LAW IN PRACTICE
OVERVIEW
List four skills a Legal Practitioner should possess to provide the best possible service to his client. May 2011 No 3(b)(i)
v Negotiation skills
v Verbal communication skills
v Interview skills
v Research skills
v Advocacy skills
v Management skills
What alternatives to litigation are available. May 2011 No 3(b)(ii)
v Negotiation
v Mediation
v Conciliation
v Arbitration
v Hybrid processes
What factors that should be considered in advising a Client to choose ADR. August 2011 No 3(b)(iii)
v Preservation of the Relationship of the parties
v Cheapness
v Cost of litigation
v Time saving/delay in the judicial process
v Flexibility of ADR/ Parties have control of the process
v Publicity of litigation (confidentiality)
List the processes of negotiation and state any four negotiation tactics you may consider during negotiation. August 2011 No 3(b)(iv)
Process/ Stages of Negotiation
v Preparation/planning
v Contact/ice breaking stage
v Agenda setting
v Bargaining stage
v Conclusion
Negotiation tactics
v Puff
v Threat
v Deadline
v Take it or leave it
v Piecemeal
v Nibble
v Limited authority
v Lack of authority
Can a matter already brought before the Court be settled out of Court, and what happens to such settlement. May 2012 No 3(e)
Where a matter has already been brought before the Court, and the parties are still interested in settling out of Court, the Court can still, at the application of either party, adjourn the matter to enable the parties settle out of Court. The Court can also on its motion advise the parties on the possibility of alternative dispute resolution.
When a settlement has been reached out of Court by the parties, they may reduce such agreement into writing as the terms of settlement and file it in Court as a Consent Judgment, after which it becomes the judgment of the Court.
LAWYER’S DUTY TO THE CLIENT
Mention your first professional responsibility to your clients before commencing an action. May 2012 No 1(b)
The first duty of Counsel to his Client before commencing an action in Court is to advise such party on the possibility of alternative dispute resolution. Rule 15(3)(d) RPC.
Advise a Client on the validity of the deposit of the title deeds of her property by her Solicitor contrary to her instruction and what remedy she has. May 2011 No 2(a)
The deposit of the title deed with the Company is invalid. The instructions given to the Lawyer was to apply for Governor’s consent on her behalf in respect of the property. the lawyer was wrong to have deposited the client’s title deeds to obtain a personal loan. That is a breach of the Counsel’s to the Client. Rule 23 RPC. The client is therefore entitled to the return of the title deeds by the Company.
Identify the rules of the RPC breached by a Solicitor who was instructed by a Client to apply for Governor’s consent and instead he used the Title Deeds he was given to deposit as a security for a loan he collected. May 2011 No 2(b).
The rules breached by a Lawyer who was given instructions by his client to apply for Governor’s consent on her behalf in respect of the property and the lawyer deposited the client’s title deeds to obtain a personal loan, are Rules 18 and 23 RPC.
By the provisions of Rule 18(2) RPC, a Counsel is bound to ensure that agreements between him and his clients are fulfilled whether or not such agreements are reduced into writing. The Lawyer was in breach of this Rule when he failed to carry out the instruction and agreement reached with his clients.
Also the Counsel is in breach of Rule 23(1) RPC which stipulates a Counsel shall not any act whereby for his personal benefit or gain, he abuses or takes advantage of the confidence reposed in him by his client.
Briefly comment on the ethical implication of a Counsel who was instructed and paid to incorporate a Company but he failed to and started hiding from the client and the possible consequence. May 2012 No 3(a)
The ethical implication is that Counsel has committed professional negligence which amounts to professional misconduct. Rule 14 RPC; Section 9(1) LPA and also Rule 16(c) by neglecting a legal matter entrusted to him.
Possible consequences:
» He is liable to have his name struck off the roll
» He may be suspended
» He may simply be admonished/reprimanded
» He may be ordered to refund the money to the Client. Section 12 LPA.
