CASE
The case states the circumstances in which the legal action can be involved. In stating the
case, the expression such as “when”, “where” can be used.
d) CONDITIONS
Conditions may be prescribed which have to be fulfilled before legal action can be taken.
Where there are such conditions, no legal action can be taken until they are complied with.
Expressions such as “if” and “unless” are used in stating conditions.
However, some legal writers have criticised the above form by stating that a simpler
form should be better to help legal practitioners in drafting. Thus, a sentence should
be arranged in the manner below:
SUBJECT – VERB - OBJECT
The subject being the actor, that is, a person empowered to do or refrain from doing
an act.
The verb states what is to be done or not to be done.
The object on the other hand, is the thing or person being acted upon.
In using the above format to prepare a good draft, the legal practitioner should state
precisely in a clear manner what ought to be done by the person or thing involved in
the body of the draft and should also go an extra mile to state what the person or
thing should refrain from doing, and the person or thing in which the essence of the
draft is to be acted upon.
2. Sentence structure
3. Paragraphing.
4. Grammar.
5. Capitalisation.
6. Punctuations.
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To avoid ambiguity, nouns should be preferred to pronouns even at the cost of
repetition.
Adjectives and adverbs should also be used carefully because their meanings are
less clearly fixed than that of nouns.
PRECEDENTS IN DRAFTING DOCUMENTS
This is a system of jurisprudence based on judicial precedents rather than statutory
laws, which is advisable for an efficient legal practitioner to use in drafting good
documents. Precedent should be cautiously used and used in the Nigerian context.
Forms and precedents must not be slavishly. Note not all the drafts in the textbooks
are correct. Some adaptations and modifications as are relevant to the Nigerian
context may have to be made: Olufuntuyi v Barclays Bank DCO Ltd (1965): lawyer
can use precedent in drafting but must be adapted to the Nigerian context.
3. Drafts should be sent for perusals, that is, the document should be read
thoroughly or carefully.
6. Proof read your document, that is, edit and check the draft for any further
error.
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There are several stages of drafting which includes:
1. Taking and understanding instructions
4. Composition.
5. Scrutiny.
DESIGN
This is the act of working out the form of something (as by making a sketch, outline
or plan). A legal practitioner must make or work out a plan for the draft. Thus, a
draft must have a good design e.g. whether the document will be divided into parts,
chapters, clauses etc for easy assimilation. The order – the document should bear
such an order that will make it most readily understood. The idea should be
arranged in some order e.g. in order of sequence. Accuracy and precision – all
superfluous phrases should be avoided, legal language should be precise and
accurate. Each sentence should bear an order that will most readily and clearly
bring put the meaning of the sentence.
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This is the cognitive process of thinking about what you will do in the event of
something happening. That is, the plan should have the will and intention to
carry out some action that is derived from the design. There should also be a
schematic or preliminary plan acting as the outline of the draft.
COMPOSITION
This is the spatial property resulting from the arrangement of parts in relation to
each other and to the whole, that is, the way in which the draft is composed. Thus,
the draft should be created by arranging several precedents to form a unified whole.
SCRUTINY
This is the act of examining something closely (as for mistakes). For a draft to be
error free, a legal practitioners draft should undergo scrutiny that is, getting the
service of another legal practitioner or practitioners.
EDITING AND CHECKING THE DRAFT
This is the last stage of drafting. After a draft has undergone scrutiny, a legal
practitioner should edit and make omissions or additions based upon what is
scrutinised and give a final thorough check to see if it is standardised.
HABITS TO AVOID IN DRAFTING
For a drafting to be good, a legal practitioner has to avoid certain words which if
used will act as pitfalls to good drafting techniques. Such words are as follows:
1. Words and phrases that are uncommon and intricate expressions–A
legal practitioner should avoid words or phrases that are uncommon or
having many complexly arranged elements, that is, elaborate or complex
words should be avoided e.g. unnecessary foreign words, slangs, jargon. For
example instead of ‘it shall be lawful for a tenant”, it is clear to say “the tenant
shall…”
3. Archaic words and expressions –The use of old words should be avoided
and be placed with modern words. For example, “doeth” is an archaic word
for “do”. Examples of archaic words are whereas, aforementioned, whereof,
herein after, herein, hath, doth. These should only be used where they are
absolutely necessary. Also avoid technical terms and abbreviations. It is
unnecessary to repeat the word whereas to introduce every document.
Changing language – different words should not be used to say the same
thing in the same document. Do not start with landlord and end with lessor.
Be consistent throughout.
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4. Latin words and phrases – In drafting, sentences should be written in plain
English devoid of Latin words and phrases. The use of Latin words and
phrases should be avoided when drafting documents for a client because not
all clients understand its meaning. For example, rather than writing the Latin
word or phrase: “et in terra paxhominibusbonaevoluntatis”, the English
phrase “and peace to his people on earth” should be written. Use plain,
everyday language that can be understood by both lawyers and non-lawyers.
And don’t use abbreviation (e.g. FCT should be Federal Capital Territory).
7. Clumsy and inelegant words and phrases –A legal practitioner should not
used words that are clumsy, that is, words or phrases that are difficult to use,
because they are not elegant or graceful in expression.
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1964 states that punctuation forms part of an enactment and is taken into
account in construing it. See Houston v Burns (1981); Shell BP v FBIR (1976)
2. Capitalisations –A sentence must begin with a capital letter and may end
with a full stop, exclamation mark or question mark.
7. Brackets –These are in pairs: open and closed brackets. They are also called
parenthesis. Generally, they are used to enclose an aside or afterthought,
which further clarifies a sentence. Brackets are used in legal documents to
enclose nicknames given to parties to a transaction e.g. (the seller), (the
buyer), etc. They are also used to enclose abbreviations or equivalence of
figures in words. There are two types of brackets namely round ( ), and
square [ ]. Square brackets are used in quotations where words which do not
belong to the quotation are inserted in the quotation for sake of clarity while
round brackets are used in all other situations except in citations of certain
journals and law reports.
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10. Enumerating particulars and the exclusion of the “Ejusdem generis
rule” –A legal practitioner has to determine the number of particulars by
mentioning them one after the other and avoid the use of “ejusdem generis
rule” which means “of or as the same kind”. Because, this might lead to
ambiguity – Cotman v. Brougham (1981) A 514.
11. Cross headings and computation of time –These are used to give a clearer
understanding of a legal document.
NB: Clarity: a word used can change the fortune of a party: Consolidated
Contractors v Masari (2011) 3 NWLR (pt 1234)
c) Use of active words and not a passive voice –Short, familiar words
should be used instead of long unfamiliar words. Concrete words should
be preferred to abstract. Words giving the same meaning should be
consistently used. Technical words should be used sparingly. E.g. Fejiro
broke the glass (active) and not the glass was broken by Fejiro (passive)
3. Lengths of paragraphs –Suggestions have been giving about the right length
of a paragraph, ranging from five (5) sentences to six (6) sentences. In some
cases, they may be drafted in clauses and sub-clauses duly numbered e.g.
affidavits should be numbered.
PARAGRAPHS
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PARAGRAPHING TECHNIQUES –
Sentences must be arranged in paragraphs
Each paragraph consisting of a thing, idea or argument.
LENGTHS OF PARAGRAPHS –
Should range from five (5) sentences to six (6) sentences.
“AT”: This is used where it is intended to take into account fraction (hours) of the
day.
E.g. “commences at 10.00am”.
The interpretation is that parties intend to reckon with fractions of day.
“AFTER”
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When an event is stated to take place after a named date the date of the event
is to be excluded.
E.g.
“This agreement commences after the payment of the sum of 1 million naira”.
Brown v. Black (1912) l K.B, 316.
“TO”
If a legal document expresses “from 10th November to 15th November, 2011.
Because of the use of “from”, 10th is excluded but it is not clear whether 15th is
included because of the use of “to”.
To avoid ambiguity it is better to add “both dates inclusive” or “the 15th day
inclusive”.
“TILL” OR “UNTIL”
This does not give clear indication of inclusiveness or exclusiveness.
To avoid ambiguity use “till and including” or “till but excluding”
e.g.
“till but excluding 10th November …”
“till and including 10th November …”.
“DAY”
This means the period of 24 hours starting at a midnight and ending on the
following midnight.
Generally it is used to mean the whole day
But where fractions, that is, commencing at a particular hour of the day is
intended, it should be clearly stated by using the word “at”.
BELFIED V. BELFIED
CARTWRIGHT (SUPRA)
“CLEAR DAY”
Simply means the period of 24 hours starting at midnight, excluding fractions of a
day.
“WORKING DAY”
This means Monday to Friday excluding public holiday, Saturday and Sunday.
Essien v. Essien (2009)
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The Court of Appeal took judicial notice of Saturday as a work free day.
An act to be done on public holiday shall be deemed duly done if done on the
next day.
Section 15(3) Of Interpretation Act
However, where the act is to be done within a particular period not
exceeding six days holiday shall be left out of account in computing the
period.
“A WEEK”
This is a seven (7) clear days starting midnight of Saturday to the midnight of
the next Saturday.
However parties can state in their agreement that the period begins at
midnight of any particular day of the week to the midnight of the
corresponding day in the next week. E.g.
“Midnight Monday to midnight Monday”.
“MONTH”
Generally, month can be lunar or calendar month.
In Nigeria a month is referred to as a calendar month.
On the meaning of calendar month section 18 of the Interpretation Act
defines it thus:
“A calendar month ends upon the day in the next ensuing month having same
number as that on which the computation began.
But if the next ensuing month has not the same number as that on which the
computation began, then the calendar month on the last day of the next
ensuing month.
E.g. calendar month from
28th March expires on 27th April
29th January expires on 28th February
31st August expires on 30th September
“YEAR”
A year is a period of 12 months usually calculated from 1st January to 31st
December.
When a contrary intention is intended it should be clearly and expressly stated.
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The phrase should be avoided as it is difficult for two persons to agree on
what is a reasonable time.
Where possible specify the time frame.
“As soon as possible” means shortest possible time or within a practicable
time
It is imprecise, unspecific and its construction depends on circumstances of
each case.
Both phrases should be avoided as much as possible.
However, where there is uncertainty or the performance of act or obligation
depends on prevailing circumstance their use become inevitable.
“FORTHWITH” / “IMMEDIATELY”
Both words means prompt or without delay.
They are imprecise and their meaning depends on the circumstance of each
case. “Forthwith” is archaic and should be replaced with immediately.
Legal practitioners may be required to draft several documents. These include
internal memoranda, letters, legal documents, legal opinions and advice, and
pleadings. Drafting rules must be followed when drafting documents and the right
format adopted. Also, the appearance of legal documents is important. Documents
should be well laid out to aid readability.
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wrote a nasty letter to the CT (saying mindless CT official wrote the wrong date).
This was held that this was not in good taste for a legal professional; Boyo v AG
Midwestern State (1971). Be careful about choice of words, spelling and place
punctuations properly. As much as possible, restrict your letter to one page. Each
paragraph in a letter should contain one idea only. Clearly identify why you are
writing the letter and what you want the letter to achieve. Can this result be
achieved better by any other means (e.g. phone call or a meeting).
Types of letters
Official (business) letters
Informal (social) letters
Formal Letter
Indented style is the old style. For modern purposes, American style i.e. the
block (aligned) style or modernised British style: semi-blocked (indented)
style). In either one, you can use open or closed punctuation
In the case of EIB Building Society Ltd v Adebayo (2004) All FWLR (Pt
193) Pg 228: a lawyer wrote : I am directly to confirm to you that EIB has
fully refinanced…….. you are therefore to fully discharge your
obligation….this has always been the position of things as you very well
known or must have known. Supreme CT held that this writing is worthless
without any moduline of business acumen. Supreme CT said ‘finally (pg 366)
remember that you will be judged by the letter you write. Although clients do
not know whether you know the law right, they will know whether you spelt
their name right. And many will know whether you made grammatical
errors. If you want to be known as a competent lawyer, then write a good
letter”
Parts of a letter
Contents of a formal letter
1) The Sender’s Address or Letterhead: every formal letter should begin with
the sender’s address written at the top right-hand corner of the paper. In
modern practice, law offices have printed letterhead having the address of
the office. A lawyer should not be cosmetic or flamboyant in the design of
letterhead and black and white is most preferred. A letterhead may contain
the logo of the law firm, the name of the firm, the address of the firm, the
telephone number(s) of the firm, the email address and where applicable, the
website address
2) Reference: In the past, because letters were printed with analogue
typewriters, letterheads had ‘Our Ref’ and ‘Your Ref’ printed on them. This
method has however become obsolete as letterheads are stored in computers
nowadays, consequently leaving the person drafting the letter to insert the
reference. Where such references are not utilised, it will be unnecessary to
include ‘Our Ref’ and ‘Your Ref’. However, in keeping with the tradition of the
legal profession, lawyers are expected to have all their correspondence well
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referenced e.g. Law/2011/23. Helpful for record purposes such as filing and
cross referencing and retrieving such documents
3) Date: in the past, the date was placed immediately below the sender’s
address with a line spacing in btw the address and the date. In modern times,
using the block style, the date is written to the left-hand side corner above
the addressee’s address. However, there are no hard and fast rules as to
where the date should be placed. Dates should be written in full e.g. 7th July,
2015 (using the British style) to eliminate doubts as to when a letter was
written and it makes for formality and decency. Should include actual date of
dispatch (not back date). Be consistent with whichever style you choose
1) Status of the letter: Special Instructions/Special Markings: special
instructions or markings such as ‘STRICTLY PRIVATE AND
CONFIDENTIAL,’ ‘CONFIDENTIAL’, ‘PRIVATE’ or ‘PRIVATE AND
CONFIDENTIAL’, ‘WITHOUT PREJUDICE’, ‘SUBJECT TO CONTRACT’
contained in a formal letter are often typed in the upper case and inserted
btw the date and the addressee’s address. However, there is no consensus
among authors as to the location of special instructions or markings.
Whereas some authors are of the opinion that is should be written
immediately after the date or before the date, some state that it can be placed
at the right-hand corner above the salutation
(a) Confidential: where a letter is marked ‘CONFIDENTIAL’ , it means any
person deputising for, or the secretary to the addressee may open and
read the letter. However, the information should be kept strictly within
the law firm, company or institution to which the letter is addressed
(b) Private or private confidential: where marked with these, the implication
is that only the addressee should open and read it and no other person
Where any of the above special instructions are used in a formal letter, a
corresponding mark should be printed on the envelopes to ensure
compliance
(c) Without prejudice: when used by parties, it means that the parties have
negotiated a settlement without implying any admission of liability and
thus cannot be given in evidence in trial. Where a letter is marked
‘WITHOUT PREJUDICE’, it is the intention of the parties (writer and
recipient) that the letter cannot be tendered as evidence in any courts
without the consent of both parties i.e. it serves as an estoppel to
preclude or bar of evidence as to the contents of the letter. The position of
the writer is not jeopardised if the terms he proposes are not accepted or
where negotiations breaks down between the parties
(d) Subject to contract: where letter is marked with this, it means that the
agreement reached by the parties is not binding on the parties until a
formal contract is made. Where a letter of acceptance is marked
‘SUBJECT TO CONTRACT’, such an acceptance is considered invalid. A
lawyer should ensure the implication of any of the phrases in formal
correspondence sent and received. UBA v Tejumola & Sons Ltd (1988):
the agreement was reached subject to contract which Tejumola didn’t
obviously understand. He demolished the flats to create a banking hall
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and built a slap for a banking hall. UBA then said that they were no longer
interested. Supreme CT held that since the agreement was made subject
to contract, UBA was not bound.
2) Attention Line: where a formal letter is addressed to a law firm, a company, a
government department or an institution, but however intended that a
particular person should deal with the subject matter, then attention line is
used giving a line spacing with the addressee’s address e.g.
For the attention of Mr Peter Clark, Chief Accountant.
Where a letter is written to a foreign country, the name of the country should
be included on the last line of the address. In many foreign countries,
postcodes are used. In Nigeria, PO Box or Private Mail Bags (PMB) are used
where physical address is not used
4) Salutation: the salutation is contingent upon the recipient. There should be a
line spacing btw the recipient’s address and the salutation e.g. Dear Sir
(Traditional) or Madam, Dear Mr Johnson (less formal modern), Dear Sirs,
Dear Madam, Dear Sir. Honorary titles can be used e.g. Dr, Prof, President,
Governor, Minister, Ambassador. When Dear Sir is used, probably the first
time writing to the person, but where you use Dear Mr Johnson, then you’ve
had interaction with the person for a while. The salutation may be
handwritten in simple official letters especially when it is within the
organisation (a special touch to this letter)
5) Heading: it should present at a glance a summary of the content of the letter.
Heading must reflect the subject matter of the letter. Heading may be omitted
in simple official letters. The heading is written with a line spacing after the
salutation. It is a brief description of the content of the letter. It is
appropriate to be written in the upper case for prominence. In litigious
matters, the name of the client or the parties must be specified first, followed
closely by ats (at the suit of). RE (with regard to, in respect of) serves as a
signpost and it refers to other communication that has gone on in respect of
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this matter btw the parties. Though it may be dispensed with in consonance
with plain English
Examples
RE: PAYMENT OF CONTRACT SUM
RE: VAYMOND v DUPE
APPLLICATION FOR THE POST OF A LAWYER
6) Body of the Letter: formal letter comprises of three main segments: the
introductory paragraph, the main paragraph and the concluding paragraph.
The introductory paragraph (opening paragraph) should briefly explain the
basis for the letter and confirm relationship with the client. In a legal letter,
the introductory paragraph gives a brief description of the lawyer’s
relationship with the client. In an application letter, an introductory
paragraph establishes the purpose for writing the application letter; it gives
an explanation to the job applied for and the source of information of the
vacancy. Introduction Example is: We write as counsel to Mr Phillips & Co.
acknowledgment: with respect to the above subject matter (when referring
to other correspondence). The main paragraph states the reason a lawyer is
writing the letter by pinpointing the issues and sequentially presenting them.
Contain the actual message(s) to be conveyed, it may be one or more
paragraphs. The concluding paragraph states what action is to be taken and
by whom e.g. stating the action that you expect from recipient or what you
intend to do on behalf of your client. Do not make threats that you know you
will not carry out.
7) Complimentary close: a closing greeting comes immediately after the last
paragraph with a line spacing. It usually comes before the signature. It is a
polite way of ending a letter e.g. Yours faithfully. The mode of salutation
dictates the choice of complimentary close. If you use Dear Sir, then use
Yours faithfully or Yours truly. When you use Dear Mrs Smith, then use Yours
sincerely. Avoid flowery or archaic terms (I have the honour to be your most
obedient and long-serving servant)
8) Writer’s signature: comes after the complimentary close. Signature is
necessary for authentication and identity of the writer. Where a person signs
on behalf of the writer either because of the writer’s unavailability or
indisposition, the practice is to write the words ‘for’ or ‘pp’ after your name.
Lawyers must read and scrutinise the letter before appending their
signature. Sign on top of the name.
9) Sender’s name: comes immediately after the signature
10)Enclosures: where there are documents sent together with the letter, it is
traditional to indicate this in the body of the letter at the foot below the
writer’s designation. It is usually abbreviated as ‘Encl’ or Encls at the bottom
left hand corner followed by a list of documents enclosed. It is useful to
dictate the number of enclosures e.g. Encs x 2. Some lawyers itemise the
documents attached
E.g.
