Introduction:
The recent announcement of the Enhanced Trade and Investment Partnership (ETIP) surfaced when the Federal Government of Nigeria (FGN)1 formalized an agreement with the United Kingdom (UK) to allow British lawyers to practice law within Nigerian jurisdiction. This purported milestone was achieved through the execution of the ETIP agreement in February 2024, marking a pivotal moment in Nigeria's legal landscape. According to reports, the UK government disclosed that the ETIP extends beyond facilitating lawyers' mobility; it aims to bolster trade and investment opportunities for both UK and Nigerian businesses. Lawyard's report further highlighted the UK government's disclosure that the ETIP commits Nigeria to eliminate barriers hindering UK lawyers from practicing international and foreign law within Nigeria, potentially amplifying UK legal services exports.2
However, this development ignited a torrent of debates and objections from various quarters, notably the Nigerian Bar Association (NBA), whose President, Yakubu Maikyau, SAN, expressed dismay over the lack of consultation preceding the ETIP decision. Maikyau, SAN highlighted its adverse impact on the welfare and livelihood of millions of Nigerians, along with concerns regarding compromise in Nigeria's legal practice3. Subsequently, the Vanguard Newspaper reported on 15th February 20244, that the FGN retracted its earlier statement regarding the legal aspect –the entitlement of UK lawyers to practice in Nigeria – of the ETIP.
Despite the FGN's retraction, this article seeks to delve into the legality and potential implementation of the ETIP agreement in Nigeria. It will scrutinize the alleged authorization of UK lawyers to practice law within Nigeria's territorial jurisdiction, shedding light on pertinent legal considerations.
Restriction of Foreign Lawyers From Practicing Law In Nigeria Without Being Licensed, Authorized or Permitted
In Nigeria, the legal profession is highly esteemed, regulated and recognized as essential to the country's economic and socio-political governance. Comprising trained, qualified, and licensed individuals, lawyers play pivotal roles in providing legal services 5 to individuals, organizations, and the government.
Accordingly, it is important to understand persons licensed to practice law in Nigeria irrespective of whether such person is a citizen of Nigeria or a foreigner, as this knowledge may be critical to individuals who may require legal services in Nigeria. The objective is to instil a sense of responsibility and accountability within the Nigerian legal profession. The Court of Appeal in Michmerah Intl Ltd v. Nigeria Intl Bank Ltd[6] affirmed this purpose when it held that "... I am sure the purpose is also to sanitize the environment of legal Practice from invasion by pests, marauders, quacks and impostors, who may lure unsuspecting clients into engaging them as Counsel. It is to ensure that fake lawyers do not invade the Profession."7
Building on the Court of Appeal's rationale in the aforementioned case, it becomes evident that the integration of UK lawyers into Nigeria's legal framework must adhere to the existing laws governing legal practice in Nigeria. This alignment is essential to maintain the integrity of the legal profession and safeguard against unwarranted intrusion. Notably, the license and qualifications of UK lawyers to practice law in Nigeria cannot be guaranteed or regulated by an agreement (i.e. ETIP) and accordingly, this underscores the pivotal role of the Legal Practitioners Act CAP L11 LFN 2004 ("LPA")8, among other relevant laws, in regulating legal practice and upholding professional standards for legal practitioners in Nigeria. By the provision of Section 24 of the LPA, a legal practitioner means "a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings." This definition has been adopted in several judicial cases in Nigeria including the case of Oketade v. Adewumi9 and the notorious case of Okafor v. Nweke[10].
In light of the aforementioned definition of a legal practitioner, it is imperative to reference the specific provision of the LPA that confers the right to practice law in Nigeria, which is Section 2 of the LPA. This provision encompasses individuals whose names are on the roll or who have been called to the Nigerian bar after completing the training at the Nigeria Law School within the academic year determined by the Council of Legal Education ("Council") and presenting a qualifying certificate obtained from the Council. Consequently, qualification as a legal practitioner necessitates inclusion on the roll; otherwise, engagement in any form of legal practice within Nigeria is precluded.
To gain admission to the Nigerian Law School, applicants must possess a law degree from the Faculty of Law of any recognized university, either domestic or foreign, with a legal studies curriculum endorsed by the Council as meeting the requirements for admission to the Nigerian Law School. Additionally, candidates must demonstrate suitability as fit and proper individuals with good character, deemed fitting to join the legal profession. Certification is granted by the Council to both Nigerian citizens and non-citizens upon completion of the training program at the Nigerian Law School, as outlined under Section 5 (1) & (2) of the Legal Education (Consolidation, etc.) Act 1992.