What are the duties (if any) to the Client breached by a Counsel who was instructed to institute an arbitration action in respect of a contract but he rather instituted an action in the Federal High Court. May 2012 No 3(b)
The duties which Counsel owes to his client which have been breached are as follows:
» Duty to follow clients lawful instructions rule 14 RPC
» Duty to exercise professional competence, diligence and skill in the conduct of a client’s case Rule 14 RPC
» Duty to represent client competently Rule 16 RPC
» Duty to keep agreements with client Rule 18 RPC
What are the duties (if any) to the Court breached by a Counsel who appeared in Court wearing a pair of white shoes; who addressed a High Court Judge as “Your Worship” and who was absent from Court sitting without notifying the Court. May 2012 No 3(b)
The duties which Counsel owes to his client which have been breached are as follows:
» Duty to treat the Court with respect and dignity Rule 31 RPC
» Duty to conduct himself with decorum Rule 36 RPC
» Duty to dress appropriately Rule 36(1)RPC
» Counsel must know the appropriate way to address a Judge
» Counsel must attend all sittings of Courts and must inform the Court if he seeks to be absent
» Counsel must maintain a respectful attitude towards the Court in words and in deed.
State instances when a Counsel may take instructions from his client outside his law office and why. May 2011 No 3(b)(iii)
By Rule 22 RPC, A Counsel shall not call at the house of place of business of his clients for the purpose of giving advice or taking instructions. However the Rules contain exceptions where a Counsel may call at the house or place of business of the Client in special circumstances.
A Counsel may take instructions from his client outside his law office in the following instances:
v Where the client is elderly
v Due to illness
v Where the nature of the client’s job requires his physical presence
What recourse is available to a client who claims to have paid a Lawyer fully for services not rendered as the time of the termination of the relationship. August 2011 No 1(d);
The Client is entitled to the refund of the fees which the Lawyer has not clearly earned. Rule 21(4) RPC.
Where a Lawyer who had been fully paid for services who seeks to withdraw from representation of the client, what are the obligations which the Lawyer owes to the client, before, at or after the withdrawal. May 2012 No 4(7)
By Rule 21 RPC the obligations owed by the Counsel include:
Before the withdrawal
» Give the client reasonable notice to enable the client employ another lawyer
At the time of withdrawal
» Give notice to the Court of the withdrawal
After the withdrawal
» Refund the fees which the Lawyer has not clearly earned
» Return the case file to the Client
Comment on the threat by a Legal Practitioner (who is aggrieved that he was debriefed by his Client) to expose the illicit relationship between the Client and another person, to the Client’s husband, which information he came across in the course of their Client/Counsel relationship. August 2011 No 1(e)
A Counsel owes the duty of confidentiality to his client and is prohibited from disclosing confidences of the client over matters which came to his knowledge in the course of the counsel client relationship except in certain circumstances. The relationship is owed not only by the legal practitioner but also by his employees and associates and the duty continues even after the termination of the relationship. Rule 19 RPC
State four instances you may be allowed to disclose privileged communication between you and your client. May 2012 No 1(d)
By Rule 19(3) RPC, there are certain instances where a Counsel may disclose professional confidences between him and his client as follows:
» Where such disclosure is with the consent of the client
» Where such disclosure is permitted by the rules or required by law or by a Court order
» Where there is reasonable cause to believe that the client intends to commit an offence or harm to another person and the disclosure is necessary for the purpose of preventing such offence or harm
» Where the Counsel is charged with misconduct, for the purpose of defending himself
» In an action for the recovery of his professional fees.
Section 192 Evidence Act 2011. Queen v Eguabor.
A client is confused as to why a Lawyer refused her brief of wrongful dismissal simply because her husband is the Managing Director of the Sister Company of her former employer. Explain to her. August 2011 No 1(f)
One of the exceptions to the duty of a Counsel to accept all briefs is the conflict of interest. Rule 17 RPC provides that a Counsel owes the duty to his client to avoid conflict of interest and to disclose the circumstances of his previous relationships which may affect the discharge of his professional duty to the client. He may then continue if the client consents after such full disclosure.
The Lawyer in this case being the wife of the Managing Director of the Clients’ former employer may lead to a conflict of interest is right to refuse to brief.
Write a brief legal opinion on the ethical implication of a Counsel representing a Party against another Party that he had earlier acted for. August 2011 No 2(a)(iii)
Although Rule 17 RPC provides that a Counsel owes the duty to his client to avoid conflict of interest and to disclose the circumstances of his previous relationships which might influence the client in the selection of the lawyer. He may however continue to represent such client, if the client consents after such full disclosure. Onigbongbo Community v Minister of Lagos Affairs.
