By Bamidele Kolawole
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Foreign lawyers practicing in Nigeria must have been admitted to the Nigerian Bar. Without admission, a foreign lawyer cannot practice law in Nigeria except to a limited extent where they obtain a warrant from the Chief Justice of Nigeria for the purposes of a specific proceeding or appeals arising from such proceedings and must pass the Nigerian bar exams to practice law in Nigeria.

The Subject matter of the day regarding Foreign Counsel practicing temporarily in NIGERIA,is strictly a matter under the consideration of the LEGAL PRACTITIONERS ACT,which is the sole Provision in Sect.1 of the LPA, titled “ENTITLEMENT TO PRACTICE.

But before going further,we have to define who is “Foreign Counsel”,on that, I have this to say that, for the purpose of this subject matter, a Foreign Counsel is not only a non-Nigeria citizen,rather it is any Counsel who is not a Product of the Nigeria LEGAL EDUCATION SYSTEM.

By implication, any non-Nigeria citizen, trained in Nigeria doesn’t fall under this category, likewise any NIGERIAN trained elsewhere other than under the Nigeria LEGAL EDUCATION SYSTEM,and has not fulfilled the required conditions to Entitled him to PRACTICE in Nigeria, is a Foreign Counsel. Having defined who a foreign Counsel is,it is important to quickly answer that a Foreign Counsel cannot Appear before a Nigerian Court, except certain conditions are met.

For a Foreign Counsel who wishes to Appear before a Nigerian Court for just a Specific CASE, he or she must comply with section 1 of the NIGERIA LEGAL PRACTITIONERS ACT. Subsection 2, paragraphs a & b of the said section 1 of the LPA, Clearly spell out the conditions for a foreign Counsel to Appear before a Nigerian Court.

First among the qualifying conditions is that, the Home country of the foreign Counsel must have similar Legal system, i.e, of the COMMON LAW JURISDICTION, like Nigeria.

 Secondly, the foreign Counsel must apply to the CJN (CHIEF JUDGE OF NIGERIA),mentioning the particular case involved, as the CJN will not grant a Blank WARRANT that could be misrepresented as General and continuous Legal PRACTICE approval, that is to say, the approval to so Appear would be in respect of the very case mentioned in the application to the CJN, nothing more than that.

I am mindful of the fact that the subject matter of today is specifically on the Appearance of a Foreign Counsel, and not on becoming Resident General Legal Practitioner, so I won’t talk about the other sections of the Legal Practitioners Act, which talks about Right of Audience which is closely related to Appearance before a Court in Nigeria.

In conclusion, a foreign Counsel Appearance before a NIGERIAN Court is subject to Statutory Conditions, otherwise, the prospecting Foreign Counsel won’t be able to Appear before Nigerian Court.

By section 2(2) of the Legal Practitioners Act, a person though not called to the Nigerian bar may be allowed to represent a party in a proceeding in the Nigerian Courts. This is made possible through the warrant of the Chief Justice of Nigeria.

To achieve this, an application under this subsection is made to the Chief Justice of Nigeria by or on behalf of any person appearing to him to be entitled to practice as an advocate in any country where the legal system is similar to that of Nigeria and (he) is of the opinion that it is expedient to permit that person to practice as a barrister for the purpose of proceedings described in the application, he may by warrant with his hand authorize that person on payment to the registrar of a court such fee not exceeding N50, to practice as a barrister for the purposes of those proceedings.

See the case of Awolowo v Minister of Internal Affairs.

There is one general category of lawyers in Nigeria and for one to practice as a lawyer, he or she must have been admitted to the bar as barrister and solicitor of the Supreme Court without any distinction as to the roles or functions.

However, section 5 of the Legal Practitioners Act (Cap L11 Laws of the Federation of Nigeria 2004 (LPA)) provides for the conferment of the rank of “Senior Advocate of Nigeria” as a privilege to members of the legal profession who have practised as legal practitioners for over ten years and satisfy the requirements determined by the Legal Practitioners’ Privileges Committee.

All lawyers who have been called to the Bar have a right to conduct and take part in any court proceedings, sign and file legal documents and instruments as a legal practitioner on the condition that they hold a practicing certificate for that year.

The Rules of Professional Conduct for Legal Practitioners 2007 (RPC) specify that lawyers owes a duty to their client, the court and the state.

