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25 Oct

2014 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN PROFESSIONAL ETHICS AND SKILLS

COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR FINAL EXAMINATIONS – PART II

LAW IN PRACTICE

THURSDAY, MAY 10, 2014 TIME: 3 HOURS

INSTRUCTIONS
THIS PAPER IS DIVIDED INTO 2 SECTIONS AND 2 ANSWER BOOKLETS ARE PROVIDED.
QUESTIONS 1 AND 2 ARE TO BE ANSWER IN ONE BOOKLET, QUESTIONS 3 AND 4 ARE TO BE ANSWERED IN THE OTHER BOOKLET
ALL QUESTIONS SHOULD BE ATTEMPTED.
WRITE YOUR EXAMINATION NUMBER ON EACH ANSWER BOOKLET.
QUESTION 1 (COMPULSORY)
Prof. Isa Munduga is the Managing Director/Chief Executive Officer of Ogidan Supplies Nigeria Limited at 25, Agu Street, Wuse II, Abuja. The company is engaged in general merchandise and supply of all manners of building materials. On 26th January, 2012, the company executed a supply agreement with the Federal Ministry of Commerce and Industry located at 56-60 Gidado Street, Off Ahmadu Bello Way, Garki – Abuja. The agreement provided that the company would supply 50,000 bags of Dangote cement and 10,000 Amaco Aluminium roofing sheets to the Federal Ministry of Commerce for the building of its Annexe at 61, Gidado Street, Wuse II, Abuja. The contract sum is N20 million but the Ministry was to pay a mobilization fee of N7million and the balance to be paid within two weeks of receiving the supply. The Ministry paid the mobilization fees on 28th January, 2012.
Prof. Munduga’s company supplied all the items on February 8, 2012. The Ministry has however failed to pay the balance to the company since then despite repeated demands by the company. Prof. Munduga and his company are aggrieved. Prof. Munduga has come to you for advice.
Answer the following questions:
a. Assuming the company has decided to commence a legal action against the Ministry, draft an appropriate pre-action Notice to be served on the Ministry before commencement of the action.

b. Mention your first professional responsibility to your clients before commencing the action.

c. Assuming Ogidan Limited engages the services of Barrister Kotonga Bassey who has just retired from the Ministry as a Director. Shortly before the retirement, he was one of the signatories to the supply Agreement on behalf of the Ministry. Comment on the propriety of his accepting the brief from the company.

d. Assuming you are Solicitor to the company, state four instances under which you may be allowed to disclose privileged communication between you and your client.

e. Assuming you were counsel to the Ministry in the matter and shortly after the Ministry lost the case, it commenced legal action against you for professional negligence, contending that your line of argument in Court was responsible for their loss. What would be your reponse to the reason given by the Ministry for the action.

f. One the same date the case was fixed for hearing, one Chief Ojo Musakaba, a life member of the Body of benchers was in Court for another case. Mr. Obiamma Ugo (Counsel to the Ministry in this matter) is a Senior Advocate of Nigeria. As soon as Chief Musakaba stood up to mention his own case out of turn, Mr. Obiamma jumped up and objected on grounds that he (Mr. Obiamma) has precedence over Chief Musakaba at the Bar. Advise them

QUESTION 2

Justice Bolarimi was the Chief Judge of Dodo State until his removal by the Governor of the State in March 2011. Justice Bolarimi presided over three matters affecting the state government which three cases were decided against the state government. The Governor became furious and quickly sent a petition to the State House of Assembly accusing Justice Bolarimi of corruption. The State House of Assembly set up a panel to investigation the allegation and later recommended to the Governor, the removal of Justice Bolarimi.

After the removal of the Chief Judge, the Governor appointed Justice Iyiola as the new Chief Judge based on the recommendation of the State House of Assembly. Justice Iyiola attends all the political meeting of the Governor’s party as well other activites of the party. Justice bolarimi has after his removal, opened a Law Office in Abuja. His Law Office has been involved in many cases in Court on behalf of clients.

Answer the following questions:
a. Explain briefly the procedure for the removal of the Chief Judge of a State and state whether the procedure adopted by the Governor in the removal of Justice Bolarimi was proper.

b. What are the grounds for the removal of a judicial officer?

c. Can Justice Bolarimi practice as a Lawyer after his removal as a Chief Judge? State the restrictions (if any) which he is subject to while practicing as a Lawyer.

