Tuesday, November 11, 2008

The SAN controversy

I HAVE followed over the years the criteria for the award of the rank of Senior Advocate of Nigeria. I have also noted those to whom the rank is awarded.

In 1958, Chief Williams was conferred with rank of Queen's Counsel, in accordance with the tradition of the English Bar and privileges. This was abolished in 1964. Other distinguished lawyers such as Chief Bode Thomas, Chief Remi Fani-Kayode, Chief Webber-Egbe, and Chief H.O. Davies were also conferred with the rank of Queens' Counsel. The Senior Advocate of Nigeria (SAN) award was created in 1972. It is the Nigerian version of Queens' Counsel. Chief F.R.A. Williams and Chief Graham Douglas were the first two lawyers to be conferred with the rank on April 3, 1975. The conferment of the rank is a privilege. The Legal Practitioners Privileges Committee screens nominations.

Many lawyers who believed they were qualified for the rank have been disappointed over the years, as they have not met the requirements of the Privileges Committee. A lawyer confided in this author that he had applied ten times and that he once believed he was the most qualified. There have been instances of lawyers of ten years and twelve years at the Bar being appointed as Senior Advocates. Even when over a hundred lawyers met the minimum requirements, about twelve or fifteen would be appointed for that year. This has been increased to twenty-five lately.

Many lawyers have complained that ethnic considerations come into play, it is unfair that after a lawyer has paid the necessary application fee and meets the minimum requirement he fails to be appointed as a SAN because he is from a part of the country where perhaps there are many qualified people. The purpose of Federal Character is not meant to be exhibited in the award of a privilege that connotes excellence. It is good to recognise excellence in the profession, factors guiding the privileges committee, ethnic consideration should not be a factor. It should be strict merit. An applicant who has paid for the application form should not be disqualified on THE on the basis of ethnic considerations.

As much as the privileged rank of SAN is attractive to many lawyers, there are a few distinguished advocates who were not conferred with the rank. Foremost amongst them were the late Mr. J.A. Cole, the late L.V. Davies and others include Fred Egbe, Chief R.O.A. Oriade. Many Nigerians were relieved of their anxiety over the appointment, quite recently, of Chief Gani Fawhinmi, author and Human Rights activist as a Senior Advocate.

Recently, the names of nominees short-listed for the conferment of the rank of Senior Advocate of Nigeria was published in the newspapers. The short-listed candidates were those whose offices had been inspected. One wonders what the inspectors were looking for in a lawyer's office? Could it be the volume of books in the Law office? Modern-day lawyers do not stock books. Many conduct their research on the internet and some have publications in compact disk (CD). This saves office space, which is very expensive in commercial areas of the city. Lawyers also conduct their research in the court library.

A colleague of mine who did internship in a barrister's office in England informed me that many barristers have a room or two in the Inns of Court, it is solicitors who usually have large offices and many partners. After the initial first meeting in a lawyer's office in Nigeria these days, other communication with the client is likely to be by phone, text messages and e-mail. The requirement of a big law office is not necessary. Much time is lost in the traffic in the big cities. A barrister with a measure of computer literacy can work from his home and fix appointment with clients for meetings in his office. Could it be that the inspectors visit offices to measure the level of affluence of the nominee?

The fact that a legal practitioner has to apply for the conferment of the rank has also been criticised. This is not the tradition in England. Eminent lawyers such as the late J.A. Cole refused to apply for the conferment of the rank. The late J.A. Cole was in the rank of Chief F.R.A. Williams. Eminently qualified lawyers refuse to apply today. The application fee of N200,000.00 (two hundred thousand naira) will not deter many lawyers from applying, but will it be convenient for legal practitioners in government services and Professors in the Universities to apply?

Some legal practitioners who practise outside the courtrooms have been clamouring that such be appointed as SAN. Presently advocates with cases concluded at the High Court, Court of appeal and the Supreme Court over a ten-year period are considered; academics who have contributed to the development of the law through their publications are also considered. The author of this article stands to be corrected, he was informed that such academic applicants must come from the institutions of higher learning. This is unfair, the likes of Chief Gani Fawehinmi whose legal publications a lawyer discards at his peril would not have made the rank of SAN, same for Deji Shasegbon SAN.

The lawyers operating outside the courtroom in solicitor practice should be recognised in a different way. Such legal practitioners in solicitor practice could have a law society. Perhaps such lawyers within the legal profession and outstanding solicitors should be conferred with Fellowship of the Law Society (FLS).

Nigerians by our culture love recognition. The average pastor is Rev. Dr. Tamedu. Many people with doctorate degree no longer bear doctor. They prefer to put just Ph.D. after their names. Chieftaincy titles might not be fashionable; every Nigerian who runs into money is a chief. Professional qualifications such as the conferment of SAN should be guarded from being abused. It is not meant for social status. Many medical Consultants are not known and recognised outside the hospitals. The SAN's services is expensive, he is a specialist. The client is paying more for the services he renders, the average client will be wary of obtaining the services of such. This is the practice in England.

The input by the public might not be of much use. A zealous applicant can cause his friends to write favourable things about him. Though a serious objection about the conduct of a nominee in and out of the court can be helpful, such nominee if the case against him is to be properly investigated might not be conferred with the rank that year.

One would suggest that there should be honourary SANs. These are lawyers of eminence who do not apply but are worthy of the rank of SAN. Such a person is the late Mr. J.A Cole. There are such eminently qualified lawyers today at the Bar and in academics. The "borrowing of briefs" by aspiring applicants cannot be stopped. Lawyers hold briefs for their colleagues. Applicants in the name of pro bono briefs go to the prisons in search of condemned prisoners for appeal cases. Lawyers should know that rank acquisition is not the only measure of success.

Things are changing in the profession. Our ambition should be governed by reasons, as there is no end to what men want to achieve. A legal practitioner is no longer satisfied with making the rank of SAN, he wants to see how many SANs he can "install". Some have in their Chambers two or more SANs.