Umez Chambers - Reform of Legal Education And The Legal Profession In 21ST Century Nigeria

INTRODUCTION:

1. The purpose of this article is to highlight the need to reform legal education and the legal profession in Nigeria. If Nigeria wants to attract foreign investment there is a need for a reform of its legal profession.

2. It is focused on the reform of legal education, reform of the Evidence Act and Procedure (civil and criminal) Rules and a limited reform of the legal profession.

The fundamental principles

3. My views in this memo will revolve around the following principles:

(a) quality;

(b) affordability;

4. By quality, I mean that the quality of legal education and practice in Nigeria has to sound and be of internationally accepted standards.

5. By affordability, I mean that whilst we should strive for the highest standards, we should not ignore the nature of the resources that we have at our disposal. We should take into account the state of our economy and the nature of our infrastructure. There is no point in saying that there must be online training when we do not have constant and reliable power supply and our access to the internet is limited.

6. By equal opportunities, I mean that all citizens should have the same opportunity of qualifying as lawyers. A person from a poor background should have the same opportunity as a person from a rich and privileged background. Access to the legal profession should not be impeded. There should be objective criteria for entry into the legal profession. There should not be quotas or tariffs placed on the number of people qualifying. Every person who passes the objective test should be admitted. The market will then determine those who would remain in legal practice.

The LLB programme (content and duration)

7. In order to be eligible to sit for the bar examination a student should possess an LLB degree or equivalent (“the academic stage of training”).

8. The only subjects in the LLB degree or equivalent, that should be compulsory for eligibility to sit the bar examination should be the core subjects. They should be:

(a) constitutional law;

(b) administrative law;

(d) tort;

(e) contract;

(f) land law;

(g) equity and trusts; and

(h) The Nigerian legal system.

9. These should be the only compulsory subjects for eligibility to sit the bar examinations. I am of the view that jurisprudence is not a core subject. In England it is not a core subject. It is left to the individual university to decide whether it should be compulsory for the award of the LLB degree. However it is not a requirement for entry into the Solicitors’ or Bar course.

10. Likewise, subjects like company law, commercial law, and employment law are all extensions of contract, equity, trust and tort. A proper grounding in the core subjects will enable a lawyer to pick up these non-core subjects in practice.

11. I am of the view that the duration of the LLB degree programme is too long. Nothing useful is achieved by forcing a student to study the LLB for 5 years. 2/3 years should be sufficient for the study of the LLB degree. After all, only the core subjects are what a person needs to be a lawyer. A person who is interested in an academic career in law can always to back to university and undertake post-graduate studies in law. Keeping a person in a law faculty for 5 years will not improve the quality of legal education. In order to improve the quality of education of lawyers we should focus on primary and secondary education. A person who was not properly educated at primary and secondary education levels cannot be expected to improve his writing and grammatical skills in university. University is not the place for the acquisition of those basic skills.

12. Reducing the length of the LLB programme will help poor students. In England the LLB programme usually lasts 3 years. University of Buckingham offers a 2 year programme.

13. In England non-law graduates do a conversion course of 1 year in order to pass the academic stage of training. The programme is called the Common Professional Examination (“CPE”) or post graduate diploma in law. It consists of only the core subjects. Thus a graduate of history will do the CPE or post graduate diploma for 1 year and will then proceed to study the Bar Vocational Course (the bar examinations) or the Legal Practice Course (for solicitors). The only advantage that a law graduate has over a non law graduate is one year.

14. I am of the view that there is no reason in principle why those with external law degrees should not be eligible to sit the bar examination. Most of those degrees are the same as the internal degrees of the universities offering them. Some external degree holders have been known to excel better than internal degree holders in the professional examinations by the LPC (Legal Practice Course) or BVC (Bar Vocational Course).

The Law School programme (Bar examination), its contents and teaching methods

15. In the late 1980s and early 1990s there used to be a long waiting period for entering the College of Law or the few accredited universities in England for undertaking the Law Society Final examinations (the vocational course for solicitors in England at the time). Also, at that time, it was difficult to obtain permission to do the solicitors exam part-time.