Encs
(1) A bill of charges
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(2) An invoice
11) Copies: when a copy is to be sent to a third party, it is customary to use the
word ‘copy’ or ‘copy to’ or simply ‘cc’ followed by the distribution lists
Example
Copy: Daniel Fox, Chief Accountant
12)Where blind copies are sent, the abbreviation ‘bcc’ is written on the office
copy of the people copied. The addressee’s copy will not have any cc. It
means that the writer does not want the addressee to be aware that copies
are sent to third parties
Dear Madam,
As soon as we receive the above documents, we shall promptly forward same, along
with the necessary forms, to the CAC for registration of your business. Kindly
contact us if you
Your faithfully,
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Contents of a Legal Opinion (e.g. when a Bill is in formation at the House of
Assembly or from the AG’s office)
Introduction: cite the fact that writer has been authorised/briefed to write a
legal opinion on……. (the authorising official must be stated and the capacity
in which he is authorising the writing of the legal opinion)
Summary of the facts where they are available. Where the facts are vague,
writer to ask for clarification from the authorising official (e.g. company
wishing to merge asks the company secretary for a legal opinion on the
merger)
What the applicable law is (if one exists e.g. what is the law states in relation
to the topic e.g.). sometimes, the possible of the law may be multifaceted.
Start with the one that is in the favour of your opinion down to the least
favourable
Apply the law to the facts of the case
Conclusion. Certain circumstances, where there is one than one conclusion.
Start with the best conclusion and move down to the options. Conclude by
stating what you think should be done based on the facts of the case
Sign the legal opinion
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As a counsel, Chairman of INEC has briefed you to write a legal opinion on the rights
of internally displaced persons (due to floods and insurgency) to vote in the
forthcoming general elections in Nigeria.
Introduction
I, Emokiniovo Dafe-Akpedeye of Compos Mentis Chamber, at No 1 Compos Mentis
Bouvleard, Warri, Delta State have been engaged by Professor Attahiru
Muhammadu Jega, the Chairman of the Independent National Electoral Commission
to write a legal opinion on the right of internally displaced persons to vote in the
2015 gubernatorial elections.
Summary of Facts
Currently, in Nigeria, there are internally displaced persons due to floods and the
activities of insurgents in the North East of the country. Internally displaced persons
are those are no longer in their normal place of abode and have had to seek refuge
elsewhere. For instance, in Borno State, persons have fled due to the activities of
Boko Haram to neighbouring states in and outside Nigeria.
Section ….. of the Electoral Act 2011 states that Nigerians above 18 years may
register to vote if they are ordinarily resident, originate from or work in any
registration area.
Recommendation
Based on the Kampala Convention, INEC has a duty to take all necessary measures
to ensure that those within the country are to register and obtain their permanent
voters’ card in order to vote in the upcoming elections. In addition, section…. of the
Electoral Act provides some flexibility in the law so that any person resident in
Nigeria may register to vote, even those internally displaced.
The issue is what necessary measure should Nigeria take even limited resources
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9th January 2015
I am writing with regard to the legal opinion on the right of internally displaced
persons to vote you requested on 1st January 2015.
Please find enclosed the copy of my report on the issue above. Please do not hesitate
to contact me if you have any further queries.
Yours faithfully
Signature
Emokiniovo Dafe-Akpedeye
For: Compos Mentis Chambers
Encl
(1) Legal opinion on voting rights of internally displaced persons
WEEK 8
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Listening: Let client tell the story
2. Analysis of Instruction
MINUTES OF A MEETING
Most company Secretaries are lawyers and it is the duty of the secretary to
produce minutes
1. Know the purpose – Before writing minutes, you must know the purpose of
it. First, a report of meeting minutes is an official record of the meeting (i.e. a
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legal document). But it is just not the type of record you write, print out, file
and then forever forget. It provides a historical account of official business
and operational decisions, and involvement of people making the decisions.
It is used as a reference, which is periodically, or frequently referred to.
Sometimes, minutes of meeting can become a legal document and evidence in
court. It also serves as a blueprint for future actions.
2. Keep it concise – Keep the key information in order and make sure you
don’t miss critical info. You only have certain limited time and it will be
impossible to write every single thing discussed during a meeting. So, keep it
concise, i.e. compact and short. Take notes of the issues discussed, major
points raised and decisions taken. Make sure what you write will be easily
understood, and usable in the future. Keep in mind many of the meetings
require the attendees looking back at the previous meeting’s minutes. So if
people can’t read them, it will amount to a waste of time.
3. Get the right info and follow the right format – To keep it short, here are
list information that should be in your minutes of meeting: Time, date and
venue of meeting; List of attendance (and their position); Agenda of meeting
– key agenda, details, and specific action plan, and owner/executor of the
plan; and the name of person taking minutes.
It should be noted that minutes are not verbatim of what transpired at a meeting but
abstracts of a meeting, therefore, there should be no verbosity, and obiter dictums
should be avoided.
1. Date
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2. Type of meeting
7. Closing. (DTVAAAC)
2. It should be clear
3. It should be precise
4. It should be proof-read.
OFFICE MEMORANDUM
Internal correspondence in an organisation – a way of passing information to staff in
the office. Memos do not go outside the organisation (the way it differs from letters).
No need for Dear Sir in memos. A Latin word that means ‘something to be
remembered. Similar to letters in terms of tone but differ in terms of format.
Purpose: convey information to colleagues or ask them to do something. It should be
easy to scan and the stakes/information should be stated clearly.
Format of a memo
2 parts: the head and message (body)
The memo head: writer, recipient, subject, date and reference (WRSDR)
Salutation and closing (Dear Sir and Yours faithfully are not sued in memos)
But Sign the document and put official designation
Date of letter: 16 January 2015.
Subject: summary of the message to the recipient (it should not be clumsy).
Use RE if continuation of previous memo
Body of the memo: paragraph format (blocked or indented). Style should be
formal or personal depending on your relationship with the person. If
coming from superior, it has to be formal. If between contemporaries, then
can be informal. But ensure information is brief and concise and straight to
the point.
3 Paragraphs: opening, middle and closing
Opening paragraph: introduces the subject of the memo and provides the
reason for the memo
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Middle paragraph: more details on the subject. Number/bullet system should
be used. Move from the major to minor issues
Closing paragraph: desired action from the recipients and a deadline for
response.
Enclosures, attachments and distribution lists are included if necessary.
CURRICULUM VITAE/RESUME
Vitas and resumes both have similar purposes – as marketing documents that
provide key information about your skills, experiences, education, and personal
qualities that show you as the ideal candidate. Where a resume and curriculum vitae
differ is their use, format, and length.
Curriculum Vitae – often called a C. V or Vita – tends to be used more for scientific
and teaching positions than a resume. Thus, vitas tend to provide great detail about
academic and research experiences. Where resumes tend toward brevity, vitas lean
toward completeness.
Unlike resumes, there is no set format to vitas. While vitas do not have the one-page
rule of resumes, you need to walk the line between providing a good quality of
depth to showcase your qualifications and attract potential employer interest and
providing too much information thus appearing verbose and turning off potential
employer interest.
THE IMPORTANCE
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Lead with your strongest suit – usually employment but if fresh graduate or
career changer then education
Select details that support your goal-duties and achievements that make you
shine in that particular job
Use strong verbs in your job description: instead of responsible for the
supervision of 7 staff members, use supervised a staff of 7
Be careful about hobbies e.g. extreme sport may be a red flag about risk of
injury and missing work
Don’t lie
Don’t use tiny fonts and narrow margins to bring in more info on the page
Don’t use unusual formatting – some software screen resume and reject
yours
1. Name
4. State of origin
5. Schools attended
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6. Educational qualifications with dates
7. Area of specialisation
8. Employment record
9. Present position
12. Referees
Minutes of meeting
5) Opening remarks/prayers
6) Adoption of Agenda
8) Matters arising
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10)Reports
11)Resolutions
12)AOB/General issue
13)Conclusion
15)Signatories
PRESENT:
1. Mr Solomon Kanu: Head of Chambers
2. Mr Aroture Ajibola: Legal Practitioner
3. Miss Mobola Ayoade: Legal Practitioner
4. Miss Emokiniovo Dafe-Akpedeye: Legal Practitioner/Secretary
5. Mrs Ibukun Okeke: Head of Human Resources
IN ATTENDANCE
1. Professor Walter Roosevelt: External training consultant
ABSENTEES
None
OPENING REMARKS
The Head of Chambers, Mr Solomon Kanu thanked the legal practitioners for their
devotion to the firm in the year 2014.
MATTERS ARISING
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The following matters arose from the meetings of the last meeting:
1. The purchase of five new computers for the firm’s library. The new computers
have now been ordered and the firm expects delivery on 31st January 2015.
It was resolved that two more lawyers of the firm should attend Professor Nwosu’s
Dispute resolution course since this area is now a thriving area of law
It was resolved that Mrs Ibukun Okeke remind her staff of the need for smooth
communication between the new staff and the human resources department
REPORTS
RESOLTIONS
AOB/GENERAL ISSUES
CONCLUSION
ADJOURNMENT
In the absence of any other business, Mr Solomon Kanu moved the motion for the
adjournment of the meeting supported by Mr Aroture Ajibola
The meeting came to an end at about 3pm and was adjourned to the 5th day of April
2015.
CLOSING REMARK/PRAYER
Closing prayer was said by….
DATED THE 5th DAY OF JANUARY 2015
………………… ……………….
Chairman Secretary
The principal of the above chamber, Dr Chinonye Ikpeazu, SAN had a meeting with
the Head of Chambers, Mr Solomon Kanu on 15th December 2014. The resolutions of
the meeting are as follows:
(a) Mandatory specialisation of practice for lawyers in the firm
(b) Effective training of the externs from the Nigerian law school
(c) Mandatory attendance of the NBA annual conference by all lawyers in the firm
Question: as Head of Chambers, write a memo to the lawyers in the firm addressing
the outcomes of this meeting with the principal
IKPEAZU CHAMBERS
NO 162 E GLENBROOK BLVD
ONITSHA, ANAMBRA STATE
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INTERNAL MEMORANDUM
FROM: The Head of Chambers
TO: All legal practitioners
DATE: 5th January 2015
SUBJECT: DIRECTIVES FROM THE PRINCIPAL PARTNER
Dear colleagues
Please forward to me your area of interest for your specialised practice of law and
any comments on how to effectively train the externs and the compulsory
attendance the NBA conference by 30th January 2015.
Thank you.
………….(signature)
Mr Solomon Kanu
Head of Chambers
Mr Uba Okeke is a lawyer in the law firm of Ikpeazu SAN. He took up employment
immediately after his NYSC and has been with the law firm for 7 years. Mr Okeke is
not happy with the current changes in the Ikpeazu law firm. Shell Petroleum
Development Company Ltd advertised the position of a legal officer. Mr Okeke
desires to apply for this position. Draft the guideline that Mr Okeke would adopt to
prepare his CV
EDUCATIONAL QUALIFICATION
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Nigerian Law School 2005-2006
Barrister at Law (B.L.), First Class Degree
University of Oxford 2002-2005
Bachelor of Law Degree (LL.B), First Class Degree
Oxbridge School 2000-2002
A’Levels, A* grade in Mathematics, French, Government and Economics
Olashore International School 1994-2000
Secondary school certificate (WASSCE), A1 in Mathematics, Government,
English Language, English Literature, Economics, Biology, Commerce and
French
AREA OF SPECIALISATION
Oil and gas
Dispute resolution
Corporate law
EMPLOYMENT RECORD
Legal Practitioner at Ikpeazu SAN Chambers, 2007-date
Lead adviser on the contract between NNPC and Elf
Arbitrator for SPDC on the Okolopo dispute
National Youth Service Corps with the Ministry of Justice, Abuja, 2006-2007
Research on the criminal prosecution of former Governor Ikposu on the
extortion of oil companies in Delta State
COGNATE EXPERIENCE
HOBBIES
Reading
Playing Golf
REFERENCES
Mr Solomon Kanu, Head of Chambers, Ikpeazu SAN Chambers, No 162 E
Glenbrook Blvd Onitsha Anambra State
Mr Aroture Ajibola, Partner, Ikpeazu SAN Chambers, No 162 E Glenbrook
Blvd Onitsha Anambra State
SIGNATURE
DATE
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FIRST NAME: Bijalo
OTHER NAME: Mimz
MARITAL STATUS: Single
DATE OF BIRTH: 15th January 1940
LOCAL GOVT. AREA: Bwari L.G.A
STATE OF ORIGIN: Bontutu State
OBJECTIVES
To contribute effectively, strive for excellence and to execute planning
objectives for your firm at all times.
HOBBIES
Football, Dancing, Traveling and Reading.
SKILLS
Proficient in data management packages (Ms-Word, Ms-Excel, Power-point)
and working with the internet
Good communication skills
High level of integrity and reliability
Construction minded, dynamic and quick in grasping new concept self-
motivated and confident
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REFEREES
Mr. BijaloAbx Mr. MimzQrt
QVIJ Ltd Business Development
Bontutu State National Energy Assurance
08036367377 OtondoState.
08022550477
Week 9
LEGISLATIVE DRAFTING
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Legislation is the making of laws or it could be said to be the process of writing and
passing laws. Legislative drafting, however, can be described as the process of
drafting bills and other legislative enactments including subsidiary legislations and
administrative orders, notices, warrants, permits, and similar documents.
Legislative drafting like any other form of legal drafting is an institutionalised means
of communication. The essential distinction is that unlike other forms of legal
drafting which may be easily altered or changed, legislative drafting is more of a
permanent enactment which stands on its own and speaks for itself without any
form of assistance, elucidation or explanation from the drafter or draftsman.
Legislations are made to govern and regulate human conduct within a society.
Where a legislation is drafted with clumsy and ambiguous language or phrases, it
might cost members of the public on whom the legislation is administered long
years of battles and litigations with attendant huge cost. It is imperative that a great
deal of care and diligence be exercised in drafting enactments to reduce as much as
possible the probable difficulties and confusion that may befall the future
administration and interpretation of enactments.
Thus, the legislative drafting process may be said to begin with the receipt of
drafting instructions and ends with completion of the draft. For there to be a
legislative drafting, there must be a legislative draftsman.
LEGISLATIVE DRAFTSMAN
A legislative draftsman is a person engaged in the drafting of legislative bills and
other instruments at whatever level of government. In Nigeria, the offices of
legislative draftsmen are found in various government ministries, parastatals and in
all legislative institutions.
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4. He must be familiar with the interrelationships of the various departments of
government; and a good knowledge of the political, sociology, psychology
and economic system/society of which you are drafting the law
5. He must develop interest and flare for the subject of legislative drafting and
exhibit a high sense of tolerance, commitment and dedication in the drafting
process. Thus, he must be ready to carry out researches; and must know
where and how to find the law.
6. He must be a very simple and humble person with a good spirit of team
workmanship. He must be committed and fully devoted to his work as a legal
draftsman.
7. Ability to work under pressure. Have a clear mind and mental capacity to
draft laws
2. Holding consultations and legal advice as and when necessary at any stage of
the legislative process.
3. Preparation of Bills.
PARTS OF LEGISLATION
A legislation (Bill) is made up of several component parts. The arrangement of the
component parts usually follow an established pattern which may vary from one
jurisdiction to another. However, it is essential that every legislation must contain
and reflect similar features in contents, which are of universal application. Some of
these are –
1. Long title;
2. Preamble;
3. Commencement;
5. Short title;
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6. Marginal notes and references;
9. Punctuation;
11. Schedules.
LONG TITLE
Every legislation (Bill) must contain a long title, which states in clear and concise
language the fundamental purpose, which the legislation is to serve. The principal
object of the long title is to highlight the object and intendment of the enactment.
Thus, it helps to determine the scope of the legislation when it will be considered by
a legislative body.
The language of the long title depends on whether the statute is a Federal or State
statute. If it is Federal, the draftsman should normally place at the top before the
main provision the following: “A Bill for an Act to...”, but if it is State, he should be “A
Bill for a Law to...”. However, as soon as the Bill is enacted as law, the word “A Bill
for” is dropped from the long title. It is usually written in bold letters or capital
letters. It cannot affect a clear statutory provision.
The long title need not be too long rather it should be comprehensive and less
cumbersome as possible to convey the intendment of the enactment. Also, the long
title does not form part of the substantive provisions, although it forms an integral
part and may serve useful purpose in statutory interpretation of the Bill in that it
constitutes a special facility unveiling the legislative spirit and intent. In Bello & 13
Ors. v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828, the Supreme
Court stated thus –
“Resort may be had to the long title of an enactment only as an aid to
resolve ambiguities that may arise from the plain and ordinary words of
a statute.”
For example, the long title to the Evidence Act, Cap. E14, LFN 2004 is captioned
thus –
“An Act to provide for the law of evidence to be applied in all judicial
proceedings in or before courts in Nigeria.”
You must end the long title with the use of ‘OTHER MATTERS’ or ‘FOR THE
PURPOSE CONNECTED THEREWITH’: SEE Ibrahim v Judicial Service Commission
PREAMBLE
This is a clause that is usually at the beginning of a Bill or legislative draft of
constitutional importance. Generally, a preamble is a declaration by the legislature
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of the reason for the passage of the statute to which it is affixed. Though, most
legislation do not carry preamble, but when used, becomes part of the statute and
might be useful as aid in the interpretation of ambiguous provisions in the statute
and the object sought to be accomplished, though not to modify a clear provision.
Preambles are commonly used when it would be difficult to know the purpose of the
statute unless and until certain facts (the mischief) are disclosed. It cannot affect a
clear statutory provision. It is used in constitutions, to ratify international
instruments/treaties, ceremonial statutes, laws on peculiar local problems:
the preamble narrates the authority to enact the particular law or the reasons why
the statute is being enacted.
For example, the preamble of the 1999 Constitution of the Federal Republic of
Nigeria is captioned thus –
“WE THE PEOPLE of the Federal Republic of Nigeria ...”
COMMENCEMENT
An Act passed today needs not commence on the same day. It commences when it
comes into operation – Kotoye v. Saraki (1994) 7-8 SCNJ (Pt. 111) 524.
The general rule is that it commences either on the date it receives Assent or the
date it is published in the Gazette. The draftsman must be very careful about the
commencement of the law and should take definite instructions on this. Usually the
law specifies a commencement date. The commencement may be retrospective or
fixed on a future date . (s36(8) Constitution: no person shall be convicted on a law
that was not in existence at the time the person committed the offence). Therefore
only beneficial statutes can be made retroactive.
It may have multiple commencement date (not usually used as could lead to
confusion). Where no date is provided, it commences on the date it is passed or
when published in the gazette (section 2 Interpretation Act). Commencement could
also be at the happening of a particular event.
“The provisions of this Constitution shall come into force on the 30th day
of May 1999.”
or This law shall be deemed to have commenced on the 4th January 2014
(if it is to be retrospective)
or
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ENACTING FORMULA OR CLAUSE
This is also found at the beginning of a legislative or statutory statement. It states
the authority by which legislation is made. In Joiner v. State (1967) SCG Ga 367,
155 S. E 526, the Supreme Court of Georgia held thus –
“The purpose of an enacting clause is to establish the Act, to give it
permanence, uniformity and certainty, to afford evidence of legislative
statutory nature, and to secure uniformity of identification and thus prevent
inadvertence, possible mistakes, and fraud.”
The enacting clause comes immediately after the long title or preamble, and varies
from one jurisdiction to another depending on the type of government in place.
For example, in military regimes, the enacting formula or clause could be captioned
thus –
“The Federal Military Government decrees as follows...”
