CITATION: (2025) 1 NWLR PT. 1973 AT 265 – 270.
Courtesy: Moruff O. Balogun, FIMC, CMC, CMS
Summary of facts:
The appellant was arraigned at the Chief Magistrate Court, Ibadan on an eight-count charge. The appellant took his plea on each of the counts and pleaded not guilty and was admitted to bail. Thereafter, counsel announced their readiness to commence trial.
At that juncture, the trial court raised the question as to whether the appellant’s counsel, a Senior Advocate of Nigeria, suffered any disability that will disentitle him from appearing before a magistrate court and called the parties to address the court on the issue.
In a considered ruling, the chief magistrate ruled that the defence counsel, being a Senior Advocate of Nigeria, does not have a right of audience before a magistrate court.
Dissatisfied with the ruling, the appellant appealed to the High Court of Oyo State. The High Court dismissed the appeal and affirmed the ruling of the trial court. Still dissatisfied, the appellant appealed to the Court of Appeal.
Held (Unanimously dismissing the appeal):
1. On whether Senior Advocate of Nigeria has right of audience as counsel in inferior court –
By virtue of rules 2, 3, 4 and 6 of the Senior Advocate of Nigeria (Privileges and Functions) Rules, 1979, a Senior Advocate of Nigeria shall not appear as counsel in any civil case before any superior court of record except with a junior or with another Senior Advocate of Nigeria. Notwithstanding rule 2(1), a Senior Advocate of Nigeria may appear with or without another counsel in any motion or other civil cause or matter in judge’s chambers or elsewhere not in the open court.
A Senior Advocate of Nigeria may appear as counsel in any criminal cause or matter before any court of superior record with or without counsel. A Senior Advocate of Nigeria shall not apply or issue originating process from or before a court in any cause or matter except in relation to those matters in which he is entitled to appear pursuant to rules 2 and 3 of the Rules.
In the rules, unless the context otherwise requires, superior court of record means the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court or any other court or tribunal with powers not less than those of a High Court.
Thus, a Senior Advocate of Nigeria is not necessarily entitled to appear in all courts in which any legal practitioner may appear as of right. The only inference to be drawn from the provision of rule 4 is that a Senior Advocate of Nigeria is not entitled to appear before those courts he is prohibited by the rule to apply for or issue originating process or any other process.
There is no mention of an inferior court in the rules. However, having recourse to the rule usually known in the form of latin maxim: expressio unius est exclusion alterius, that is, the mention of one or more things may be regarded as silently excluding all other members of the class, a Senior Advocate of Nigeria is by the rules precluded from appearing as counsel in an inferior court.
2. On privileges and disabilities associated with rank of Senior Advocate of Nigeria –
The privileged rank of Senior Advocate of Nigeria confers on the holder an additional and higher responsibility beyond the obligations any other legal practitioner is entitled to observe.
In addition, the application by candidates for consideration to be conferred with the rank of Senior Advocate of Nigeria is by the voluntary choice of each legal practitioner. In other words, no legal practitioner is awarded the rank without his deliberate and conscious act of applying for the rank.
This presupposes that an applicant for the rank must have considered and contemplated the privileges, liabilities and disabilities associated with the rank.
When the candidate becomes successful and the revered rank is conferred on him, he not only wears the privileges associated with the rank but also the disabilities.
Such privileges and disabilities are codified in the Senior Advocate of Nigeria (Privileges and Functions) Rules, made pursuant to section 5(7) of the Legal Practitioners Act.
So, a Senior Advocate of Nigeria, though a qualified legal practitioner, has by his voluntary choice of applying for the rank and being privileged to be considered and conferred with the rank, thereby making himself subject to the rules governing the rank, opted that he can no longer appear before inferior courts.
He cannot enjoy the privileges of the rank and when it comes to the disability attached to the rank, which is prohibition from appearing before an inferior court, run under the cover of the right of a litigant to a counsel of his choice as enshrined by section 36(6)(c) of the 1999 Constitution.
3. On constitutional guarantee of right of accused to defend himself in person or by legal practitioner of his choice –
By virtue of section 36(6) (c) of the 1999 Constitution (as amended), every person charged with a criminal offence shall be entitled to defend himself in person or by legal practitioner of his own choice. A person is entitled to be represented in any court proceedings by a counsel of his choice. [All Purpose Shelters Ltd. v. Dennis (2022) 6 NWLR (Pt. 1825) 181 referred to.]
COURTESY:
MORUFF O. BALOGUN, FIMC, CMC, CMS
EX – VICE CHAIRMAN, NBA IJEBU ODE BRANCH,
IJEBU ODE, OGUN STATE.
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