16. Since the 1990s accredited course providers have been allowed to run the Legal Practice Course (the current vocational course for solicitors). The result is that the LPC is now provided full-time and part-time by private institutions, the College of Law (the official school of the Law Society and the solicitors’ equivalent of the Nigerian law school) and universities. The Law Society is the regulatory body. It is in charge of preparing the curriculum and accrediting course providers. The result is that access to the LPC has expanded. Any person who has passed the academic stage of training will enrol for the LPC without difficulty.

17. In the early 1990s the Inns of Court School of Law (owned and operated by the Council of Legal Education for the provision of the BVC) had a monopoly for the provision of the BVC, which could only be done full time. As a result of the intervention of the Office of Fair Trading, the Inns of Court School of Law lost its monopoly. The BVC is now provided both on a full time and a part-time basis by a number of course providers, including private schools, the College of Law and universities. The Council of Legal Education (a branch of the General Council of the Bar of England and Wales) is responsible for the course content and accrediting the course providers.

18. In the American states that I am aware of, there is no equivalent of our law school. Upon graduating from university, a prospective lawyer will sit the bar examination of the state that he wishes to practise in. It is a matter for him how he prepares for the bar exam. Some prepare the examinations on their own. However, many attend courses provided by private course providers. It is the State Bar that is responsible for devising the curriculum, setting the bar examination and marking it.

19. I am of the view that the perennial problem of waiting for a long time in order to gain admission into the Nigerian Law School can be solved by our adopting the American system. It should give people access to the legal profession without sacrificing standards.

20. The Council of Legal Education (on behalf of the Bar Council) should be responsible for:

(a) accrediting universities that provide the LLB courses for the academic stage of training;

(b) issuing students certificates of eligibility to undertake the bar examination. The certificate will be issued after the vetting of the student’s academic qualifications (LLB) and character;

(d) setting questions for the bar examination;

(e) conducting and invigilating the bar examination; and (f) marking and grading the bar examination.

21. The following subjects should be the core subjects for the bar examination:

(a) Evidence;

(b) criminal procedure;

(d) legal drafting, conveyancing and probate;

(e) company law and commercial practice (the incorporation of companies, etc);

(f) Professional ethics, solicitor’s accounts, law office management and anti-money laundering regulations.

22. Universities and private institutions should be allowed to provide the bar course. These schools will invariably only admit those who have obtained a certificate of eligibility from the Council of Legal Education. The sole function of these schools will be to teach students the curriculum provided by the Council of Legal Education. They will have nothing to do with the setting, conducting and marking the examinations. The Council of Legal Education can still retain the Nigerian Law School for those who cannot afford to undertake the course privately.

23. The different law providers should be given flexibility on how they teach the course and in the number and type of extra subjects that they want to teach their students. The reputation of a course provider will depend on how well its students pass the bar examinations. Thus a course provider might want to enhance its reputation and attract more students by teaching courses that are outside the curriculum (like advocacy, etc).

24. The Council of Legal Education can accredit the course providers. However in my view, the reputation of any course provider will depend on how well its students do in the bar examinations conducted by the Council of Legal Education.

Clinical or practical training, law firm attachment for students and pupillage

25. Whilst it is desirable for law students to undertake intensive practical vocational training and undertake a period of pupillage, I am of the view that we do not have the resources and infrastructure to provide these forms of training. Furthermore, experience in England has shown that the present requirement of compulsory articles for would-be solicitors and pupillage for barristers can lead to a distortion in the market and an unjust impediment to entry into the profession.

26. The provision of a minimum wage for pupil barristers and trainee solicitors has led to a reduction in the number of pupillages at the Bar and training contracts in solicitors’ firms. I have met many talented barristers who have been unable to pursue a career at the English Bar because they were unable to secure a pupillage. Some have requalified as solicitors and some have gone into other professions.

27. Because of the shortage of places to do articles, it is not uncommon for those lucky enough to find places in solicitors’ firms to be exploited.

28. In recent times the monitoring of pupillage and training by the Bar Council and Law Society has become rigorous. Pupil masters are given a checklist to complete and some pupil masters have been disciplined by the Bar Council for not training their pupils properly. Despite these efforts to monitor training, some people go through pupillage and articles without acquiring the practical skills that are needed for legal practice.