In civilian administrations, it could be captioned thus –
“ENACTED by the National Assembly of the Federal Republic of Nigeria as
follows:...” or
“ENACTED by the House of Assembly of Enugu State of the Federal
Republic of Nigeria as follows:”
ESTABLISHMENT CLAUSE
Only when a statutory body is to be created e.g. there is hereby established a
corporation or there shall be established or there shall continue to be established
SHORT TITLE
This is for identification purpose. It is the short name by which the statute is to be
cited and identified. Unlike the long title, the short title presents very brief
information on the subject matter of the Bill. A concise description of the statute
mainly used for identification. Used in citing the statute. This is not the same as an
acronym. Ends with the year the statute was enacted.
For example, the Criminal Procedure Code, 1960 is captioned thus –
“This Law may be cited as the Criminal Procedure Code Law.”
APPLICATION CLAUSE
Usually of general application. Exceptions where there is territorial application e.g.
Property and Conveyancing Law (1959) (Western States). Criminal Procedure Code
1960: this law shall apply to Northern states in Nigeria. Specific categories of
people: Legal Practitioners Act (1975) state that this law shall apply to legal
practitioners in Nigeria
DURATION
Laws are generally in force until repealed. However, there may provide expiration
date or expire by reference to an event or empower an officer to fix an expiration
date. May be used to test public reaction to government policy.
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It should be noted that marginal notes do not form part of a Bill or legislative
enactment. It is usually short and only serves a descriptive purpose to assist in the
proper construction of a particular provision contained in the Bill against which the
marginal note is provided. They are either on the left or right side of the legislation.
Section 3(3) of the Interpretation Act, Cap. 192 LFN, 1990 provides that –
“a heading or marginal note does not form part of the enactment and is
intended “ for convenience of reference only...”
However, courts are not expressly precluded from seeking assistance by reference
to marginal notes to resolve contentious issues of law where the provisions of the
Act are ambiguous – Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1
at 23; Schroder v. Major (1989) 2 NWLR (Pt. 101) 1.
The interpretation clause aids clarity and consistency in drafting. Thus, once a word
or expression is defined in the Interpretation Section, the draftsman is free or at
liberty to use the word or expression repeatedly without providing the meaning
each time such word or expression is used.
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hand, where the latter is used, it follows that the words defined could admit of other
extraneous meanings other than in the sense in which they are defined in the
interpretation section (open).
The word to be defined must be in quotation marks. In this Act “woman” means…..
or In this Act “woman” includes…….
PUNCTUATIONS
This is all its various forms like comma, full stop, colons, inverted commas,
quotation marks, etc. must be taken into consideration in construing an enactment.
The draftsman must make careful use of punctuations in legislative drafting because
where it is recklessly used, could defeat the purpose of an enactment.
Section 3(1) of the Interpretation Act provides thus –
“Punctuation forms part of an enactment and regard shall be had to it
accordingly in construing the enactment.”
PARAGRAPHS
This is necessary where a section or sub-section of a statute becomes unreasonably
long. The essence of this is to help the readability of the sentence and it also creates
precision in the understanding of the legislative sentence.
A paragraph may be divided into sub-paragraphs particularly where the paragraph
in the sentence becomes too long.
SCHEDULES
This is used in legislative drafting to supply supplementary details. Schedules
exhibit in detail matters or information mentioned or referred to in the principal
body of the Bill or legislation. It is used to clear and tidy presentation of detailed
information. It is usually numbered paragraphs e.g. First Schedule to CFRN 1999 (s3
of the Constitution, which provides for the states in the Federation: instead of listing
the states and local governments under the states in section 3, this was banished to
the First Schedule to the Constitution. There is a cross reference in the section which
mentions that the states are mentioned in the First Schedule).
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However, it is important for the draftsman to remember to indicate on top of the
first page of the schedule by way of marginal reference the main provisions or
section(s) by virtue of which and for which purpose a particular schedule is
provided.
STAGES OF LEGISLATION
Previously, only in-house lawyers at the legislature were engaged to draft laws. In
recent times, private legal practitioners are also engaged to draft laws. For a
draftsman to produce a good draft, he must pass through five identifiable stages.
The stages are –
1. Understanding instructions;
2. Analysis instructions;
3. Design the Draft;
4. Composition the Draft; and
5. Scrutinising the Draft. - UADCS
UNDERSTANDING
It is essential that the draftsman understand fully the instruction received in respect
of the law he is going to draft. He should, therefore, direct his mind to one of two
things or indeed both, which are –
a) He can make clear to those instructing him the kind of drafting instructions,
which is most helpful to him. This can be done on a case by case basis, for
example, he can get in touch with the instructing authority, setting out what
and what information should be supplied to him or generally as a guide to all
authorities who wish to instruct him to draft one law or the other; or/and
b) He can consult with the instructing office at an early stage after receipt of the
preliminary drafting instructions.
Drafting instructions are the instruction emanating from the authority sponsoring
the law to the legislative draftsman who is responsible for reflecting policies in laws
or statutes. The instructing authority could be anything from the government, a
parastatal or other agency of government. The legislative draftsman would,
invariably, be a lawyer knowledgeable in the art of drafting laws and could be a legal
practitioner commissioned to draft the law.
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d) All known implications, difficulties whether legal, social or administrative
associated or contemplated by the proposals should be stated.
E.g. the New Sexual Offences Bill (before the National Assembly) widens the
definition of rape, increases the punishment for rape and imposes harsher offences
for raping children.
ANALYSIS
DESIGN
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1. Make a precise outline of the objectives and principles to be contained in the
legislation.
3. Design the structure of the draft statute, e.g. the substantive provisions and
the administrative provisions of the bill. Look at existing statutes to see what
the structure is in that jurisdiction
COMPOSITION
Composing a statute entails a lot of mental discipline. The person drafting will,
invariably, rely on some aids to compose. These aids include precedents, statutes on
similar sub or related subjects, both local and other jurisdiction. Proper use of
precedents may constitute a source of ideas on content, in addition to being helpful
in the actual drafting i.e. a guide on the structure of the bill into parts, sections. Use of
precedents saves time and using precedents from the same jurisdiction may
contribute in no small way to consistency of approach/with jurisdiction, which, in
turn, will contribute to statute law, becoming a coherent body rather than a
patchwork. Must not adopt precedents slavishly i.e. must be there must be
adaptation of precedents e.g. correct mistakes made in precedents. However,
precedents must be carefully used in the context of Nigeria. Formulation or
construction of the content of each section so that the meaning of the statute is clear
so that it reflects the intention of the draftsman and sponsor of the bill
This is the last stage of drafting. Under this stage, the draftsman is expected to have
checked and re-checked the drafts in previous stages, and must have had series of
conferences and meetings, both formal and informal, with those sponsoring the
statute. Errors or mistakes, especially of substance and against the general
intendments of the statute must have been detected, corrected and put in place. At
this stage however, one should ask an independent eye, preferably a legal
practitioner, to have another critical look at the draft (for example, checking the
punctuation marks, spelling, marginal notes, grammatical errors, etc, for someone
who has been involved as the draftsman may not spot drafting and other clerical
errors. Coherence and logical sequential presentation of the law. Are the provisions in
a particular section detailed enough to convey the meaning of the section. Reference
and terminology, punctuation, spellings.
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Arrangement in parts
Arrangement of segments and sections
Some legislative drafting devices
Paragraphing techniques
ARRANGEMENT INTO PARTS
Clarity of presentation and ease of reference. Numbered in capital roman numbers.
Each part is denoted by descriptive headings e.g. Under Chapter V of the
Constitution, Part I deals with National Assembly. The division is determined after
composition of the draft. Applied to distinct categories/subject matters. E.g. CAMA is
divided into Three Main Parts with sections, In the 1999 Constitution Chapter I is
subdivided into parts; Chapter II is divided into sections etc.
ARRANGEMENT IN SEGMENTS
Segments are broader and larger than parts. Under segments, you have chapters and
parts.
Preliminary segment: long title, commencement, preamble, enacting clause,
short title, interpretation, and application.
Principal Segment: the substantive provisions which creates new rights and
duties, administrative provisions: implementing agency, administrative
procedures etc.
Miscellaneous segment: offences, penalties, supplemental provisions such as
power to make subsidiary legislation, links with existing legislation
Final segment: savings (a provision to save an existing Act), transitional
provisions, repeals, consequential amendments, schedules
SOME LEGISLATIVE DRAFTING DEVICES
Headings, marginal notes are used to state/point to the provisions in that section i.e.
to guide the reader, marginal references: e.g. in section 3(2) of the Constitution, a
marginal reference refers the reader to Part I First Schedule (serves as a cross
reference
PARAGRAPHING TECHNIQUES
Sections are in Arabic numerals: 1
Subsections (Arabic numerals): (1)
Paragraphs (small letters): (a)
Sub-paragraphs (small roman numeral): (i)
Sub sub-paragraph (caps): (A)
For example: Section 1(1)(a)(i)(A)
CHECKLIST ON PRINCIPLES
Must be sequential in arrangement so reader can understand the legislation
Use of good sentence structure
Application of paragraphing techniques
Use of punctuation marks – must be regular and in keeping with what is
obtainable in that jurisdiction
Preferable to use the active voice instead of the passive voice
Draft must be intelligible, precise and unambiguous (e.g. s8 and 9 of the
Constitution are ambiguous)
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Modification of precedents to suit the particular circumstances. Must not be
copied slavishly.
LEGISLATIVE PROCESS
National Assembly CFRN 1999 s58
Bill originates in Senate or House of Representative
Passed where it originates
Passed in the other House
President assents in 30 days
Thus this is different from legislative stages in drafting (5 stages above)
LEGISLATIVE PROCESS
The processes a bill must pass through to become law are:
THE FIRST READING: This is where the bill is read for the first time by the bill
sponsor and the leaflets of the bill are circulated for the legislators to take home and
study.
THE SECOND READING:
Here, the bill’s sponsor would explain the bill to the house who would debate on it
and pass a resolution. This is the stage where members of the legislative house
deliberate on the merits and the demerits of the bill.
If a simple majority pass a resolution to refer it to one of its committees then it
scales to the next stage, if not, then it dies a natural death here.
THE COMMITTEE STAGE: Here, the committee of the house in charge of the said
bill would meet to have a detailed examination and debate on the bill after which
amendments are made. All amendments made are done to reflect the collective
decision of the house, arrived at the second reading.
THE REPORT STAGE: Here, the bill, along with its amendments is tendered by the
house committee, to the house, where it would be read for the third time.
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THE ASSENT STAGE: Here, the President or Governor would assent to the bill
within 30 days, whereupon it becomes Law and where the President or Governor
withholds assent to same, the National Assembly or House of Assembly can proceed
to veto override by two-third majority: s58(5) and s100(5) Constitution
respectively.
3. The stages of the legislative and drafting process are different. The legislative
process includes process of bill reading while the drafting process
commences with taking instructions and ends with scrutinising the draft.
PUNCTUATION
Full stop: ends the statement except where it is in the form of exclamation or
question, in which case exclamation mark or question mark will be used. It can be
used at the end of an abbreviated work e.g. Dr.
Column (:) - used to introduce a list
Semi-column (;): used to separate related sentences. It is inserted instead of use of a
conjunctive word like ‘and’
Comma (,): to separate one group of words from another. The proper use of comma
gives the sentence clarity
Question mark (?): used immediately after a direct question and not an indirect
question.
Quotation marks (“”): used to enclose exact words spoken by a person or enclose
words when drafting the definition section e.g. “woman” means
Exclamation mark (!): used to convey an exclamation
Bracket: (): to enclose after thoughts and used after figures in documents. There a
two types: rounded bracket and the square brackets. No difference btw the two and
more of convention to use the square bracket in the commencement in legislative
drafting
The apostrophe (‘): it is placed before the s. It is used to show possession e.g
Ijeoma’s house
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CLASS EXERCISE
Omitowoju Local government area of Osun State is known to be very rich in gold
and tantalite. Since 2004, when the Federal Government shifted the development to
solid minerals, there has been an upsurge in the mining of gold and tantalite in the
area in a very indiscriminate and unregulated manner. These mining activities are
beginning to have harmful impact on the environment and there is strong erosion as
a result in the area.
The Governor of Osun State, after many deliberations with the senators from the
state, has agreed that there is an urgent need for a law regulating mining and
prohibiting the mining of these minerals without a government licence and for
penalties to be imposed on offenders who violate the proposed legislation. It will
commence as determined by the Minister for Solid Mineral. The law will also
provide for a Solid Minerals Extraction Commission.
The order will be: Long title, Preamble, Commencement, Enacting Clause,
Establishment Clause, Interpretation Clause, Short title (LPCEEIS)
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ETHICAL ISSUES IN LEGISLATIVE DRAFTING
1. Devotion and Dedication to the cause of the client (R. 14, RPC, 2007): the
draftsman is expected to commit himself towards ensuring that he comes up
with a productive bill.
3. Duty to keep the client informed of the progress and any important
development in the course or matter as may be reasonably necessary: (R14
(2)(b)RPC)
5. Duty to consult with his client in all questions of doubt which do not fall
within his discretion (R.14 (2)(a)):
WEEK 10
DRAFTING: RULES OF INTERPRETATION AND CONSTRUCTION OF AND
CONTEMPT OF COURT
MAXIMS USED IN CONSTRUCTION
LITERAL RULE
This is also termed strict constructionism, which is the doctrinal view of judicial
construction holding that the judges should interpret a document of statute
(especially one involving penal sanctions) according to its literal terms, without
looking to other sources to ascertain the meaning i.e. words to be given their
ordinary meaning. It is the primary rule of construction. Where the words of the
statute are clear and unambiguous, they must be construed according to their
ordinary, plain and natural meaning. Where words are used in reference to a trade,
profession or business, they must be used in line with that profession or trade. If
used in a technical sense, the relevant interpretation is the technical meaning.
Where no technical meaning, they are understood in their ordinary meaning and
according to the rules of grammar. Where wordings of statute is broad or narrow, it
must be construed broadly or narrowly respectively – R. v. Commissioner of
Income Tax (1888) 22 Q. B. S. 296; Bronik Motors v. Wema Bank (1983) L.S.C.L.R.
296; Adegbenro v Akintola; Awolowo v. Shagari (1979) 6-9 S.C. 51; Toriola v.
Williams (1982) 7S. C. 27; R v. Bangaza (1960) 5 FSC 1: Federal Supreme CT to
interpret…….: CT held the relevant age was the date of conviction and not the
age of commission of the offence (literal meaning) ;NdomaEgba v. Chukwuogor
(2004) FWLR (Pt. 217) 735;Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; Ojukwu
v. Obasanjo (2004) FWLR (pt 222) 1666. Argument that the CT should not fill gaps
in statute as it is for the legislature to do so through amendment and it strengthens
separation of power and provides for uniformity and consistency in the
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interpretation of statute It could lead to absurdity or injustice: Awolowo v Shagari
& ors (1979): the issue of 2/3rd of 19 states. It has the ability of statute law
becoming an arbitrary body of rules without underlying reasons.
GOLDEN RULE
This is the principle that in construing written instruments, a court should adhere to
the grammatical and ordinary sense of the words unless that adherence would lead
to some manifest absurdity; especially in statutory construction, thus, it is the
principle that if a statute’s literal meaning would lead to an absurd or unjust result,
or even to an inconsistency within the statute itself, the statute should be
interpreted in such a way that avoids such a result or inconsistency. Avoids
absurdity, injustice or thwarting the legislative intention
Rupert Cross in “Statutory Interpretation” page 14 (1976) held thus:
“The golden rule… allows for a departure from the literal rule when the
application of the statutory words in the ordinary sense would be
repugnant to or inconsistent with some other provision in the statute
or even when it would lead to what the court considers to be an
absurdity. The usual consequence of applying the golden rule is that
words which are in the statute are ignored or words which are not there
are read in. The scope of the golden rule is debatable, particularly so far
as the meaning of an ‘absurdity’ is concerned”.
Thus, it is a basic principle which should always be followed – Grey v. n (1857) 10
E. R. 1216; Mitchell v. Torrup (1766) Park 227; Bronik Motors v. Wema Bank
(1983) L.S.C.L.R. 296 Pearso; Lee v. Knapp (1967) 2 QBD 442.Onyewu v. K. S. M
(2003) 10 NWLR (Pt 827) 40. Beck v Smith (1836) 150 ER pg724-726; Udon and
ors v Orthopaedic Management Board and ors (1990); Bronik Motors v Wema
Bank
Merits: averts absurdity, injustice or thwarting the legislative intention. Demerits:
offends separation of powers and foster judicial arbitrariness in the following ways:
CTs in an attempt to vary the words used in a statute may arrive at divergent
conclusions, which will introduce inconsistency and lack of uniformity in the judicial
process.
MISCHIEF RULE
In statutory construction, the doctrine that a statute should be interpreted by first
identifying the problem (or ‘mischief’) that the statute was designed to remedy and
then adopting a constitution that will suppress the problem the remedy – Re
Heydon's case (1584) 3 C. Rep. 7a; Smith v. Hughes (1960) 1 W.L.R. 830;
Savannah Bank v. Ajilo (1989) 1 NWLR (Pt 97) 305; Wilson v. Attorney-General,
Bendel State (1985) 1 NWLR (Pt 4) 573; National Assembly v. President (2003) 9
NWLR (Pt 824) 104. Cts to look at the position of the law before the Act was to be
interpreted, defect or mischief not provided for in old law i.e. which the statute was
intended to remedy, remedy to cure the defect and construe/interpret the
provisions of the statute in such a way as to supress the mischief and advance the
remedy. Balogun v Salami (1964) 1 ANLR 128; Wilson v AG Bendel State (1985) 1
NWLR (pt 4) pg 573.
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Criticisms: encourages judicial activism and CTs entering the arena of the
legislation: Magor v St Mellon RDC (1952) AC 189. Not useful where the legislation
is about a new policy without previous mischief
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introduce uncertainty, friction or confusion into the working of the system"; Shanon
Realties Limited v. Villede St. Michael (1924) A.C. 185 per Lord Shaw at page 192
– 193.This is apparent in the construction of the constitution – Nafiu Rabiu v.The
State (1980) Apply an interpretation that will give effect to a statutory provision
rather than one which will not.
Yagube v COP: Supreme CT held where a word in a statute has two meanings, Ct to
adopt meaning that will not defeat intention of the legislature
OUSTER CLAUSE
These are statutes, which have the effect of encroaching or derogating from vested
rights of people. They are constructed strictly e.g. AG Federation v Sode (1999) 1
NWLR (128) 500; Fawehinmi v Abacha
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The Constitution of the Federal is usually construed broadly and liberally: Onuoha v
State (1998) 12 NCLJ. This principle was reinstated in the case of PDP and another
v INEC and others (1999) 11 NWLR (Pt 626) Pg 201: CT held that in interpreting the
provisions of the statute or the constitution, such provisions should not be read in
isolation of other parts. The statute or constitution should be read as a whole in
order to know the intention of the legislature; The CT must be purposive in its
construction of the Constitution. Where the Constitution gives a right but does not
expressly state how the right is lost or denied, the CT has the right to ensure that the
right is not taken by a restrictive rule; Also, the CT to protect the constitutional right
by providing a remedy for redress of this right.
MEANING: Advocacy is a Latin word gotten from “advocare” which means “to
speak out .
Advocacy refers to the process of pleading the cause of others or handling a client’s
case. It is the art of persuading others (court) to believe in your client’s version of
events.
Trial advocacy deals with the vocal skills which a lawyer uses in proceedings before
the court or other bodies in the cause of handling matters for his client..