Hence, any individual, including foreigners or UK lawyers, seeking to avail themselves of this category of persons permitted to practice law in Nigeria must undergo training at the Nigerian Law School, receive a qualifying certificate, and be called to the Nigerian Bar. Only through this process can they obtain the right to have their name enlisted on the roll as Barrister and Solicitor of the Supreme Court of Nigeria.
Furthermore, additional categories of individuals entitled to practice law in Nigeria include those serving within a specific government office and those issued a warrant by the Chief Justice of Nigeria to represent a litigant for a particular proceeding in Nigerian courts. While some may interpret the LPA's exception for the third category of individuals entitled to practice law by warrant, without being enrolled or called to the Nigerian Bar, as potentially extending authorization or granting a blanket warrant or license to UK lawyers to practice law in Nigeria for specific proceedings, we maintain that neither the Minister of Trade and Investment, nor the President of the Federal Republic of Nigeria, nor any other individual, except the Chief Justice of Nigeria, holds the authority to confer such privileges upon foreign lawyers to practice law in Nigeria.
Therefore, the purported authority granted to UK lawyers by the Federal Government of Nigeria in the ETIP, to the extent that it contradicts the provisions of the LPA, is unacceptable, void, and illegal. The ETIP, reported as a bilateral agreement, has deviated from the provisions of the LPA on legal practice in Nigeria. Our apex court in Ibidapo v. Lufthansa Airlines[11] held that "it shall continue to adhere to, respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law." This decision underscores the importance of the unacceptability and voidness of the provision of the ETIP agreement.
However, it's worth noting that parties may resort to a court to interpret the provisions of the ETIP and seek its intervention to enforce or implement its terms. Nonetheless, it's crucial to emphasize that no court can override the provisions of the LPA to enforce the terms of the ETIP agreement, to allow UK lawyers to practice law in Nigeria without complying with the explicit requirements outlined in the LPA. This stance is supported by the case of Kamba & Anor v. Kamba & Ors[12] where the court held that "No Court or Tribunal can override statutory provisions of the law, where a Court stray from its path and went on to give effect to statutory provision in the manner not provided for, the Court has failed in its duty." Also, in Sodipo v. Lemminkainen Oy.13, it was held that: "No Court, it has been said by Kennedy, J: in Gedge v. Royal Exchange Assurance Corporation (1900) 2 Q.B. 214 at 229, ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Courts is himself implicated in the illegality... The duty of the Court is to administer the law and not to help a party who breaks it."
The LPA Cannot Be Twisted And Tuned To Serve Whatever Purpose, Legitimate Or Otherwise Outside its Provisions
According to The Guardian Newspaper publication of 13th February 202414, it was reported that the partnership between Nigeria and the UK in respect of the practice of law will create opportunities across a breadth of sectors crucial to both economies, such as financial and legal services. While recognizing Nigeria as the biggest economy in Africa and one of the world's fastest-growing economies - predicted to be in the top 20 by GDP by 2035, it was reported that the partnership will see Nigeria commit to working towards removing barriers preventing UK lawyers from practicing international and foreign law in Nigeria, a step that could significantly increase UK legal services exports.
Despite the potential benefits envisioned in the execution of the bilateral agreement - ETIP, which may seem legitimate and capable of leveraging the collective strengths of both States for economic growth and improved legal services, we maintain that it cannot supersede or violate the laws governing legal practice in Nigeria. Our confidence in this assertion is bolstered by the precedent set by the Supreme Court in Okafor & Ors v. Nweke & Ors[15] where it was enunciated that: "The law exists as a guide for actions needed for the practice of the law, not to be twisted and tuned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged."
Having examined the legality of the ETIP provision regarding legal practice in Nigeria, we firmly believe that it cannot be enforced. The principle that what is illegal cannot be enforced underscores the notion that actions or agreements that contravene established laws or regulations lack legal validity. No matter how well-intentioned or seemingly beneficial they may appear, if they run afoul of the law, they cannot be upheld or enforced.
A Counter Position On A Hypothetical Scenario Where The ETIP Meets The Criteria Of A Bilateral Treaty
A contrasting perspective arises when considering a hypothetical scenario16 wherein the ETIP successfully meets the criteria of a bilateral treaty. It is crucial to discern that while the ETIP functions as a bilateral agreement, it may lack the distinct provisions and carve-out17 clauses typically found in standard bilateral treaties18. These crucial clauses include the National Treatment Clause and Fair and Equitable Treatment (FET) provisions. Since these clauses are considered exception clauses, Jus Mundis stated that the exception clauses are designed to permit a treaty party to lawfully perform its functions by taking measures directed towards a specific regulatory purpose, policy, industry, or sector that might be conflicting with the interests of a State19.