A client has asked you to advise her on an easier line of action to follow as she is getting frustrated by her attempt to seek legal redress, what would you advise her client to do assuming she has engaged you as her Counsel. What else would be your reason for suggesting this line of action. August 2011 No 1(f)
The best advice to give a client who seeks an easier line of action to seek legal redress is to explore the possibility of alternative resolution. Apart from the above reason, other reasons for suggesting ADR as a line of action include:
v Preservation of the Relationship of the parties
v It is cheaper
v It is less formal
v It is quicker and time saving unlike the delays in the judicial process
v It less flexibility as parties have control of the process
v It is held in private as against the publicity of litigation
What advice would you give a legal practitioner who paid client money into his own account. August 2011 No 4(d).
My advice is that it is professional misconduct for a legal practitioner to intermingle client money with his money or to pay client money into his own account. Rule 23(2) RPC; Section 20 LPA. I would advise him to open a separate client account and pay al client money into such account.
Comment on the propriety of a Counsel accepting a brief concerning a matter he had earlier acted in a Public Office before his retirement. May 2012 No 1(c)
Rule 6(2) RPC provides that A Counsel having once held public office or having been in public employment shall not, after retirement accept employment in any matter in respect of which he has previously advised on or dealt with in such judicial capacity or such office or employment.
It is improper for the lawyer to accept to represent such party since he has previously acted in such matter as a Director in the Ministry of Commerce.
Assuming you acted for a Client in a case in Court and lost. And your Client has commenced legal actions against you, contending that your line of argument was responsible for their loss. What will be your response. May 2012 No 1(e)
Generally, a legal practitioner shall not immune from liability for damages attributed to his negligence while acting as a legal practitioner for his client. Section 9(1) LPA.
However, there is an exception as a legal practitioner is immune from liability for loss or damage attributed to his negligence in actions arising from his conduct of proceedings in Court. Section 9(3) LPA. Rondel v Worseley.
Based on the above, I will not be liable and the action will fail since the alleged negligence is said to have been committed in the face of court.
Comment on the propriety or otherwise of a Counsel appearing as a witness for a Client in the same he is conducting as a Counsel in Court. May 2012 No 4(6)
A Counsel is prohibited from appearing as a witness for a client in a matter of which he also represents him as a Counsel in Court and neither he nor any lawyer in his firm should accept employment where it is likely that he or any lawyer in his firm may be called or ought to be called as a witness except in non contentious matters. Rule 20 RPC. The best avenue available to a Counsel where his testimony is vital to the client’s case is withdraw from such employment as Counsel.
The Lawyer ought not to have continued to represent the client in this circumstance.
LAWYER’S DUTY TO THE STATE
With the aid of authorities, write an opinion regarding the role of a law firm in demanding #5000 from a client to give the Commissioner of Police as gratification 2010 No 1(e)
A Counsel is prohibited from advising or assisting a client in the violation of the law. A counsel owes a duty to the state not to advise or assist in the violation of the law. Rule 15(1) RPC. Goodspencer v Spencer ; Myers v Myers.
It is wrong for Counsel to ask for money from a client in order to bribe a policeman.
Explain if there is any support for a Lawyer going ahead with the case in spite of the Client’s confession of guilt. 2010 No 4(a)(ii)
A confidential disclosure of guilt alone by a client is not a ground for a client to withdraw from employment. The counsel should continue with the case but should not present any evidence inconsistent with those facts and shall not offer any testimony which he knows to be false. Rule 37(3) RPC.
Counsel may advise the client to simply plead not guilty and allow the prosecution attempt to prove the guilt of the accused person beyond reasonable doubt as he presumed innocent until proven guilty.
Comment on the action of a Legal Practitioner who presented a defence of mistaken identity after his client had confessed to his guilt to the lawyer. 2010 No 4(a)(i)
A counsel owes a duty to the state not to advise or assist in the violation of the law. Rule 15(1) RPC. Goodspencer v Spencer ; Myers v Myers.
It is wrong for Counsel to knowingly use perjured or false evidence or to knowing make false statement of law or fact; or participate in the creation or preservation of evidence which he knows or ought reasonably to know is false. Rule 15(3)(f),(h)&(i) RPC.
When the client confessed to his guilt, it wrong for the counsel to have knowingly presented a false defence in court and in his opening statement by relying on mistaken identity.
Where a Client confesses to commission of an offence, instead of making an opening statement and telling a story inconsistent with the confession of guilt, what alternative statement or action should the Lawyer present or pursue at the trial. 2010 No 4(a)(iii)
When the client confessed to his guilt, it wrong for the counsel to have knowingly presented a false defence in court and in his opening statement by relying on mistaken identity. Instead counsel should have advised the client to simply plead not guilty, avoid making an opening statement and allow the prosecution attempt to prove the guilt of the accused person beyond reasonable doubt.
