Notes On Bar-bench Relationship

NOTES ON BAR-BENCH RELATIONSHIP FOR SHARIA COURT JUDGES

BASIC (SPECIAL) JUDICIAL COURSE CENTRE FOR ISLAMIC LEGAL STUDIES AHMADU BELLO UNIVERSITY, ZARIA

Prepared by: Ibrahim Barkindo.

CONTENTS 1. Introduction 2. Meaning of Bar and Bench Who is a Lawyer and what he does a) Barrister/Attorney/Advocate b) Solicitor/Notary/Legal Adviser, Legal Consultant:

3. Bench in Nigeria 4. Bar in Nigeria 5. Lawyer’s Ethics 6. The role of a Lawyer in court 7. Duties of Counsel to court 8. Contempt of court by lawyers 9. Duties of Court to Counsel 10.Duties of Lawyer to Client 11.Duties of a Client to Lawyer

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1. INTRODUCTION This course is created in view of the fact that there is always an unpleasant relationship between judges of Area/Sharia courts and lawyers. The perceived causes of the problem are lack of understanding of lawyer’s work by the judges and in most times disrespect of the judges from the part of the lawyers. It is thought that one of the causes of the problem may be overtaken if there is a better understanding of a lawyer and lawyer’s work on the part of the judges. These short notes attempts to introduce, who a lawyer is, what he does generally, his role in litigation and the ethics guiding his work. So that judges know them better, hence reshape their perspective of lawyers, which may lead to change of behaviour. If lawyers go contrary to their ethics, the judge knows which body controls lawyers, and how lawyers are disciplined. The other limb of the problem needs to be tackled also i.e. towards changing lawyers’ attitudes towards Sharia/Area court judges. Others need to set the ball rolling. 2. MEANING OF BAR AND BENCH Bar means a group (association) of Lawyers. When used in relation to court, it means lawyers, lawyer or where lawyers sit in court. Bench mean judges, the judge in court or where the judge sits in court. For our purposes, it means the judge in court. Who is a lawyer? A lawyer is one whose business is law or relating to law. He is a legal practitioner i.e. one who practices law. He must be one who has a degree in law and passed law school examinations and is called to the Bar (joins lawyers). The type of work that lawyers do include: representing parties to litigation in court, preparing legal documents like contracts, agreements, Deeds of sale, assignment of land, forms companies, perfection of some documents. Others include, seeking bail for accused persons in police station, courts; writing legal opinion etc

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Only a lawyer can be appointed as Attorney General and judge of a superior court of record with the exception of the Sharia court of Appeal and the Customary court of Appeal. Types of Lawyers: a) Barrister: is a lawyer who goes to court and represent clients (he is involved in litigation). Some other names used for barristers are Advocate, Attorney. b) Solicitor: when a lawyer is doing work in the chambers, he is called a solicitor, including preparing pleadings (documents for use in court eg summons, motions). Other words used to describe a solicitor is Notary, legal adviser, legal consultant. In Nigeria, a lawyer is both a solicitor and an advocate. He can practice either or both. Solicitor’s work includes: • Preparing pleadings • Preparing and perfecting land instruments • Drafting contracts, wills, memoranda etc • Drafting Deeds • Negotiating, meeting, with or on behalf of clients • Incorporating companies, serving as secretaries to companies • Managing clients’ businesses 3. BENCH IN NIGERIA Judges are of various degrees in Nigeria, just as the courts. We have judges of the Sharia Courts, Upper and Higher Sharia Courts, Customary Courts; Magistrates are the “judges” of Magistrates courts. These courts are called inferior courts of record. We also have superior courts of record: High Court, Sharia Court of Appeal, Customary Court of appeal and Federal High court. “Judges” of the High Court and Federal High Court are called Judges (J) and both courts are headed by Chief Judges (CJ), judges of the Sharia Court of Appeal are called Kadhis, the Court is headed by a Grand Kadhi (GK), Customary Court of Appeal also have Judges and is headed by a President of the Customary court of appeal (PCCA). We have the Court of Appeal; the judges are called Justices of the Court of Appeal (JCA sing-JJCA pl) and the Court is headed by the President of the Court of Appeal (PCA). The apex Court in the country is the Supreme Court of Nigeria, the judges of 4