In summary, the duty of a lawyer is to:

Uphold and observe the rule of law,

Promote and foster the cause of justice.

Maintain high standards of professional conduct. Portray the legal profession in a good light. (rule 1, RPC.)

Lawyers with an educational background in Nigeria must successfully conclude a five-year undergraduate programme in law from any Nigerian University that has an accredited Faculty of Law and obtain a Bachelor’s degree in Law (LLB) and thereafter proceed for a one-year programme at any of the campuses of the Nigerian Law School (Bar part II) to obtain a qualifying certificate (BL) (section 5, Legal Education (Consolidation Act).

To be qualified as a lawyer, the applicant must satisfy the Body of Benchers that he’s of good character and produce a qualifying certificate to the Benchers (section 4(1), LPA).

Every lawyer called to the Nigerian bar must pay annual practicing fee, which confers on the lawyer a right to audience in court (rule 12, RPC):

Fee.

 The amount payable differs based on the year of call and payment of the annual practicing fee makes a lawyer to be entitled to a practicing certificate for that year, renewable annually and issued to lawyers whose names are on the annual practicing list (because they have satisfied the two requirements for the relevant year).

 In practice, however, an actual licence is rarely issued by the NBA and a receipt acknowledging payment of practicing fees for the year is sufficient for a lawyer to practice law in Nigeria.

By virtue of section 2(1) of the LPA, a legal practitioner is only entitled to obtain a practicing certificate if (and only if) his/her name is on the roll

However, the Chief Justice of. Nigeria can on application allow any advocate from any country where the legal system is similar to that of Nigeria, to practise as a barrister for the purposes of specific proceedings described in the application. The permission is issued in a warrant signed by the Chief Justice of Nigeria (section 2(2), LPA).

The general rule is that a foreign lawyer cannot practice law in Nigeria subject to some exceptions. In my humble opinion, the term “Foreign lawyer” as used here does not necessarily mean a non Nigerian lawyer but a person whether he or she is a Nigerian or not who has not been called to the prestigious Nigerian Bar and enrolled with the Supreme Court to practice law in Nigeria irrespective of the fact that he or she is a qualified lawyer in a foreign jurisdiction.

 This simply connotes that even a full blooded Nigerian who has been called to a foreign bar as a lawyer cannot practice law in Nigeria unless he or she is called to the Nigerian Bar too.

Having not been called to the Nigerian Bar, a foreign lawyer cannot practice law in Nigeria which, of course, includes appearing in Nigerian court.

This general position is however subject to some exceptions as earlier noted. A person who qualifies as a lawyer outside Nigeria is restricted from practicing in Nigeria.

 To practice in Nigeria such a person must attend the Nigerian Law School and pass through its legal vocational training programme starting from Bar Part I to Bar Part II after which he or she will be called to Bar in Nigeria thereby qualifying to appear in Nigerian courts.

Foreign lawyer can only carry out his or her practice in Nigeria by proxy which means he or she has to hire the services of a qualified Nigerian lawyer to assist in carrying out the legal task in Nigeria.

Take notice that this is not direct or pure partnership arrangement as Rule 5(1) of the Rules of Professional Conduct (RPC) prohibits a direct partnership, as a lawyer cannot form a partnership with a non lawyer or with a lawyer who is not admitted to practice law in Nigeria.

 Furthermore, a foreign lawyer can conduct litigation in court for specific proceedings by applying to the Chief Justice of Nigeria who issues a warrant to permit that person to practice as a barrister for the purpose of the proceedings, if the Chief Justice believes it to be expedient.

The foreign lawyer must be entitled to practice as an advocate in any country where the system is similar to that of Nigeria. See (section 2(1), LPA).

By Section 2 of the Legal Practitioners Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.

A person shall be entitled to practice generally if, and only if, his name is on the roll of Legal Practitioners kept by the Chief Registrar of the Supreme Court of Nigeria. Section 2(1) Legal Practitioners Act. The Act further provides that a person shall be entitled to have his name on the roll if, and only if (a) He has been called to the Bar by the Benchers (b) He produces a certificate of call to the Bar to the Registrar -Section 7(1) Legal Practitioners Act.

For the purpose of this article, a foreign lawyer is one who is a legal practitioner in another country other than Nigeria.

