The legal sector has remained one of the fastest growing industries in Nigeria due to the number of students being called to bar annually. This consequent growth has been followed up by the various forms of consumer complaints, and the question is, how do these legal practitioners handle legal services/consumer complaints? Some legal practitioners negligently mishandle lawsuits such as; failure to file the claim within the limitation period by the statute, wrong determination of the proper compensation due, claim or an attempt to claim the wrong type of damages and so on. The impact of a negligent lawyer on his client can be devastating; for the client may be left without adequate compensation/redress. And moreover, the failure of the legal practitioner in this instance can severely compromise the client’s ability to seek the need for damages.
This article therefore examines the remedies available to a consumer who suffers loss or damage as a result of poor services vis-a-vis the provisions of Law of Contract, Tort and most importantly, the Federal Competition and Consumer Protection Act 2019(hereinafter referred to as FCCPA 2019). After a cursory examination of the relevant Extant Laws, it was found that the provisions of the FCCPA 2019 will apply by implication to expunge the Immunity provided by the Legal Practitioners Act.
As aforementioned, the growth of the legal industry and the consequent expansion of its consumer base have been followed by an intense consumer complaint; consumer complaints in the legal industry in Nigeria relates mainly to scheduling errors. Lawyer’s ability to live by their calendars depends heavily on the ability to keep track of client meetings, court appearances and to other strict deadlines. Failure of a lawyer to calendar his necessary events or putting up a wrong date and time may be infinitesimal but may have a grievous effect of not meeting up with court appearance or settlement negotiation which may cause undue hardship to the consumers of legal services.
Aside lawyer’s failure to calendar his necessary activities, it has been observed that some legal practitioners do mishandle lawsuits such as the failure to file the claim within the time-frame stipulated by the law, wrong assession of the proper compensation dues, attempt or claim of the wrong types of damages and lack of signing the court processes. In Nnalimuo & Ors v Elodumuo & Ors , a land suit which commenced in 1971 was struck out in 2018 by the Supreme Court (47 years after) simply because the writ of summons which initiated the suit was not signed and the accompanying particulars of the claims of the plaintiffs was signed in a law firm’s name. The rule is that, a Court does not assume or exercise jurisdiction over a suit where the originating processes is not signed by a legal practitioner representing the case. These in a long run have caused a lot of hardship and injury to the consumers of legal services.
The above formulations clearly showcase the problems an average consumer undergoes in the hands of the legal services providers in Nigeria.
1.1. Who is a Consumer?
There have been divergent positions on the meaning of a “consumer”, but the writer wish not to delve into these divergent views but adopt the definition provided in the Federal Competition and Consumers Protection Act 2019.
Section 167(1) of the FCCPA 2019 provides that: Consumer includes any person – (a) who purchases or offers to purchase goods otherwise than for the purpose of resale but does not include a person who purchases any goods for the purpose of using them in the production or manufacture of any other goods or articles for sale; or (b) to whom a service is rendered” (Underlined for emphasis).
The services rendered by the service providers are of various categories, which include but not limited to health, education, legal and financial services
Section 167(1) of the FCCPA 2019 provides that Services includes – (a) a service of any description, whether industrial, trade, professional or any other services.
There is no doubt that the service rendered to a consumer by a legal practitioner is a professional one. The Concise Oxford English Dictionary defines a “Professional” as: “A person having an impressive competence in a particular activity”
From the above definition, one can infer that a professional is someone who has undergone a long period of training or rigorous apprenticeship and who has been certified to have acquired enough knowledge and skills as to be deemed competent or proficient to render services in a given location.
1.2. Who is a Legal Practitioner?
The Legal Practitioner’s Act defines a legal practitioner as a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purpose of any particular office or proceeding. A Barrister is a legal practitioner whose duty is to represent a person in a Court of Law and advocate on behalf of such person (usually called a client). As a legal consultant and advocate, the professional duties of a barrister include: to draft legal opinion on issues of facts and law, to settle pleadings and to conduct cases in court to a logical conclusion in accordance with the rules of evidence and procedure.
Legal practitioners can also function as solicitors who can be consulted on issues like ; the drafting of Wills, administration of estates, formation of companies, drawing up of leases and conveyances, registration of land instruments, writing of contractual agreement, and other similar issues.
2.0. Examining the Available Remedies.
Over the years, consumers of legal services have been denied remedy for shoddy services being delivered to them by a legal service provider. The duty of care forms the basis of the entire relationship between a legal service provider and the consumer (the client). This part will therefore examine the remedies of consumers of legal services in the Law of Tort, Contract and the FCCPA 2019.
