DISCUSSANTS:
(1). Chidi Okoroji
(2). Abdulrahaman Akindele Ayuba
(2). Sylvester Udemezue
(3). Levi Oraekenyi
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1⃣MR. A. AKINDELE AYUBA:
(a). To CHUKS OKONKWO)
I love the spirit of this guy (the unknown author).
This is actually what l do everytime, but unfortunately the vast majority of Nigerians see it as unnecessary/needless troublemaking, just the same way the Judge in this case sees it as “elementary”. Until and unless people see reasons to challenge all sort of abnormalities and incongruent behavior in our sociopolitical and economic lives, this will continue to go awry.
For instance, why would a bank cashier ask me to sign my fast track ATM receipt slip without firstly handing over my money to me ??? I need to receive my money, count it and agree it is complete before l sign the duplicate receipt but the reverse is the case in the banks, though we continue to overlook !!!
All the same thumbs up to all systems ” disruptors” ….
(b) To Sylvester Udemezue—
I have just finished reading your treatise and I can’t but agree with you entirely.
From what Mr Okonkwo BOLDLY wrote vis a vis his account of the reactions of the Judge and the SAN, it seems Mr Okonkwo was right in his behavior and did a great thing to regularise irregularities in the legal profession. However, with your write up containing legal positions, it would seem to me that the Judge and the SAN and perhaps other lawyers present are not well acquainted with the legal provisions for court proceedings, or how else do one describe Mr Okonkwo’s narration of the SAN’s commendations of his action and even dashing him a very warm hug ?
2⃣CHIDI OKOROJI:
I’m not sure the authorities reviewed in this treatise of our learned friend, Sylvester Udemezue, supports the position he put as thus –
” The right of a senior counsel to mention a case out-of-turn is not limited to only cases that listed for mention; it extends to all cases, subject to the court`s discretion/leave. A court of law possesses the inherent powers/jurisdiction to permit any (senior) counsel in court to call his or her case out-of-turn, as the court may deem fit, in deserving circumstances, whether the case is originally listed for mention or for hearing ;” My position has always been that where a statute provides generally while another provides specifically, then the general provisions ought not to override the specific provisions. The legal practitioners act in section 6 thereof has already made specific provisions as to what manner of matter can be called out of turn. The general provision on precedence of legal practitioners cannot override the specific provision on what manner of matters can be called out of turn. If the legislator desired to change that specific provision on the stage that a matter may be called out of turn, it would have so provided in the schedule or other sections of the law. We need not read into the law, provisions that are not there. Doing so may increase the antagonism to the rank of SAN by other lawyers especially as the rank is not attained as a matter of course.
3⃣LEVI ORAEKENYI
You are right in your position that a general provision ought not to override a specific provision, but not when the specific provision is made subject to the general provision. In the instant case, section 6(1) of the LPA is made subject to section 8(5) and the first schedule to the Act which means that section 8(5) and the first schedule take precedence and prevail over section 6(1).
Again, if we follow your line of argument, then, you are the one reading into the law provisions that are not there because section 6(2) did not mention Senior Advocates of Nigeria as one of the categories of law officers to which the section applied. That being the case, SANs are not even entitled to call their matters listed for mention out of turn. I think the energy used in antagonizing the rank of SAN should be better channelled into attaining the rank whether or not as a matter of course.
4⃣CHIDI OKOROJI
I have read both section 8 (5) and first schedule. None made any provisions as to manner of cases that may be called out of turn.
So when I say specific provision, it is with regard to the stage at which cases may be called out of turn. There are other jurisdictions that were former colonies of UK who have jettisoned the practice of conferring silk and even in the UK, silk is not by quota and any consistent advocate of ten years practice will make silk without having to lobby or spend specially for it. Furthermore, in UK, SANs do not claim special entitlement to scarce judicial resources as is the case in Nigeria.
5⃣SYLVESTER UDEMEZUE
(replying to Chidi Okoroji)
With due respect, Sir, you missed the whole point.
??Section 6 LPA is subject to section 8 (5) LPA and the first Schedule to the LPA. ??So your argument shouldn’t arise at all. ??Section 8 (5) says lawyers shall (which means MUST) take precedence among themselves based on seniority as prescribed in the first Schedule to LPA .
??The First schedule provides us with the order of precedence, which the Act says must be complied with at all times without exception. ??Where else does this order of precedence apply if not in court? ??So, if a court, in obedience to the MANDATORY order of precedence, permits cases to be called in order of seniority, does that not accord with the provisions of section 8(5) which overrides section 6 LPA of the LPA? ??Or, is there any law or rule of law that specifically prescribes that cases on the Cause List MUST be called in the order in which they’re listed on the cause list?