What option is open to a Counsel when his client insists on an illegal course. May 2012 No 4(2)
When the client insists on an illegal or unjust or immoral course in the conduct of his case or in pressing a frivolous defence despite the lawyers’ remonstrance, the lawyer should withdraw from such employment. Rule 21 RPC.
With authorities, state what professional offences have been committed by a Lawyer who connived with a Client to conceal the Will of a Deceased Testator. May 2012 No 4(1)
The professional offence committed is infamous conduct in a professional respect. Section 12 LPA.
Would your answer to the question above be the same, if the act was done by a medical Doctor. May 2012 No 4(3)
My answer will be different. This is because what amounts to professional misconduct in a professional respect in the legal professional may not be the same for the medical profession as medical doctors are not in the usual practice of handing wills for their patients. Allison v General Medical and Dental Registration Council.
Where a Counsel is facing a charge of concealment for concealing the Will of Deceased Testator on the instruction of his Will, a Child of the Testator, can he rely on the defence of the principle of client confidentiality. May 2012 No 4(8)
A Counsel owes the duty of confidentiality to his client and is prohibited from disclosing confidences of the client over matters which came to his knowledge in the course of the counsel client relationship. Rule 19 RPC However, a Counsel cannot rely on the defence of confidentiality to commit an offence. What is more? Counsel has a responsibility to report a client when he believes such client intends to commit an offence as an exception to the rule of confidentiality and hence cannot himself rely on the defence to perpetrate a crime.
LAWYER’S DUTY TO FELLOW PROFESSIONALS
Assuming a client informs you that he had earlier contacted another law firm in relation to the matter for which he seeks to conduct you, what is your next line of action? 2010 No 1(c)
A Counsel owes a duty to his professional colleagues not to covet their client. Where a lawyer knows or ought reasonably to be aware that a person is already represented by another lawyer, he should have not any dealing with that person without giving prior notice to the other lawyer and to use his endeavours to ensure that all his earned fees are paid. Rule 27 & 29 RPC
Write a letter to a law firm informing them that a client has consulted you in view of a matter they had earlier been consulted. 2010 No 1(d)
Draft (letter)
Assuming a Counsel is taking over a case from another Lawyer, state the duties expected of the two Lawyers individually and collectively. August 2011 No 1(c)
Where there is a change of counsel, the individual duty of the new lawyer is to give prior notice to the other lawyer and to use his endeavours to ensure that all his earned fees are paid. Rule 29(1) RPC.
Then collectively, both the old and new Counsel have a duty to give notice of the change to the Court. Rule 29 (2) RPC
LAW OFFICE MANAGEMENT
A Lawyer just recently set up his law firm, and has need to employ other lawyers to work with him in view of his robust practice, advise him. May 2011 No 4(b)
My advice to him is to establish a sole proprietorship and employ other lawyers and support staff as his employees or to join other lawyers as a partnership.
State five modern office equipment for effective case management by a lawyer. May 2011 No 4(c)
» Computer
» Telephone
» Printer
» Photocopying machine
» Fax machine
» Scanner
» Internet facilities
» Electronic law reports
To give support to a Lawyer who just set up a robust law practice, suggest three possible office support staff he would require. May 2011 No 4(d)
» Secretary
» Accountant
» Litigation secretary
» Typist
» Driver
» Receptionist
DRAFTING
Write an application for employment in a law firm and your curriculum vitae 2010 No 3(a); A Lawyer is worried on what should be the contents of a good CV, advise him. May 2011 No 3(c)(i)
Draft an application for adjournment. May 2011 No 4(a); August 2011 No 3(b)(ii)
Draft a letter to a Court informing the Court that you would not be able to attend a Court Sitting because you were involved in an accident. May 2012 No 3(c)
Draft a letter to a company, demanding compensation for a client for injuries suffered by the client. August 2011 No 2(a)(i)
Re-draft a Lease Agreement in plain English to remove the redundant words and archaic expressions used and fill in any gaps and ensure a standard agreement is prepared. May 2011 No 1
Draft a Pre-action Notice to a Defendant Ministry. May 2012 No 1(a)
Draft an application for re-listing a matter struck out (without affidavit) May 2012 No 3(d)(ii)
Drafts
What is the evidential import of a letter marked. “Without Prejudice” August 2011 No 2(a)(ii)
A letter marked “without prejudice” will not be admissible in court against the maker if negotiations break down between the parties. Ashibogwu v AG Bendel State.