2.1. Remedy under the Tort of Negligence.
Legal practitioners can be negligent in the service rendered to their clients. Negligence may be defined as the breach of any duty of care which results in damages to the party to whom the duty is owed. The term denotes culpable carelessness which means negligence that is though not intentional, involves disregard of the consequences likely to result from one’s actions. Professional negligence in this sense refers to the reckless or careless conduct or omission on the part of the legal practitioner who is usually indifferent to the consequences of his actions, and which results in loss or damage proprietary or pecuniary to his client.
The law imposes on all persons the duty to exercise care, skill and foresight of a reasonable man to avoid undue risk of harm to another person. Where a professional skill is required, the test for a breach of duty is not governed by the reasonable man test; but by the standard of the reasonable person exercising that professional skill. An accountant, architect, lawyer or doctor needs not to possess the highest expert skill; all he needs to exercise is the ordinary skill of an ordinary competent man exercising that particular act.
Though a lawyer is expected to exercise a reasonable skill of duty of care in the performance of his duty, the highest standard is not required. He is required to exercise a reasonable duty of care in that circumstance. The test is what a reasonable competent practitioner would do, having regard to the standard usually adopted in the profession.
Furthermore, the issue as to whether a legal service provider will be liable for the shoddy services rendered to a consumer was answered by the House of Lords in the case of Rondel v Worsely (Rondel’s case for short). In the case, the plaintiff was tried and convicted on a charge of causing bodily harm. The counsel to the defendant had accepted a dock brief and had defended the plaintiff negligently. The plaintiff brought the action against the defendant for professional negligence. The issue for determination was whether or not an action for negligence could lie against a barrister. The court answered the sole issue in the negative. The court stated that immunity from action for negligence against barristers was based on public policy which constitutes three elements:
a. That the administration of justice required that a barrister should be able to carry out his duty to the court fearlessly and independently;
b. That action for negligence against barristers would make for the re-trying of the original actions inevitable and so prolong litigation; and
c. That not minding how difficult the service may be, a barrister is obliged to accept any client. (Cab Rank Rule).
The House of Lords still affirmed their earlier stand in Rondel’s case and in fact extended its application in Saif Alli v Sydney Mitchell , where it held that a barrister’s immunity from suits for negligence extends to those matters of pre-trial work, which were so intimately connected with the conduct of the case in court that they could fairly be said to be preliminary decisions affecting the way that cause was conducted when it came to hearing.
The liability of a legal practitioner in Nigeria is governed by the provisions of Section 9 of the Legal Practitioners Act which provides that:
(1) Subject to the provision of this section, a person shall not be immune from liability for damages attributable to his negligence while acting in his capacity as a legal practitioner, and any provision purporting to exclude or limit that liability in any contract shall be void.
(2) Nothing in subsection (1) of this section shall be construed as preventing the exclusion or limitation of the liability aforesaid in any case where a legal practitioner gives his services without any reward either by way of fees, disbursement or otherwise.
(3) Nothing in subsection (1) of this section shall affect the application to a legal practitioner of the rule of law exempting barristers from the liability aforesaid in so far as that rule applies to the conduct of proceedings in the face of any court, tribunal, or other body.
These provisions merely preserve the common law positions on liability of lawyers for negligence which is the prevailing rule of law on the matter.
By subsection (1), lawyers are generally liable for negligence in the performance of their professional duty, and any provision in any contract which limits or excludes this liability is void. To this effect, even if the legal practitioner renders any of his services (which include rendering legal advice, the draft of legal documents, representation of clients in courts etc) for free, he may still be liable for negligence.
Subsection (2) specifies that – where a legal practitioner renders any of such services for free i.e. without any remuneration, he may limit or exclude his liability in negligence by an express contract. Thus, where he fails to limit or exclude his liability, he will be liable for negligence notwithstanding that the service was rendered gratuitously.
As regards to subsection (3), the question that arises is, what exactly was meant by the phrase “the rule of law” as provided in the subsection. Does it mean a reference to the English Common Law as it can be applicable from time to time? Or the rule of law as interpreted by Nigerian Courts? This point has not been addressed by the Nigerian Courts or even by the legal commentators.