 However, a foreign lawyer can only practice in Nigeria for the purpose of a particular proceeding. S. 2(2) Legal Practitioners Act ―If an application under this subsection is made to the Chief Justice by or on behalf of any person appearing to him to be entitled to practice as an advocate in any country where the legal system is similar to that of Nigeria and (he) is of the opinion that it is expedient to permit that person to practice as a barrister for the purpose of proceedings described in the application, he may by warrant under his hand authorize that person on payment to the Registrar of such fee not exceeding fifty naira, to practice as a barrister for the purposes of those proceedings . Note: Awolowo v. Usman Sarki, Minister of Internal Affairs and the Attorney-General of the Federation (1962) LLR 177; (1966) N.S.C.C. 209.

The answer to this question is in the affirmative. Meaning that, a foreign Counsel can by virtue of Section 2 (2) of the Legal Practitioner Act, CAP L11 Laws of the Federation of Nigeria, 2004 appear before a Nigerian Court to conduct court proceedings.

A holistic look and analysis of Section 2 (1) & (2) of the Act will shed more light on this discourse.

 Although, Section 2 (1) provides: “Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll”

However, Sub-section 2 of the same Section 2 of the Act further provides: If-

(b) the Chief Justice is of the opinion that it is expedient to permit that person to practice as a barrister for the purposes of the proceedings described in the application, the Chief Justice may by warrant under his hand authorize that person, on payment to the Registrar of such fee not exceeding fifty naira as may be specified in the warrant, to practice as a barrister for the purpose of those proceedings and of any appeal brought in connection with those proceedings.

The purport of these provisions of law is to the effect that a foreign Counsel can actually appear before a Nigerian Court provided he satisfies the condition for his eligiblity to conduct proceedings in any Court in Nigeria.

 Some of the conditions include the following:

1. The foreign Counsel must first apply to the Chief Justice of Nigeria for a warrant, stating the purpose of the proceedings.

2. He must have paid the requisite fee specified in the warrant, which may not exceed #50

3. Following which the Chief Justice of Nigeria may authorize and/or permit such person to practice for that sole purpose particularly when the Chief Justice considers it expedient or urgent.

 Suffice it then to say that assuming the Russian world class Lawyer, Natalia VeselNitskaya who was rumoured to have been engaged by Obasanjo is actually true, it is incumbent on her to satisfy the requirements laid down in Section 2 (2) (b) of the Act.

 One may argue that there is no express provisions which stipulates a foreign Counsel can or cannot appear in any Court in Nigeria, it would also be appropriate to state too, that there is no express provisions in the same Section 2 (2) that provides that it is only Nigerian Lawyer that can appear before a Nigerian Court. “Sauce for the goose is sauce gander”.

However, the inference that could be made from Sub-section 2 is the provisions empowering a non-indigene Counsel to represent a client court.

In a nutshell, it is pertinent to state that although, we have come to terms with generally accepted principle in line with Section 2 (1) of the Act that it is only a person who has been called to the Nigerian bar and whose name is in the roll of legal Practitioner who is entitled to practice as a barrister and solicitor of the Supreme Court of Nigeria, however, we must not turn our blind eyes to provision of the law that equally permits any other person to apply for a warrant for a particular cause or proceedings.

The synopsis of this is that for every general rule there are exceptions.

Can a foreign counsel appear before a Nigeria court? This is a question that is incapable a yes or no answer.A foreign counsel can appear before a Nigeria court under certain defined terms and conditions. Law practice in Nigeria (appearance in Court), is a very regulated profession, find amentally by Legal Practitioners Act (Cap L11 Laws of the Federation of Nigeria 2004 (LPA) and Rules of Professional Conduct for Legal Practitioners (RPC).

Generally, a person is a Barrister and qualify to appear in courts in Nigeria if he has been called to the Nigerian Bar. In other words, any person can appear in Nigeria if he is qualified as a Counsel and he is not constitutionally or expressly forbids from doing so or the person is in default of payment of their annual practicing fees (Federal Republic of Nigeria v Osahon [2006] 5 NWLR (Pt.973), 361, at 419).

Therefore, to have right of appearance as Counsel before any Court in Nigeria, the lawyer must be a person who has been called or admitted to the Nigerian bar as barristers and solicitors of the Supreme Court after satisfying all the educational requirements specified by the relevant law.

A legal practitioner, cannot appear in court unless (s)he obtains a practicing certificate if (and only if) their name is on the roll. See section 2(1) of the LPA.