3. Adequate preparation;
3. Being dishonest.
4. Being Hot-tempered.
5. Being timid.
6. Being over sensitive.
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It should be noted that a persuasive (convincing) story can prove an
affirmative case if it has the following characteristics –
1. It is told about people who have reasons for the way they act;
4. It is supported by details;
In preparing a persuasive story, the lawyer is under a duty to be bound by the truth
under the rules of ethics and the Rules of Professional Conduct.
STAGES FOR PREPARING A PERSUASIVE STORY
To prepare a persuasive story, it consist of the following stages –
1. Prepare a story that has a theory and theme;
3. Plan your case in chief considering your potential witnesses and exhibits;
evaluating each witness individually in terms of factual weaknesses,
evidentiary problems and credibility problems; decide which witness to call;
2. Listen carefully and adequately noting the language indicators (that is,
speech, intonation, speed, hesitation, attitude, body posture, facial
expression, etc); and
MODES OF ADVOCACY
Oral advocacy
Written advocacy
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Persistence
Practical judgment
Knowledge of mankind and of affairs
Honesty,
Industry or Hard work,
Eloquence,
Quick wit, and
Spirit of fellowship.
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SKILLS AN ADVOCATE MUST POSSESS ARE:
a) Mastery of the facts of his case
b) Good communication, which involves one’s eloquence, clarity, good body
posture, good body language and facial expression.
c) Mastery of the Law applicable on the case in concern
d) Adequate preparation
e) Address the Court properly- e.g. my Lord, Honour and Worship (NB: note
magistrate in North is Your Worship and in Lagos it is Your Honour)
f) Ability to conduct examination of witnesses in Court.
ESSENTIAL TECHNIQUES OF TRIAL ADVOCACY
g. Use transitional devices like topic transition and topic label. Example
is: My Lord, I will like to proceed to my next point on ambiguity of the
charge.
CASE THEORY
The theory of the case is the starting point of preparation before going to Court.
It is the story a party wants to tell the Court convincingly to be able to get judgment
in his favour.
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DEVELOPING A CASE THEORY
THERE ARE TWO METHODS OF DEVELOPING A CASE THEORY WHICH ARE:
This is a situation where the Lawyer sticks to the facts, which he was briefed of by
the client without more.
This method develops a story by relying on both mental and visual flexibility. The
concepts are linked together in a visual rather than linear way.
Whether in a civil or criminal matter, a story must be persuasive for a party to get
judgment.
TO ESTABLISH A PERSUASIVE STORY, DO THE FOLLOWING:
a. It should be told by people involved, e.g. eye witnesses and avoid
hearsay evidence
b. The witnesses are to explain all the relevant facts/details
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e. There is proper organisation or sequence.
It may be a composite case plan containing a game plan of the Lawyer and an
anticipation of the possible approach of the adverse Counsel (the devil's advocate).
4. Know the relevant provisions and exceptions if possible of the Law on that
matter.
5. Ask them relevant questions in Court to confirm or corroborate your story you
want the Court to believe.
Without a case plan or a game plan, there would be no ability to respond to changes
or to measure the progress arising from witnesses testimonies or the documents
tendered.
TRIAL PROCEDURE
OPENING ADDRESS/STATEMENT IN TRIALS.
This is mostly done in criminal trials and rarely in civil trials. Rarely done in
Nigeria in general
Generally, it is an outline of a party’s story.
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The opening speech must be short, direct, and moderate, excluding reference
to inadmissible evidence, avoiding personal opinion adverse to the facts or
the likely credibility of a witness.
The speech must have a structure because it is the means of getting the Judge
to understand the case a party is about to present.
NB: Note the importance of opening address in both criminal and civil cases in
Court.
See pg 124 to criticise the opening statement. Also draft an opening statement
for scenario (ask others)
Also note closing/final address and when prosecutor has a right of reply (see
criminal notes)
EXAMINATION-IN-CHIEF.
The purpose is to elicit information/facts from the witness (you call yourself) in
support of a party’s case and to give an opportunity to deny any evidence to be
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given by the other party. It is also sometimes used to shield and insulate the witness
from potential weaknesses in his evidence.
IN FCT, LAGOS, ENUGU AND SOME STATES: the frontloading rule is contained in
the High Court (Civil Procedure) Rules where the Witnesses Statements on Oath are
filed along with the originating process so there is no need to lead witnesses in
evidence-in-chief but only to adopt the Witness statements on oath
In KANO state, Counsels still lead witnesses in evidence in chief. All undisputed
documents can be tendered from the bar.
S. 214 (1) OF EVIDENCE ACT: The examination of a witness by the party who calls
him shall be called examination in-chief. It is only in Criminal trial that witnesses
must be led in examination-in chief.
PROCEDURE
1. The witness enters the witness box and takes the oath or affirms to tell the
truth.
2. The witness is guided by counsel to tell the court his name, address, and
occupation.
3. Thereafter, he begins to tell the court the whole story by identifying the
parties involved in the case and how he came to know them, specifically, in
regard to the events, which led to the proceedings in court.
4. The witness is also guided to tell the court the story that is relevant, and in an
orderly and easy manner to follow
5. The witness may thereafter be cross-examined and re-examined before
leaving the witness box.
TECHNIQUES IN EXAMINATION-IN-CHIEF
Use open questions like why, how, when, where, whom, and what to
enable the witness tell his story not leaving out important points.
Leading questions that tend to suggest the answers to a witness are not
allowed but this is permitted on introductory matters or facts that are not in
issue or with the permission of the Court: s221(1)-(3) Evidence Act
Closed questions may be used when desirable especially if the witness is not
been specific in his story telling.
The witness should establish a base point, which is the physical description
of things and direction.
Repeat important points, repeat them, restate them, repeat them again and
think of ways to re-state them again.
The Skills
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1) Simple questions
a) Be logical: (i) Identify the evidence and sequence; (ii) start at the beginning and
consider whether to elicit background information.
b) Break down the evidence: (i) Break down the subject areas of the witness
evidence into smaller pieces
d) Focus on short and simple questions: (i) Ask a single fact; (ii) Ask non-leading
questions; (iii) You may ask leading questions of non-disputed facts
The non-leading question usually start by asking who, what, where, when, why, how
2) Piggy Backing Questions are questions that you need to carry your witness along
to get the answer/facts you are wishing to elicit e.g. what did John do when he saw
you? He attacked me with a hammer. When he attacked you with the hammer, what
did you do?
3) Insulating the witness when there are weaknesses in the case the advocate has to
insulate the witness. This may be where: (i) Evident weakness in your case; (ii)
Weakness is subtle; (iii) There is a weakness and the witness is absolutely dreadful
and incomprehensible.
4) Inflection, volume and rate of speech: (i) Try to avoid sounding like a lawyer;
(ii) Be interested in the witness’s answer
5) Listening: (i) Never assume you know the answer of a question you asked;
(ii) Never focus on your next question until the witness has given a complete
answer to the question that has just been asked
6) Body language: (i) Eye contact and confidence can reassure a hesitant witness;
(ii) Avoid moving around the courtroom too much
Know the witness you are calling i.e. their personality (shy, hot temper,
nervous, respectful, defensive, temperamental)
Make him understand your case (i.e. this is what the lawyer needs to prove
and the witnesses’ evidence is required to move such and such fact)
CROSS-EXAMINATION
It is the interrogation of a witness called by one’s opponent in a Court trial.
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Leading questions and closed questions can be asked which are even more
effective.
In some jurisdictions, advocates are not permitted to ask questions that do
not pertain to the testimony offered during direct examination
But in most jurisdictions, advocates are allowed to cross-examine to
exceed the scope of direct examination.
In Nigeria, can cross-examine on all relevant facts (Evidence Act on
relevancy)
S. 221(4) OF THE EVIDENCE ACT: Leading questions may be asked in cross-
examination.
It is a right of fair hearing to cross-examine opposing witnesses.
S. 36(6) (d) of the 1999 Constitution as amended
ONWUKA V. OWOLEWO
Any testimony from evidence-in-chief not put to the witness as being false, is
taken to be conceded.
OBJECTIVES OF CROSS-EXAMINATION:
a. Impeach the credibility of the witness (es) called by the adverse party.
b. Discredit the opponent’s testimony
c. Contradict the evidence already given by a party
d. Get evidence or materials favourable to one’s case and for use in the final
address.
e. To systematically build the argument of your case to be used in address.
S. 223 AND 233 OF THE EVIDENCE ACT
THE SCOPE OF CROSS-EXAMINATION IS THAT:
1. It has a wide latitude as the questions cannot be restricted to only the facts in
issue or the evidence given under examination-in-chief.
2. Leading questions are allowed: S. 221(4) of the Evidence Act.
3. Do not try to extract new information in cross-examination
4. Effective cross-examination always succeed by asking questions by
implication
5. There is no restriction on facts sought to be questioned on
6. It is an avenue for the test of accuracy, veracity and credibility of witnesses
7. Can show previous inconsistent statements made by a witness.
Ingredients of cross-examination
1) Control: keep the witness tight and control his direction. Ask questions with
speed
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2) Speed: If a witness is not telling the truth, he needs time to think. Do not allow
him that time
3) Memory: You must know facts and information with minimal reference to
paper if you must
4) Precision: question must be formulated swiftly and with care. It must be clear,
simple and not objectionable to get a precise answer
5) Logic: questions asked should be logical with the aim at the end to show that
the witness is not logical
Rule one: Do not cross-examine e.g. when the witness has done no damage to
your case, when no facts can be elicited to help your case
Rule two: Do not ask questions that you don’t know the answer
Question: is it not true that you were furious at the victim for being unfaithful
because he was your lover?
Rule three: Do not ask questions that are open – those that begin with: what,
when, who, where, how
Phases of cross-examination
Phase one: Extraction – get some useful information from the witness
which is favourable to your case
Phase two: Closing – close all doors and windows and make the witness
to make commitment on some facts before attacking him or else he will
escape e.g. dates
Phase three: Impeachment: before you proceed to do this, you must have
asked yourself: whether the witness has really hurt your case…………………
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1) Be Brief, succinct, short: never more than 3 points on cross examination
2) Ask short questions and use plain words
3) Ask leading questions
4) Do not ask questions you do not know the answers
5) Listen to the answers
6) Don’t quarrel with the witness (i.e. when the witness gives an absurd or
irrational answer)
7) Don’t give the witness the opportunity to repeat his story (makes it more
believable to the judge)
1. Argumentative questions
2. Intimidating behaviour
3. Unfair characterisations of the witness
4. Assuming facts not in evidence
5. Asking compound and defective questions
S. 224, 227 and 228 of the Evidence Act 2011.
s224(1): If any question permitted to be asked under section 223 of this Act relates
to a matter not relevant to the proceeding, except in so far as it affects the credit of
the of the witness by injuring his character, the court shall decide whether or not
the witness shall be compelled to answer it, and may, if it thinks fit, warn the
witness that he is not obliged to answer it.
Section 227: The court may forbid any question or inquiry which it regards as
indecent or scandalous although such questions or inquiries may have some bearing
on the questions before the court, unless they relate to facts in issue or to matters
necessary to be known in order to determine whether or not the facts in issue
existed.
Section 228: The court shall forbid any question which appears to it to be intended
to insult or annoy, or which, though proper in itself, appears to the court needlessly
offensive in form.
TECHNIQUES OF CROSS-EXAMINATION
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3. Verbal pacing so that the Court will record while the witness understands the
questions
4. Use of visuals
5. Use of headlines
6. Use of simple, active language.
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TRIAL PUBLICITY OR THE SUB JUDICE RULE
The general rule is that a Lawyer or a Law Firm engaged in or associated with the
prosecution or defence of any trial anticipated or pending in a Court shall not make
any statement or participate in making extra judicial statement calculated to
prejudice or interfere with the fair trial of a matter/judgment or sentence: R. 33 of
the RPC. An EXCEPTION is where the statement made is a fair comment.
IMPROPER ATTRACTION OF BUSINESS
Improper attraction of business includes all acts, which give an unfair advantage to a lawyer thus
lowering the prestige of the profession. It also causes unhealthy reputation, misrepresentations,
insinuations of incompetence, and it is unethical.
Before the making of the Legal Practitioner’s Rules 1964, advertising was generally
prohibited in the legal profession under Rule 33 of the Old Rules. In LPDC v Gani
Fawehinmi (1985) 2 NSCC 998, the Late Chief Gani Fawehinmi after editing a book,
advertised it in a newspaper known as ‘West Africa’ in the following words, “A New
Book on Nigerian Constitutional Law titled Nigerian Constitutional Law Reports 1981
Vol One Edited by Chief Gani Fawehinmi the famous, reputable and controversial
Nigerian Lawyer.”
The office of the Attorney General of the Federation brought a two count charge of
professional misconduct against Chief Fawehinmi on the grounds of contravention
of the rules of advertisement under Rules 33 and 34 of the RPC 1979. The matter
was however struck out but on the successful challenge of the composition of the
tribunal, which had offended the rule of natural justice and fair hearing.
Under Rule 39(1) of the Rules of Professional Conduct, 2007 however, a lawyer
may engage in any advertising or promotion in connection with the practice of law
so far as it is fair and proper in all circumstance; and complies with the Rules. The
rule expressly provides:
39.(1) Subject to paragraphs (2) and (3) of this rule a lawyer may
engage in any advertising or promotion in connection with his
practice of the law, provided:
The Rules in Section 39 (2) then provides the circumstances where advertisement
is prohibited as follows.
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39 (2)A lawyer shall not engage or be involved in any advertising or
promotion of his practice of the law which -
(a) is inaccurate or likely to mislead;
(b) is likely to diminish public confidence in the legal profession, or
the Administration of Justice, or otherwise bring the legal profession
into disrepute;
(c) makes comparison with or criticises other lawyers or other
professions or professionals;
(d) includes statement about the quality of the lawyer’s work, the size
or success of his practice or his success rate; or
(e) is so frequent or obstructive as to cause annoyance to those to
whom it is directed.
Rule 39(3) RPC 2007: Specifically, a lawyer shall not advertise his services or
solicit professional employment either directly or indirectly by (a) circulars,
handbills, advertisement, through touts or by personal communication or interview;
(b) by furnishing, permitting or inspiring newspaper, radio or television comments
in relation to his practice of the law (c) by procuring his photograph to be published
in connection with matters in which he has been or is engaged or concerning the
manner of their conduct, the magnitude of the interest involved or the importance of
the lawyer’s position; (d) by permitting or inspiring sound recordings in relation to
his practice of law; or (e) by such similar self-aggrandisement.
The most infamous reported case on improper attraction of business, albeit not in the legal
profession was the locus classicus case of Allison v General Council of Medical Education and
Registration (1894) 1 QB 750. In that case, the Plaintiff, a medical practitioner published a great
number of advertisements in several newspapers which contained reflections upon his medical
colleagues generally and their methods of treating their patients, the plaintiff after castigating them,
advised the public to have nothing to do with his colleagues and their drugs. The advertisements also
recommended to the public to apply to the plaintiff for medical advice and stated his address and the
amount of fees, which he charged. The General Council found him guilty of infamous misconduct in a
professional respect and directed that his name be erased from the register of medical practitioners
and his challenge of that decision was dismissed.
(a) his name or names of his professional association; (b) his address, telephone
number, telex number, e-mail address, etc ;(c) the school, colleges, or other
institutions attended with dates of graduation, degree and other educational or
academic qualifications or distinctions; (d) date and place of birth and admission to
practice law; (e) any public or quasi-public office, post of honour, legal authority,
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etc;(f) any legal teaching position;(g) any national Honours ;(h) membership and
office in the Bar Association and duties thereon; and (i) any position held in legal
scientific societies.
Rule 40 RPC permits the printing of business cards (also his note-paper, envelopes
and visiting cards) containing his (a) name and address; (b) academic and
professional qualifications and title including the words “Barrister-at-Law”,
“Barrister and Solicitor”, “Solicitor and Advocate”, “Legal Practitioner”, “Attorney –
at-Law”, and (c) any National Honours.
Also having the word “Barrister and Solicitor” or “Solicitors and Advocate” written after the lawyer’s
name or a sign or notice containing his or firm name and professional qualifications displayed at the
entrance or outside in building where his chambers is situated is permissible. However, the sign and
notice must be of reasonable size and the design must be sober: Rule 41 RPC
A lawyer’s degree may also appear after his name. If he is a notary public, it could also be included
but it does not include specialist qualification. For example, Commercial Land consultants, experts in
family issues, divorce, custody, welfare, etc. Such advert is unethical.
Rule 42 RPC permits a lawyer who writes a book or an article for publication in
which he gives information on the law, to add his professional qualification after his
name while Rule 46(1) RPC permits a lawyer to write articles for publications, or
participate in radio and television programmes in which he gives information on the
law, but he shall not accept employment from any such publication or programme to
advise on inquires in respect of their individual rights. Rule 46(2): A lawyer shall
also not (a) insert in any newspaper, periodical or any other publication, an
advertisement offering as a lawyer, to undertake confidential enquiries or (b) write
for publication or otherwise cause or permit to be published except in a legal
periodical, any particulars of his practice or earnings in the Courts or cases where
the time for appeal has not expired on any matter in which he has been engaged as a
lawyer; or (c) take steps to procure the publication of his photograph as a lawyer in
the press or any periodical. Section 46(3) RPC: Where a lawyer is instructed by a
client to publish an advertisement or notice, the lawyer may put his name, address
and his academic professional qualifications.
Soliciting for instructions and employment is probably the most common and
degrading example of unfair attraction of business. It lowers the prestige and
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reputation of the lawyer involved and the profession as a whole. In includes the
following:
1. Solicitation for employment in Court premises.
2. Solicitation for conveyancing business.
3. Conducting search at the Land Registry to detect defects with a view to employment in
litigation.
4. Instigating litigation.
5. Ambulance chasing.
6. Under association. This is an indirect form of touting; and could also be referred to as “class
touting”.
7. Pasting circulars, handbills and advertisement through touts or by personal communication
or interview
8. Furnishing, permitting or inspiring Newspaper Radio or TV comments in
relation to his Law practice
9. Procuring his photograph to be published in connection with matters he has
handled or the manner of their conduct
10. Permitting inspiring sound recording in relation to his practice of Law.
Finally, it is desirable for a legal practitioner to meet with people in clubs, restaurants and other
social gatherings, but not where the aim of such gathering is for a legal practitioner to associate
unduly with other persons who are in a special position to assist him to obtain employment. It is very
dishonourable for a legal practitioner to distribute his cards in social gatherings to gain employment.
This is very degrading and unethical.
Rule 45(2) RPC: A lawyer shall not wear the Barrister’s or Senior Advocate’s robe
(a) on any occasion other than in Court except as may be directed or permitted by
the Bar Council; or (b) When conducting his own case as party to a legal proceeding
in Court; or (c) When giving evidence in a legal proceeding in Court.
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(a) Search Lands Registry or other Registries for defects with a view to
employment or litigation.
(b) Seek out Claimants in respect of personal injuries or any other cause of
action with a view to being employed by the prospective client
(c) Engage, aid or encourage an agent or any person to follow up on accidents
with a view to employment as a lawyer in respect of any claims arising there
from; or
(d) Offer or agree to offer rewards to any person who by reason of his own
employment is likely to influence legal work in favour of the lawyer.
Where there is a breach of advertisement, the noble and sober nature of the profession will not be
maintained since success now depends on effective advertisement and not on competence.
Adverts tend to berate or belittle other members of the profession. It creates unfair attraction of
business. Briefs will now depend on the financial capability of the lawyer to engage the best form of
advert. Unhealthy competition and rivalry will be created and dignity of the profession would be
eroded by such practice.
