It must be said that the legality of the Nigerian Bar Association, NBA, is a complex mixture of strict legality and public policy.
Legality- That the legal profession is governed by specific legislation primary amongst which is the Legal Practitioners Act , LPA and many subsidiary legislations thereto notably the Rules of Professional Conduct, RPC.
Public Policy– Public policy in the sense that there are many aspects of the practice of the legal profession that are not contained in any written legislation but which nonetheless acceptable practice in the profession. They are mostly aimed in the preservation of the great esteem and respect with which the profession is held in society.
The major legislation governing the practice of the profession still remains the LPA . By virtue of the said legislation, a person becomes a Legal Practitioner only UPON satisfying the requirements of Act . And upon the fulfilment of such requirements the person is deemed to be a Solicitor and Advocate of the Supreme Court of Nigeria.
And in that position only he in the entire country can prepare , frank and endorse legal documents. Section 2(1)& 24(1) LPA .
Okafor v Nweke (2007)3SC (Pt2) 55.
The Legal Practitioner upon being called to the Bar is required to be enrolled at the Supreme Court of Nigeria. And in recent times is entitled to an enrolment number.
The legal practitioner is also required to discharge certain statutory obligations by virtue of his office as legal practitioner namely pay his annual Practice Fees on or before the 31st March of every year without which he can not successfully practice his profession.
These statutory duties and obligations are hardly strictly enforced but that does not change the fact that they remain statutory obligations!!!!
Additionally in recent times the legal practitioner is required to procure professional stamp and seal without which he cannot validly write the shortest of letters . Rule 10(1)& (2) endorsed by the Supreme Court decision of Sarkin Yaki v Bagudu (2015) 18 NWLR (Pt 1491) 288.
Again this statutory duty is hardly enforced but that does not change the fact that this statutory duty exists!
Now the core issue is whether a lawyer can VALIDLY AND LEGALLY practice without being a member of the NBA .
The legal answer is NO !
How can a legal practitioner who has not satisfied the requirements of paying his annual practice fees VALIDLY write the shortest of professional letters since by Sarkin Yaki v Bagudu (supra ) he must engross his NBA Stamp which he can not do not having paid for that year.
I will not deceive my self by denying that thousands of professional letters are being written daily by lawyers who have not paid Practice fees in years not to talkabout all manner of legal documentation. BUT THAT IS NOT THE LAW !!!
The same thing also applies to professional representation in Court a lawyer who has not paid his practice fees does not enjoy any audience in a Court of Law !!!
Once again I will not play the Hypocrite by feigning ignorance of what obtains!!!! But the fact still remains that what is going on is PATENTLY ILLEGAL.
So the question is if we were to strictly follow and enforce the law, can a legal practitioner who operates outside of NBA, that is, does not belong to any branch of the NBA even if it is mere technically for the purposes of paying practice fees, Does not have Stamp and Seal with which to frank and engross documents and letters, prepare any form of legal document or appear in court to represent any one?
Assuming the laws were to be strictly enforced as opposed to now when Laws are honoured in breach rather than obedience.
Finally let me conclude with a purely policy argument as I posited from the very onset. If we desire to ever have an up to date record of lawyers in Nigeria. And wish to weed out fake lawyers, the Stamp and Seal project which is tied to the mandatory membership of the NBA is the only way out. I will be the first to admit that as presently constituted the project is subject to all manners of manipulations and defects. But all those can be sorted out with constant deliberations and discussions.
Not an outright cancellation to allow every lawyer operate like a bird in the air which can include all kinds of characters claiming to be lawyers when they are not. In fact if this profession is not well monitored and regulated at least by some form of mandatory membership it is only a matter of time before those who were never called to the Bar become SAN and JSC.
The right to freedom of association like every fundamental right is not absolute but qualified. Dokubo-Asari v. FRN ( 2007)SC.
I rest my case!!!
Ademola A. Adewale Elder, NBA Ikeja Branch