In addition, he he is required to pay practicing fee not later than a date in every year specified by the Nigerian Bar Association (NBA) (currently the 31 March). The amount of practicing fees to be paid depends on the year of qualification and is also a requirement for obtaining a stamp and seal at the various branches of the NBA. It is mandatory to affix the stamp and seal to court processes and documents prepared and signed by a lawyer.

Thirdly, a lawyer has no right of appearance or audience before any Court in Nigeria unless has is proved to have completed the required number of credits/hours of continuing professional development according to Rule 11 of RPC.

Not witstanding the defined criteria to be clothed with right of appearance, law permit some group of persons by virtue of their offices and being certain officers by virtue, i.e., the police and law enforcement agencies, registered Health Officers, etc, a limited allowance to conduct litigation in a matter they are prosecuting.

Foreign lawyers cannot represent clients in court. To have a right of audience in court, the lawyer must be qualified to practice in Nigeria as a barrister and solicitor of the Supreme Court and must have paid the practicing fees.

A foreign lawyer can appear in Nigeria Court under some restricted circumstances. Foreign lawyers are required to go through a mandatory Bar Part 1 course at the Nigerian Law School, where they learn the fundamental principles of Nigerian Law.

 The programme is a full-time, three-month programme open to graduates of law of common law countries whose law courses have been approved by the Council of Legal Education in Nigeria.

Again, a foreign lawyer can granted a limited right of audience in Nigerian court for specific proceedings by applying to the Chief Justice of Nigeria who issues a warrant to permit that person to practice as a barrister for the purpose of the proceedings, if the Chief Justice believes it to be expedient.

Foreign lawyers cannot represent clients in court. To have a right of audience in court, the lawyer must be qualified to practice in Nigeria as a barrister and solicitor of the Supreme Court and must have paid the practicing fees and must pass the Nigerian bar exams to practice law in Nigeria.

Lawyers qualified outside Nigeria are restricted from practicing in Nigeria. To practice in Nigeria, foreign lawyers must re-qualify as lawyers in Nigeria.

Lawyers qualified in another jurisdiction cannot provide temporary legal services in person. To provide legal services in Nigeria, a lawyer must be qualified to practice in Nigeria as a barrister and solicitor of the Supreme Court (section 2(1), LPA).

Foreign lawyers practicing in Nigeria must have been admitted to the Nigerian Bar. Without admission, a foreign lawyer cannot practice law in Nigeria except to a limited extent where they obtain a warrant from the Chief Justice for the purposes of a specific proceeding or appeals arising from such proceedings.

Foreign lawyers and law firms can only establish a commercial presence in Nigeria through contracting with lawyers qualified to practice law in Nigeria. Foreign law firms can form a partnership in which the partners will be Nigerians qualified to practice in Nigeria while retaining the name of the law firm in the foreign country, so forming a group structure.

Rule 5(1) of the RPC prohibits a direct partnership, as a lawyer cannot form a partnership with a non-lawyer or with a lawyer who is not admitted to practice law in Nigeria.

Foreign lawyers cannot represent clients in court. To have a right of audience in court, the lawyer must be qualified to practice in Nigeria as a barrister and solicitor of the Supreme Court and must have paid the practicing fees.

A foreign lawyer can conduct litigation in court for specific proceedings by applying to the Chief Justice of Nigeria who issues a warrant to permit that person to practice as a barrister for the purpose of the proceedings, if the Chief Justice believes it to be expedient. The foreign lawyer must be entitled to practice as an advocate in any country where the system is similar to that of Nigeria (section 2(1), LPA).

 In Nigeria, firms are a vehicle for organizing legal practice but not as legal personalities being capable of practicing law (Okafor v Nweke (2007) 10 NWLR (Pt 1043) 521).

Although you can only appear before a Nigerian court if you’re called to bar in Nigeria but there are exceptions. So yes a foreign counsel can appear in Nigerian court in exceptional instances.

There are those that can practice in particular proceedings (by warrant) by virtue of Section 2(2) of the Legal Practitioners Act

But such a person being a foreigner must show that he is qualified to practice law in a legal system that appears to be similar to that of Nigeria and the person must apply to the Chief Justice for the purpose of the proceeding described in the application.

The Chief Justice may have warrant under his hand authorize that person on payment of a specified amount to allow the person to practice as a barrister for the purposes of those proceedings.

You can see the case of Awolowo v Usman Sarki & Ors.