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Week 12: LAW OFFICE MANAGEMENT
WHAT IS LAW OFFICE MANAGEMENT
Law Office Management is the study of the organisation and methods employed in
the law office and the relationship between members of staff of that office on one
hand and their relationship with members of the public with whom they are in
contact. It is also concerned with the development of human and other resources in
a law office.
SIGNIFICANCE: The study of Law office management is important because the
success of a legal practitioner to a large extent depends on his ability to successfully
manage his law office rather than on his academic achievements or advocacy or
drafting skills.
OLD POSITION- LP s must undergo pupillage before they can open a law office.
Thus a lawyer of less than 5 years post call was prohibited from engaging in private
practice on his own. However, SECTION 6(2) of Regulated and Other Professions
(Private Practice Prohibition) Act, Cap. 390 LFN, 1990 (LAW HAS BEEN
REPEALED)
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4) Desire to earn higher professional fees
5) Profit – Some legal practitioners believe that the profit they will make by
establishing their own law firm will exceed that earned when being
employed.
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Rule 15 RPC – enjoins the legal practitioner to perform his duty within the law and
to obey his conscience and not that of his client.
Rule 54 RPC : A lawyer shall not accept any compensation, rebate, commission, gift
or other advantage from or on behalf of the opposing party except with the full
knowledge and consent of his client after full disclosure.
Rule 23(2) RPC: Where a lawyer collects money for his client, or is in a position to
deliver property on behalf of his client, he shall promptly report, and account for it,
and shall not mix such money or property with, or use it as, his own.
See SAGOE v. R (1963) 1 ALL NLR 290; ONAGORUWA v. STATE (1993) 7 NWLR
(pt. 303) 49.
Skill: This is the ability to apply legal knowledge to solve a legal problem.
A combination of the two will be required to render good legal services otherwise a
practitioner may be liable for damages.
BELLO RAJI V: X. A LEGAL PRACTITIONER (1946) 18 NLR 74
Good Luck – The success of a law firm is also determined by good luck, which may
provide an abundance of opportunities for the legal practitioner
Dynamism and innovation; Wits and intelligence; Finance
BUSINESS PLAN
A business plan is a document containing information about a proposed firm, its
goals and the financial projections for it. It is normally prepared by an Accountant
for the owner.
Note that it is desirable for a legal practitioner who chooses to establish a law firm
to have a business plan.
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5. Types of firm
6. Goals of the firm
7. Segmentation of the market
8. Market competitors
9. Capital requirement
10. Borrowing requirement
11. Security to be provided
12. Use of funds
13. Employment of staff
14. Management system
CLIENTELE
A legal practitioner must ensure that markets exist for his service otherwise the
purpose of establishing a law firm will be defeated.
POTENTIAL CLIENTS -
(a) Banks and other financial institutions.
(b) Companies
(c) Large statutory bodies
(d) Legal Aid Council
(e) Individuals
(f) Government briefs.
Therefore, a practitioner should map out strategies of winning clients subject
however to Rules of Professional Conduct.
STRATEGIES FOR WINNING CLIENTS
THE BENEFITS THAT A CLIENT SEEKS FROM A FIRM
i) Expertise – This involves clients who require firms with expert knowledge
and skill to handle what they consider as complex and unusual matters.
ii) Experience – This involves clients choosing one firm instead of another
because such firms are experienced in an area of law due to the reputation of
the firm.
iii) Efficiency – This involves clients with matters that can be handled by several
firms but require a prompt delivery of service at a competitive rate.
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Management skills Managing a law firm
2. Client base – This has to do with the types of clients a legal practitioner
chooses to serve.
3. Facilities –
4. Status of lawyers – This deals with classes of legal practitioners thus, a firm
may be classified as SAN or non-SAN firm.
5. Number of lawyers –
The number of legal practitioners in a law firm makes up the size of a law
firm.
It is the size of law firms in a particular location that determines the criteria
(small, medium or large) to be used in a classification.
Small law office: it occupies a room or two with 1-4 Lawyers (ii) Medium
size law office having between 5-9 lawyers (iii) Large law office with 10m
and above fee earners
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In Nigeria, there are four (4) types of law firms, and any one of these may be chosen
to carry out legal practice.
SOLE PRACTITIONERSHIP
ONE LEGAL practitioner as the owner of the business
Only support staff.
ADVANTAGES
1. It is relatively easy to set up
2. Enhances quick decision making
3. The sole practitioner takes all the credit for success/failure of the practice.
4. He takes all the profits alone
DISADVANTAGES
1. Professional isolation-Has no other lawyer to discuss issues with
2. Relatively low quality work
3. Energy sapping- does the work alone
4. Lack of full attention to all the matters he is handling
5. Generalist
6. Difficulty in getting clients
7. No time for holidays
8. Full credit for failure is borne by him
9. No division of labour
10. Death may terminate the practice
11. Undue delay in service delivery
SOLE PROPRIETORSHIP.
COMPOSITION-
One Legal Practitioner as the owner
Employing other Legal practitioners (salary earners)
Support staff
ADVANTAGES
1. Ease of decision making
2. Entitled to all his profits but has to pay salaries
3. Takes credit for success of the firm
4. Can specialise in any area of his choice
5. Ease of succession
6. Succession by the children and family can be achieved without stress
DISADVANTAGES
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1. Bears the cost of setting up and running the firm alone
2. Bears risk of failure alone
3. Low quality decisions(unilateral)
4. Death could lead to collapse of the firm
ASSOCIATESHIP.
Two or more legal practitioners come together to establish the firm
contributing to its establishment and running
Joint hiring of staff, furnishing , payment of rents
Each maintain separate legal office and legal practice
They do not share profits
ADVANTAGES
1. Easier to set up as they pool resources together
2. Not professionally isolated
3. They don’t share profits
4. Take credit of success/failure of independent practice
5. Enhances a large well furnished office
DISADVANTAGES
1. Hinders growth as each associate bears loss alone
2. Rivalry among associates
3. Lack of trust among associates
4. Conflicts may arise
5. Due to unequal success, an associate may not keep up to terms of the
associateship
PARTNERSHIP.
Two or more legal practitioners may contribute capital to provide facilities
and run the firm as partners.
The partners are all owners of the firm; the relationship between them is that
of joint owners.
The profits of the firm will be divided according to their capital contribution
or any other agreed formula.
They owe a fiduciary duty to one another and are prohibited from making
secret profits.
They are also liable jointly and severally for any loss sustained and severally
for any loss sustained by the firm – Yesufu & Anor. v. Kupper International
NV (1996) 5 NWLR (Pt. 446) 17.
Restrictions On Formation Of Law Firms And Law Partnerships In Nigeria
a. Lawyer must not form a partnership for the purpose of law practice with a
non-lawyer or with a person who is not called to bar or admitted to practice
law in Nigeria: Rule 5 (1) RPC, 2007
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b. A lawyer practicing alone must not hold himself out to the public as if he is in
partnership; accordingly, sole practitioners are prohibited from using the
name, “A, B & Co or such other Name as many suggest that he is in
partnership with others: Rule 5 (4) RPC, 2007
c. It is unlawful to carry out law practice as a corporation: Rule 5 (5) RPC,
2007
d. The name of a serving judicial officer must not appear in the name of any
Law Firm in Nigeria: Rule 5 (3) RPC, 2007.
e. A lawyer must not aid a non-lawyer in an unauthorised practice of the law:
Rule 3 (1) (a) RPC, 2007.
f. Except with the approval of the Bar Council, a lawyer shall not practice at the
bar (own a law firm) and simultaneous practice any other profession or
engage in any trade or business, except in permitted areas: Rule 7 RPC,
2007.
g. A lawyer who is a public officer must not “engage or participate in the
management of any private business, profession or trade” except farming
and is therefore barred from setting up or operating a law firm: Section 2 (b)
of Part 1 of the 5th Schedule to the 1999 Constitution (Code of Conduct
for public officers)
9. Division of labour
DISADVANTAGES
1. In law, each partner is an agent of the other partners. Each partner is liable
for the act of another done within the partnership business-
2. Fraudulent act of one partner may taint the reputation of other partners
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3. There may be mistrust among the partners which may hamper the success of
the firm
5. Double loyalty
FORMATION OF A PARTNERSHIP
A partnership can be formed orally or in writing. However, it is advisable to have a
partnership agreement in writing in order to prevent disagreements and problems.
The issues, which a partnership agreement should deal with, include the following:
1) Nature and object of the partnership business;
2) Firm name;
3) Location of firm;
4) Capital contributions;
7) Management;
17) Termination.
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Such notification must be made WITHIN 30 DAYS of its establishment
THE NOTICE SHOULD CONTAIN-:
Name of the lawyer or lawyers
Date of call to bar and enrolment
Address of the law office
The information is entered into the Register of the NBA
Change of information, if any, is communicated to the NBA.
RULE 13(1) RPC
R.13(4)- similar notice is required in event of CHANGE OF NAME OR ADDRESS
Where a legal practitioner has been in gainful employment (prior to establishing his
own firm), it is quite likely that he may have some personal savings with which to
establish a law firm. A legal practitioner may also raise funds from family, relatives
and friends and this is also classified as personal savings.
Difference Between Loans And Overdraft From Banks And Other Financial
Institutions.
The difference between a loan and an overdraft is that while interest is payable on the
entire amount of the loan whether utilised or not, interest is payable only on the
amount of the overdraft that is utilised.
Secondly, overdraft is repayable on demand at any time, whereas the repayment period
of a loan is fixed.
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An ascertainable amount is required to buy fixed assets and a loan is expected to be
repaid over a fixed period unlike an overdraft.
Money required as working capital is unascertainable and will vary over a period of
time and an overdraft can be drawn when required.
In the light of the foregoing, it is advisable to apply for a loan if the fund required is start
up capital and an overdraft if the fund required is working capital.
Note that a lender may require security to be provided. It is now a criminal act to grant
a loan without security or adequate security. See SS. 19 and 20 Failed Bank (Recovery of
Debts) and Financial Malpractices in Banks Decree No. 18 1994.
Security may be in form of real property, shares and stocks or personal guarantee.
TYPES OF PREMISES: There are 3 types of premises that can be used for office
accommodation. They are:
DESCRIPTION OF PREMISES
The premises where a law firm operates is popularly called "Chambers" in Nigeria.
This is not appropriate because of the fused nature of legal practice.
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The proper name should be "Law Office" as is called in United States of America
where there is also a fused profession.
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2. Aptitude tests for messengers
INDUCTION OF STAFF
The purpose is to inform the new staff about the culture of the office.
The new staff should know the following as an induction programme:-
(a) History of the firm;
(b) Administrative procedures;
(c) The existing staff
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A GOOD LAW OFFICE MUST HAVE THE FOLLOWING:-
(a) Reception Room
(b) Practitioners' Room
(c) Supporting Staff Room
(d) Library
(e) Toilet, etc.
Please note however, that the most basic room requirements in the law office
include (a)(b)(c) and (e) above.
LEASING
There are companies that engage in leasing equipment and machines.
A lease of equipment or machines may be granted to a law office.
Where such a lease is granted, the law office pays a monthly rent for a term of years.
It is to be noted that it is UNCOMMON in Nigeria for law offices to acquire
equipment and machines by leasing.
PURCHASING
On the other hand, machines and equipment can be acquired by outright purchase.
Where they are purchased, the law office becomes the owner out rightly.
(b) Vehicles: Vehicles are also essential in a law office. This will facilitate the free
movement of both fee earners and supporting staff in their outside assignments.
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6. Facsimile Machine
7. Dictating Machine
8. Dedicated Word Processor
9. Rubber Stamp
10. Computer
11. Calculator/Adding machine
12. Devices using computers e.g. e-mail & internet
13. Telephone
NOTE THAT
Proper record of these should be kept by the law office.
These equipment should be maintained and serviced by the law office to
prevent sudden breakdown.
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7. Absence and lateness
8. Overtime work
9. Holidays
10. Salary Increment
11. Annual Leave
12. Reporting Structure
13. File Management
14. Provision of Office supplies
15. Method of answering the telephone
16. Procedure on receiving facsimile message
17. Procedure for dealing with correspondence
18. Procedure for borrowing office books
19. Disciplinary Procedure
20. Grievance procedure
NOTE – The differences between business plan and office manual
Ensure law office has LAW OFFICE SECURITY AND INSURANCE and FITTINGS
AND FURNITURE
MANAGEMENT STRUCTURES
1. Management by a committee of partners
2. Management by all partners (mostly in small partnerships)
3. Management by a sole partner
4. Management by a sole owner (sole practitionership and proprietorship)
5. Management by associates (in an associateship)
6. Management by experts (in an associateship)
7. Management by experts who may or may not be lawyers but are appointed
by the owner
MANAGEMENT FUNCTIONS
1. Planning-
2. Organising
3. Coordination
Identify strategies for implementing the plans
Explain the main resources of a law firm
Explain how to co-ordinate the work flow of a law firm
How to implement the well planned areas
How to organise resources of the firm
Assignment/ delegation/ harmonisation of work
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4. Controlling
5. Evaluating
The management functions should be tailored to meet the vision and mission
expectations of the firms.
THE MISSION STATEMENT must be drafted by the owners of the firm. It must state
concisely the firm’s long-term goals and should not be written in more than fifty
(50) words.
MARKER- core ideals around which the firm is set up
5. Attainable – The goals should be one that is realistic and attainable with the
firm’s resources.
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ITEMS REQUIRING PLANNING
Finance;
Services;
Clients;
Facilities;
Staff
TYPES OF PLANNING
Strategic/ long term planning
Tactical/ medium term planning
Operational / short term planning
EXTERNAL ENVIRONMENT
Social political and economic environments.
Time Management
Time is -a valuable resource to legal practitioner; hence it must be well managed.
METHODS OF TIME MANAGEMENT
This can be done
By making a list of "things to do" and prioritising the work according to
criteria of urgency and importance.
Having a reminder system
PRIORITISING OF WORK
TYPES- LEGAL AND NON LEGAL WORK
CLASSIFICATION OF LEGAL WORK
Office work
Court related work
ORDER IN WHICH LEGAL WORK MAY BE PRIORITISED
Urgent legal work should take priority over others
Court matters requiring presentation of witness on the next adjourned date
REMINDER SYSTEM
Forms – diary; notebook; phone; computer
TYPES
PERSONAL REMINDER SYSTEM-
Types
Office and firm diary;
Personal diary and computer
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Pre printed forms (INFORMATION IN PRE PRINTED FORM: NAME OF
CLIENT; LEGAL WORK; NAME OF LAWYER; TYPE OF ACTIVITY; DATE IT
WAS TAKEN; NEXT DATE IT MAY COME UP)
Tickler slip system
Office computers
The MOST EFFECTIVE reminder system is the use of diaries both for personal use
and office use and PRE PRINTED FORMS/COMPUTERS.
FILING SYSTEM
Documents should be filed in paper form or electronically.
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8 Referral Register
9 Internal Telephone Directory
10 Income and Outgoing Correspondence Register
11 Incoming & Outgoing Telephone Call Book
12 Visitors' Book, etc.
IT IN LAW PRACTICE
It is useful to have computers and possibly virtual libraries and database (e.g. Law
Pavilion)
The Chairman,
Nigerian Bar Association,
Abuja Branch,
High Court Complex, Maitama,
Abuja.
Dear Sir,
NOTIFICATION OF ESTABLISHMENT OF LAW OFFICE
I, Ndu Gabriella, a Legal practitioner called to the Nigerian Bar on 20th November,
2010 and enrolled as a Barrister and Solicitor of the Supreme Court of Nigeria,
hereby give you notice of the establishment of my law office situated at No. 10 Aso
Drive Nyanya, Abuja- Nigeria in compliance with Rule 13 of the RPC 2007.
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Please find attached copies of my qualifying certificates and other relevant
documents
Thank you.
Yours faithfully,
Gabriella Ndu
(Principal Partner)
GABRIELLA NDU& CO
ENCLS:
1) Call to Bar Certificate
2) Receipt of payment of practicing fee
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CT, Justices of the CT of Appeal, judges of the Federal High CT, High CT of the
FCT, High CT of the States, National Industrial Court, Khadis of the Sharia Ct of
Appeal of FCT and States and Judges of the Customary CT of Appeal of FCT and
States
Historical antecedent:
1960 Independence Constitution: Judges of the High CT of the regions or the
Federal Supreme CT: 10yr post call experience, appointment by the Judicial Service
Commission of the Federal or State as the case may be except the Chief Justice of the
Federation, Chief Justice of the Regional High CT and that of Lagos (these are
appointed by the Prime Minister, Premier of the Region, Governor-General
respectively
1963 Constitution: Judicial Service Commission was abolished and appointed was
by the President and the Governors acting on the advice of the Prime Minister and
the Premiers respectively. There was a brief interlude of military rule, where a body
similar to the Judicial Service Commission called the Advisory Judicial Committee
was introduced (advised on the appointment)
NOTE (EXAMS)-Magistrates, Judges of Area Courts and Customary Courts are not
regarded as judicial officers. They are under the supervision of the High Courts and
employed by the state Judicial Service Commission.
Chief Judge and Judges of High CT of the FCT: appointment is by the President
upon the recommendation of the National Judicial Council and subject to the
confirmation of the Senate. For the other judges of the High CT of the FCT, there is
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no need for confirmation by the Senate: s256(1)& (2) Constitution. Qualification is
10yrs post call: s256(3). duly constituted if it consists of at least one (1) Judge of the
HC-FCT (Section 258).
Chief Judge and judges of High CTs of the State: s271. Where President is featured, it
is the Governor, and House of Assembly
Grand Kadi and Kadis of the FCT: Appointment of Kadis is by the President upon
recommendation of NJC and for the Grand Kadi there must be confirmation by the
Senate: s261(1) & (2). 10yrs post call and obtain a recognised qualification in
Islamic law from a school recognised by the NJC or 12ys post call qualification from
an Islamic school recognised by the NJC/ in addition, he must have considerable
experience in the practice of Islamic law or he is a distinguished scholar of Islamic
law: s261(3). This court shall be duly constituted if it consists of at least three (3)
Kadis when exercising its jurisdiction (Section 263).
S276 Constitution for appointment of Grand Kadi and Kadis of the Sharia Court of
Appeal of States
3.Judge of the Customary Court of Appeal of FCT
i) 10 years post-call experience in customary Law practice.
ii) A non-Lawyer with 10 years experience in CUSTOMARY PERSONAL Law.
S. 266(3)
Customary CT of Appeal of FCT: Appointment is by President upon
recommendation by NJC subject to confirmation by the Senate where the President
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of customary CT of Appeal is concerned: s266(1) & (2). 10yrs post call and
considerable experience and knowledge of customary law or in the opinion of the
NJC has considerable experience in customary law: s266(3). This court is duly
constituted if it consists of at least three (3) judges of the court in exercising any of
its jurisdiction conferred on it by the National Assembly (Section 268).
See s281 for states customary CT of Appeal
5. Supreme Court:
At least 15 years post-call experience: See 231(3) of the 1999 Constitution.
Note –(exams) for qualifications and constitution of judges, the number stipulated is
the MINIMUM.
Appointment of Chief Justice and Justices of the Supreme Ct is made by the
President upon the recommendation of the National Judicial Council and subject to
confirmation by the Senate: s231(1) & (2)
The Supreme Court is duly constituted when there at least five (5) Justices present,
but for constitutional or human right matters at least seven (7) Justices must be
present (Section 234).