??If no such specific legal provision exists, and I don’t think it does exist, then which law law does the court violate when it grants a senior counsel the privilege to call his case out of turn? ??And if you agree the court/judge is in violation of NO LAW or legal rule in so doing, then you ought to agree that no lawyer is entitled to challenge such exercise of the court’s discretion based on he court’s inherent powers and in compliance with the mandatory provision of section 8(5) LPA which demands that lawyers shall take precedence in order of seniority as shown in the first Schedule to the LPA. Accordingly, you ought to ageee that MR Chuks Okonkwo’s objection or complaints at the OJI River High Court were legally, ethically and morally baseless
6⃣CHIDI OKOROJI:
Taking precedence is different from specific provision on how the precedence is to be taken. Be kind sir, to show us anywhere in section 8 (5) or the schedule to the LPA that changed the order established in section 6.
7⃣SYLVESTER UDEMEZUE
You muddle everything up, by introducing what is not relevant, thereby confusing an otherwise straightforward discussion. ??With due respect, Sir, the provisions of section 6, LPA do not apply to a SAN, because SAN is expressly excluded—-the rule is Expressio Unius Est Exclusio Alterius …. the express mention of one thing means the exclusion of anything not mentioned
??The legal provisions that govern ranking in precedence as regards SAN’s include:
(1) Section 8(5)LPA
(2) The first Schedule of the LPA
(3) Rule 26 RPC
(4) The inherent jurisdiction of a court of law to CONTROL ITS OWN PROVISIONS, provided no legal rule is thereby violated.
??A community reading of all these provisions leaves no one in doubt that MR ANTHONY ANI ( (a member of the inner bar) takes and must take precedence AT ALL TIMES (in and out of court) over and above MR CHUKS OKONKWO (a member of the outer bar).
??Now, you want me to show kindness. ??But you know charity starts at home; you’re yet to adresss all the issues i raised in my earlier reply to you. ??Your kind reply is urgently needed, please. ??I posed some questions which now beg for answers from you.
Examples:
(1) Is there any rule of law that SPECIFICALLY mandates a judge to strictly follow the order in which cases are listed on the Cause List?
(2) If there is no obligation on the judge to follow cases the way they’re listed on the cause list, is the judge in violation of any SPECIFIC OR GENERAL rule of law when he chooses to not follow the order of listing on the cause list?
(3) Between MR ANTHONY ANI, SAN, and MR CHUKS OKONKWO, who ought to take PRECEDENCE in calling his case in court, applying the MANDATORY TABLE OF PRECEDENCE as provided in the first Schedule to the LPA?
(4) When section 8(5) LPA says LAWYERS SHALL take precedence among one another, could you offer us your opinion on the proper application of this provision! And WHERE does it apply? Courtroom excluded?
(5) When Rule 26 of the RPC provides that the notion of equality of all lawyers is subject to the ORDER OF PRECEDENCE AT THE BAR as provided in the first Schedule to the LPA, please what is the way to apply this provision? And where? Courtroom excluded?
(6) Do you agree that the court of law has an inherent jurisdiction to CONTROL ITS OWN PROCEEDINGS?
(7) Does a court of law have the DISCRETION to permit any case on the cause list to be called out-of-turn?
(8) Did you notice that SAN’s rank above LAW OFFICERS (the persons to whom section 6(1) LPA applies) in the ORDER OF PRECEDENCE AT THE BAR? Can you tell us why? Is it not because section 8(5)LPA and the First Schedule to the LPA both together SUPERSEDE section 6 LPA?
??Kindness begets kindness; Chidi, show me favour by attending to these issues, seriatim.
??One thing I can tell you before you tell me your own is that SECTION 6 of the LPA is NOT RELEVANT to any discussions relating to SENIOR ADVOCATES OF NIGERIA and the order of precedence at the Bar.
My best regards, please
8⃣LEVI ORAEKENYI
(Replying to Chidi Okoroji)
Your specific provision didn’t mention SANs. So, specifically and strictly speaking, SANs are not entitled to call their cases listed for mention out of turn. They are only entitled to call their cases out of turn in accordance with the order of preference under section 8(5) and the first schedule which at the same time prevail over section 6. If you appreciate this, you will appreciate the hollowness of your position and the fact that there is no conflict between the two sections. So, where a Senior Advocate appears in court and his matter happens to be listed for mention, it should not ordinarily be called out of turn. However, given that section 6 is made subject to section 8 and being that section 8(5) did not delimit the nature of cases or stages during trials when the precedence is to apply, section 6 cannot limit them.
9⃣SYLVESTER UDEMEZUE
(Replying to Levi)
????
Section 6 is subject to section 8(5) and the first Schedule.
??Section 6 restricts the right to call a case out of turn to only CASES LISTED FOR MENTION.
??Section 8 (5) does NOT restrict application of the order of, or the right to take, precedence to any specific kind of cases.
??Therefore, subject to the court discretion/leave, the SAN is entitled to call his case out of turn (in line with the mandatory provision of section 8(5)LPA which commands that lawyers must take PRECEDENCE among one another) irrespective of what the case listed for —- mention, hearing, etc.