It has been opined that the Nigerian Legislators recognized and followed the rule of law in England (i.e. English Common Law) which may boil down to the adoption of the rule in Rondel’s case. But, it is pertinent to note that in Arthur JS Hall v Simon, the House of Lords have departed from its previous position in Rondel’s case which provides immunity from negligence in favour of barristers. In Arthur JS Hall v Simons, three cases were involved and the appeals from the cases were treated together by the House of Lords. The three cases borders on liability for negligence of advocates and the immunity from such liability. The major issue for determination was whether or not the immunity of an advocate in respect of the conduct of legal proceedings as enunciated by the House of Lords in Rondel v Worsely was to be maintained in England.
The House of Lords, after the review of its former position overruled it in so far as they conferred immunity from liability for negligence on Legal practitioners. The House of Lords reasoned that such immunity was not needed to deal with collateral attacks on civil and criminal decisions. Rather, the public interest was satisfactorily protected by independent res-judicata principles and the powers of the court. A collateral civil challenge to a subsisting criminal conviction, for example, would ordinarily be struck out as an abuse of court process. Moreover, the principle of estoppel and the abuse of court process should be adequate to cope with the risk of collateral challenges to subsisting decisions.
In summary, if one should follow the principle in Rondel v Worsely, there is no longer such principle or rule exempting barristers from negligent acts conducted in the face of the court for it has died a natural death following the case of Hall v Simons. The rationale behind this assertion is that you cannot put something on nothing and expect it to stand.
Furthermore, according to the court, immunity was not needed to ensure that advocates would respect their duty to the Court. Lord Steyn in the case stated that:
On the information available and developments since Rondel v Worsely, I am satisfied that in today’s world, that decision no longer correctly reflects public policy. The basis of the immunity of barristers has gone.
But on the other hand, a mere performance by an advocate of his duty to the court to the detriment of his client, is not described as a negligence, and there would be no possibility of the court to hold an advocate to be negligent if his conduct was bonafide and dictated by the perception of his duty to the court.
One germane question which agitates the mind and begs for answer is; following the decision of the House of Lords in Hall v Simons and the provisions of section 9(3) of the Legal Practitioners Act; are barristers still immuned from their negligent acts even when conducted in the face of a court? Following the provision ho Section 9(3) of the Legal Practitioners Act, the answer obviously is in the negative.
In view of this, it is possible to hold that there is no longer at the moment, any rule of law conferring immunity from action in negligence on barristers in respect of what is done or omitted to be done in the face of the court. Holistically speaking, this marks the glorious end of the time honoured Rondel’s case and the immunity of legal practitioners from actions for negligence.
Alternatively, if we are tempted to follow the position as enunciated by the Nigerian courts exempting barristers from liability in negligence, this writer has not come across any judicial decision whereby any of the Nigerian courts validated that principle. However, going by our jurisprudential stand; the decisions of the foreign courts are no longer binding on Nigerian Courts but remain persuasive. But since the decision of the House of Lords in Hall v Simon constitutes an exposition of a reasonable and equitable position of the law, it should strictly be persuaded on our Courts.
Its trite law that even when a legal practitioner is acting as a solicitor, he is still liable for any shoddy service(s) delivered to the consumer; for as aforementioned, a legal practitioner will be liable for damages if he negligently discharges his professional duties. In Bello Raji v X, a legal practitioner was held liable in damages for bringing a statute barred action on behalf of his client and failing to advice his client, thus the plaintiff was awarded damages.
In some other cases, legal practitioners have been found wanton when they delay in taking action on a client’s brief which militate against the principle of due diligence in the execution of his professional duties to his client. Where the delay is of a gross nature, it will constitute a professional offence. A legal practitioner may by his unreasonable delay, incur loss to his client which leads to liability in negligence to his client. Legal practitioners in Nigeria are also liable for omissions made in drafting a Will, which has the consequences of the beneficiary forfeiting his inheritance.
It follows therefore that in these instances, the necessary option for the consumer is to institute an action in negligence against the legal practitioner.
2.2. Remedies under the Law of Contract.
The law of contract pervades all spheres of human activities. Consumer protection under the law of contract focuses on the provision of remedy for consumers where there is a breach of terms of contract by the suppliers of goods and services. A consumer of legal services can sue in contract for shoddy services. Such actions can be based on the breach of terms made expressly or the terms implied by law. Rule 18 of the Rules of Professional Conduct for Legal Practitioner which specifies the contractual relationship of the lawyer and his client stipulates that:
(1) A client shall be free to choose his lawyer and to dispense with his services as deems fit; provided that nothing in this rule shall absolve the client from fulfilling any agreed or implied obligation to the lawyer including the payment of fees
(2) The lawyer shall ensure that important agreements between him and the client are, as far as possible, reduced into writing, but it is dishonourable and a misconduct for the lawyer to avoid performance of a contract fairly made with his client whether reduced into writing or not.