No more than 21 Justices of the SC
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President of the CT of Appeal
5 retired Justices selected by the Chief Justice of Nigeria from the Supreme
CT or the CT of Appeal
Chief Judge of the Federal High CT
President of the National Industrial Court
5 Chief Judges of the State to be appointed by the Chief Justice of Nigeria
from among the Chief Judges of the State and the High Ct of the FCT in
rotation to serve for 2yrs
One Grand Kadi to be appointed by the Chief Justice of Nigeria from among
Grand Kadis of the State CTs of Appeal to serve in rotation for 2yrs
One President of the Customary CT of Appeal to be appointed by the Chief
Justice of Nigeria from among the Presidents of the Customary CTs of Appeal
to serve in rotation for 2yrs
5 members of the Nigerian Bar Association who have been qualified to
practice for not less than 15yrs, at least one them whom shall be an SAN,
appointed by the Chief Justice of Nigeria upon the recommendation of the
National Executive Committee of the NBA to serve for 2 yrs and subject to re-
appointment
Provided that the 5 members shall sit in the Council only for the purpose of
considering the names of persons for appointment for the superior CTs of
record and
2 persons not being legal practitioners who in the opinion of the Chief Justice
of Nigeria are of unquestionable integrity.
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(g) appoint, dismiss and exercise disciplinary control over members and staff of the
Council
(h) control and disburse all monies, capital and recurrent for the services of the
Council and
(i) deal with all other matters relating to broad issues of policy and administration
The Secretary of the Council has be appointment by the NJC on recommendation of
the Federal Service Commission and shall be a legal practitioner (i.e. the Secretary is
not a member of the NJC)
NJC Guidelines
The guidelines are designed to ensure the following:
Transparent selection process
Independence of the Judicial Service Commission and the Judicial Service
Committee of the FCT
Exclude lobbying by potential candidates
Avoid imposition of any candidate on the Judicial Service Commission
That only candidates with high integrity, good reputation, track record of
intellectual capacity, hard work and industry are submitted to the NJC
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ix. The State Judicial Service Commission will hold a meeting and consider the
shortlisted candidates, their documents and then decide on the names to the
forwarded to the National Judicial Council
x. In doing so, they shall make sure that only candidates who are above board
are forwarded
xi. The Chairman of the State Judicial Service Commission shall then send a
written request for NJC recommendation of the selected candidates to the
Governor
xii. The request shall be accompanied with an undertaking that the NJC
guidelines have been complied with and the following documents:
Letter of intention alongside the Governor’s approval is forwarded to
the Secretary to the Council
Minutes of meeting of any Judicial Service Commission or Committee
for the nomination of the candidates for appointment must be
forwarded in 30 copies to the NJC addressed to the Secretary
xiii. Candidates whose names are forwarded must undergo medical tests and
attach evidence
xiv. Candidates’ curricula vitae must be attached along with the NJC Form A
xv. Each candidate shall submit 10 judgments obtained or delivered in contested
cases in the past two years (if the candidate is from the Bar). Judgment must
be confirmed by the Head of the Court or the Chief Judge. If the candidate is a
lecturer, he must attach publications in law journals, textbooks etc.
xvi. Candidates from the Bar to submit their practising fee receipt for the 5 years
xvii. Security report from the state security service; and
xviii. Comments from the State branch of the NBA on the persons so nominated
xix. Copy of the legislation establishing the court (when the court is newly
established)
xx. Prove of availability of accommodation, court rooms, cars and other
necessary facilities
All these documents will be forwarded to the NJC
xxi. National Judicial Council (NJC) will then recommend successful candidates to
the Governor for appointment.
xxii. Governor appoints the judges.
xxiii. Confirmation by State House of Assembly (in the case of the Chief Judge)
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E- DISCIPLINE OF JUDICIAL OFFICERS
Code of Conduct for Judicial Officers – it was made by the NJC.
A judicial officer remains in office until the prescribed retirement age.
However, he may be removed under the Constitution through the following
procedure:
The disciplinary measures include any of the following:
Removal from office
Suspension from office
NOTE (EXAMS)-NJC only have the power to suspend a judicial officer and not to
remove them. It could also recommend the removal of a judicial officer.
I) PRESIDENT
NJC recommends the removal;
The President removes Heads of Federal Courts
(Chief Justice of Nigeria, President of the Court of Appeal, Chief judge of the FHC,
President of the National Industrial Court, Chief Judge of High Court FCT, Grand Kadi
of Sharia Court of Appeal FCT, President of the Customary Court of Appeal FCT, etc)
acting on an address supported BY 2/3 MAJORITY OF THE SENATE.
NOTE(EXAMS)-In respect to other judicial officers of the Federal Courts, the
President removes them acting on the recommendation of the NJC.
s. 292 of the 1999 Constitution amended.
II) GOVERNOR
The Governor removes Heads of State Courts (Chief Judge of State, Grand Kadi of
Sharia Ct of Appeal of a State, President of Customary Ct of Appeal of a State) acting
on an address supported by two-third majority of the House of Assembly.
NOTE-In respect to other judicial officers in the State, he removes them on the
recommendation of the NJC.
section 292(1) of the 1999 Constitution.
III-GROUNDS FOR THE REMOVAL OF JUDICIAL OFFICERS
Misconduct
Contradiction of the Code of Conduct for judicial officers
Inability to perform the functions of his office due to infirmity of the mind or
body
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PROCEDURE FOR LAYING COMPLAINTS AGAINST A JUDICIAL OFFICER.
1.Write a complaint addressed to the NJC
2.The judicial officer in question will be notified in writing and given time to react to
the allegation.
3.If the allegation is proved, the NJC may:
a-Suspend him or
b- Recommend his removal to the President/ Governor
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DISCIPLINE OF LAWYERS
Legal framework (Applicable Laws)
Legal Practitioners Act 1975 (As amended) (now CAP L11 LFN 2004)
See section 12 LPA (problems with these sections) as Decree No 21, 1994:
Legal Practitioners Amendment Decree 1994 has not been repealed causing
inconsistencies with the law. Led to Supreme CT stating that appeals lie from
LPDC to Body of Benchers. Actually appeal lies from LPDC to the Supreme
Court
S10 LPA 1975 stated appeals lie from LPDC to Appeals Committee of the
Body of Benchers. Section 10 Legal Practitioners Amendment Decree 1994
stated that Appeals Committee of the Body of Benchers should be substituted
with Supreme Court. The LPA 2004 did not repeal the Legal Practitioners
Amendment Decree 1994
The Rule of Professional of Professional Conduct for Legal Practitioners 2007
The Legal Practitioners (Disciplinary Committee) Rules 1965
The 1999 Constitution
Evidence Act 2011
Decision of Nigerian superior Courts i.e. case law
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This will include any wrong conduct done in the pursuit of his professional duties.
CHARLES OKIKE V. LSDPC (2005)
ALLINSON V. GENERAL COUNCIL OF MEDICAL EDUCATION: using paid adverts
and stating that patients should not go to other professions stating that they were
incompetent. A conduct that in the eyes of your colleagues who are of good
reputation and competence and think this is improper of a legal professional. Case
relating to medical cases but adopted by the Bar Council in …. Conduct must have
been done in the course of your work as a legal professional: Re G Idowu
NBA V. ALABI
It should be noted that the infamous conduct must be committed in a professional
respect. Otherwise, it does not come within the Act.
MPDT V. OKONKWO
In Re G. Idowu, A Legal Practitioner (1971) 1 ALL NLR 126,it was held here that
in interpreting these provisions, the infamous conduct must be such arising out or
pertaining to his profession. Corporation paid money as party of compensation to a
family. Part of the money paid by the corporation was given to Idowu. He was
suspended for 2 yrs but on appeal, CT held that acceptance of the money was not an
act done in the course of his professional. Supreme Ct held it must be a conduct
arising out of or pertaining to his profession. Compare with other cases Re Valiance:
it is not the seriousness of the offence that is material but whether the person who
committed the offence should remain a member of the legal profession.
EXAMPLES
1. Defamation of brother legal practitioners-ALLISON’S CASE
2. Acting wilfully without client’s authority-
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These involve any misconduct which is such as to render the Lawyer unfit to be an
officer of the Court. These may fall in any of the following:
c. Public fighting
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3. The secretary will send it to the Lawyer involved to respond to same
within a period of 21 days
4. The complaint is also sent to the NBA for necessary investigation.
R. 3(2) OF THE LPDC RULES
5. The NBA will investigate the complaint by way of inquiry through a
Committee appointed for that purpose
6. The Committee will write the Legal Practitioner involved inviting him
to bring in his written representation. If a prima facie case is made, the
NBA will then send the Report of the case, documents considered and a
copy of the charge to the Secretary of the LPDC.
7. The NBA will appoint Lawyers from amongst it to prosecute the
Lawyer before the LPDC.
8. The matter will be heard by the LPDC.
a. The Chairman who should not be either the Chief Justice of Nigeria or a
Justice of the Supreme Court
b. Two justices of the Court of Appeal (one of whom has be the President of the
Court of Appeal)
c. Two Chief Judges of the States.
d. Two Attorney-Generals of the Federation / State
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e. Four legal practitioners of the Association who are not interested in the
matter or took part in the investigation by NBA.
S. 10 (2) of the LPA.
Decisions of the LPDC are referred to as DIRECTION.
See appeals from LPDC to the Supreme: NB Aladejobi v
NBA (2014): where the Supreme Court held that
appeals lie to the Appeals Committee of Body of
Benchers (thus SC held that it lacked the jurisdiction to
hear the appeal)
The TIME LIMIT within which to comply with a direction of restitution is 28 days
or after an Appeal, otherwise the Committee will treat the non-compliance as
misconduct in a professional respect:
PUNISHMENT
Three types of punishment are provided under Section 11(1)(c) where charges are formulated
against a legal practitioner. The LPDC may give direction to:
1. Ordering the Chief Registrar to strike out that person’s name off the roll; or
2. Suspending that person from practice by ordering him not to engage in practice as a legal
practitioner for such period as may be specified in the direction; or
3. Admonishing that person
And in addition to these three punishment, requiring the refund of moneys paid or the handing
over the document or any other thing as the case may be: s11(1) LPA
Re Edewor (1968) 1 NLR 226: he was admonished and asked to refund part of the fees but he
ran away. Supreme CT went ahead to order his suspension
Where a legal practitioner seriously and fraudulently abuses the confidence of his client – Re
Martin (1843) 6 Beav. 337, 49 ER 856,
Where the legal practitioner’s conduct is such that the public should not be exposed to the
risk of dealing with him – Re Abuah (1962) 1 All NLR 279 at 285,
Where his misconduct is personally disgraceful – Re Weare (1893) 2 QB 439, his name will
be struck off the roll.
In case of conviction for offences involving fraud or other serious misconduct, the committee
will be inclined to order the striking off of the name of the practitioner.
Where the name of a legal practitioner is struck off the roll, his name may be restored to the roll on
application to the Disciplinary Committee – section 14(1) of the LPA.
SUSPENSION
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This will be ordered where the misconduct is not of such a serious nature as to warrant striking off.
Where the Committee deems fit, it may suspend any erring legal practitioner from practice for a
specified period in the direction – ONITIRI V. FADIPE.
Usually, where striking off is quashed or reversed, it may be substituted with suspension. Also, a
person who is suspended from practice may, on application be restored – section 14(1) of the LPA.
ADMONITION
This may be required for offences, which are not serious. Other
punishment available could be restitution. In certain cases, the legal
practitioner may be asked to pay costs to his client.
Provisions of the rules of professional conduct relating to disciplining of
lawyers
Rule 55(1) RPC: If a lawyer acts in contravention of any the rules in these Rules or
fails to perform any of the duties imposed by the Rules, he shall guilty of a
professional misconduct and liable to punishment as provided in Legal Practitioners
Act, 1975.
d. The length of time since suspension/striking off of his name that has
lapsed.
S. 14 of the LPA,
RE A.C ABUAH
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ADESANYA VS. A.G FEDERATION.
DISCIPLINE BY THE CHIEF JUSTICE OF NIGERIA.
The Chief Justice of Nigeria has the power to suspend a Lawyer from practicing
when it appears to him that a legal practitioner should be suspended from practice,
Either with a view to the institution against him of proceedings before the
Disciplinary Committee or
Where it appears to the Supreme Court that a person whose name is on the roll has
been guilty of infamous conduct in any professional respect in the course of ANY
MATTER OF WHICH THE COURT OR ANY OTHER COURT OF RECORD IN
NIGERIA IS OR HAS BEEN SEIZED,
The Supreme Court may if it thinks fit, after hearing any representations made and
evidence adduced by or on behalf of that person and such other persons as the
Court considers appropriate, give such a direction as is mentioned in subsection (1)
of section 11, and the direction shall take effect forthwith; and except in the case of
an admonition the Court shall cause notice of the direction to be published in the
Federal Gazette: S. 13(1) of the LPA
DRAFT OF A LETTER OF APPLICATION FOR APPOINTMENT AS A JUDICIAL
OFFICER :
Nuhu Bala
No. 12 Base Street Bariga
Lagos.
10 May, 2012
To
The Chairman
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The State Judicial Service Commission
No. 13 Base
Road, Makurdi
Benue State.
Dear Sir,
I, Oguntaye Alawo, hereby apply to be appointed a Judge of the High Court of Benue
State. I was called to the Nigerian Bar in the year 1992 and was enrolled on the
same day.
I have cogent experience in Legal practice as a Principal Partner with Agbaje Daji &
company, a firm of Legal Practitioners and solicitors.
Please find attached copies of my documents for your necessary consideration.
I look forward to your kind consideration of my application.
Yours faithfully,
……………..
Oguntaye Alawo.
ENCL:
1. Call to Bar Certificate
2. Receipts of payment of practicing fees
3. Bachelor of Laws(LL.B) Certificate
4. Curriculum vitae
NB- you may be given information to draft a CV for a judicial officer. Note NJC FORM
A for guidelines.
NJC FORM A
BIO-DATA
1.Names inFull_________________________________________________________________
2. Date of Birth ___________________________________________________
3. Place of Birth __________________________________________________
4. State ofOrigin____________________________________________________________
5. Local Government Area______________________________________________________________
6. ResidentialAddress_____________________________________________________________
____________________ Telephone____________________________________________________
7. Chambers/Office Address____________________________________________________________
8. Postal Address_____________________________________________________________________
__________________________________________________________________________________
10. Primary Schools attended with dates
____________________________________________________
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11. Colleges attended with dates
___________________________________________________________
12. Certificates awarded on leaving College with dates
________________________________________
Subjects offered and passed with grades:
_________________________________________________________________________________
15. University and Law School Prizes Awarded (if any) with dates:
_________________________________________________________________________________
16(a) Date called to the Bar in Nigeria:
_________________________________________________________________________________
(b) Date and place admitted to practise outside Nigeria:
__________________________________________________________________________________
c. Date admitted as a Notary Public (if any):
__________________________________________________________________________________
d. Date of conferment of the rank as a Senior Advocate of Nigeria
_________________________________________________________________________________
17. Law Practice Experience:
a. Pupillage in Chambers showing Head of Chambers and dates:
__________________________________________________________________________________
b. Date of setting up own chambers stating:
____________________________________________________________________________
ii. Names of Partners/Associates:
____________________________________________________________________________
iii. Names of Junior Counsel employed in Chambers indicating dates and
duration:
____________________________________________________________________________
iv. Library owned and number of books in the Chamber’s library with
address:
____________________________________________________________________________
(c) Professional Appointments:
i. In the Ministry of Justice and positions held with dates:
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___________________________________________________________________________
(d) In the Judiciary as Magistrate or President of Sharia/Customary Courts, stating
positions held with dates:
i. _____________________________________________
ii. _____________________________________________
iii. _____________________________________________
ii. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
i. ____________________________________________
ii. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
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years (or before taking up appointment as magistrate etc) with
copies annexed or cite Law Reports where reported.
i. ____________________________________________
ii. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
vii. _________________________________________
viii. _________________________________________
ix. ___________________________________________
x. __________________________________________
d. Particulars of selected judgments delivered by the candidates
in the past two years as Chief Magistrates, etc. Annex copies of
your best judgements.
i. ____________________________________________
ii. ____________________________________________
iii. ____________________________________________
iv. ____________________________________________
v. ____________________________________________
vi. ____________________________________________
vii. _________________________________________
______________________________________________________________________
____________________________________________________________________
19. International Law Conferences attended (if any):
(i) ______________________________________________
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(ii) ______________________________________________
(iii) ______________________________________________
20. Particulars of Developed properties (if any):
(a) In home town for own homestead:
_____________________________________________
_____________________________________________
(b) In Commercial cities for investment purposes:
_____________________________________________
______________________________________________
21. Loyalty to the Legal Profession:
(i) Branch of the Nigerian Bar Association to which the candidates
belongs ____________________________________________
ii. Evidence of payment of Practising fees. (Annex receipts for past five
years) __________________________________________
iii. Details of Annual Conferences of the Nigerian Bar Association
attended in the past five years, stating places and dates:
___________________________________________________
___________________________________________________
iv. Papers delivered by the candidate at Nigerian Bar Association Annual
conferences (if any).
___________________________________________________
___________________________________________________
___________________________________________________
Signature ________________________________________________
* Paragraph 18(d) shall now read as follows:
* Particulars of selected judgments delivered by the candidates in the past two years
as Chief Magistrates; or in any given past two years before the candidates’ present
appointments/positions. Annex copies of your best judgments”
NOTE: All judgments obtained or delivered by the candidates vide paragraph 18
above shall be confirmed by the Head of Court/the Chief Judge.
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Week 14: (i) Duties of Lawyer to Court, State, Colleagues and Profession;
(ii) Contempt of Court by Lawyers
Duties of Lawyer to court
Punctual to court: recommended 30minutes before the court sits, which is
normally 9am.
Properly dressed in professional attire – black and white: Rule 36(a) RPC
Proper way of addressing the court depending on the court you are
appearing before.
