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The New Nigerian Legal Aid Decree
Published online by Cambridge University Press: 28 July 2009
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- Copyright © School of Oriental and African Studies 1978
References
1 See Legal Aid (Criminal Proceedings) Act, 1969 (Tanzania), and Read, “The advantage of counsel”, (1971) 7 E.A.L.J. 291; on Zambia, Davies, “Legal services to the poor in Zambia”, in Legal Aid and World Poverty; Wanda, “Legal aid services in Malawi”, 11 Af. Law Stud. 37; Ghai and McAuslan, Public law and political change in Kenya, p. 400.
2 It is not meant to suggest that the Bar Association has paid no attention at all to the matter—the necessity for legal aid was, for example, adverted to by Mr. R. O. A. Akinjide in his Presidential Address to the association at the 1971 Annual Conference.
3 For example, there was an emergency conference and a one-day boycott of the courts in 1971 in protest at the imprisonment of a practitioner for contempt by a Judge in Ilorin: an account is given by Mr. A. Ogunsanya in Proceedings of the Nigerian Association of Law Teachers Conference, 1974.
4 An emergency conference in Ibadan in 1970 was wholly devoted to this question.
5 A major resolution was passed on this at the 1965 Bar Conference, followed by a pamphlet, Making Our Bar Sovereign, and returned to in Mr. Akinjide's 1971 Presidential Address.
6 The boycott of the courts had the desired effect and the fees were reduced to their former level.
page 79 note 1 In 1970–71 I interviewed a number of Nigerian lawyers, 65% of whom said the legal system did not adequately serve the poor.
page 79 note 2 Certainly legal aid has benefited the English profession: see Abel-Smith and Stevens, Lawyers and the courts, pp. 379, 423.
page 79 note 3 I have described this elsewhere, particularly in “Aspects of the problem of the representation of defendants in criminal cases”, (1967), a Nig. L.J. 3.
page 79 note 4 Referred to by Akinkugbe, “The Role of the Lawyer in Society” in Elias (ed.), Law and social change in Nigeria, p. 101.
page 79 note 5 See n. 3, above.
page 79 note 6 Criminal Procedure Act (Southern States), s. 352; Criminal Procedure Code, s. 186. The former requires a lawyer to be provided “if practicable”.
page 79 note 7 See the article cited at n. 3, above.
page 79 note 8 In reply to a questionnaire in 1966 in the Western Region, 56 of 58 respondents said the rates were inadequate: ibid.
page 79 note 9 Ibid.: see Supreme Court Act, s. 32.
page 79 note 10 The latter is a capital offence under the Armed Robbery Decree, 1966.
page 79 note 11 E.g. High Court Rules, Order 24 (Ondo, Oyo and Ogun States).
page 79 note 12 Two or three cases a year in Lagos and former Western States (information from Chief Registrars of High Courts).
page 79 note 13 General Council of the Bar, Rules of professional conduct in the legal profession, (1967), rule 42.
page 79 note 14 See Youngwood, “The contingent fee—a reasonable alternative”, (1965) 28 M.L.R. 330.
page 79 note 15 At least the Bar Council's permission has not been sought.
page 80 note 1 Decree No. 56.
page 80 note 2 Legal Aid Decree, s. 19 (2).
page 80 note 3 Penal Code (Amendment) Edict, No. 3 of 1971 (formerly North-Eastern State).
page 80 note 4 See Area Courts Edicts of the various States and 1963 Constitution, s. 22 (5).
page 80 note 5 This technique is used in Criminal Procedure Code, s. 13, to prescribe the jurisdiction of Magistrate's Courts in offences not in the Penal Code.
page 80 note 6 Used to prescribe which courts have jurisdiction in cases under the Penal Code: see Criminal Procedure Code, Appendix A.
page 81 note 1 The Penal Code in force in Borno, Bauchi, Benue, Kano, Kwara, Kaduna, Gongola, Niger, Plateau and Sokoto; and the Criminal Code in Anambra, Bendel, Cross River, Imo, Lagos, Ondo, Ogun, Oyo and Rivers States.
page 81 note 2 An example is that troublesome word “maliciously”, which is used in the Schedule to the Decree but does not appear in either Nigerian Code, except in the marginal note to section 337 of the Criminal Code.
page 82 note 1 S. 13.
page 82 note 2 Supreme Court Practice and Procedure Order, L.N. 64 of 1972.
page 82 note 3 S. 6 (3).
page 82 note 4 S. 22 (5) (c).
page 82 note 5 The only case in which the section was relied upon was Awolowo v. Sarki [1962] 1 All N.L.R. 177, in which the plaintiff's lawyer was refused immigration permission.
page 82 note 6 See now Constitution (Basic Provisions) Decree, 1975, s. 4.
page 82 note 7 The draft Constitution contains a clause similar to s. 22 (5) (c).
page 82 note 8 See Legal Aid Act, 1974, s. 11.
page 82 note 9 Following the report of the Public Service Review Commission (Udoji Report): see White Paper on the report, 1974.
page 83 note 1 S. 6 (5) of the Decree.
page 83 note 2 S. 8 (2).
page 83 note 3 S. 12 (5) and (6), s. 13.
page 83 note 4 S. 12 (1).
page 83 note 5 S. 12 (6).
page 83 note 6 The bodies concerned are the Council of Legal Education, the General Council of the Bar, and the Body of Benchers, in all of which the Bar Association is represented by a substantial proportion of members elected by the Association.
page 84 note 1 S. 2 (1) (e).
page 84 note 2 Mr. Zakari Mohammed has been appointed.
page 84 note 3 S. 1 (1).
page 84 note 4 S. 12 (1): preparation of panels of lawyers; s. 13: direction of NYSC lawyers.
page 84 note 4 Mr. Clement Osakwe, with experience of legal aid elsewhere in Africa, has been appointed.
page 84 note 5 S. 4.
page 84 note 6 In England until recently the only lay involvement in the Legal Aid Scheme has been on the Lord Chancellor's Advisory Committee, although the Law Society's Legal Aid Committee has just co-opted two laymen.
page 84 note 7 These are held everywhere except Cross River State, where they were abolished by the Criminal Justice (Miscellaneous Provisions) Edict, 1973. Probably these will be covered by legal aid, as the new Decree provides that aid is to include ”such assistance as is usually given by a legal practitioner in the steps preliminary or incidental to any proceedings“ (s. 6 (4) (a)).
page 85 note 1 Revised Laws of the Federation Decree, 1971.
page 85 note 2 Federal Revenue Court Decree, 1973: see Jammal Steel Ltd. v. African Continental Bank [1973] 1 All N.L.R. 208. (The Decree gave the court jurisdiction over ”banking, foreign exchange, currency or other fiscal measures“.)
page 86 note 1 It reproduces in s. 29 (6) (c) the existing provision (without the saving for customary and area courts) for the right to counsel in criminal cases, and in s. 41 provides that assistance may be provided for in fundamental rights cases.