Outline the essentials of a good minutes of a meeting. May 2011 No 3(c)(ii)
» Heading (stating the type of meeting, date and venue)
» Attendance
» Other persons in attendance
» Opening prayer
» Adoption of agenda
» Adoption of minutes of previous meeting
» Matters arising
» Resolutions
» Any other business
» Motion for adjournment
» Closing prayer
» Signature
ORDER OF PRECEDENCE
Comment on the action of a Judge in stopping a Registrar who was reading a case no from the cause list and instead asked him to call the case of an SAN who just walked into Court and whose case was the last on the cause list. August 2011 No 1(a)
One of the privileges of Senior Advocates of Nigeria is the right to have their motions and matters listed for mention and not otherwise listed for hearing to be called out turn.8
However, the Court will be wrong to order a Registrar who has already started to call a case from the cause list to stop call the case of the Senior Advocate of Nigeria who just walked into the Court.
Advise the Court on the Order of Precedence and who is entitled to have his matter called first between a Senior Advocate of Nigeria and a Life Bencher. May 2012 No 1(f)
As between a Life member of the Body of Benchers and a Senior Advocate of Nigeria, a Life Bencher should be accorded precedence. By Section 6(3) LPA, Life Benchers are accorded the same privileges as Law Officers and thus rank higher on the order of precedence than SANs.
APPOINTMENT AND DISCIPLINE OF JUDICIAL OFFICERS
In summary, outline 5 steps in the procedure for the appointment of Judges as contained in the Revised NJC Guidelines for the appointment of Judges and Khadis. 2010 No 2(c); May 2012 No 3(e)(ii)
» The Chairman of the State Judicial Service Commission shall notify the Governor of the State of the intention to appoint Judges, stating the number of Judges required, and request consent.
» The State JSC shall send a copy of the intention to the Secretary of the NJC together with the consent of the Governor
» Upon the consent of the Governor, the Chief Judge of the State shall call for recommendation of qualified persons for appointment as Judges (which shall be double of the number of persons to be appointed)
» Names of shortlisted candidates shall be circulated to serving judicial officers and NBA branches
» Candidates shortlisted shall submit their NJC Bio Data Form A together with their CVs for screening
» The JSC shall meet to deliberate, screen and select candidates
» The names of the selected candidates are then sent to the NBA branches and serving judicial officers for their comments
» The SJSC shall send names of the recommended candidates to the NJC together with the minutes of the meeting of the JSC where the decision was taken to recommend the persons
» The NJC shall then forward the names of the persons to the Governor for appointment.
» The Governor will appoint the Judges on the recommendation of the NJC subject to the confirmation of the State House of Assembly in the case of the Chief Judge of the State.
Advise a party who has been disciplined by the LPDC for professional misconduct on the procedure for appointment of Judicial Officers and whether he will succeed in his ambition to be a Judge. May 2012 No 3(e)(ii)
It is unlikely that a person who has previously been found guilty of professional misconduct for the breach of the rules of the professional misconduct will be appointed as a Judge.
Explain briefly the procedure for the removal of the Chief Judge of a State. May 2012 No 2(a)
The procedure for the removal of the Chief Judge of a State is as follows:
» A petition is sent to the NJC against the Chief Judge for misconduct, breach of the code of conduct or inability to discharge the functions of his office (by reason of infirmity whether of the body or of the mind)
» The NJC shall set up a panel to investigate the allegation
» If the allegation is established, the NJC shall recommend to the Governor that he be removed from office
» The Governor acting on the address of two-third majority of the State House of Assembly shall remove the Chief Judge from office
Section 292(1)(ii) CFRN 1999.
The procedure adopted by the House of Assembly of the State for the removal of the Chief Judge of a State in this case was wrong.
What are the grounds for the removal of a Judicial Officer. May 2012 No 2(b)
» Misconduct
» Breach of the code of conduct
» Inability to discharge the functions of his office (by reason of infirmity whether of the body or of the mind)
Section 292(1) CFRN 1999.
Can a Judicial Officer practice as a Lawyer after his removal from office. State (if any) the restrictions which a Judicial Officer is subject to while practicing as a Lawyer. May 2012 No 2(c)
A Judicial Officer can practice as a lawyer after his removal from office. However, he can practice only as a Solicitor. Section 292(2) CFRN 1999; Rule 6(3) RPC 2007.