Magistrate: Your Worship
Customary Court: Your Honour
High CT: My Lord/ Your Lordship
CT of Appeal and Supreme CT: My Lord
Legal practitioner: My Learned Friend
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Courtroom decorum:
Conduct case with decency, decorum, custom and code of behaviour of
the court, custom of practice at the bar, appearances, dressing,
manner and courtesy: R 36(b)
Rise while addressing or addressed: R36(c),
Address objections, requests, arguments and observations to the
judge. Non-engagement in banter, personality display, argument or
controversy with opposing lawyer: R 36(d)
Non-engagement in undignified or discourteous conduct degrading to
a court or tribunal: R 36(e)
Not remain in the bar or wear lawyer’s robe when conducting a case
in his own cause or giving evidence: R 36(f)
Mandatory court attendance unless leave obtained
Must write an adjournment letter to the court and opposing lawyer
requesting the day be adjourned giving good reasons – adjournment is
at the discretion of the court. Failure to do so may lead to striking off
the case for lack of diligent prosecution. Where the lawyer is defence
(default judgment) Okonofua v State (1981) Vol NSCC 233; FRN v
Abiola (1997) NWLR (Pt 488) 444 at 467
Respect to the court in words and deeds – proper ground for
complaint must be channelled to the appropriate authority: R31(1) &
(2); R35 (Tribunal)
No unnecessary adjournments
In conducting the case
Conduct case in logical sequence – in civil, the plaintiff first then his
witness. In criminal, complainant first then prosecution witness,
defendant leads the defence witness
Candid and fair to the court: Rules 30 & 32
Obstruction of justice: e.g. by advising client not to tender certain
documents. Lawyer is an officer of court: R 30
Trial publicity – don’t engage in trial publicity. Don’t comment on a pending
cases (might lead to judicial or public bias): R33
Relation with judges – justice must not always be done but must be seen to
be done. Must be careful with relationship with judges. Should be do
anything that is calculated to gain or has the appearance of gaining special
personal consideration of favour from a judge: R 34
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Don’t be involved in anything that will bring overthrow of government
except through democratic means
If the law is being tested, lawyer as a social agent should spearhead such
testing of the law
Should not advice or assist in violation of the law
Should not cite wrong authorities/precedent/ratio
Duties to counsel
Courtesy and respect to learned friends – not allow cases to affect
relationship with learned friends: R 26(1)
Duty to keep promises – don’t take undue advantage of a colleague’s
situation e.g. counsel cannot come to court and has explained this to you and
then you insist that the matter be struck out: R27(2)(a) and (b)
Don’t engage in sharp practices – frivolous applications to tire out the
opposing party
Don’t covert your colleague’s clients. If client drops a colleague and then
engages you, try to help your colleagues recover the fees due to him. Where a
lawyer is employed by a client to join the original lawyer, the later lawyer
shall decline if it is objectionable to the original lawyer, but if the original
lawyer is relieved of his retainer by the client or he withdraws, the later
lawyer may come into the matter, and in that case he shall use his best
Endeavour to ensure that all the fees due to the other lawyer in the matter
are paid: R27(4) RPC
Lawyers shall observe among one another the rules of precedence as laid
down by the law, and subject to this, all lawyers are to be treated on the basis
of equality of status: R26(2) RPC
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In his representation of his client, a lawyer should not file a suit, assert a
position, conduct a defence, delay a trial, or take over action on behalf of his
client when he knows or ought reasonably to know that such action would
serve merely to harass or maliciously injure another: R15(3)(b) RPC
The duty of a lawyer before the court requires great courage and independence and
these virtues where not handled properly can bring him into collision with the
court. The lawyer must strive to perform his duties without being provocative or
offensive to the court. He must remember at all times that he is an officer of the
court.
CONTEMPT OF COURT
MEANING
It is a wilful ACT OR OMISSION capable of bringing judicial authority into disrepute
or the obstruction of administration of justice, impairs the dignity of the court and
shows disrespect for the court.
ATAKE V. A.G FEDERATION
AWOBOKUN V. ADEYEMI
RATIONALE/ PURPOSE OF CONTEMPT AS AN
OFFENCE
To protect the dignity of and confidence in the authority of the judges/court
Instil discipline
Ensure sanctity of court and protection of the court system
To prevent undue interference with administration of justice
Not to bolster the power or personality of the judges as individuals.
SHAMDANSANI V. KING EMPEROR
TYPES OF CONTEMPT
a. Criminal contempt
b. Civil contempt (only disobedience of Court Order/ judgment and other
processes of the court).
c. Contempt in facie curiae – contempt committed in the face of the court. The
court punishes on the spot. Summary trial –contemnor is put in the dock,
informed of his at of contempt and trialled accordingly
d. Contempt ex facie curiae – contempt committed outside the court. Court must
hear evidence and conduct trial. It may be tried summarily where the facts are
clear and incontestable, such as in newspaper publication. In contempt outside
the court, it is not desirable that the judge who is the subject of the attack
should try the case. The proper procedure is to effect an arrest, charge and
prosecute.
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Generally, contempt is a criminal offence.
S. 133 OF THE CRIMINAL CODE
A.CRIMINAL CONTEMPT: the interference is with the justice
system/administration of justice. The interference is not disobedience to order of
the court or processes of the court or attacking the judge personally e.g. going to a
judge’s house to ask him to take a bribe
Where contempt is only disobedience to the order of the court or judge or
during the proceeding in the court – civil contempt
Proof of contempt
Judge is representing the state so proof is beyond reasonable doubt for both civil
and criminal contempt
Punishment
S133 Criminal Code: maximum is 3 months in jail
IKABALA V. OJOSIPE: held that the person held in contempt can be kept in prison
until he purges his contempt
Week 15: Negotiation, Mediation and Multi Door (see seplat note pad)
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Conciliation is a voluntary (unless ordered by the court), non-binding private
dispute resolution process in which a neutral person helps the parties to try to
reach a negotiated settlement.
Differences btw arbitration and conciliation
Although, Both are both ADR processes were a third party intervenes to assist
disputing parties reach a settlement, they are not the same
Arbitration, though the Evidence Act doesn’t apply, arbitrator must have
regard to relevancy and admissibility of documents so arbitrator should have
an understanding of the Evidence Act
Arbitration is like a private court (points of claim, points of defence) and
its decision is enforceable
Conciliation and arbitration are voluntary but certain instances are court
ordered but for conciliation, if parties don’t agree with the decision, they can
jettison the decision. But in arbitration, once parties have submitted to it in a
contract (arbitration clause or container agreement) or in the submission
agreement when disputes arise, whatever decision reached except for those
grounds stated under the Act, it is binding and final and Ct will not ordinary
tamper with an award made
An conciliator may give an opinion or suggest an agreement for the parties
and no prior agreement btw the parties
Arbitrator cannot go outside the scope for that which is submitted for
arbitration. Relies on evidence from the parties. Aim of Conciliation is
different and conciliator can make his own suggestions
Hardly leads to a win-win outcome in arbitration and relationship btw
parties is never the same. Conciliation leads to continuance of relationship
because the conciliator seeks to maintain the on-going relationship (more
win-win situation) e.g. negotiating government policies btw Trade Unions
and the government
Arbitration generally arises by the will of the parties (agreement btw the parties:
consensus ad idem) i.e. agreement in the contract or agreement after the dispute
has arisen to arbitrate. Arbitration can also arise by statute (if provision for
arbitration in statute, parties are compelled to arbitration. Arbitration can also arise
by the order of court e.g. where parties had agreed to submit to arbitration but a
party in contravention of this provision, files an application in court. Other party will
file a notice of preliminary objection that they were first to submit to arbitration
before seeking intervention of the court
Only disputes affecting people’s civil rights and obligations which can be
satisfied/compromised by way of accord and satisfaction. Example of arbitrable
matters are: contract, tort,
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Examples of non-arbitrable matters: Interpretation of statutes and constitution,
criminal matters, election petition, dissolution of marriage as to status and any
other disputes leading to a change in status, gambling,
Laws and rules governing Arbitration in Nigeria
Common law
Doctrine of equity
Arbitration Ordinance 1914
Arbitration Law of 1958
Convention on the recognition and enforcement of foreign arbitral award
1958 (New York Convention) – has been ratified into Nigerian law
United Nations Commission on International Trade Law 1985
UNCITRL Arbitration Rules
Arbitration and Conciliation Decree 1988 (now Arbitration and
Conciliation Act 2004)
Lagos State Arbitration Law 2009
Arbitration agreement
Contractual parties may insert a clause in their contractual agreement
precluding either of the parties from going to the courts in the event of a
dispute arising or where there is an existing dispute from approaching the
courts without first submitting such disputes to arbitration (rule in Scott v
Ivery), s4 and 5 ACA
Doctrine of separability of the arbitration clause: whether the clause is
inserted in the container agreement (contract agreement btw the parties), it
is still regarded as a separate agreement capable of enforcement on its own.
Thus, even where the main contract has failed or becomes
impossible/difficult to perform, the arbitration clause still stands. Only
where the main contract is an illegality, then arbitration clause will not be
enforced
Effect of death of either party: s3 ACA – an arbitration agreement shall not
be invalid by reason of death of either party and enforceable by any of the
personal representatives of the deceased
Termination and revocation: once an arbitration agreement has been
entered into by parties, it can only come to an end either by the parties by
consensual agreement to terminate or by an order of the court
Functions of an arbitration agreement
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It evidences the agreement of the parties to submit their disputes to
arbitration
It establishes the jurisdiction and authority of the arbitral panel over that
of the court (s34 ACA doesn’t oust the jurisdiction of the court)
It is the basic source of the power/authority of the arbitral panel
Container agreement and submission agreement
Characteristics of an arbitration agreement (ACA – dealing with commercial and
industrial arbitration)
S1 ACA: it must be in writing
It may refer to existing disputes or future disputes
It may provide for an ad-hoc arbitration or incorporate the rules of an
arbitration institution
The dispute(s) btw the parties must arise in respect of a defined legal
relationship
The difference/dispute(s) must of necessity relate to matters that are
arbitrable
The agreement is irrevocable except by parties’ agreement or by leave of
court
Content of an arbitration agreement
It must define the kind of dispute envisaged or to be referred
It must state the number of arbitrators and mode of appointment of such
arbitrators
It must state the applicable rules and procedures to be followed in the
arbitration
It must state the law applicable in the arbitration
It must state the language to be used in the arbitration and the place of
arbitration
Arbitration process
Usually commenced by the notice of arbitration (s17 ACA) sent by a party
to the other. Unless otherwise agreement, commences the day the notice is
received by the other party
S7 ACA – appointment of arbitrators
Challenge of an arbitrator
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Jurisdiction of the arbitral panel: s12 ACA – incorporated the doctrine of
competence competence – vests on the panel the power to decide on whether
it has jurisdiction or not and whatever decision the panel reaches is final
Arbitration proceedings
Preliminary meetings like pre-trial conference
Hearing
Right of representation by a lawyer- Art 4 First Schedule to ACA
award is given (s26: contents of an award)
The claimant sends notice of arbitration to the respondent. The notice will
contain: (a) refer to the arbitration clause or agreement btw the parties; (b)
it will refer to the contract btw the parties; (c) it should state the general
nature of the claim; (d) set out the relief/remedy sought; (e) propose the
number of arbitrators where no provision for the number of arbitrators
Pleadings which is exchange of points of claim, points of defence,
counterclaim or reply
Pre-trial meetings and settling of issues: issues that are agreed by both
parties are dispensed with and contentious issues go to the panel
The trial/hearing
Either termination of proceedings or closing of proceedings: termination
where arbitral panel cannot continue e.g. where it decides that it doesn’t
have jurisdiction or one party cannot continue. Closing is where hearing goes
on to the end
Making of an award
Recourse against an award
Enforcement of an award
Pre-trial meeting
Pre-trial meetings or meetings for directions at the instance of the
arbitration. In these meetings, the parties and their representatives are
required to agree on the date(s), time and place of meeting, which is
suitable/acceptable to them.
Constituting the arbitral tribunal
The type of arbitration is material. It could be either ad-hoc or institutional
In ad-hoc, the sole arbitrator or 3 arbitrator (third arbitrator) may
perform the administrative support work e.g. issuance of notices, arranging
for venue of meetings etc
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If parties agree on a particular institution e.g. Abuja Multi-door Court
house, administrative work is done by the centre itself
Pre-hearing review
This enables the arbitrator monitor the implementation of matters
contained in the order for review – all that has been agreed upon is gone
through e.g. rules established in ad-hoc arbitration
Only after this does the arbitral hearing start
Evidence
Arbitrator shall determine relevancy and admissibility of evidence
(documents and arguments) put before the panel;
Witness statement may be written or oral depending on the agreement of
the parties
In some cases, the arbitrator may allow a rebuttal where agreed upon by
the parties
The Evidence Act 2011 doesn’t apply to arbitration. S15(3) ACA enjoins an
arbitrator to determine, the admissibility, relevance, materiality and weight
to be attached to evidence placed before it
Therefore important for an arbitrator to understand the fundamental
principles of evidence as they apply to relevancy, admissibility, proof of
document, production of evidence
Cost
The arbitrator may direct the parties to deliver to him within a specified
time before a decision (award) is made as to directions to cost if either party
is to win
Award
It is a legal document which must contain adequate information to enable
the court if necessary enforce it without recourse to further enquiry
ACA prescribes the form and content of the award (s26 ACA): the award
must contain the signatures of the arbitrators, the reasons for the award, it
must be dated and the place of arbitration as well as the parties. A copy of the
award must be delivered to each of the parties
Enforcement of an award
Where other party refuses to pay award, the successful party may apply to
court for enforcement by leave of court
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Application is under s31 ACA by originating summons supported by
affidavit in addition to supplying the duly authenticated award or its CTC and
the original arbitration agreement btw the parties or its CTC
Party against whom the order of enforcement is sought must be put on
notice (Imani & Sons v Bill Construction Ltd (1999) 12 NWLR Pg 254
Challenge of an award
Within 3 months of the award being made, a right to challenge the award
in court to set aside the award (s29 &30 ACA)
Some grounds for challenging an award: award contained decisions
outside the scope of reference of the arbitral panel (s29(2) ACA) – court will
refer it back to arbitrator to remove such decisions or make an order stating
it should be heard de novo, misconduct of an arbitrator, improper
procurement of an award (s31 ACA) – ACA didn’t define misconduct but
examples in case law. See s48(a) &(b) ACA for other grounds e.g. incapacity
of an arbitrator, public policy, non-arbitral disputes
Enforcement of an award
Domestic award: s31, 32 ACA – simple registration process by application
in writing to the court sending the duly authenticated copy of the award or
its CTC and the original arbitration agreement btw the parties or its CTC
And then it becomes a judgment of the court
International award: by virtue of New York Convention, all awards from
member states via a simple registration process as above (s51 ACA)
NB: s31 and s51 is subject to section 32
Where the award is given in a language other than English, it must be
interpreted
Nature of business btw the parties is the supply of audio-visual aids (DVDs, CDs and
other recording and electronic mass storing devices). The parties are ABC Ltd of No
2 Owerri Road, Aba, Abia State and DVD Ventures of Shops 5-10 Wuse ultramodern
market, Abuja. 2 arbitrators from the Abuja Market Guild Society, Abuja. The law is
Arbitration and Conciliation Act A18 LFN 2004. Language is English
Draft an arbitration clause
A dispute has arisen btw ABC Ltd and DVD Ventures as to the quality of audio visual
aids produced by DVD Ventures and supplied to ABC Ltd which has resulted in
refusal by ABC Ltd to pay up its outstanding with DVD Ventures and they have
agreed to arbitrate. Draft the submission clause.
1) Arbitration clause: In the event of any dispute between ABC Ltd and DVD
Ventures under the supply agreement for audio-visual aids, the parties shall first
submit to arbitration. The arbitration shall be governed by the Arbitration and
Conciliation Act A18 LFN 2004, the language of the arbitration proceedings shall be
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English language and two arbitrators will be appointed by both parties from the
Abuja Market Guild Society, Abuja.
2)
THIS Submission agreement made this 24th day of July, 2015
BETWEEN
ABC Ltd, a duly registered private limited company under the Companies and Allied
Matters Act …(the purchaser)…….of the first part
AND
DVD Ventures (the seller)……of the second part
WHEREAS a dispute has arisen between the parties under the contract for the
supply of audio-visial aids, DVDs, CDs and other record mass storage devices on 20th
day of June 2015
And the parties have agreed to submit any dispute to arbitration
IN WITNESS OF WHICH the parties have executed this agreement in the manner
below the day and year first above written.
NATURE OF ARBITRATION
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1. An agreement must be in existence containing an arbitration clause.
2. It must be voluntary
3. The arbitration clause and the subsequent award to be given by the
arbitrator are binding on the parties.
4. An award is given in writing
‘In the event of dispute or disagreement between the parties, it may interest the
parties to resort to arbitration in resolving the dispute’.
2. Scot-v-avery clause: this clause closes the gap of discretional arbitration
clause. Here the parties must go for arbitration and may only resort to the
Courts to either enforce or challenge the Award of the Arbitral Panel.
A limitation of this clause is that the parties must settle using arbitration even
where it is not productive or conclusive.
3. Atlantic shipping clause: this clause is tied to timing of the proceedings of the
Arbitration since it must be concluded within a set time.
STAGES OF ARBITRAL PROCEEDINGS
1. Commencement of proceedings (which involves service of Notice of
Arbitration and appointment of arbitrators/composition of the Arbitral
Tribunal)
2. Preliminary meetings (parties agree on the venue, agenda, attendance,
confirmation of the jurisdiction of the Tribunal, powers of the Arbitrators, the
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mode of hearing if oral or documentary, the number of witnesses, fees and
deposit for cost, directional Order and the applicable rules. The Directional
Order is issued after all the preliminary issues have been agreed upon.)
3. Pre-hearing review (it involves setting down the matter for hearing,
confirming compliance with Directional Order-payment, filing and exchange
of pleadings, narrowing and joining issues in dispute, and confirming the date,
venue and mode of hearing.)
4. Hearing (this is similar to the process in the Courts)
5. Award
6. Enforcement
This is done by filing a Motion on Notice supported with an Affidavit praying the
Court to enforce the Award as the Judgment of the Court.
The Court may refuse to enforce the award on the application of any of the parties
on founded grounds.
The Court may Order some part or the whole Award to be set aside
MEDIATION
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It is a step ahead of Negotiation.
The mediator is usually a third party agreeable to and respected by the parties who
must be neutral in his approach to the dispute.
CHARACTERISTICS OF MEDIATION
1. Voluntary – A party can leave at any time for any reason, or no reason.
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2. Collaborative – As no participant in mediation can impose anything on
anyone, everyone is motivated to work together to solve the issues and reach
best agreements.
3. Controlled - Each participant has complete decision-making power and a
veto over each and every provision of any mediated agreement. Nothing can
be imposed on a party.
4. Confidential – Mediation is generally confidential. Mediation discussions
and all materials developed for mediation are generally not admissible in any
subsequent court or other contested proceeding, except for a finalized and
signed mediated agreement.
5. Informed – The mediation process offers a full opportunity to obtain and
incorporate legal and other expert information and advice. Individual or
mutually acceptable experts can be retained..
6. Impartial, Neutral, Balanced and Safe – The mediator has an equal and
balanced responsibility to assist each mediating party and cannot favour the
interests of any one party over another.
7. Self-Responsible and Satisfying – Based upon having actively participated
in voluntarily resolving issues, participant satisfaction and the likelihood of
compliance are found to be elevated through mediation compared to court
options..
1. Introductory remarks;
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6. Reaching an agreement.
. INTRODUCTION:
i. Put parties at ease
ii. Explain the ground rules and the mediation process
6. REACHING AN AGREEMENT
i. Agreement is written down
ii. A clause is inserted to cover a breach by either party.
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3. The rule of impartiality applies despite a party’s relationship with the
mediator
4. The parties can appear themselves or through their representatives or
legal practitioner.
5. Experience in the process of mediation is preferable
4. Impartial facilitator who will move the parties towards amicable Resolution
of the dispute
5. Facilitates Resolution of the disputes timely ensuring confidentiality
6. He should not impose or propose decision on the parties, but rather adopt
techniques to help the parties arrive at their mutually agreeable solutions
7. Ensures that the Resolution by the parties is reduced into an agreement in
writing with all the terms/points of Resolution clearly spelt out.
8. Display leadership skills and control the proceedings.
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WEEK 17: (i) REMUNERATION OF LEGAL PRACTITIONERS; (ii) DUTIES OF
LAWYER ON CHARGING OF CLIENTS
Rule 49 RPC
EFFECT OF SPECIAL AND GENERAL RETAINER
i. Special retainer: this means a Lawyer is engaged on a particular matter of a
client.
EFFECT: the Lawyer can only represent adverse clients on other matters not
related to the special retainer.
ii. General retainer: this means the Legal Practitioner represents a client on all
his matters.