Under a standard treaty framework, the inclusion of a National Treatment Clause ensures equal treatment between nationals of both States20 i.e., Nigeria must treat UK nationals and qualified lawyers on par with their Nigerian counterparts concerning the practice of law. Consequently, assertions based on Section 2 of the LPA, which stipulates requirements for practicing law in Nigeria, may be challenged. This is because the National Treatment Clause will stipulate that Nigeria must provide UK lawyers with equal opportunity to practice law within its jurisdiction, regardless of whether their names appear on the roll, as long as they are qualified to practice law in their State. This provision effectively prohibits discriminatory practices. Moreover, treaties often incorporate carve-out clauses permitting certain provisions to supersede national laws concerning bilateral relations.
Therefore, if the ETIP were to function as a treaty with comprehensive provisions and carve-out clauses as discussed above, arguments contesting its validity based on national legislation (the Legal Practitioners Act - LPA) would be less tenable. However, the absence of such clauses in the current ETIP agreement underscores the necessity to uphold Nigerian laws, particularly those governing legal practice. Consequently, the debate surrounding the legality and enforceability of the ETIP agreement remains multifaceted and contingent upon nuanced legal interpretations within the context of international law.
Conclusion
In conclusion, the discussion surrounding the restriction on foreign lawyers from practicing law in Nigeria without proper licensing, authorization, or permission underscores the importance of upholding the integrity and standards of the legal profession in Nigeria. The legal landscape in Nigeria is governed by stringent regulations and statutes, particularly the Legal Practitioners Act (LPA), which ensures that only qualified individuals who meet the prescribed criteria are allowed to practice law in Nigeria.
While international partnerships and agreements such as the alleged Enhanced Trade and Investment Partnership (ETIP) between Nigeria and the United Kingdom may present opportunities for economic growth and collaboration, they must be consistent with Nigeria's legal framework and statutory provisions. The LPA cannot be overridden or circumvented by any bilateral agreement. However, this assertion might vary if the ETIP agreement were categorized as a treaty with standard provisions and carve-out clauses like the National Treatment Clause and Fair and Equitable Treatment (FET). Such clauses would render reliance on national legislation impermissible if it contradicts or disregards international obligations. Therefore, the suggestion that the ETIP could be void due to a perceived conflict with provisions of the Legal Practitioners Act (LPA) necessitates nuanced consideration.
Footnotes
1 Through the Federal Ministry of Industry, Trade, and Investment
2 https://www.lawyard.org/news/uk-sign-agreement-to-allow-british-lawyers-practice-in-nigeria/ - UK Sign Agreement to Allow British Lawyers Practice in Nigeria - Lawyard
3 UK lawyers can't practise in Nigeria — FG, NBA (vanguardngr.com)
4 https://www.vanguardngr.com/2024/02/uk-lawyers-cant-practise-in-nigeria-fg-nba/
5 Their services range from giving advice on legal matters to representing clients in various legal proceedings in courts and tribunals.
6 (2015) LPELR-25768 (CA) (PP. 14 PARAS. B)
7 See also FIRST BANK OF NIGERIA v. MAIWADA (2013) 32 WRN 31 at 43.
8 The LPA stands as the bedrock governing how individuals become licensed or qualified to practice law in Nigeria, and its authority cannot be overridden by any agreement, including the ETIP.
9 (2010) 8 NWLR (Pt. 1195) 63
10 (2007) 10 NWLR (Pt 1043) 521
11 (1997) LPELR – 1397 (SC)
12 (2023) LPELR-61546 (CA)
13 (1985) 2 NWLR (Pt 8) 547
14 UK sign agreement to allow British lawyers practice in Nigeria | The Guardian Nigeria News - Nigeria and World News — World — The Guardian Nigeria News – Nigeria and World News
15 Supra
16 It necessitates examination to understand the potential implications of the ETIP if it were to be treated as a bilateral treaty.
17 According to Law Dictionary, it may refer to an exception or a clause that contains an exception - Definition of CARVE OUT " Law Dictionary " TheLaw.com
18 Our stance on this hypothesis is contingent upon the accurate provisions of the ETIP, as we have not had the opportunity to review a copy of the agreement.
19 Treaty exclusions (jusmundi.com)
20 See the meaning of National Treatment by Investopedia - National Treatment: Meaning, Advantages and Disadvantages (investopedia.com).
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Originally published April 15, 2024
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