The restrictions facing a Judicial Officer after his removal or retirement are as follows
» He cannot appear in Court as an Advocate on behalf of clients
» He cannot sign any process on behalf of clients
» He should not accept any employment, the subject matter of which he has previously handled in his judicial capacity
» He should not accept any briefs, the merits of which he advised on while in office.
INTERPRATATION OF STATUTES
What rule of interpretation would you employ as a Judge in the event of a conflict between a general and specific provision of a Statute. August 2011 No 3(b)(i)
In the event of a conflict between a general and specific provisions the latter prevails because the general provisions in a statute cannot override special provisions of the law. Schroeder v Major
CONTEMPT OF COURT
Where a Counsel insults a Judge and the Judge doesn’t take it likely with him, state the offence that a Counsel is liable to be convicted for and state in numbered paragraphs, the steps that could be taken against such Lawyer. August 2011 No 1(b)
The Counsel will be guilty of the offence of contempt of court.
i. Contempt committed in the face of court (contempt in facie curiae) can be tried summarily.
ii. The Judge will order the contemnor to step into the dock and show cause why he should not committed for contempt.
Another way is to undertake the normal process of arrest, arraignment and trial as applicable in criminal trials generally.
Can a person in a summary trial for contempt in facie curiae, plead nemo judex in causa sua? Give reasons for your answer. May 2012 No 4(4)
A Court has jurisdiction to punish for contempt committed in the face of court (contempt in facie curiae) can try same summarily.
A contemnor cannot rely on the plea of nemo judex in causa sua.
What principle of law can a Counsel insist on where a Judge tries him for Contempt allegedly committed against the same Judge. May 2012 No 4(5)
A Counsel can insist on the principle of fair hearing during the trial.
SOLICITOR’S BILLINGS
What are the options available to a Solicitor in recovering his professional fees. 2010 No 2b(i)
The options available to a Solicitor for the recovery of his professional fees are
· Alternative dispute resolution
· The Solicitor can prepare a bill of charges, serve the bill of charges on client and proceed to Court after waiting for one month to elapse from the date the bill is served. Section 16 LPA; Oyekanmi v NEPA; FBN v Ndoma Egba.
· To exercise a lien on the property in his possession e.g. the client’s money or documents
· Obtain a charging order in response of property recovered or procured by the lawyer.
List the contents of a bill of charges. 2010 No 2a(ii)
· Heading of the bill
· Date on which it was issued
· Name and address of client
· Particulars of the items to be charged
· Particulars of principal items e.g.
- Professional fees charged
- Cost of advertisement
- Estate surveyor’s fees and date incurred
· Date on which the principal items were incurred
· Signature of the legal practitioner
· Status of the legal practitioner
Draft Bill of Charges. August 2011 No 4(a)
Draft (Bill of Charges)
Itemize the process for recovery of professional charges August 2011 No 4(b)
The procedure for the recovery of professional fees by a Solicitor are as follows:
· The Solicitor should prepare a bill of charges, setting out the particulars of the principal items
· Service of bill of charges on client personally or to his last known address
· Allow one month to elapse from the date the bill is served
· Proceed to the High Court of the State where the Solicitor has his firm
Section 16 LPA; Oyekanmi v NEPA; FBN v Ndoma Egba.
Draft a Statement of Claim for the recovery of professional charges. August 2011 No 4(c)
Draft (Statement of Claim)
LEGAL PRACTITIONERS ACCOUNT RULES AND ACOUNT
Draw up a Solicitor’s cash book and opening balance in a ledger. 2010 No 2b(i)
Draft (Cash Book and Ledger)
ARBITRATION
Write a short essay on how to challenge and enforce an Arbitration. 2010 No 3(b)
The procedure to enforce an Arbitration
· Application to the High Court attached with the following:
· A duly authenticated original award or a duly certified copy
· Original arbitration agreement or duly certified copy
· The award may then by leave of court and enforced in the same manner as a judgment of the Court
Section 31 Arbitration and Conciliation Act
The procedure to enforce an Arbitration
· The challenge must be made within 3 months of the date of the award
· By way of application to set aside the award, supported with an affidavit
Section 32 Arbitration and Conciliation Act
ADVERTISEMENT AND IMPROPER ATTRACTION OF BUSINESS
Comment on postings made in the websites of two Law Firms portraying themselves as the leading law firms in Nigeria. 2010 No 3(c)
Rule 39 RPC 2007 provides that a lawyer may engage in any advertising or promotion in connection with the practice of the law so far as it is fair and proper in all the circumstances and complies with the RPC.