29. The Bar Vocational Course that replaced the Bar examinations and the Legal Practice Course that replaced the Law Society Final examination are very practical. The emphasis is more on practical training than academic training. For the Bar course, there is a lot of drafting, advocacy, negotiations, fact management and so forth. There is no doubt that these practical courses will help a student in practice. Unfortunately, we do not yet have the resources in Nigeria to introduce compulsory vocational (practical training) in the bar examination. It should be left to the course providers to teach their students practical skills as extra optional subjects. However, it should not yet be part of the examination.

30. Pupillage or articles should not yet be introduced in Nigeria for the following reasons:

(a) we do not have the resources to monitor the law firms that will offer students pupillage;

(b) it will lead to an exploitation of pupils; and

(c) some students might not be able to secure places to do pupillage and as such, will be prevented from entering the legal profession.

31. Likewise law firm attachment for law students should be voluntary and not compulsory. It should be encouraged but should not be part of the formal training process.

32. Despite the fact that many American states do not have a system of law office attachment or pupillage, America has many sound lawyers. Although an attorney can set up practise on his own the very day he is admitted, most American lawyers will seek employment or understudy an experienced attorney before setting up on their own.

Mandatory Continuing Legal Education for legal practitioners

33. In England solicitors have had compulsory Continuous Professional Development (CPD) for a long time. It was made compulsory at the Bar in 2003.

34. In England a barrister must do 12 hours of CPD a year in order to remain in practice. Practising certificates are issued every year to barristers. Failure to complete 12 hours CPD in a year often leads to disciplinary action against the barrister. A barrister might not be able to obtain a practising certificate if he did not complete 12 CPD hours the previous year.

35. Before CPD became compulsory at the Bar many barristers used to attend seminars voluntarily. They would often attend courses that would help them in their areas of practice.

36. Now that CPD is compulsory, it is not uncommon to hear of people who attend seminars in areas that they don’t practise and who do not pay attention to what is being taught at the seminar. They only attend these seminars in order to make up the compulsory 12 hours CPD in a given year.

37. There is no means of checking whether a person who attended a course understood it. Tests are not taken after the attendance of these courses. The effectiveness of a course depends on how the attendee values it and pays attention.

38. Whilst it is desirable for lawyers to continuously update their professional skills, there will be no point in making it compulsory in Nigeria. You can only make it compulsory if you can impose sanctions against those who breach the rules. We cannot impose those sanctions at the moment because we do not have a database of practising lawyers and we do not have a system of issuing yearly practising certificates to lawyers.

39. CPD should be encouraged but not made compulsory. If a course is good lawyers will attend it without coercion.

Limited reform of the legal profession

40. The legal profession requires root and branch reform. Unfortunately, it is not possible at the moment.

41. However, there are three basic and realistic reforms we can introduce now. They will then be a foundation for future reforms. They are:

(a) making practising certificates compulsory. They should be issued yearly upon the payment of a practising fee. The Bar Council can delegate the High Court of every state to collect those fees on its behalf. Any person who practises without a practising certificate should be disciplined;

(b) the Bar Council should have a database of all lawyers in practice. It should be compulsory for every legal practitioner to notify his details to the Bar Council as soon as they are changed. Such details should include, the practising address, the telephone number and the status of the lawyer (practising, non-practising or employed); and

(c) the setting up of a fully-staffed professional standards office in each state of the federation that will deal with complaints against lawyers and bring disciplinary action against them. There should be an independent professional standards office that should be responsible for dealing with complaints brought against lawyers and bringing disciplinary proceedings against them before an independent disciplinary tribunal. This is the only way we can restore public confidence in the legal profession.

42. As our economy develops and our people become more sophisticated, other reforms will be implemented.

Permitting foreign lawyers to practice law in Nigeria

43. Now that a National Committee is considering the reform of legal education in Nigeria, the Committee might as well consider one additional issue that I believe is of importance: whether provisions should be made for foreign qualified lawyers (especially, those who are Nigerian citizens) to be admitted to the Nigerian Bar without requiring them to attend the Nigerian Law School.

