By Odatse Echo Esq
Know The Law: As It Is, Series, V22/3/26.
The law is now trite that in most jurisdiction in Nigeria, a Senior Advocate of Nigeria is limited, or precluded from appearing before lower courts, like Magistrates Courts and Area Courts. The fundamental question that requires a critical appraisal is whether the Constitution allows such prohibition, or, denial, of right of audience. Whether the 1999 Constitution or the Legal Practitioners Act, envisaged such limitation.
Isn’t it strange that why a Senior Advocate of Nigeria is allowed under the Rule to petition the Police, a Senior Advocate cannot defend an Accused in Magistrate or Area Court if the accused is arraigned in any of the lower/inferior courts, acting on the said petition.
Imagine a powerful complainant who engages a Senior Advocate of Nigeria (SAN) to draft a detailed petition to the Nigeria Police Force alleging theft, criminal trespass, intimidation, forcible entering or
criminal defamation. The police investigate, and after that, charges follow, and the matter lands in a Magistrate Court. The accused, seeking the best possible defence, hires another SAN with proven expertise. Let’s say the issue of theft or criminal defamation requires electronic and forensic evidence. The accused believing that the Constitution permits him to hire a counsel of his choice, then retains the services of a SAN, who is an expert in such area, the court then ruled that the accused cannot do so, since the court is a Magistrate court, or that the SAN has no right of audience, because the rules prohibit it.
This is not hypothetical facts. It is the sad reality. And a sadly so, it reflects a real and uncomfortable feature of Nigerian legal practice, thrown into sharp relief by the Court of Appeal decision in *Bamigboye v. Commissioner of Police* (2025) 1 NWLR (Pt. 1973) 265. The question every person cum lawyer must confront is this: does this rule advance justice, or does it tilt the scale of justice in an uneven and unfair manner ?
The Bamigboye Case and Its Holding:
In Bamigboye, the appellant stood trial on an eight-count criminal charge before the Chief Magistrate Court, Ibadan. He pleaded not guilty and received bail. When his counsel, a SAN, signalled readiness to proceed, the Magistrate raised the issue *suo motu, whether the SAN has a right of audience before such lower court.
After arguments, the Chief Magistrate ruled that the SAN lacked right of audience in that inferior court.
Upon appeal to the High Court, the High Court of Oyo State affirmed the ruling denying the SAN audience and the right to defend the accused in the Magistrate Court.
On further appeal, the Court of Appeal unanimously dismissed the appeal and upheld the High Court decision. The court anchored its decision on the Senior Advocates of Nigeria (Privileges and Functions) Rules, 1979, made pursuant to section 5(7) of the Legal Practitioners Act.
Rules 2, 3, 4 and 6 are pivotal, in the circumstances. In civil matters before superior courts of record, a SAN may appear only with a junior or another SAN, save for limited exceptions in chambers or non-open court settings. In criminal causes before superior courts, the SAN enjoys greater flexibility and may appear alone or with others. Rule 4 bars a SAN from issuing or applying for originating processes except in permitted matters. Rule 6 defines “superior court of record” exhaustively as the Supreme Court, Court of Appeal, Federal High Court, State High Courts, or tribunals of equivalent status. Magistrate Courts and Area Courts therefore receive no mention.
Applying the Latin maxim expressio unius est exclusio alterius, the Court inferred deliberate exclusion of inferior courts. According to the court, the SAN rank is voluntary. An applicant who seeks and accepts the honour also accepts its disabilities. Section 36(6)(c) of the 1999 Constitution (as amended), which guarantees an accused the right to defend in person or by a legal practitioner of his own choice, cannot be invoked to escape these self-imposed limitations.
Methinks, this stance aligns with long-standing precedent, from the dim past. In *Registered Trustees of the ECWA Church v. Ijesha* (1999) 13 NWLR (Pt. 635) 368, for instance, a SAN appeared in a land dispute before the Upper Area Court in Ilorin, an inferior court. The respondent objected. The Upper Area Court overruled the objection, but the High Court and Court of Appeal reversed that decision. The Court of Appeal held, through a combined reading of Rules 2, 3, 4 and 6, that a SAN has no right of audience in inferior courts. The Rules concentrate on superior courts of record; inferior courts are therefore excluded by necessary implication. The decision stressed the need to preserve the dignity and specialised focus of the Inner Bar.