SECTION 2

PLEASE USE ANOTHER BOOKLET FOR THIS SECTION

QUESTIONS 3 & 4 ARE COMPULSORY

QUESTION 3

Nnamdi Okafor was instructed by his client, Chief (Mrs) Eme Kutigi to incorporate a company for her. One year after taking instructions and his professional fees paid, Nnamdi Okafor did not incorporate the company. He started avoiding her and refused to take her call. She them reported the matter to the Chairman of Ikeja Bar of which Nnamdi Okafor is a member. In another matter, he was instructed by Chief Dabo Kehinde to institute an arbitration proceeding in line with the arbitration clause as contained in the contract Agreement in respect of the contract he (Chief Kehinde) is executing for the Federal Government. Nnamdi Okafor rather instituted an action in the Federal High Court, Abuja. When he appeared in Court in respect of the matter, he was wearing a pair of white shoes, red cap, and he addressed the Judge as “your Worship”. The Judge refused to hear his case and adjourned the matter. On the next adjoured date, he was absent from Court sitting and did not write any letter to the Court. The matter was struck out.

Nnamdi Okafor was eventually disciplined by the Legal Practitioners’Disciplinary Committee (LPDC) as a result of the complaint of Chief (Mrs.) Kutigi. Ten (10) years after being punished by the LPDC, the Anambra State government is planning to appoint new Judges and Nnamdi Okafor wants to be appointed a Judge.

(a) Briefly comment on the ethical implication of Nnamdi Okafor’s conduct towards Chief(Mrs) Kutigi and possible consequences.
(b) What are the duties if any, he owes;
(i) His client which had been breached; and
(ii) The Court which had been breached .
(c) Draft the letter he would have written to the Court informing the Court that he will not be able to attend the Court sitting because he was involved in an accident
(d) State if the matter that was struck out can be brought before the court and how?
(dii) Draft the application to bring back the case before the Court without Affidavit
(e) Assuming the matter was successfully brought before the Court, can the matter be settled out of Court and what happens to such settlement?
(eii) Advise him on the procedure that will be followed in appointing Judges by the State governor and whether he will succeed in his ambition to be appointed a Judge.

QUESTION 4
Mr. Brown the family lawyer to the Ibokos, was approached by Tom the first son of Iboko to conceal the existence of the will which did not favour him. The said will was in the custody of Mr. Brown. In a suit for devolution of property which Mr. Brown conducted as counsel to Tom who instituted the action, Mr. Brown also appeared as a witness on behalf of Tom. On the persuasion to Tom, Mr. Brown denied the existence of any such will. Under skillful cross-examination on the issue by Ibe the defense counsel in the matter, Mr. Brown lost his composure and said to Ibe, “You are very stupid to ask me that question”. When cautioned by the trial Judge to mind his language, Mr. Brown accused the Judge of taking sides saying, “You have always hated me because I refused to take the hand of your foolish daughter in marriage, after all, I know its like father like daughter”. At the end of the trial, tom refused to pay Mr. Brown because he lost the case at the trial Court.

Now answer the following questions.
1. What professional offence if any has been committed by Mr. Brown in concealing the will on the instruction of Tom, citing relevant authorities.
2. What option was open to Mr. Brown when Tom insisted that he keeps away the information from the Court.
3. Would your answer in (1) above be different if Mr. Brown was a medical Doctor?
4. Would Mr. Brown be able to raise the objection of nemo Judex’in the proceeding for his offence before the trial Court? Give reasons for your answer.
5. What principle of law can Mr. Brown insist on should the same trial Judge try his offence.
6. Comment on the propriety or otehrwise of Mr. Brown’s appearance as a witnes in the same case he was conducting for Tom, his client.
7. Assuming Tom had fully paid Mr. Brown and before the conclusion of the case, Mr. Brown withdraws, state any obligations which are left for Mr. Brown to fufil whether before, at, or after the withdrawal.
8. Can Mr. Brown rely on the principle of law on client confidentiality, as his defense in an allegation of disclosing confidential information of Tom and the charge of concealment. Give reasons for your answer.
9. If you were Counsel to the defendants, draft a petition to the appropriate authority informing them of the misconduct of Mr. Brown as a legal practitioner.