the court are called Justices of the Supreme Court (JSC sing-JJSC pl) and the Court is headed by the Chief Justice of Nigeria. (CJN) Some people make mistake by calling judges of the High court “Justices”. Justices of the Court of Appeal and Supreme Court “Judges” or the Chief Justice of Nigeria “Chief Judge of Nigeria” and Chief Judge/Justice of the Federation”. The last one, Chief Justice of the Federation, once existed, but the name was replaced with CJN. When we are speaking to judges or referring to them, there are titles of respect we use: a) Sharia court judges/Upper/Higher Sharia court judges, Customary court judges and the Chairman and members of tribunals are addressed as “Your Honour”. Some people address Sharia judges as “Akramakallahu” and “Ya Hadratal Kadhi”. b) Magistrates are addressed as “your worship” c) Judges and Justices of Superior Courts of record are referred to as “your lordship” “my lord” by ethics, women who are judges and justices should be referred to as “my lady” or “your ladyship”, however, in practice in Nigeria, they are addressed and referred to as “my lord” and “your lordship”, so as not to allow the misuse of the words, and that there are not ladies in law. Judges are called judicial officers, and the entire judges of a state are under the CJ, the entire judges in the Federation are under the CJN. 4. BAR IN NIGERIA The Legal profession (occupation of lawyers) as we know it, originated in England, and was implanted into Nigeria alongside other systems during the colonization process. The legal profession serves the instrumentalisation associated with the western systems of documentation, professionalism, litigation, and generally the government process, as government revolves around three issues: executive, legislature and judiciary; all serve the law: the legislature enacts laws, the judiciary interprets it while the executive enforces or executes it. And as relationships, be it among people or between people and government, involves rights, duties, obligations, interests etc. the domain of lawyers is rights and obligations. Lands need documentation and registration; companies need registration, filings, legal advice; governments and establishments always need legal opinion on various issues; businessmen always need documentation in forms of contracts, bills, promissory notes; banks and financial institutions need loan agreements, Deeds of mortgage, letters of pledge; when a person dies, there is a need for probate and letters of 5

administration; wherever there is commerce, there must be criminals, the government must prosecute them, the system is too technical, there is a need for technical equals to defend them. In all these circumstances, lawyers provide services, and in most of the, exclusive services. Engagement of Lawyers: The various areas in Nigeria where lawyers work may be summarized as follows: a) Government employees: i. State counsel: lawyers that work in the Ministry of Justice: each State in the Federation must have a Ministry of Justice, and is headed by Commissioner of Justice, who is also the Attorney General (AG) of the State. There must also be a Federal Ministry of Justice, and is headed by Minister of Justice, he is also the Attorney General of the Federation (AGF). The lawyers who work in the ministry of justice are called state counsel (lawyers of the state). They are called Law Officers. In the ministry of justice, you have the following departments: • Department of Public Prosecutions: they prosecute offenders of criminal law. The department is headed by the Director of Public Prosecutions (DPP). By the Constitution, each state must have the department and a DPP. They have no business with people’s issues/cases, only criminal law. • Department of Civil Litigation: the department handles civil cases of the state government or of local governments. The state may be involved in litigation, either as plaintiff, defendants or witness. Cases on Fundamental Human Rights against the state fall under this category, debts by or against the state, revenue; rent of government houses or by government etc. the department is headed by the Director of Civil Litigation (DCL). • Department of Legal Drafting: this department does the work of preparing contracts of government, preparing Bills for Laws to be taken to the House of Assembly. The department is headed by the Director Legal Drafting (DLD) ii.

Legal Advisers, Legal officers: in some ministries and government parastatals, there are legal advisers or legal officers, normally, they are seconded to the ministry/parastatal from the ministry of justice. They take care of the legal matters in that ministry, including advising the relevant authority/person, handling litigation of that ministry, drafting contracts, memoranda of that ministry, etc 6

b) Private lawyers: lawyers who work in the private sector are not government

employees; they establish Law Offices or “Chambers” from where they operate. A private lawyer handles any legal work, although he can limit the areas of his practice, but there is no law or rule restricting his area of practice, i.e. he can engage in litigation, solicitor’s work, he can handle all sorts of litigations (criminal, civil) can engage in all forms of solicitor’s work (drafting agreements, searches, negotiation, perfection of legal documents). It is immaterial that the private lawyer once worked for the government or in the ministry of justice. c) In-house counsel: lawyers who work in private corporations. They act as legal advisers, but cannot draft commercial documents or pleadings (documents used in court). The corporation must brief external solicitors to handle the matters. The reason for that is that by ethics, lawyers are paid by each piece of work and not monthly salaries (rule 40 RPC), and that in-house counsel can be influenced in their decision but an independent counsel enjoys independence in thought and decision. In-house counsel has no right to appear before courts to handle litigation. Differences between government lawyers and private lawyers: government lawyers are in the Public Bar i.e. they work for the government, while in the employment of the government, they cannot engage in private practice. (if a lawyer finishes his business in court, of criminal prosecution, he may not engage in PP (Private Practice) say, of divorce case, or land matter involving individuals). Private lawyers are in the Private Bar and are engaged by private individuals, corporations, government (State, Federal, Local and government establishments). They do not act as government employees and are not restricted in the areas of practice. They cannot however, handle government work except if they are briefed by the government. Governments do give private lawyers a lot of work, if this is the case, their work is limited to the particular issues or cases given. Criminal prosecutions generally are not prosecuted by private lawyers, except if the Attorney General gives fiat for that or briefs a private lawyer to prosecute the suspects. 5. Lawyers’ Ethics: Lawyers are bound by Rules of Professional conduct. The