44. This issue has now assumed critical importance because there are now, thousands of Nigerian citizens who are established lawyers in England and Wales, the United States, Canada and other common law countries. Nigeria would benefit immensely from the experience and skills that these lawyers have acquired abroad if they were allowed to practise law in Nigeria. Many of these established lawyers would like to come home one day in order to practise law. Unfortunately, many are deterred by the present requirement that they must attend the Nigerian Law School. Some of these lawyers own their law firms abroad, are partners in established foreign law firms, practise at the English Bar or are employed by law firms and other institutions abroad, and have family commitments. Thus, it would not be convenient for many of them to attend the Nigerian Law School.

45. I am aware that the states of New York, California and Tennessee permit foreign law graduates to take their Bar exams. You do not have to be an American citizen or indeed be resident in the US to sit the Bar exams and be called to the Bar. You can prepare for the exams on your own or you can take lessons from some private course providers.

46. In England, up until 1988 a Nigerian lawyer who had exercised rights of audience in the Nigerian courts for three years could be called to the English Bar automatically without being required to take any examination. As a result of European Union Regulations, since 1992 Nigerian lawyers who intend to be called to the English Bar are required to write a test. They are not required to attend the Bar School or to do the BVC. They are not required to be British citizens. However, they must have the right to work in the United Kingdom.

47. In England, up until about 1995 Nigerian qualified lawyers who wanted to be admitted as solicitors in England and Wales had to pass three of the 6 core subjects in the CPE (Common Professional Examination), pass the Law Society’s Final examination and do articles for 2 years. As a result of European Union Regulations, since about 1995 all they (Nigerian qualified lawyers) have to do is to pass the QLTT (Qualified Lawyers’ Transfer Test). Some Nigerian lawyers, who practised for a short period in Nigeria, in addition to passing the QLTT, are required to do a short period of attachment in a solicitors’ firm. Those Nigerian lawyers with sufficient experience are not required to do articles or any period of attachment. They are admitted automatically as solicitors once they have passed the QLTT. They are not required to be British citizens or have the right to work in the UK before they are admitted as solicitors.

48. In Nigeria, in order to be admitted to the Nigerian Bar, you have to be a Nigerian citizen and you have to attend the Law School.

49. If England can allow Nigerians to be admitted to the English Roll of Solicitors by just passing the QLTT (without attending the English Law Schools), why can’t we have similar provisions for English solicitors (especially, those who are Nigerian citizens). If California, New York and Tennessee can allow Nigerian law graduates to be called to their Bars by passing their Bar examinations (without attending law schools), why can’t we permit law graduates or lawyers from those states (especially those who are Nigerian citizens) to be called to the Nigerian Bar by just passing the Nigerian Bar examination (without attending the Nigerian Law School).

50. Why should a Nigerian citizen who has run his law firm or has been a head of chambers in England for ten years be required to attend the Nigerian Law School? Is it not possible to devise a test on Nigerian law (similar to the English QLTT) that he can pass as a condition for being called to the Nigerian Bar?

51. The time has also come for consideration to be given to the issue of foreigners being allowed to practice law in Nigeria and being allowed to enter into multi-national partnerships with Nigerian lawyers. There is no doubt that if big firms like Clifford Chance and Herbert Smith are permitted to enter into multi-national partnerships with Nigerian lawyers and Nigerian law firms, the Nigeria legal profession will benefit immensely from such associations.

52. The time has come for this issue to be discussed publicly and given serious consideration.

Reform of the Evidence Act, Civil Procedure Rules and Criminal Procedure Rules

53. Litigation in Nigeria is plagued by two main problems:

(a) delay; and;

(b) the abuse of the court process by some litigants.