LAW IN PRACTICE
MARKING SCHEME
MAY 2014

SECTION A
Question 1. (a)
The letter should be drafted complying with the following format:-
i Letter headed paper of the lawyer or a plan sheet of paper with the lawyer’s address
ii Reference Number
iii Date
iv Addressee’s name and address
v Salutation
vi Heading
vii Body; which comprises of (i) introduction (ii) facts, position of the law and demand
viii Concluding part which comprises of (i) Yours faithfully or Yours sincerely, (ii)
ix Name and signature of the solicitor. 6 Marks

Question 1. (b)
To draw the attention of my client to the option of ADR. See Rule 15 (3)(d) Rules of Professional Conduct. 2Mark

Question 1. (c)
Rule 6 (2) RPC provides that “a lawyer having once held public office or having been in the public employment shall not after his retirement accept employment in connection with any matter which he had previously advised on or deal with while in such office or employment”Barrister Kotonga Bassey is therefore barred from acting for Ogidan Nig. Ltd in this matter since he had dealt with the matter as a Director in the Federal Ministry of Commerce. 2Marks

Question 1. (d)
Solicitor may disclose privileged communication in the following instances.
i With the consent of his client
ii In action for recovery of professional fees
iii Pursuant to an order of court
iv If communication discloses intent to commit an offence or commission of an offence
v Where any law permits
See section 192 Evidence Act, 2011; Rule 19(3) RPC; and Queen v. Eguabor. 3Marks

Question 1. (e)
Generally, a legal practitioner shall not be immune from liability for damages attributed to his negligence while acting as a legal practitioner for his client. See section 9 LPA. There is however an exception where the alleged negligence is committed in the course of conducting proceedings in cour (i.e. in the face of the court), See sesction 9(3) LPA and Rondel v Worseley.

Based on the above, I will not be liable. The action by the Ministry will fail since the alleged negligence is said to have been committed in the face of the court. 4Marks

Question 1. (f)
Chief Ojo Musakaba being a Life Bencher should mention his matter before Mr. Obiamma who is just a SAN. See Section 6(3) LPA which ranks Life Benchers above SAN, 3Marks

Question 2. (a)
1. (a) the procedure for the removal of the chief Judge of a State is:
i A petition is sent to the National Judicial Council;
ii The Council sets up a panel to investigate the allegation;
iii The Chief Judge is given opportunituy to respond to the allegation;
iv If the allegation is established, the National Judicial Council recommends the removal of the CJ to the Governor;
v Governor should secure the two-third majority of votes of members of the State House of Assembly before the removal.
See S. 271(1) of the 1999 Constitution. 5marks

The procedure adopted by the House of Aseembly in the removal of Justice bolarimi was wrong. His removal was not recommeneded by the National Judicial Council and the House of Assembly did not approve the removal with two-third majority of votes of members. 2marks

Question 2. (b)
The ground for the removal of a judicial officer are:
i Misconduct;
ii Breach of code of conduct;
iii Inability to discharge the functions of the office
iv See S. 292 (1) 1999 constitution, 6marks

Question 2. (c)
Justice Bolarimi can practise as a lawyer after his removal from office. However, he can practise only as a solicitor. 2Marks

The restrictions facing Justice Bolarimi are;
i He cannot appear in court as an advocate/barrister on behalf of clients;
ii He cannot sign any court processes on behalf of clients;
iii He should not accept any brief the subject matter of which he handled as a judicial officer;
iv He should not accept any brief the merits of which he advised on while in office
See Rule 6 RPC 2007 and s. 292(2) 1999 Constitution. 5Marks.

SECTION B
Question 3. (a)
The ethical implication of Nnamdi Okafor’s conduct towards Chief (Mrs.) Kutigi is that he committed professional negligence which amounts to professional misconduct. See Rule 16 RPC. 1Mark
The possible consequences of his actions are as follows:
i His name may be struck off from the role;
ii He may be suspended for a period of time;
iii He may be asked to refund the professional fees;
iv An action of negligence may be instituted against him; and
v He amy be reprimanded. (any four will carry 2 marks) 2 Marks

Question 3. (b) (i)
The duties he owes his client which he had breached are as follows:-
i Duty to follow/obey client’s instruction
ii Duty to exercise professional competence, diligence, care and skill.
iii Duty to appear in litigation on behalf of his client until conclusion of the case.
See Rule 14 RPC 2Marks

Question 3. (b) (ii)
The duties he owes the court which had been breached are as follows:-
i Counsel must be properly dressed to court.
ii Counsel must know the correct mode of addressing the judge
iii Counsel must attend all sittings of court unless he writes to the court and obtains leave of court to be absent.
iv Counsel must maintain a respectful attitude to the court in words and in deeds 2Marks

