Appointment of SAN: Limitation of number-effect on merit

By Afe Babalola

“I am of the view that all persons who merit the rank in any given year should be conferred with it. The sole test, as is now the position in England should be excellence in advocacy. This way there will be no backlog of applicants”. judges Every year, the Legal Practitioners Privileges Committee (LPPC) invites applications from suitably qualified candidates towards the conferment of the rank of Senior Advocate Nigeria and as is customary every year, hundreds of lawyers apply for consideration.

To be certain, the rank of Senior Advocate of Nigeria, the Nigerian equivalent of Queens Counsel in England, is regarded as a mark or reward of excellence in the legal profession. Since the introduction of the rank in 1975 with the conferment on Chief F.R.A Williams and Dr N.B Graham-Douglas it has grown in stature such that most lawyers in active legal practice have come to see it as the ultimate reward for years of hard work. However, since its introduction, the rank has divided even Legal Practitioners. While some have called for the abolition of the rank, some have argued for its retention.

The call for its abolition has been based on issues such as what is regarded as the lopsidedness of the appointment process and concerns that some lawyers who have been conferred with the rank have in certain instances acted in manners which have hampered the due administration of justice. This argument has particularly gained more traction in recent times. However those who have argued for the retention of the rank point to the fact that almost every profession rewards and recognises excellence in one form or the other.

This is why most other professions confer fellowships on deserving members. On my part I have argued that Nigeria can gain from the retention of the rank by ensuring that the vast majority of Judges are appointed from the rank of senior advocates of Nigeria as is done in the United Kingdom where Judges are appointment from Lawyers who have been conferred with the rank of Queens Counsel. UNDUE RESTRICTION IN NUMBER OF APPOINTMENTS The question that this proposal necessarily attracts is whether there are enough Senior Advocates of Nigeria to serve this purpose? This is so as the total number of Senior Advocates of Nigeria may not be sufficient to offer enough candidates to fill the vacancies which occasionally arise on the Bench of the High Courts of the States, the Federal High Court, High Court of the FCT and the National Industrial Court. Every year, the Legal Practitioners Privileges Committee appoints an average of 15 Lawyers to the rank from an initial shortlist of about 45 or 50 qualified lawyers. This restriction and the attendant shortlisting of “qualified” candidates from a pool of already “qualified” candidates actually fuels calls for more transparency or outright abolition of the rank. However in my estimation, all that is required is an overhaul of the current system of appointment of Senior Advocates of Nigeria as at the moment, the process of appointment is too restrictive and selective and is a disincentive to merit, a factor that it is actually meant to recognise and promote. At the moment, in order to ensure that applicants possess sufficient experience in legal practice, the Legal Practitioners Privileges Committee has put in place certain criteria including stipulations regarding a minimum number of cases that prospective applicants must have conducted before the Superior Courts of Record including the Supreme Court. Previously a high number of cases were required at the Supreme Court. However when this led to a high of appeals being filed at the Supreme Court, the number was reduced last year to three from six while the number of cases required at the High Court was increased to 20. In addition to these, applicants are required to meet other conditions designed to ascertain that they have been engaged in active practice of the legal profession. All applicants who meet these requirements are then shortlisted and subjected to a selective process, including oral interviews using parameters which are not clearly defined and indeed have attracted criticism and controversy. In other words, the approach currently adopted is to require a candidate  who has satisfied all known conditions for the conferment of the rank to explain why he should then be conferred with it? This can only be the conclusion as I see no reason why a candidate who has been certified to have the required number of cases and who has met all other stipulations should be required to attend a further interview where his suitability will then be further assessed. This approach leaves room for abuse as the factors which dictate why such qualified persons are denied the rank are often subjective and not open to independent appraisal. I am of the view that all persons who meet the requirement should be conferred with the rank safe in the case of those who for clearly defined, identifiable and verifiable reasons such as proven cases of professional or other misconduct, cannot be so conferred. It is my view that the proper approach should be an inquiry as to why a person already qualified in terms of cases and appearance in court and already shortlisted, should not be conferred with the rank?. The difference between my suggested approach and that currently adopted by the Committee is that in the former the fact that a candidate is shortlisted, will carry with it a very strong and perhaps iron cast presumption that not only does he merit the rank but that he will also conferred with it. Unfortunately under the current dispensation there is no such presumption. A candidate who meets the criteria and is shortlisted may still not be conferred with the rank owing to other conditions such as location, state of origin, local government area etc! Should conferment of a rank which recognises merit be affected by such considerations? I think not. In a statement made in July 2016, Helen Pitcher OBE, Chairman of the QC Selection Panel in England stated as follows: “…whatever may have been the position in the past, appointment as QC is no longer effectively confined to white, male, barristers, educated at public school and at Oxbridge. It is of course still important to get across the message that, so far as it rests within the power of the QC Selection Panel, appointment as QC is now equally available to all higher courts’ advocates, regardless of race, gender, educational background or other extraneous personal characteristic. The sole test is excellence in all the competencies which go up to make excellence as an advocate, not personal background. In a nutshell I am of the view that all persons who merit the rank in any given year should be conferred with it. If 100 Legal Practitioners merit it in a year, let them be so conferred. The sole test, as is now the position in England should be excellence in advocacy. This way there will be no backlog of applicants. Every year, thousands of Lawyers are called to the Bar. Why then should the number of lawyers appointed as Senior Advocates be limited only to 15 in a year? Is it really true that only 448 Lawyers (the number conferred so far since 1975) have been deserving of the award out of the thousands of lawyers called to the Bar in that time? It has been alleged in some quarters that this is a deliberate effort to the rank an air of exclusivity beyond the limits provided by law. The current restriction in the number of appointees makes it difficult to come up with an answer to such allegations.

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