- June 23, 2023
- |Legislation
The appellant (Ms. Akpabio) is a Nigerian national who wishes to be admitted to practice law in Namibia. Ms. Akpabio is legally resident on our shores and maintains that she has the constitutional right to pursue her chosen profession in the country of her lawful residence. She obtained her undergraduate and post-graduate qualifications (LLB and LLM) in law from Nigerian universities, over 30 years ago. She was admitted and practiced as a legal practitioner in Nigeria, acted as a corporate legal advisor in that country, worked as a magistrate in Botswana, and was admitted as a legal practitioner in Tanzania – all on the strength of the legal qualifications obtained in Nigeria.
Ms. Akpabio is required by the Legal Practitioners Act 15 of 1995 (the LPA) to have the Bachelor of Laws degree (LLB) that she obtained in Nigeria recognised in Namibia before she can do the course of legal practitioners’ training at the Justice Training Centre (JTC). Section 16(1) of the LPA states: ‘There shall, for the purposes of this Act, and subject to section 11(1)(b), be provided at the Justice Training Centre established by the University of Namibia, a course of post-graduate study for the training of candidate legal practitioners. Ms. Akpabio wants to join that course.
It is common cause that the LLB Ms. Akpabio obtained in Nigeria was duly accredited by the Namibia Qualifications Authority (the NQA) as being equivalent to the LLB degree offered at the University of Namibia (UNAM). The second respondent, the Board for Legal Education (BLE) which runs the JTC, does not question (a) the existence of Obafeni Awolowo University (Awolowo) where Ms Akpabio obtained her LLB, (b) the authenticity of her qualifications, (c) her admission in both Nigeria and Tanzania as a legal practitioner and (d) her work experience.
The appellant approached the Board for Legal Education (the BLE) to recommend to the Minister of Justice (the Minister) to prescribe her LLB degree obtained from Obafemi Awolowo University, Nigeria in terms of s 5(4) of the Legal Practitioners Act 15 of 1995 (the LPA). The BLE then requested the appellant to produce a prospectus for the period of her studies for the LLB degree. The appellant was unable to produce the prospectus for the entire period of her LLB degree and the BLE could as a result not make the required recommendation to the Minister. The appellant challenged the BLE’s decision in the High Court on notice of motion and claimed that a proper interpretation of s 5(4) and s 11(2) of the LPA did not require the furnishing of a complete prospectus by her and that alternatively it could also rely on her certificate and official transcript of results. The court a quo held that the appellant could not provide the official transcript of her academic record for the period of 1987 to 1991, which is an essential component for prescribing the appellant’s qualification in terms of s 11(2) of the LPA and furthermore that when the BLE requested for the prospectus it acted within the powers conferred upon it by the LPA. The High Court had also declined the appellant’s request to refer to oral evidence whether or not she had furnished the transcript of results to the BLE.
On appeal, it was held that this Court will not lightly interfere with the exercise of the Court a quo’s discretion whether or not to refer a matter to oral evidence, unless the Court a quo acted on the wrong principle, took into account irrelevant considerations, or disregarded relevant ones. The first instance court should refer a matter to oral evidence if the interests of justice demand it especially because of the overriding objective of the High Court Rules (rule 1) which requires the court to resolve disputes as speedily as possible and without incurring costs unnecessarily.
Held that on the papers there was a genuine dispute of fact whether or not the appellant had furnished the BLE with the official transcript of her LLB degree and that if she did, the court a quo would have had to direct the BLE to consider the application for prescription of her LLB degree as required by s 11(2) and (3) of the LPA.
Held that the court a quo failed to take into consideration the overriding objective when it refused to refer to oral evidence the disputed issue of whether the BLE had been given by the appellant her LLB degree transcript.
Held further that, in performing its function to compare a foreign LLB degree with that offered at UNAM, the BLE may adopt any means that fall within a range of reasonable options. But such means should not take precedence over that prescribed by the legislature. Presentation to the BLE of either the ‘original’ or ‘authenticated copies of certificates and of official transcript’ is, in terms of s 11(2), the sole jurisdictional basis for the exercise of the power to recommend under s 5(4). Once those have been presented by a person seeking prescription, s 11(3) ordains that it ‘shall be accepted as sufficient information to enable the BLE to make its recommendation to the Minister’, and although the issue of the prospectus enjoyed great prominence in the BLE’s refusal to make a recommendation to the Minister, during oral argument, counsel for the BLE stated that the BLE would be satisfied if the transcript is furnished to it.
Held further that, the court a quo’s refusal to refer the matter to oral evidence left it with no option but to dismiss the application. Had the court referred the matter to oral evidence and found that Ms. Akpabio had in fact furnished the BLE with a valid transcript of the LLB degree, it would have ordered the BLE to consider the application to prescribe the degree on the strength of the transcript, as that is one of the bases on which the BLE is authorised by s 11(2) of the LPA to make a recommendation to the Minister.
The appeal was upheld and the matter was remitted to the High Court.