54. These problems are caused partly by our archaic evidence law and procedure rules and the culture of our lawyers.

55. Here are a few examples of the problems with litigation:

(a) A judge in a civil case is asked not to admit a document because it is hearsay. He reads the document before ruling that it is inadmissible;

(b) In the course of a witness giving evidence in chief or being cross examined a lawyer objects to the admissibility of a document. The giving of oral evidence is then halted so that the judge can rule on the admissibility of the document. It takes a long time for the judge to give that ruling. Before the witness resumes his evidence the judge is transferred. The trial starts afresh before another judge;

(c) One obtains final judgment (in a summary judgment application) by relying on affidavit evidence that refers to hearsay and uses photocopies of documents. Yet, if summary judgment is not given, and the case proceeds to trial, the hearsay and copy documents become inadmissible or so much time is spent on arguing issues like ‘proper custody’, etc;

(d) Affidavit evidence is used to obtain final judgment in a summary judgment application. If the case proceeds to trial the affidavit is discarded and the deponent of that affidavit has to give evidence in chief orally, regurgitating the contents of his affidavit. Considerable time could be saved by allowing the affidavit to stand as the witness’s evidence in chief. He could then be cross examined by the opposing party;

(e) Matters relating to the admissibility of evidence are not dealt with a pre-trial hearing. Rather objections to the admissibility of evidence are taken in the course of the trial and rulings on these objections are reserved;

(f) A case is adjourned because the lawyer has a matter in another court and wants to do the case personally. Whereas they are other lawyers in his law office or in the town who could have argued the case on that day;

(g) Cases are not allocated to a fixed period for trial. Rather, interlocutory applications in other cases are listed before the judge who conducts the trial of a matter;

(h) Interlocutory applications in a case are not allocated to different judges. Rather, a case is assigned to a particular judge who deals with all aspects of the case. If the judge is not available, another judge cannot be asked to deal with urgent matters concerning the case;

(i) Case management conferences are not held in cases;

(j) Parties are not allowed to agree extensions of time and amendments of pleadings by consent. They must travel to court and announce to the court that they have agreed an extension of time for the filing of pleadings or they have agreed that one party should amend his pleadings;

(k) Costs awarded to a successful party do not reflect the actual costs he incurred in the case. For example, Mr X is sued by Mr Y. X successfully defends the claim and pays his lawyer N1 million. Yet X is only awarded N100, 000.00 costs. Therefore X is out of pocket by N900, 000.00 by successfully defending the claim brought against him;

(l) There are no tariffs for assessing costs;

(m) Interest is rarely awarded on liquidated sums or on damages. 56. Lagos State has taken the lead by enacting the Civil Procedure Rules of 2004. Other states and the Federal High Court should emulate Lagos State and overhaul their civil procedure rules. The rules should address the problems raised in paragraph 46 of this memo and other problems associated with civil proceedings.

57. In order to discourage frivolous claims and to discourage unmeritorious defences, liquidated sums and damages should attract interest and costs should reflect the actual costs incurred by litigants in prosecuting or defending civil claims.

58. The Evidence Act should be amended to create a distinction between Evidence in civil proceedings and Evidence in criminal proceedings. The rule against hearsay should be abolished in civil proceedings. Furthermore, photocopies of documents should be admitted without automatically in civil proceedings. It would be for the trial judge to decide what, if any, weight he attaches to any piece of documentary or hearsay evidence.

59. The criminal procedure rules should be overhauled.

60. The Nigerian Bar Association should appoint a committee that should take evidence on the reform of the Evidence Act, Civil Procedure Rules and Criminal Procedure Rules. The committee should then draft a new Evidence Act and new Civil Procedure Rules and Criminal Procedure Rules that should be submitted to the Attorney General of the Federation and the state Attorneys General for appropriate action. There is no reason why the new Evidence Act cannot be fast-tracked in the National Assembly.

Conclusion

61. I believe that most of my proposals are workable and can be achieved with minimal costs.

62. Some of my proposals (like allowing private institutions to prepare students for the bar examination) may sound radical and controversial at first glance.

63. However, a careful examination of my proposals might lead to the conclusion that they are workable and are what are needed to solve our immediate problems in the short to medium term.

64. As our economy improves and becomes more sophisticated, further appropriate reforms will be introduced.

Chima Umezuruike, LLB (Nigeria), LLM (Lond), Barrister and Solicitor of the Supreme Court of Nigeria, Member of the Honourable Society of the Inner Temple, Practising Associate of the Academy of Experts (expertise: Nigerian law), Member of the Experts Witness Institute (expertise: Nigerian law).