The Court of Appeal further gave legal baptism and reaffirmed this position in *Mohammed Atiku-Abubakar v. Miss Ummi Fatima Bolori* (2024)LPELR-61900 (CA). In that case, objection was taken to the appearance of Olasupo Sasore, SAN, before the Family Court (a Magistrate Court division) in Lagos in a child custody matter. The Family Court sustained the objection. On appeal, the Court of Appeal upheld the restriction, confirming that the SAN Rules create a valid disability. A SAN, though fully enrolled, voluntarily submits to the regime upon acceptance of the rank. The right to counsel of choice under section 36(6)(c) of Constitution operates within, and does not override, valid regulatory rules governing legal practice.
It would appear that these authorities aforecited, treat the rank as conferring both privileges and higher responsibilities. The disabilities serve a public interest in structured advocacy hierarchy.
However, it must be observed that lower courts have not always accepted the restriction without resistance. In *Attorney General of Lagos State v. Persons Unknown* (2016) All FWLR (Pt. 815), for instance, a Lagos Magistrate Court permitted a SAN to appear. The magistrate reasoned that every enrolled legal practitioner enjoys a general right of audience in any court unless the Constitution or primary legislation expressly forbids it. Accordingly, subsidiary rules cannot defeat the spirit of section 36(6)(c) of the Constitution of the Federal Republic of Nigeria (as amended). The learned magistrate found solace and great succour in the Supreme Court observations in *Federal Republic of Nigeria v. Osahon* (2006) 5 NWLR (Pt. 973) 361, wherein Pats-Acholonu, JSC, noted that once called to the Bar and enrolled, a lawyer presumptively has right of audience across the judicial hierarchy. Any subsidiary rule running contrary to this constitutional spirit should be regarded as ineffective. The learned magistrate viewed the SAN restriction as anomalous, particularly in criminal matters where fair hearing is paramount. Inferior courts handle the volume of cases that touch ordinary citizens’ lives; sidelining experienced senior counsel risks diluting effective representation.
Practical resistance continues. In January 2026, for instance, a Yaba Magistrate Court in Lagos overruled an objection when Femi Falana, SAN, appeared for protesters. The magistrate held that the SAN rank does not restrict appearance in Lagos Magistrate Courts; any called lawyer remains competent. Such decisions reflect a pragmatic concern for access to justice and the accused’s choice of counsel.
Under stare decisis, however, these lower-court views must yield to binding Court of Appeal precedents until the Supreme Court intervenes, methinks.
Fair Hearing and The Legal Tension:
Section 36(6)(c) of the Constitution is unambiguous: every person charged with a criminal offence is entitled to defend himself in person or by a legal practitioner of his own choice. This right sits at the core of fair hearing under section 36.
The Court of Appeal in *Bamigboye* found no direct conflict. The right operates within the framework of valid laws regulating practice. A SAN who voluntarily accepts the rank cannot later use the Constitution to evade its disabilities. The restriction maintains the prestige of the Inner Bar and channels senior expertise toward complex superior court work.
Yet the reasoning faces strong scrutiny. The SAN rank rewards excellence; it should broaden, not narrow, opportunities for top advocates to serve at every level. It is a fact of common knowledge that inferior courts manage bail applications, summary trials, land disputes, and minor criminal charges that carry serious consequences for ordinary Nigerians. Forcing an accused to abandon a chosen SAN in favour of a junior because of jurisdictional technicality feels counter-intuitive.
It appears absurd that a SAN may freely write a petition to the police on behalf of a complainant. And that same petition can trigger full investigation and prosecution in a Magistrate Court. Yet the same SAN, or another equally recognised SAN, cannot appear to defend the accused when the case reaches that court.
The high-profile petition by Chief Afe Babalola, SAN, against Barrister Dele Farotimi for alleged criminal defamation illustrates the point. The matter proceeded in a Magistrate Court in Ekiti State. When Olumide Fusika, SAN, sought to represent Farotimi, the court reportedly denied appearance citing the rules. Meanwhile, nothing prevents the police or prosecution from consulting SAN-led chambers for advice on charges, replies, or forensic strategy. The imbalance is stark: senior expertise is available to the state at the investigative stage but barred from the accused at trial in the same forum.
For instance an accused faces a criminal trespass or mischief by fire, or better still, a charge bothering on stealing which occurred in the office of the complainant and was captured with CCTV, with the primary evidence recorded and stored in an electronic device. There were issues with the admissibility and authenticity of the evidence whether not made by Artificial intelligence (Ai) or doctored. Whether the footage was not tampered with or manipulated. Whether the device was in good condition and was not tampered with. Whether some legal conditions for admissibility of computer generated evidence were satisfied.
