“Affidavit, sir your affidavit, get your affidavit here.”
The above are cries made (on the road) to the public for the sale of an affidavit. (Yes, an affidavit is sold on the road in Nigeria.) Cries made by a new breed of legal practitioners: the somewhat experienced-in-legal-matters, but not law school-trained roadside lawyers.
You will find these “lawyers” littered all over the various courts in Lagos, calling, advertising, sometimes even harassing (once, I was belligerently accosted by 3 of such people) members of the public, to come and purchase their “product.” And they do this unhindered and undisturbed. It makes you wonder if they are authorised to do so.
The affidavit – a legal document – has now become a roadside commodity, with the same status of the Gala (a popular beef-roll snack). The only difference between the two is, the former isn’t edible and is more expensive than the latter, 20 times more expensive! Prices for these “roadside affidavits” are as high as N1,000. This is money that should be going to us – the professionals, but instead is going into the pockets of these ubiquitous individuals.
Unfortunately, we the lawyers have come to accept these other breed of “lawyers,” sometimes even patronising them. We now see them as part of our legal system; a fixture that cannot be removed.
In Ikeja, for instance, from LASUTH (Lagos State University Teaching Hospital) to the High Court, and even extending to the Old Secretariat road, you will find these people (in droves) patrolling both sides of the road, soliciting for customers.
Going to the court, I always wonder if this is normal, or even legal at that. What I and others studied for a tortuous 6 (unnecessary) years plus (some, 7 years plus), a fellow wakes up one morning, gets an old worn-out typewriter/laptop from somewhere, and starts churning out affidavits on the go. This is akin to infringing on one’s copyright. In our case, it’s infringing on our right to make a living from our profession.
The relevant law on this issue is the Legal Practitioners Act 1975. Section 2 and 22 are both instructive.
Section 2 provides for those who are entitled to practise as a barrister and solicitor in the country. Chief among these persons is the one whose “name is on the roll.” The “roll” being the Supreme Court’s register where all lawyers who have been called to the bar, must enter their names and details. From this, one vital question must be asked: what does it mean to practise as a barrister and solicitor?
In answering this, the Legal Practitioners Act will be of little help as there is no definition of what it means to practise as a barrister or solicitor, which is strange, to say the least. But we can fashion out a definition from the Rules (Rules of Professional Conduct 2007) made to support the Act.
Rules 9 and 10 would aid us in our endeavor.
Both rules provide that a lawyer shall not sign legal documents if: (1) such lawyer has not paid the required practice fees (rule 9), and (2) such lawyer did not affix the stamp and seal on the document (rule 10). Rule 10 goes further to define what legal documents are, and includes in its definition: affidavits. One can safely infer from these provisions that one of the rights of a lawyer is the preparation and signing of legal documents. But sadly both the Act and Rules are silent on the preparation aspect of such affidavits, and other legal documents defined. The Act, being the substantive law, in particular, is guilty of this.
Section 22 of the Act provides for offences and the attendant punishment. Subsection (1) makes it an offence for any person who isn’t a legal practitioner to practise, or present himself to practise as one. On the surface, this looks good, and would seem to protect us. But the important question which the Act fails to answer is: what does it mean or entail to practise as a legal practitioner? This omission of the Act negates the intention and effectiveness of the section. Thus, the situation we have where non-lawyers prepare affidavits to the detriment of the lawyers.
Still on section 22, under paragraph (d) of subsection (1), it seems that these “lawyers” are even given some legal backing. Paragraph (d) states that a non-lawyer shall not:
prepare for or in expectation of reward any instrument relating to immovable property, or relating to or with a view to the grant of probate or letters of administration, or relating to or with a view to proceedings in any court of record in Nigeria.
To my mind, this paragraph is faulty as it sets out definitively only 3 types of legal documents that non-lawyers are prohibited from preparing: one, instruments relating to immovable property; two, instruments relating to probate/LA matters, and three, instruments relating to court proceedings. The obvious questions from this: what of instruments not relating to court proceedings? Ex: affidavits not used in court proceedings, which is the specialty of these roadside “lawyers.” What of other legal situations outside of the three mentioned, which would require the preparation of legal documents? Ex: instruments relating to movable property. Are the rest of the public then allowed to prepare such documents? Seemingly so. The Act’s silence on these questions and more amounts to acquiescence.
Coming to the punishment provision under this section (22), the law, once more, leaves much to be desired. The commission of any of the offences listed under the section attracts a N200 fine and/or 2 years imprisonment. This is insufficient, and does not in any way reflect the gravity of the offence. An option of N200 fine for people making N1000 per affidavit is laughable; two years imprisonment is as well.
How did we find ourselves in this situation? I cannot say for sure. What I can say is that the practice of such closes a source of income to us, and if left unchecked could, in the future result in more “closures,” from other sources.
The Legal Practitioners Act as the law regulating lawyers and the profession, is the starting point; it needs to be reviewed and amended accordingly. It does not adequately protect us, or our profession. By not defining what it means to practise as a barrister and solicitor, it enables non-lawyers to take up some of our jobs, and their accompanying revenue. Also, section 22 of the Act needs to be amended. As mentioned above, subsection (1) does little to correct the omission of not defining what it means to practise as a barrister and solicitor. Instead, it only compounds to it. This is evidenced by paragraph (d), which in essence makes it possible for the “uninitiated” to prepare legal documents.
Another way this problem can be addressed is through the leadership of the NBA (Nigerian Bar Association). As the body set up and empowered to protect all lawyers, it should, as a matter of urgency, look into this issue and make a strong pronouncement on it. It should declare such practices illegal. This would make these people think twice before they brandish their A4 papers and typewriters. The NBA (with the input of all its lawyers) can also review the current Act, and prepare necessary amendments and forward them to the National Assembly for consideration.
Our profession is an exclusive one, and this exclusivity should be maintained at all costs. An affidavit (and any legal document at that) should only be prepared by a legal practitioner; no one else should do so.
If today we allow a layman to prepare affidavits for sale, tomorrow it will be pleadings and notices of appeal; and the next, wills and written addresses!
My learned friends, we must strive to protect this our noble profession. Because the implications of not doing so are unimaginable.
The world and technology is moving fast, and if we don’t watch out, one day our services may no longer be needed.
I remain a minister in the temple of justice.
© L. Attoh Esq.