LSP054: Can a SAN appear before inferior courts in Nigeria?

The rank of the Senior Advocate of Nigeria (SAN) is a prestigious position in Nigeria. It is the apogee position any legal practitioner could attain and it certainly comes with privileges. See Here

Over the years, the question has been whether a SAN can appear before an inferior court? This legal question also brings to limelight the societal attachment of hierarchy that is well observed among legal practitioners in Nigeria.

It is pertinent to note that the Constitution did not use the phrases inferior and superior courts. The phrases are used solely for convenience in academic parlance. By virtue of Section 6(5) of the Constitution, superior courts of records are:
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(cc) The National Industrial Court
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State;
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;

From this list, courts such as area, customary, and magistrate courts are exempted. These courts are known as the inferior courts. The question, whether a SAN can appear before an inferior court first came up for determination in the case of Registered Trustees of ECWA. Church v. Ijesha (1999) 13 NWLR (pt.635)368 where the Court of Appeal held in disaffirmation. The court’s ratio decidendi (reason for judgment) was based on Senior Advocate of Nigeria (Privileges and Functions) Rules, 2004 (hereinafter referred to as SAN Rules) which is the principal law regulating Senior Advocates in Nigeria and the literal interpretation of the provisions of the rules.

For the purpose of clarity and proper guidance, the relevant rules are reproduced hereunder:
• A Senior Advocate of Nigeria may appear as counsel in any criminal cause or matter before any court of superior record with or without another counsel.
• A Senior Advocate of Nigeria shall not apply for or issue originating process or any other process from or application before a court in any cause or matter except in relation to for process those matters in which he is entitled to appear pursuant to rules 2 and 3 of these Rules.
•In these Rules, unless the context otherwise requires, superior court of record means the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court, or any other court or tribunal with powers not less than those of a High Court.

With this, the position of law seems to have been settled. However, seventeen (17) years after this decision, the Magistrate Court of Lagos State, being an inferior court, in Attorney General of Lagos State v. Persons Unknown (2016) All FWLR (pt.815) held that a SAN can appear before a magistrate court, and by inference, all inferior courts.

While it is necessary to laud the brilliant points raised by the learned judge in that case, this writer humbly submits that based on the landmark principle of judicial precedent, it was no place for the learned justice to overturn the decision of the Court of Appeal. The principle of judicial precedent is that lower courts must always follow the decisions reached by superior courts in cases that are of similar fact. And it is immaterial that the decision of such a superior court was decided wrongly.

Based on this, until and unless the supreme court of Nigeria overturns the Court of Appeal’s decision in ECWA’s case, the decision remains the true position of law in Nigeria.

Thank you for reading. See you next week🥰

N:B It is pertinent to state that a SAN can’t appear before an Inferior court in Criminal matters as well. Bamigboye v COP (2025) 1 NWLR (Pt 1973) 268