Thus, raising fundamental issues on CCTV footage, electronic evidence, and forensic analysis. Assuming only one SAN in the jurisdiction in question, possesses deep expertise in digital evidence law. The accused briefs him. At the Magistrate Court, the prosecution objects successfully under the SAN Rules. The accused must settle for less experienced counsel. Had the police consulted that same SAN during investigation, no rule would have been breached. Equality of arms under fair hearing is compromised. When the state can draw indirectly on elite talent but the accused cannot deploy it directly, justice, then, appears one-sided.
The voluntariness argument has limits. Once conferred, the disability attaches permanently. The client, not the SAN, ultimately pays the price. In a system where inferior courts decide the bulk of disputes, the rule risks entrenching a two-tier Bar: one for the privileged and one for the masses.
The Law as it is:
It is a fact that after *Bamigboye, reinforced by ECWA Church v. Ijesha and Atiku-Abubakar v. Bolori (supra), the Court of Appeal position remains binding. A SAN does not enjoy unqualified right of audience in Magistrate or Area Courts. The voluntary acceptance of the rank carries disabilities. Section 36(6)(c) does not automatically override them. Practitioners must plan accordingly: an accused insisting on a SAN in a lower court may encounter objection, adjournment, or the need for additional junior counsel.
What the Law Ought to Be: Fresh Recommendations for Reform:
The 1979 SAN Rules predate significant evolution in Nigeria’s justice system. Caseloads in inferior courts have surged. Complex cases involving technology, forensics, and electronic evidence now appear routinely at magistrate level. Literal interpretation should yield to constitutional purpose.
The constitutional provision which guarantees personal representation or representation by counsel of ones choice should be supreme. The Legal Practitioners Act also guaranteed right of audience and doesn’t expressly provide for such limitation. A Rule, although a subsidiary legislation which derived it force from the provision of the Legal Practitioners Act, should not be allowed to override the clear and unambiguous provision of the Constitution and the enabling law.
Where there is an appeal to the apex court, on the subject matter, Supreme Court should, at the earliest suitable opportunity, review the area and pronounce definitively. It can interpret the Rules harmoniously with the Constitution: privileges such as inner bar precedence and ceremonial dignity may remain, while the general right of audience that flows from enrolment under the Legal Practitioners Act should extends to all courts. The rank should reward excellence without imposing exile from grassroots justice.
The Legal Practitioners Privileges Committee or the National Assembly should amend the Rules or the enabling Act. A clear provision could declare that the SAN rank does not limit right of audience in any court. Disabilities should be confined to procedural pairing requirements in superior civil matters.
Additional practical reforms may be taken into consideration. Like introducing a *hybrid appearance rule:* a SAN may appear in inferior courts, but with a junior in routine matters; in complex cases requiring specialised expertise, the SAN may appear alone or with one or more juniors. This balances dignity with pragmatic justice.
In the alternative, let there be exceptions and sub-exceptions to the general rule. As in, create a *public interest, public policy, or exceptional circumstances exception, or qualification:* courts should have discretion to allow SAN appearance in matters involving certain rights, or expertise, or in exceptional circumstances or where the accused demonstrates genuine need for specialised counsel. This prevents the Rules from shielding the powerful while disadvantaging the vulnerable.
The Nigerian Bar Association should lead sustained advocacy. It could commission a study on the restriction’s impact on access to justice and champion reform.
Continuing legal education programmes should equip SANs with ethical strategies to support lower-court matters without direct appearance where constraints apply.
These changes would not diminish the prestige of the SAN rank; they would rather enhance it. A true Senior Advocate serves justice wherever it is required, not only in grand superior courtrooms but also in the busy Magistrate or Area Courts where most Nigerians first encounter the law.
The dichotomy must end. A SAN should not enjoy freedom to initiate proceedings through petitions yet face a bar when those proceedings reach court for defence. That is not justice; it is an anomaly that undermines equality before the law and fair hearing.
The Constitution promises effective representation. Our rules must deliver it. Reforming this area will make the temple of justice more inclusive and responsive. Senior Advocate exist to elevate advocacy at every level, not to be sidelined from the courts that matter most to ordinary citizens. The time for thoughtful, principled change is now. I so submit.
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