The point here is that when a contractual relationship is created, the legal practitioner has a duty to protect the interest of the client and to carry out by all proper means; the clients instructions in respect of the service in question.
2.3. What Does The Federal Competition and Consumer Protection Act 2019 Has To Say?
The principal purpose of this statute is to develop and promote fair, efficient, and competitive markets in the Nigerian economy in other to facilitate access by all citizens to safe products and secure the protection of rights for all consumers in Nigeria; and for other related matters. The Act applies to all undertakings and all commercial activities within, or having effect within Nigeria .
Section 167(1) of the FCCPA 2019 defines the word “Undertaking” to include any person involved in the production of, or the trade in, goods, or the provision of services. It established the Federal Competition and Consumer Protection Council (FCCPC) charged with the responsibility of protecting consumers’ rights as conferred upon it by the Act. The functions of the Commission in relation to consumer protection include:
a. Responsibility for the administration and enforcement of the provisions of this Act and any other enactment with respect to competition and protection of consumers;
b. Protect and promote consumer interests;
c. Collaborate with consumer protection groups and associations for consumer protection purposes;
d. Ensure the adoption of appropriate measures to guarantee that goods and services are safe for a normal usage;
e. Ensure that all service providers comply with local and international standards of quality and safe service delivery;
f. Cause an offending company, firm, trade, association or individual to protect, compensate, provide relief and safeguards to injured consumers or communities from adverse effects of technologies that are inherently harmful, injurious, violent or highly hazardous.
The FCCPA 2019 also provides that- where damage is caused wholly or partly by defective goods or the supply of a service, the undertaking that supplied the goods or service is liable for the damage. For the purpose of the Act, damage means personal injury and damage to consumer’s property.
It further provides that an undertaking that supplied the defective goods or service is liable whether or not the user or consumer bought the goods or service from or entered into any contractual agreement with the undertaking. A person affected by the defective goods or services has the right to sue under the section. And that the liability of any undertaking under the section shall not be excluded or restricted.
Section 145 of the FCCPA 2019 provides that – where it is alleged that goods or services are defective, the onus of proof shall lie on the undertaking that supplied the goods or services.
In order to ensure an effective protection of consumers, Section 104 of the FCCPA 2019 which provides for the Act’s supremacy clause states that:
Notwithstanding the provisions of any other law but subject to the provisions of the Constitution of the Federal Republic of Nigeria in all matters relating to competition and consumer protection, the provisions of this Act shall override the provisions of any other law.
When the term “notwithstanding” is used in a section a statute, it is meant to exclude an impending effect(s) of any other provisions of the statute or other subordinate legislation so that the said section may fulfil itself . It follows that as used in Section 104 of the FCCPA, no provisions of any other legislation shall be capable of overriding the said section though subject to the provisions of the Constitution of the Federal Republic of Nigeria as amended
3.0. Channels of Redress for Consumers of Legal Services.
Since no man is infallible, this is direct evidence that a person who is skilled and has knowledge over a particular subject can also commit mistakes during his practice. To err is human, but to replicate the same mistake due to one’s carelessness is negligence.
Ever since the word “professions” have been included under the purview of consumer protection laws; legal practitioners have also felt the heat of it. Under the FCCPA, legal negligence is another form of deficiency in service . It is most akin to the liability under the law of torts, but there is a stricter and broader liability in this situation as failure to exercise skill and care as is ordinarily expected of a legal practitioner, has direct tests under the Act.
The following steps are therefore recommended for consumers who have suffered loss or damage from the legal industry, to access the remedies available under the law .
A consumer may seek to enforce any right under the FCCPA 2019 , a transaction or agreement, or otherwise resolve any dispute with an undertaking that supplied the goods or services to the consumer by-
a. Referring the matter directly to the undertaking that supplied the goods or services;
b. Referring the matter to the applicable industry sector regulator with jurisdiction, if the undertaking is subject to the jurisdiction of the regulator; or
c. Filing a complaint directly with the Commission.
Notwithstanding, an aggrieved consumer can directly approach a court with appropriate jurisdiction to seek redress .
Where upon an investigation by the Commission of a complaint by a consumer, it is proved that –
a. The consumer’s right has been violated; or
b. A wrong has been committed by the way of trade, provision of services, supply of information or advertisement thereby causing injury or loss to the consumer, the consumer shall in addition to the redress which the Commission may impose, have a right of civil action for compensation or restitution in a court of competent jurisdiction.