Rules specify the acceptable conduct from a lawyer; the Rules are diverse and covers all areas a lawyer does his business in: a) Lawyer-court relationship: duty of lawyer to court; relationship with judges, behaviour in courts/Tribunals;

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b) Lawyer-client relationship: employment in criminal cases, adverse

influences, control and management of a case, limits of support for client’s case, how lawyers briefed, debriefed; c) The system of legal practice: from where a lawyer practices, how he charges, types of engagements of lawyers, financial matters, what to do and not to do while looking for job; d) Lawyer and his professional colleagues: how treated, equality, competition, ill-feeling; e) Lawyer’s ultimate duty to the course of justice: 6. The work of a lawyer in court: in an accusatorial system, the judge is neutral

and does not support either the plaintiff or the defendant, he is an umpire. The system has it that parties prove and defend their cases. Lawyers are employed for the proof and defence in litigation, because they master the law and represent the interests of those engaging them. Every person has rights and duties. Lawyers ensure that the proper person benefits from the rights and the proper person suffers liability. When a lawyer is prosecuting an offender, he is trying to see whether from the available evidence, the accused shall be condemned. The defence on the other hand, is trying to accord the accused whatever the law says is a defence to him, but none shall obstruct justice or manipulate/suppress evidence. The judge cannot do any or both, because he weighs what each party says. So lawyers assist in making things clear. 7. Lawyer’s duty to the Court: when a lawyer is appearing before a court, he is

referred to as counsel. The duties of counsel to court are as follows: a) Counsel must be punctual to court (at least 30 minutes before sitting); b) Counsel must attend all sittings of court unless he has obtained leave of court to be absent; c) Counsel must be properly dressed to court; d) Counsel must know the correct mode of addressing the court and professional colleagues (my lord, your honour, my learned friend/colleague); e) Counsel must know and maintain the correct decorum in court: • Must rise when addressing or being addressed by court • Should never talk when the judge is talking • While court is in session, must not assume un-dignified posture f) Counsel must maintain a respectful attitude in words and deeds; 8

g) Counsel must be fully prepared to go on with the case and not to seek

unnecessary adjournment thereby wasting the court’s time; h) Counsel must conduct his case in a logical sequence thereby assisting the court to follow the case with ease( e.g. Plaintiff’s evidence/case first, then defendant’s); i) Counsel must be candid and fair (truthful). 8. Contempt of court by lawyers: contempt is attitude that will be considered

disrespectful. The court should be respected by all, including the executive, and it is from a lawyer much expected. Any contempt of court is an offence and punishable, so as to protect the dignity of the court and of the judges manning the courts, and to prevent unnecessary interference with the administration of justice. As lawyers are always in the courts, it is likely that some may behave in manners that may amount to contempt of court. Types of contempt: a) Contempt that is criminal: words or acts that obstructs or interfere with administration of justice (e.g. calling the judge a liar) b) Contempt that is civil: disrespect in procedure, e.g. disobedience to orders of court. What amounts to contempt:

9. Court’s duty to counsel: a) To allow counsel to conduct his case in the way he thinks the best and the court should not interfere (however, where counsel is incompetent and may affect cause of justice, court can interfere) b) To accord counsel right of audience c) Court to be always impartial 10.Duty of counsel to Client: a) To accept brief (subject to fees) b) To take instruction in chambers (not in the client’s house) c) To take full instructions d) To disclose conflicting interest where it exists e) To thoroughly investigate and marshal facts stated by client 9

f) To advise client candidly and honestly g) To preserve confidential information h) To appear in a litigation on behalf of his client until conclusion of the case. i) Owes entire devotion to the interest of his client, warm zeal in maintenance and defence of his case, exertion of utmost learning and ability… j) Duties in criminal matters: • Prosecuting counsel: not to convict, but see that justice is done • Defending counsel: to undertake the defence of the person accused of crime, regardless of his personal opinion as to the guilt of the accused, otherwise, innocent persons may be denied proper defence. Counsel is also bound by all fair and honourable means to present every defence that the law permits, so that no person may be convicted unjustly k) Duties in Civil cases: Counsel must decline brief where a case is hopeless, otherwise, it is an abuse of court process l) To exercise professional competence m) To open client’s account. 11. Duty of client to lawyer: To pay agreed professional fees

12.Malpractice by Lawyers in Litigation: 13. N.B.A., its functions, Control and Discipline of Lawyers:

14.How Islamic Law view Lawyers and their work: 15.Glossary of Terms:

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