Question 3. (c)
The letter shoud be drafted complying with the following format: –
1. Letter headed paper of the lawyer or a plan sheet of paper containing his address
2. Reference Number
3. Date
4. Addressee’s name and address
5. Salutation
6. Heading
7. Body; which comprises of (i) introduction (ii) facts, position of the law and demand
8. Concluding part which comprises of (i) Yours faithfully or Yours sincerely, (ii)
9. Names and signature of the solicitor . 5 Marks

Question 3. (d) (i)
The way the matter that was struck out can be brought back before the court is by re-listing the matter. This is done by bringing an application by way of Motion on Notice supported by an affidavit before the court. If the application is granted, the matter will be-listed. 1Mark

Question 3. (b) (ii)
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HODEN AT ABUJA
SUIT NO: FCH/0000

BETWEEN
CHIEF DAVID KEHINDE……………………………………………..PLAINTIFF/APPLICANT
AND
ATTORNEY-GENERAL OF THE FEDERATION……..DEFENDANT/RESPONSENT

MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER RULE OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE RULES) 2000 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

TAKE NOTICE that this Honourable Court will be moved on the ………day of ……..2012 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel on behalf of the APPLICANT can be heard praying this Honourable Court for the following Orders
1. AN ORDER granting leave for the Applicant to re-list this matter before this Honourable Court;

2. And for such Order or further Orders as this Honourable Court may deem fit to make in the circumstances.

Dated this…………………………………………………..day of ……………………………………………….2014

………………………………………..
NNAMDI OKAFOR
Counsel to Plaintiff/Applicant
Whose address for service is:
Any Address:

FOR SERVICE ON:
Defendant/respondent
Any Address 1Mark

Question 3. (e) (i)
The matter can be settled out of court if the parties are interested. All they need to do is to inform the court that they want to settle the matter out of court and ask for long adjournment.
When they settle out of court; they will reduce their terms of settlement into writing which will be filed in court. The court will adopt the terms of settlement and make it consent judgement. 1mark.

Question 3. (e) (ii)
The procedure that will be followed in appointing judges are as follows;
a. The chairman of the State Judicial Service Commission (JSC) will seek the approval of the Governor stating the number of judges he requires and send a copy to the Secretary of the National Judicial Council (NJC);
b. Nominations shall be called from the Judicial Officers;
c. Candidates shall be short-listed
d. The names of the short-listed candidates are circulated to serving Judicial Officers and NBA branches
e. Short-listed candidates will then fill the NJC Form “A”.
f. The JSC will deliberate and select candidates;
g. The JSC will send the names of selected candidates to the NJC for recommendation;
h. The NJC will recommend successful candidates to the Governor; and
i. The Governor will appoint the Judges on the recommendation of NJC subjec to the confirmation of the appintment by the State House of Aseembly, See the Guidelines for the Appintment of Judicial Officers.
It is unlikely that he will be appinted as a judge because he has been in consistent breach of the rules of the professional misconduct. 5Marks

QUESTION 4
(1) The professional offence committed by Mr. Brown is Infamous Conduct in a professional Respect. 2 Marks
(2) The option open to Mr. Brown is to withdraw from the case. 2Marks
(3) My answer would be differnet. Doctors are not expected to keep custody of documents for their patients. 1Mark
(4) No contempt is an exception to the rule of ‘nemo judex’ 2Marks
(5) Mr. Brown can insist on fair hearing during the trial 1Mark
(6) A lawyer should not act as a witness on the merits of a matter he is handling for a client. In such a situation, he should withdraw from the case and allow another lawyer take over. Mr. Brown outght not to have continued to act as a counsel to Tom when he appeared as a witness for him in the same case. See Rule 20 RPC 2007. 2Marks.
(7) Mr. Brown should fulfil the following obligations;
a. Give adequate notice to the client;
b. Refund part of the fees he did not earn;
c. Apply to the court to be discharged;
d. Deliver the case file to the clietn;
See Rule 21 RPC 2marks

(8) A client is obliged to keep the confidence of his client and he could onl;y disclose such information in certain circumstances. A lawyer is obliged to disclose client’s confidence where there is lieklihood of commission of crime or fraud and the information is necessary to prevent the commission of the crime. Mr. Brown cannot thereofore rely on the defence of keeping client’s confence. . See Rule 19 RPC 2007 2marks

(9) The petition should contain the following;
i A letter headed paper/plain (address of the lawyer);
ii Date
iii Reference Number
iv Address of the recipient and name;
v Salutation
vi Subject heading
vii The body of the petition
viii Complimentary closure;
ix Names and signature of counsel 6marks

Isochukwu

Quite eccentric really

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