The Act further provides that any person who contravenes any consumer right commits an offence under this Act and –
a. In the case of a natural person, is liable on conviction to imprisonment for a term not exceeding five years, or to payment of fine not exceeding N10,000,000 or to both the fine and imprisonment;
Assuming but not conceding that the provisions of Section 9(3) of the Legal Practitioners Act is interpreted as granting immunity to legal practitioners, the question that needs to be answered is whether the Federal Competition and Consumer Protection Act 2019 has impliedly repeal section 9(3) of the Legal Practitioners Act.
First, Smith J. in Kutner v Phillips, observed that:
Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time; a repeal will not be implied. Special Acts are not repealed by General Acts, unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together.
Also in Akintokun v LDPC, the court further ruled that:
In Law, there are circumstances in which a repeal of an enactment can be implied or inferred and that is when two Acts of the legislature are plainly repugnant to each other that effect cannot be given to both at the same time. Thus, repeal by implication cannot be prohibited where circumstances warrant.
A cursory look at the provisions of the Legal Practitioners Act and the Federal Competition and Consumer Protection Act will show that both Acts are inconsistent with one another. Section 9(3) of the Legal Practitioners Act grants immunity to legal practitioners for acts done in the face of the court while Section 145 of the FCCPA 2019 provides that – where a damage is caused wholly or partly by defective goods or the supply of a service, the undertaking that supplied the goods or service is liable for the damage. Legally speaking, one can correctly argue that the provision of Section 9(3) of the Legal Practitioners Act has gone into extinct for going by the implied repeal doctrine, the FCCPA 2019 being a newer act will override the Legal Practitioners Act.
Additionally, the provisions of the FCCPA 2019 which introduces, Alternative Dispute Resolution (ADR) processes of negotiation, arbitration and mediation, do not constitute an absolute bar to the recourse to other avenues of redress such as the Legal Practitioners Disciplinary Committee (LPDC) acting within its power granted to it by the Legal Practitioners Act. The provisions of the FCCPA 2019 would not be applicable where an aggrieved consumer decides at the onset to sue in contract for breach of contract or in tort for negligence. The provisions are not adequate to oust the jurisdiction of the courts as provided in the 1999 Constitution of the Federal Republic of Nigeria.
Conclusion / Recommendations
For a consumer of legal services to be adequately protected in Nigeria, the Commission should meet up with the current indices of the consumer’s needs. This also should be followed up with a proper implementation of this law by the officers in charge of such duty. These officers should be trained and monitored to see that the laws are carried out without fear or favour.
In addition, the average Nigerian consumers of legal services should be educated on his rights. These should be done by organizing events like, the Citizens’ Rights and Enlightenment Programs in all local governments across the country and also by visiting various learning centres across the country from time to time to enlighten them on their rights and the need to stand by it without fear.
Most importantly, its quite to note that these shoddy services rendered to the consumers of legal services by legal practitioners would have been abated without any public notice if the legal practitioners has primordially acquired an adequate knowledge and trainings on the issue of legal service delivery. The general statement that “prevention is better than cure” is directly applicable here; for this ought to be the first measure that needs to be taken in order to undeceitfully put smiles in the faces of consumers of legal services. This acquisition of adequate knowledge before practicing as a lawyer should emerge from the grass-root; hence law students should receive the mastermind trainings in various institutions including law schools. Law students should be encouraged to acquire a reasonable knowledge and experience by applying for internships in various law firms across the globe. Law firms on the other hand should proffer an amicable system of employing prospective interns without any unreasonable sorting / segregations. Law firms in this dispensation are well known for sieving out interns with a high CGPA and leaving behind (for employment) those with a lower CGPA. The question is, the intelligent and non-intelligent law students, who requires more in-depth trainings and knowledge? These left over prospective lawyers will in a nearby future, enter (or even possibly take-over) the legal industry, and the question is; what will be the fate of the consumers in the hands of these untrained / inexperience lawyers? Definitely, the consumers will end up as a weeping child.
The judiciary on the other hand is generally seen as the last hope of common man; the hope of the hopeless and the help of the helpless. In a poor relation / bargaining power between a consumer and a supplier, the consumer is seen as the weeping child and therefore looks up to the court for protection/redress. The judiciary therefore provides the primary avenue for obtaining redress in consumer protection matters.
About the Author
STANLEY CHIBUZO OBIDIEGWU IS A LAW STUDENT OF UNIVERSITY OF NIGERIA, NSUKKA. HE IS A LEGAL RESEACHER AND AUTHOR.
For knowledge and Justice