EFFECT: the Legal Practitioner cannot represent adverse party against the
interest of his client. Also note that where the retainer is in respect of litigation,
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the legal practitioner must charge separate professional fee for each item of
work he handles for the client (Rule 49(2)(a)). A lump sum paid to the LP by
the client for all litigations undertaken on behalf of the client shall not be
sufficient remuneration
TYPES OF FEES
1. SCALE FEE
These are fees charged under Scales I and II Legal Practitioner
(Remuneration for Legal documentation and other land matters) order in
non-contentious matters. Fees here are fixed and can neither be disputed nor
varied by the court.
2. FIXED FEE
This is fee charged for specified class of works, such as writing letters,
writing a will, incorporation of business entities. Fixed fee is charged for
simple non-contentious works and is usually a flat rate. Usual in terms of CAC
briefs
3. HOURLY RATE FEE
This is fee charged on hourly rate for the number of hours spent on the
client’s work. The time spent must be commensurate and reasonable to the
work done (used in the USA).
4. PERCENTAGE FEE
This is fee charged based on the value of the transaction, the higher the value
the more the percentage charged and the lower the value the lower the
percentage charged. It is common in property transactions especially the sale
of land.
5. APPEARANCE FEE
This is fee charged for each appearance in court to represent a client. The
distance of the law firm from the court as well as the standing of the legal
practitioner at the Bar often determines the fee charged as appearance fee.
OKONEDO – EGBAREGBEMI V. JULIUS BERGER. Common in law firms in
rural areas. The legality of appearance fees has been an issue due to the way
cases are adjourned in Nigeria (judge not sitting).
6. CONTINGENT OR SUCCESS –BASED FEE
This is fee charged after the success of the action. The solicitor agrees with
the client on the amount he will be paid based on the amount they actually
recover. Where no such amount is recovered, he may earn nothing.
Under the common law, contingent fees are prohibited, whereas it is banned
under Rule 50(2) RPC for criminal matters. It is only permitted in civil cases -
R.50(1) RPC
Is there any place for Pro bono?
Yes
Pro bono services means no remuneration: s9(2) LPA & Rule 52(1) RPC
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Usually to family (special relationship/indigent persons)
The mere fact that the case is pro bono does not take away professional
negligence and liability. However, the legal practitioner can exclude, by
agreement, professional negligence and liability in respect of pro bono cases.
Oyekanmi v NEPA: The Supreme Court held that where a bill of charges did not
contain sufficient particulars of the items of work done but there were surrounding
circumstances which made the bill litigable despite the defect, the bill of charges
may still ground an action for recovery of professional charges of a legal
practitioner unless it is so defective that it is incurably bad.
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REMUNERATION OF LEGAL PRACTITIONER AND RECOVERY OF PROFESSIONAL
FEES
b. A Legal practitioner acting for both the Lessor and Lessee is to charge the full fee
of the lessor’s legal practitioner fee and half of the lessee’s legal practitioner’s fee.
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R. 1 PART III SCALE II OF THE LEGAL PRACTITIONERS (REMUNERATION FOR
LEGAL DOCUMENTATION AND OTHER LAND MATTERS ORDER 1991.
SCALE 3: It deals with non-contentious legal work which no scale is provided for in
the Order or where legal practitioner elects to charge his fees under Scale III
notwithstanding the provisions for the legal work in Scale I and II
Quantum meruit cases: where LP may not have direct instruction from a client but
rendered services which ultimately benefited the client. The law may presume a
quasi-contractual relationship between the LP and the client, which entitles the LP
to his professional fees and other expenses based on the quantum of legal work he
did for the client (Oyo v Mercantile Bank Ltd). Also where a LP is unable to
complete a legal work for his client, owing to no fault of his, he may bring an action
for recovery of the professional fees on quantum meruit basis.
Assuming you act for Mrs Adaku Bimpe Shehu and using the case study given in
week 12 of Property Law Practice, prepare your Bill of Charges to be submitted to
your Client in carrying out the instruction in question 7 (a).
MAJI & CO
BARRISTERS AND SOLICITORS OF THE SUPREME COURT
OF NIGERIA
NO 15 VIRBES STREET
MARINA -LAGOS STATE.
OUR REFERENCE:
PHONE:
DATE: 11 MAY, 2012
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To,
Mrs Adaku Bimpe
Shehu No 5 North
Avenue Apapa
Lagos.
Dear Madam,
RE: NEGOTIATION OF MORTGAGE LOAN
BILL OF CHARGES
Sequel to your instruction to negotiate a mortgage loan on your behalf, we
are pleased to inform you of its successful completion.
Find attached our invoice below for your prompt response.
Principal item Date Cost #
1. Application for Loan 5/04/2012 20,000
2. Deducing title 6/04/2012 10,000
3. Postage of 6/04/2012 5,000
application letter
MAJI & CO
BARRISTERS AND SOLICITORS OF THE SUPREME
COURT OF NIGERIA NO 15 BROAD STREET WUSE
ZONE II ABUJA.
OUR REFERENCE:
PHONE: DATE: 11 MAY, 2012
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To,
Mrs Kayuba Ada,
No 20 Gimbia Street,
Garki,
FCT Abuja.
Dear Madam,
RE: SUIT NO LK/CV/2012 MRS KAYUBA ADA V. AGRICULTURAL BANK
BILL OF CHARGES
S/N Particulars Date Cost #
1. Preparation of 10/01/1012 20,000
originating processes
Total 610,000
Amount paid as deposit 12/01/2012 200,000
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For: Maji
& Co.
STATEMENT OF CLAIM
1. The plaintiffs are the principal partners of Maji & Co, a firm of Legal
Practitioners duly registered as a business name under the Companies and
Allied Matters Act 2004 with Registration Number: 545747 and with its
registered place of business at No. 15 Broad Street Wuse II Abuja.
2. The defendant is a business woman and supplier of agricultural products of
No. 14 Garki II Abuja.
3. The plaintiffs were briefed by the Defendant on the 10 day of January 2012 to
prosecute an action to recover the balance of N7, 000, 000.00 from her
business partner Agricultural Bank Plc, the plaintiffs letter of instruction is
hereby pleaded.
4. The defendant’s case was instituted in Court and duly completed on the 20th
day of April 2012 as suit No FCT/CV/2012 MRS KAYUBA ADA V.
AGRICULTURAL BANK, the judgment certificate is pleaded.
5. The defendant paid the sum of N200,000 as deposit to enable the plaintiffs
carry out the instruction.
6. The plaintiffs aver that they never entered into any contingent fee
arrangement with the defendant.
7. The plaintiffs have served on the defendant personally, a Bill of Charges duly
signed and dated the 11 day of May 2012 to pay the balance of N410,000, the
Bill of Charges is hereby pleaded.
8. The defendant has refused to pay after 1 month of its service and a demand
letter was sent to the defendant, the letter is hereby pleaded.
The Plaintiff hereby claims against the defendant as follows:
a. The payment of the sum of N410, 000 balance by the defendant as contained in
the Bill of Charges.
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b. Interest rate of 10 percent from the date of failure to pay after the 1 month
grace until judgment is delivered and satisfied.
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Part I – Rules 1 and 2 deals with definition of major terms used in the LPAR
Part II - Rules 3-12 deals with clients’ accounts (how they should be handled and
dealt with by legal practitioner
Part II - Rules 13-20 dealing with trust accounts
Part IV - Rules 21-22 dealing with the inspection of the legal practitioners’ account
books
Legal practitioners are expected to keep certain type of accounts and these books
can be inspected
Part V – Rule 23 dealing with exemption clauses (persons exempted from complying
with the provisions of the rules) – persons in the Federal or State employment or in
full time employment with statutory or local authorities
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In case of partnership, partners know what the partnership is worth and the
amount due to them individually
It helps the LP to know the amount belonging to a particular client at any
given time (keeping proper cash books and ledger relating to dealing with
each client since client account will have various clients’ money in it)
Helps to differentiate btw one client’s money from another
Helps for assessment of individual or partnership tax at the end of the
financial year
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know you’ll need the account in future, LP can pay his own money into the
client account to maintain the account. As soon as money comes into the
account from the client, LP should withdraw his own money from the
account: Rule 4(b) LPAR
Money accidentally or mistakenly withdrawn from the client’s account: Rule
4(c) LPAR
Cheque which includes client money and trust money/personal account.
Cheque to be split and paid into the separate accounts. If cheque is/cannot be
split, then pay first into client’s account and then withdraw the amount for
trust money and pay into trust account: Rule 4(d) LPAR
Money required to be split btw client and trust account or btw other
accounts and withdraw the part meant for the trust and pay into trust
account
Trust account
Similar rules apply to this account
Inspection and enforcement
Procedure 1
Rule 21(1): in order to ascertain whether these rules have been complied with, the
Br Council acting on their own motion or written statement transmitted to them on
behalf of a branch of the NBA or written complaint by third party (e.g. a client of the
LP) provide that a LP should produce at a time and place his books of account (cash
book, ledger, books detailing the expenditure and dealings with client’s money)
bank passbooks, loose leaf bank statements, statements of account, vouchers and
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any other necessary documents for inspection by an accountant appointed by the
Bar Council and such an accountant shall write a report to the Bar Council and that
report may form the basis for any disciplinary action by the Legal Practitioners
Disciplinary Committee
Rule 21(2): production of the books by the LP must be done at a time and place to be
fixed by the Bar Council
Rule 21(3): In any case, which a branch of NBA requires the inspection should be
made, duty of such branch to transmit to Bar Council a statement of all relevant
information in their possession and a request that such an inspection be made
Rule 21(4): Before instituting an inspection for a complaint lodged by a 3rd party,
the Bar Council shall require prima facie evidence that a ground for complaint exists
and may require a payment of a reasonable sum to cover the costs of inspection and
cost of legal practitioner against whom the complaint is made and the Bar Council
may deal with such fees as it deems fit before going further to require LP to submit
documents for investigation.
Procedure 2
Rule 22(1): In a case where Bar Council exercises its power (on its own motion or
request by branch of NBA), the Council may in their discretion ask the LP to deliver
to the council within such time a certificate of an accountant appointed by the LP. In
such a case, examination of the books of the LP is conducted by an accountant
appointed by the LP. Such inspection by the accountant must be based on the
written instruction given by the Bar Council. However where the LP fails to appoint
the accountant within the stipulated time, the Bar Council can appoint an
accountant
Rule 22(2): every requirement made by the Bar Council shall be made in writing
under the hand of the Secretary and sent by post to the last known address of the LP
or address stated on his roll on his/her Call to Bar and the document is deemed to
have been received on the 10th day after posting
State the statutory provisions that regulate how a LP should handle money in his
practice
Legal Practitioners Act 2004 and Legal Practitioners Accounts Rules 1964
List and explain three sources of client money: investment management, litigation,
conveyancing
List the major books of account relevant to legal practice in Nigeria: ledger, cash
book, journal
State the obligatory bank accounts to be kept by a legal practitioner; client account,
trust account, personal trust, firm/partnership account
Define any 4 of the following:
Client, client money, client account, trust money, trust bank account, solicitor-
trustee
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List 4 circumstances where money which is not client’s money may be paid into
client’s account
Give 3 conditions under which money may be drawn from a client’s account
Mention 5 of the books that may be inspected by the Bar Council
Rule 10(1) LPAR provides that every LP shall at any time keep proper written up
books and accounts as may be necessary to show all dealing with client’s money
held, received or paid by him, and any other money dealt with by him through a
client account and to distinguish such money held, received or paid by him on
account of such separate client and to distinguish such money from other money
held, received or paid by him on any other account
Rule 10(2): All dealings referred in para 1 shall be recorded in (a)(i) a clients’ cash
book or clients’ column on the credit and debit side as may be appropriate of a cash
book, and (ii) a client’s ledger or a clients’ column on the credit side or debit side (as
may be appropriate) of a ledger and no other dealings shall be recorded in such
clients’ cashbook and ledger or, as the case may be, in such clients’ columns and
(b) all dealings of the legal practitioner relating to his practice as a solicitor other
than those referred to in para 1(a) of the Rule shall (subject to compliance with the
provisions of Part III of these Rules) be recorded (as may be appropriate) in such (if
any) other columns of a cash book and ledger as the legal practitioner may choose to
maintain.
Classification of transaction
Classification of entries of a particular nature in proper account. If it is personal,
head it the name of the particular client. If impersonal e.g. property, head it in the
name of the property
Types/Class of transactions
Personal account/transactions: account, which stands in the name of
individuals, partnerships and companies. It shows the LP dealings with other
persons and it is drawn up in the other person’s name. Head it in the name of
this person e.g. Adamu & Enterprises’ cash book for the month of July
Impersonal account: These are accounts, which record the LP dealings with
properties and items of expenditure and it may be headed with these
properties and expenditures. Impersonal account is further divided into real
and nominal accounts. Real account are accounts of tangible transactions e.g.
purchase of land, building, machinery etc. Nominal accounts are intangible
expenditures like rent, wages, insurance premiums, discounts
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Structure of the cashbook
A cash book must be headed (will show the type of account) e.g. Fatima’s
cash book
Must have 4 columns in preparing cash book:
The first column of the cash book is the date column: DATE
The second column consist of the particulars: PARTICULARS
The third column is the debit column: DEBIT
The fourth column is the credit column: CREDIT
Miss Fatima was enrolled on August 31st 1984. On 1st September 1984, her parents
gave her 28k for a private legal practice. On 2nd Sept, she paid 2,400 for a year rent
for office accommodation to Mr John, the landlord. On 3rd Sept, office furniture for
1,500 and typewriter for 5k and stationery for 800 and practice book for 5000
On 4th September, opened a current account for 1k. On 5th Sept car for 12,000 and
paid insurance premium of 1,500. She kept sum of 3k for petty cash. Draft her
cashbook
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IMPREST 3,000
ACCOUNT
BALANCE C/D 4,200
BALANCE B/D 32,200 32,200
LEDGER
The Ledger is the opposite of the cashbook as far as the rules guiding the posting of
entries into it is concerned. Make sure each entry is in a different ledger
CAPITAL ACCOUNT
DATE PARTICULARS DEBIT CREDIT
05/01/2008 CASH 28,000
RENT ACCOUNT
DATE PARTICULARS DEBIT CREDIT
02/05/2008 CASH 2,400
FURNITURE ACCOUNT
DATE PARTICULARS DEBIT CREDIT
CASH 1,500
Tunde Ojo was called to the Nigerian Bar on 2nd November 2014. After the Call to
Bar, he approached his father for assistance to start his practice. On November 6,
2014, his father gave him N1million and on the same day, his mother gave him
N500,000. The following day, November 7, his uncle in the USA sent some dollars to
him which exchanged to N250,000. On that same day, his friend, Dr Tayo Ade, gave
him N250,000. On Nov 8, he paid N300,000 for office accommodation and bought a
second-hand car for N400,000. On Nov 9, he bought a desktop computer for
N70,000 and a set of office furniture for N200,000. He bought law books for
N50,000 and a complete set of Laws of the Federation 2004 for N200,000. On Nov
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10, he bought 4 black suits at the rate of N15,000 each and 3 pairs of black shoes for
N7,000 each. On Nov 11, he opened an account with Zenith Bank Plc and deposited
N100,000 for the running of the office. On Nov 15, he bought stationery N50,000 for
the office. Draw Tunde Ojo’s cashbook and ledger
LEDGER ACCOUNT
CAPITAL ACCOUNT
DATE PARTICULARS DEBIT CREDIT
06/11/2014 CASH 1,000,000
CAPITAL ACCOUNT
DATE PARTICULARS DEBIT CREDIT
06/11/2014 CASH 500,000
CAPITAL ACCOUNT
DATE PARTICULARS DEBIT CREDIT
07/11/2014 CASH 250,000
CAPITAL ACCOUNT
DATE PARTICULARS DEBIT CREDIT
07/11/2014 CASH 250,000
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RENT ACCOUNT
DATE PARTICULARS DEBIT CREDIT
08/11/2014 CASH 300,000
CAR ACCOUNT
DATE PARTICULARS DEBIT CREDIT
08/11/2014 CASH 400,000
COMPUTER ACCOUNT
DATE PARTICULARS DEBIT CREDIT
09/11/2014 CASH 70,000
FURNITURE ACCOUNT
DATE PARTICULARS DEBIT CREDIT
09/11/2014 CASH 200,000
BOOKS ACCOUNT
DATE PARTICULARS DEBIT CREDIT
09/11/2014 CASH 200,000
SUIT ACCOUNT
DATE PARTICULARS DEBIT CREDIT
10/11/2014 CASH 60,000
SHOES ACCOUNT
DATE PARTICULARS DEBIT CREDIT
10/11/2014 CASH 21,000
CURRENT ACCOUNT
DATE PARTICULARS DEBIT CREDIT
11/11/2014 CASH 100,000
STATIONERY ACCOUNT
DATE PARTICULARS DEBIT CREDIT
15/11/2014 CASH 50,000
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WEEK 19 – LEGAL RESEARCH, OPENING AND CLOSING FILES
Legal research
To seek information concerning legal matters
Need to identify relevant case law, statutes etc applicable to a specific case
Sometimes research assigned to junior in chambers, research assistant or
any counsel
Every lawyer should always research, especially on novel cases
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Functions of legal research
Before client interview, helps acquaint with position of law on subject matter
Determine if the client has a case
Helps in preparation for ADR or preparation for trial e.g. know how strong
your case is so you know what position to take in Negotiation etc
Gives lawyer an overview of applicable law and decide on what action to take
Helps to think on your feet e.g. so that the lawyer can adequately answer
questions asked by a judge
Particular applications of law to particular case/facts
Before research, lawyer must analyse the legal problem to ascertain type of
law applicable to the problem e.g. common, statutory, customary, Islamic law
Also establish facts and circumstances of each case to help narrow down the
research
Could be manual or electronic research
Index useful in manual research
Sources of material
Primary sources – generated by governmental bodies/agencies e.g. statutes,
case law, regulations, bye-laws, rules, guidelines, law reports etc. These
sources are mandatory and binding. If case law, hierarchy of court. Decision
of courts of coordinate jurisdiction is only persuasive on each other (FHC,
SHC, National Industrial Court)
Secondary sources – these do not emanate from government bodies. Analysis
of laws and legal problems by learned authors or commentaries by experts
e.g. textbooks. They are not binding, only persuasive
Tertiary sources – provide information on where to locate the primary and
secondary sources, which must have been identified e.g. index of cases. These
are not to be cited.
Hybrid sources is referred to in some textbooks but not discussed in class
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Examples of filing systems are alphabetical, topical (subject matter),
numerical (per year), geographical (where the court is, type of court) etc
Fees
At the closing of a file, the solicitor usually writes a letter to the client
informing him of closing of his file and demand for his outstanding fees, if
any.
Such letters are usually accompanied with a bill of charges for any
outstanding fees or a receipt for payments already made as the case may be
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Custody of documents
The case file and documents are generally the property of the client and may
be surrendered to the client whether or not he demands for them e.g. original
certificate of occupancy, marriage certificate
In practice, however, the files and documents are retained by the lawyer or
law firm on behalf of the client and the file or any document therein will be
made available to the client whenever the need arises
Note that the original copies of documents given to the lawyer or law firm
should be returned to the client and acknowledgment of receipt thereof
obtained from the client and retained by the lawyer
It is however good practice for the lawyer to make and retain photocopies
before returning originals to the client
Self-assessment/audit
It is an uncommon but good practice for a lawyer or law firm to do self
assessment or self audit by sending a form of questionnaire to a client to fill
and return
This will usually ask the client questions, the answers would help the lawyer
to improve his services in the future
Draft letter to client for closing the file
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