It’s Unconstitutional: Rank of Senior Advocates

New Senior Advocates of Nigeria at the special session of the Supreme Court for their swearing in

James C. Ezike argues that the rank of Senior Advocate of Nigeria is not only unconstitutional but should be abolished if it cannot be reformed.

The story of the rank of “SENIOR ADVOCATE OF NIGERIA” is the story of MR. AMANKE OKAFOR, who was the Secretary General of the Nigeria Bar Association for as many years as Chief Rotimi Williams was its President. This was for at least 9 successive years. He was a highly respected Lagos lawyer in the 50’s and 60’s. During the crisis that led to the civil war, he returned to the “East”; to his home town, Awka, now the capital of Anambra State. He never returned to Lagos but stayed back at home at the behest of his people.

But this is to anticipate. In 1963, Nigeria became a Republic. In 1964, the Nigeria Bar Association did away with the rank of Queen’s Counsel which we inherited from the British. The NBA also resolved not to replace the said rank under any guise or disguise. In circumstances that are not very clear, the rank of SENIOR ADVOCATE was created in 1973. Mr. Okafor was approached to be one of the first to be conferred with the said rank. He refused and reminded those that approached him that the NBA resolved not to replace the Queen’s Counsel rank with a similar rank.

I knew Mr. Okafor when I was a student at King’s College, Lagos, in the sixties. He was my uncle’s friend. But it was not Mr. Okafor who told me this story. It was the Honourable Justice Eso who did so at the Supreme Court in 1987. I happened to be in Court when Justice Eso noticed the name of Mr. Okafor in the list of lawyers appearing before the Court and explained to Bello C.J.N. who Mr. Okafor was and his principled refusal to be conferred with the rank of SAN. The Supreme Court then accorded him the respect due him by insisting that his case be heard before those of the Senior Advocates in Court. Mr. Okafor continued to practise law until he died a couple of years ago.

I read Mr. Femi Falana’s piece in various newspapers on Dr. Onagoruwa’s entry into the “inner bar”. I agree with him completely that rank of Senior Advocate runs counter to Section 42 of the Constitution. But I disagree with him that the unconstitutional rank should be deodorised by making entry into the rank more “liberal”. While I commend Mr. Falana for conceding that the rank is unconstitutional, the solution he proffered cannot be a push back to the sacrosanct provisions of the Constitution. Mr. Falana misses the point that the “privilege” conferred on a Senior Advocate enures to his client who will get his case heard before the client of another lawyer who is not a Senior Advocate and who may die without getting any “hearing’, not to speak of “a fair hearing within a reasonable time” as guaranteed by the constitution. In other words, the clients of Mr. Falana and mine are “not equal before the law”. And this is because he is a Senior Advocate and I am opposed to the unconstitutionality of the rank for which reason it has never crossed my mind to “apply”.

Mr. Falana limited his “reform” to the lawyers who are the applicants to the said status, but in all matters dealing with the law it is the litigants and the Judges alone that matter. No matter how noisy a lawyer may be when a case is cited, it is the name of the litigants and the dicta of the Judges that are recorded by history. So, Mr.Okafor has lost nothing. The lawyer is at best a footnote no matter how many times his name is mentioned in the judgment. In England, the only reason anybody wants to become a Queen’s Counsel is because it is the very best Queen’s Counsel that become Judges. Here in Nigeria, I have appeared before a Court where a Senior Advocate bluntly told the Judge that he does not envy his position. But the practice of law is no more than a middle class pursuit. A lawyer attains the status of “nobility” when he becomes a “Judge” which is why we call judges “Lords”. The comedy of errors in Nigeria is that we are a “Republic” where “Princes” practice law, seek to become Senior Advocates and bow to judges. In other words, with each attainment he loses “rank”!

I have not seen any “Senior Advocate” who argues that the rank is constitutional. I have discussed the issue with the very best of them. And so why is it that “every” lawyer in Nigeria wants to become a Senior Advocate of Nigeria? The BIG FAT reason is that it is a FOOD FIGHT. It assumes all sorts of dimensions. In other common law countries, lawyers freely choose and pay for the sections they want to belong to any year. There is no limitation. In Nigeria, various sections are being cornered. The NBA now belongs to them. And the Courts too. I have appeared before a Court of Appeal where the Presiding Judge greeted lawyers thus: “Good morning Senior Advocates, Good morning lawyers”.

Nigeria is a big country. In my opinion, it is the most complex country in the world not only in terms of “tribe and tongue” but also because of different religions and other particularisms. The only way this country can survive and “long endure” is through “the rule of law”.

In such a society, your ability to perform this task is not to be “conferred’ but attained and worked at every day. In the United States, successful “trial lawyers” are generally richer than appellate lawyers but it is the appellate lawyers who build their country brick by brick.

Like in Germany’s constitutional courts, every lawyer is free to appear before the U.S. Supreme Court, which is purely a Constitutional Court. Just like in Germany trial lawyers who do not understand the language of the apex court know their limitations. That does not make them “inferior” to the appellate lawyers who with the Supreme Court always try to make their country “a more perfect union”.
There is only one solution to evil. It cannot be reformed. It must be abolished. The civil society must get involved because “law is too important to be left for lawyers alone”