Clinging onto section 6 (which is irrelevant) makes Chidi’s case only worse
QED
?CHIDI OKOROJI:
None of section 8(5) and schedule one of LPA or rule 26 RPC has changed the direct provision in section 6 LPA on what matters may be called out of turn. The inherent jurisdiction of the court is not to be exercised contrary to existing legislation on a subject matter. Finally, the provision on precedence as contained in section 8(5) and the first schedule to the LPA has not made SANs higher than the attorney general. So, if a particular order for calling cases out of turn has been made to apply to the attorney general, why would SANs be exempt?
1⃣1⃣SYLVESTER UDEMEZUE:
(1) Chidi, I had posed certain questions that would help us resolve these issues faster and you refused or neglected to attend to those questions.
Why now? I am sad ? ? ?.
(2) I think you’re being evasive, because you know whatever you say in answers to those questions WOULD BE USED AGAINST YOU, by me. Lol ? ? ?. Besides, applying the Evidence Act, your deliberate refusal to answer the questions (my interrogatories) is clear indication that you know your answers would work against your position in this discussion. LMFAO? ? ?;
(3) The point we are making is that the provisions of section 6 which permit calling cases that ARE LISTED FOR MENTION out of turn, apply to only persons who are entitled to practice law for the purpose of their office by virtue of section 2(3) LPA; it does not apply to SAN’s. There’s a reason the Act excluded the SAN’s. Ask the legislators if you see them! Lol ?;
(4) Section 8(5) LPA then permits all lawyers to TAKE PRECEDENCE among one another, according to SENIORITY, in all professional things and engagements. The meaning of this is that, IN EVERYTHING, including inside the courtroom, and even in mentioning cases, lawyers SHALL take precedence in order of seniority. Thus, if an AG is in court and a Life Bencher is in court and a SAN is in court , and now, Mr CHUKS okonkwo (of the outer bar) is in court, then applying section 8(5), the AG is entitled to take precedence (including calling his case) before the Life Bencher who is entitled to call his before the SAN who is entitled to call his before MR. Okonkwo. If it is only the SAN (Anthony Ani) and MR. Chuks Okonkwo that are court, the SAN is entitled, subject to the court’s discretion, to call his case before MR OKONKWO’s. And MR OKONKWO is not entitled to challenge the exercise of the SAN’s right, or the exercise of the judge’s discretion, on this;
(5) The order of seniority (ie., the order of precedence) is provided for in the first schedule to LPA:
(6) If we think there is any CONFLICT between section 6LPA (a specific provision) and section 8(5)LPA (a general provision), the conflict has been EXPRESSLY resolved by section 6(1) which provides that section 6 shall apply SUBJECT TO (is inferior to) to the provisions of section 8(5) LPA & the first Schedule. (Further, it we think there’s conflict between section 6 and the first Schedule, then we must listen to section 6 which itself says that the FIRST SCHEDULE IS SUPERIOR to section 6. *Our learned colleague, Levi Oraekeyi, had earlier in the course of this discussion made this point clear and I completely agree with him;
(7) This means that while applying the provisions of section 8(5) and the first Schedule, section 6 must never be referred to for purposes to detracting from the provisions if either section 8(5) or of the first Schedule. That’s the law.
(8) There’s a Rule of statutory interpretation that says *Generalia Specialibus Non Derogant Definition* meaning that “provisions of a general nature must yield to those of a special nature.” I agree. But would this rule apply when there is an express stipulation in the same statute SUBJECTING the specific provision to the general provision — stating that the specific shall be INFERIOR to the general?Answer is NO. By saying “SUBJECT TO SECTION 8(5) LPA,” section 6 has expressly excluded/nullified the application of the Generalia Specialibus Non Derogant Definitionrule in this instance.
(9). Is there any law they commands a judge, in hearing or attending to cases in court, to strictly comply with the order in which cases are listed on the Cause List? The answer is NO or none that we are aware of! If there is no law against the judge’s exercise his discretion to permit lawyers to take precedence in order of seniority in calling their cases, why do you quarrel with the PROPER exercise of a judge’s discretion, which is not against any statutory provisions? Are you entitled to so complain? Answer is NO.
(10) Do you agree that a judge possesses the inherent jurisdiction to CONTROL his own processings? Do you agree that the inherent powers to control the proceedings EXTEND to the power to SUO MOTU decode the order in which the cases on the cause list should be called: mentioned for the judge’s own convenient or in deference to the ORDER OF PRECEDENCE provided the first schedule or the command in section 8(5)LPA both of which are to apply NOTWITHSTANDING any provisions to the contrary in section 6 LPA? I agree with both questions. I accordingly submit that you miss the point. The position of the law as at today, based on the LPA is that, subject to the court’s convenience, lawyers are entitled to take PRECEDENCE in order or seniority in calling their cases in court, and this right extends to all cases — whether listed for mention, ruling/judgement, case management conference, report of settlement or hearing, etc. Thus, Mr Chuks Okonkwo’s complaints at the Oji River High Court were not only groundless but legally baseless and ethically and professionally inappropriate.
I REST MY CASE HERE.
Respectfully,
UDEMS
End of Discussion.
