Supreme court rules on Nigerian attorney’s struggles to practice in Namibia

5 July 2023 · Carmel Rickard

Imafon Fiona Akpabio is a Nigerian lawyer. Living legally in Namibia, she wants to practice there – but she’s been having problems getting her qualifications recognised. Eventually her conflict on the issue with the relevant authorities – the minister of justice and the board for legal education – landed up in Namibia’s apex court, and three judges of that court have now given their decision.

Read judgment

You have to feel some admiration for Fiona Akpabio: she has put up a determined fight to have her legal qualifications recognised by the Namibian authorities, despite their equally determined refusal to be swayed. It’s her constitutional right to pursue her profession, she maintains.

Akpabio obtained her legal qualifications, an LLB and an LLM, from Nigerian universities more than 30 years ago. She was admitted and practised as a legal practitioner there and further spent time as a corporate legal advisor. On the strength of her Nigerian legal qualifications, she also worked as a magistrate in Botswana and was admitted as a legal practitioner in Tanzania. But Namibia has proved rather different.

In Namibia she must satisfy the conditions of the Legal Practitioners Act by first having her Nigerian LLB degree recognised. Only then will be she admitted to the legal practitioners’ training course that she wants to undertake at the Justice Training Centre (JTC).

Recommendation

The Namibia Qualifications Authority (NQA) has accredited her LLB as being equivalent to that offered locally. The board for legal education (BLE), which runs the JTC that Akpabio wants to join, doesn’t question the existence of Awolowo, the Nigerian university where she obtained her LLB. Nor does it question the authenticity of her qualifications, her admission in both Nigeria and Tanzania as a legal practitioner or her work experience. Its problems lie elsewhere.

Under the Legal Practitioners Act, it is the BLE that must recommend that the minister of justice should accept a degree or equivalent qualification in law from a foreign university as good enough for the holder to be admitted to the JTC course and to sit for the legal practitioners qualifying exam.

In other words, anyone wanting to practice in Namibia with a foreign legal qualification must first obtain ministerial approval of their degree – which is only given on the recommendation of the BLE – and then have a certificate by the BLE saying that they have satisfactorily undergone practical legal training at the JTC and have passed the course. Only then will they be able to apply to the high court for admission as a legal practitioner.

Refused

But in Akpabio’s case, the BLE has refused to recommend that the minister approve her LLB and that has so far prevented her from enrolling for the JTC training course.

Part of the problem seemed to be that the BLE wants Akpabio to submit a ‘prospectus for the duration of her law studies at Awolowo from 1987 to 1991’. Asked for such a prospectus, she contacted Awolowo but that university wrote back to say they could only give her a ‘partial prospectus’, namely for 1984 to 1986, and not for the rest of the time she was at the university, namely 1987 to 1991. The prospectus for those remaining years ‘cannot be traced’, the university said.

Without the full documentation that it wants, the BLE takes the view that it cannot recommend to the minister that Akpabio’s degree be recognised. That apparent stalemate was broken with her decision to ask the high court to intervene, but she had no better luck as the court found against her.

Supreme court

What would the supreme court say?

She told the judges that she had proved that she submitted the official transcript of her qualifications to the BLE and that the BLE did not deny receiving the transcript (that denial only emerged at the time of her appeal). Since the BLE had received her transcript, it acted beyond its power in not recommending that the minister should accept her qualification and instead insisting on the prospectus. That is because the LPA makes provision for a degree to be accepted ‘based on a degree certificate and an official transcript’.

She also argued that the BLE’s insistence on having the complete prospectus was unreasonable: she had shown that despite her best efforts, the complete prospectus could not be obtained. In those circumstances, the BLE should adopt ‘alternative means of performing its recommendation power’, she said.

As far as the BLE was concerned, its argument focused on the transcript (rather than the prospectus) and the new allegation by a BLE official (made at the high court) that the transcript wasn’t received. Counsel for the BLE said it would support an order for the matter to be referred back to the high court to hear oral evidence on whether Akpabio had proved that she provided the BLE with the official transcript of her qualifications.

The judges noted this BLE position and said that the issue of the transcript was now decisive in the dispute.

Genuine dispute

A genuine dispute of fact had arisen on the papers: had Akpabio given the BLE an official transcript of her LLB qualification as part of her application for her degree to be accepted? The BLE’s witness at the high court said she had not. But, said the supreme court, that allegation wasn’t supported by the correspondence between the parties. Nor was any reference made to the absence of the transcript by the successive ministers of justice with Akpabio. Instead, everyone had simply focused on the incomplete prospectus.

During oral argument at the high court, Akpabio had asked the presiding judge to allow oral evidence of the person who was the BLE secretary at the relevant time, to support her version that she had in fact submitted the official transcript of her LLB qualifications to the BLE, a version that the BLE’s witness in the high court denied.

Quoting from the law, the supreme court pointed out that once a transcript was furnished, it ‘shall be accepted as sufficient information to enable the board to make its recommendation to the minister’. The high court’s dismissal of Akpabio’s application ‘in the face of a genuine dispute whether or not she actually presented the official transcript of her LLB degree to the BLE is, therefore, a misdirection warranting this court’s interference.’

Not refuted

Among other factors that the court should consider was Akpabio’s letter to the minister, copied to the BLE secretary, placing on record that she had previously submitted the certificates and the transcript to the BLE. ‘That letter is annexed to Ms Akpabio’s founding affidavit and has not been refuted or contradicted’ by the BLE.

There was no demonstrable prejudice that the BLE and the minister would have suffered prejudice had the dispute been referred to oral evidence. ‘I am therefore satisfied that the court [below] erred in not referring the dispute on the transcript to oral evidence.’

The supreme court also stressed that the BLE may adopt ‘any means that fall within a range of reasonable options’ in performing its function of comparing a foreign LLB degree with that offered in Namibia. But that shouldn’t take precedence over the means prescribed by the legislature. The ‘sole jurisdictional basis’ for the exercise of the power to recommend acceptance of a degree to the minister was ‘presentation to the BLE of either the “original” or “authenticated” copies of certificates and … official transcript’.

Oral evidence

Once those documents had been presented by someone seeking prescription, the law ordains that it ‘shall be accepted as sufficient information to enable the BLE to make its recommendation to the minister’, said the supreme court.

It thus set aside the high court finding, and instead sent the matter back with an order that oral evidence be heard by that court on whether Akpabio had in fact submitted to the BLE ‘the original or authenticated copies of her LLB degree certificate and official transcript’ issued to her by Awolowo in 1991.

Given the supreme court’s earlier comments, the obvious conclusion to be drawn in the light of this order is that if the high court finds the transcript had in fact been submitted, that would be sufficient for the BLE to recommend that the minister should accept Akpabio’s degree.

* A matter of justice, Legalbrief, 4 July 2023

Carmel Rickard

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