A posting on the website of a company portraying a firm as a leading firm is not fair and proper in the circumstance and amounts to an advertisement that is in breach of the rules. Rule 39(1)(a) & Rule 39(2)(a)&(b) RPC 2007.
A Lawyer wants to set up a website for his law practice where he would display his professional qualifications, the nature of cases he handles, the cases he has handled and won and his range of professional charges etc. advise on him on the ethical issues involved. May 2011 No 4(e)
Rule 39 RPC 2007 provides that a lawyer may engage in any advertising or promotion in connection with the practice of the law so far as it is fair and proper in all the circumstances and complies with the RPC.
By stating the cases he has handled and won and the range of his professional charges he may be breaching the rule which prohibits improper advertising and soliciting.
Write a reflective opinion on the topic “In reality there is no difference between advertisement and solicitation by the Lawyer under the RPC” 2010 No 3(d)
There is a difference between advertisement and soliciting under the Rules of Professional Conduct.
Advertisement involving furnishing, permitting or inspiring newspaper, radio or television comments in relation to a lawyer’s practice or making statements about the lawyer’s work, the size of success of his practice and comparison or criticism of other lawyers. It may in some circumstances be permitted by the Rules if it is fair and proper in all circumstances.
Soliciting involves improper attraction of business though direct approach or indirect soliciting by circulars, handbills or through touts. It is in all circumstances prohibited by the Rules.
PROFESSIONAL DISCIPLINE OF LAWYERS
Describe how to commence disciplinary procedure against a Lawyer for breach of the RPC. May 2011 No 2(c)(i)
The ways to commence disciplinary proceedings against a Lawyer who breaches the RPC are as follows:
The Client may write a petition and send to any of the following persons:
· the Chief Justice of Nigeria,
· the Attorney General of the Federation,
· the President of the Court of the Appeal or the Presiding Justice of any Court of Appeal Division,
· the Chief Judge of a State or the FCT,
· the Chief Judge of the Federal High Court
· the Chairman Body of Benchers
· the President of NBA or the Chairman of a Branch of the NBA
Any of these persons may receive the petition against the Lawyer.
Describe the procedure the Disciplinary Authority will comply with in the discipline of an erring Lawyer. May 2011 No 2(c)(ii)
The procedure for the commencement disciplinary proceedings against a Lawyer by the Disciplinary Committee is as follows:
· The written complaint received by any of the persons authorized by the LPDC Rules should be sent to the NBA for investigation.
· The NBA investigates and sends to the Secretary of the LPDC its report of the investigations and copies of documents it used for the investigation which shows a prima facie case against the lawyer
· The LPDC will fix a date for hearing and notify the parties including the lawyer who is charged
· If the party charged fails to appear at the hearing, the LPDC may determine the case in his absence
· The committee may take any number of witnesses any may direct the counsel representing the parties to file written addresses
· If after the hearing, the committee finds that the lawyer has committed the professional misconduct charged, it may direct the Registrar of the Supreme Court to give a particular punishment to the lawyer
· A copy of the record of proceedings of the trial should be served by the LPDC on any party that appeared at the proceedings.
See LPDC Rules 2006.
What are the types of punishment that can be meted out to a legal practitioner for breach of his duties to his Client. May 2011 No 2(c)(iii).
» He is liable to have his name struck off the roll
» He may be suspended
» He may simply be admonished/reprimanded
» He may be ordered to refund the money to the Client. Section 12 LPA.
As a Counsel to the Defendants, draft a petition to the appropriate authority against a Legal Practitioner for concealing the Will of a Deceased Testator. May 2012 No 4(9)
Draft (Petition)
ADVOCACY/EXAMINATION OF WITNESSES
Write a short explanation of the principles and scope of cross-examination. 2010 No 4(c)(iii)
The principles of cross examination by Section 223 Evidence Act 2011 is as follows. Cross examination should aim at:
» to test the accuracy, veracity and credibility of the witness;
» to discover who he is and his position in life;
» to shake his credit by injuring his character;
Its purpose also include to elicit favourable evidence for the opposing party and to put forward the opposing party’s version of the case through the witness; to show why the evidence of the opposing party should be rejected etc.
Scope of cross examination:
The sky is not the limit in cross examination.
Cross examination should also relate to relevant fact although it need not be confined to the facts to which the witness testified in examination in chief. Section 215(2) Evidence Act 2011.
Some questions are irrelevant to the proceedings e.g. indecent and scandalous questions, questions that are needlessly offensive, questions calculated to embarrass and questions intended to insult or annoy and may not be asked or may even be forbidden by the Court. Sections 224-228 Evidence Act 2011.
What would be your ground for opposing a question asked by a Prosecution Counsel during re-examination in the following words’ “You know that what you have stated before this Court is not the truth and that you have testified so because you are afraid of the Defendant?” 2010 No 4(b)(i)
The question is in the nature of questions that are asked in cross examination. A party is not allowed to cross examine its own witness during re-examination unless the witness has first been declared a hostile witness with leave of court. Section 230 Evidence Act 2011.
The question is also a leading question which cannot be asked in re-examination unless permitted by the Court. Section 221(2) Evidence Act 2011.
Is there any stage during a trial that a Prosecution could ask its witness this kind of question. 2010 No 4(b)(ii)
Yes when the witness has been first declared a hostile witness.
Generally, a party is not allowed to ask this kind of question in examination in chief or to impeach the credit of its own witness unless the witness has first been declared a hostile witness with leave of court. Section 230 Evidence Act 2011.
Also being a leading question, it can be asked in re-examination where permitted by the Court. Section 221(2) Evidence Act 2011.
State how the Prosecution can discharge the burden of proof of over speeding. August 2011 No 3a(e)
The Prosecution can discharge the burden of proving over speeding by calling eye witnesses and tendering the sketch map
State the sequence for tendering a sketch map in evidence in a trial. August 2011 No 3a(g)
The sequence for tendering a sketch map is as follows:
» Lay proper foundation
» Show document to the witness
» Apply to the Court to tender the sketch map
» Document will be shown to the other party
» If there is no valid objection, document will be admitted in evidence
State whether a matter which has been struck out can be brought before the Court again and how. May 2012 No 3(d)
A matter which has been struck out can be brought before the Court again by relisting the matter. The way to do this is by bringing an application by way of motion on notice supported by affidavit before the Court. If the application granted, the matter will be re-listed.
LEGISLATIVE DRAFTING
Set out briefly the stages you will take in drafting a proposed Bill. 2010 No 2d(i)
» Taking and Understanding of instructions
» Analysing the instructions
» Designing the draft
» Composing the draft
» Scrutiny
Draft the long title for a Bill 2010 No 2d(ii)
A Bill for an Act to provide for the compulsory monetary allowances for al unemployed youths in Nigeria and for matters connected therewith.
Draft the commencement clause of a Bill. 2010 No 2d(iii)
This Bill shall come into operation on such a date as the Federal Minister of Labour may determine by Notice in the Official Gazette.
Draft the enacting clause, interpretation clause, establishment clause, long title, short title, commencement and schedule of a Legislation. May 2011 No 3(a); August 2011 No 2(b)
Enacting clause
» Enacted by the National Assembly of the Federal Republic of Nigeria
Interpretation clause
In this Act, unless otherwise provided:
» “Commission” means the Independent Child Social Security Rights Commission
» “Member” means a member of the Independent Child Social Security Rights Commission
Establishment clause
» There is established a body known as the Independent Child Social Security Rights Commission
Long title
» An Act to Promote Child Rights and to Establish the Independent Child Social Security Rights Commission
Short title
» This Act shall be cited as the Child Social Security Rights
Commencement
This Act shall come into operation on such a date as the Federal Minister of Women Affairs may determine by Notice in the Official Gazette.
Schedule
The list of the Countries with which the Federal Government wishes to enter bilateral agreement are:
Draft the short title of an Act by the National Assembly passed in 2011 which amends the Legal Practitioners Act, 1975. May 2011 No 3(b)(iv)
This Act shall be cited as the Legal Practitioners (Amendment) Act 2011
Mention five sources of materials used in drafting legislations. 2010 No 2d(iv)
» Party manifesto
» Electoral promises
» Law reform Commission
» Civil Society Advocacy
» Government Policies
» Newspaper Editorials and Publications
» Government White Paper
» Judicial Decisions
» Legislative Resolutions
» Memos from Government Departments
» International Obligations
FILE MANAGEMENT
How would you deal with files which matter has been concluded in your law office? 2010 No 2(e)
» The Lawyer is required to keep for at least six(6) years from the date of the last entry in the books, all books and account kept by him
» He can move the files to low cost storage for a reasonable time before destruction
» The statute of limitation should be considered in determining how long to retain a file before destruction
» Important documents in the file should be removed and returned to the client before destruction.