➥ CASE SUMMARY OF:
Akazor Gladys & Ors. V. Council of legal education (NICN/ABJ/346/2017, 20th day of March 2019)
by Branham Chima.
➥ ISSUES RAISED
Lawyer in salaried employment make legal representation for employer.
➥ CASE FACT/HISTORY
The Claimants vide motion on notice dated 17th day of September, 2018 and filed on the same day, brought pursuant to 5th Schedule to the Constitution of The Federal Republic Of Nigeria, 1999, (as amended), section 8(1) of the Legal Practitioners Act, LFN L 11 2004, the Regulated and Other Professions Private Practice Prohibition Act. Cap 390, LFN 1990, section 6(2) of the Interpretation Act, Rules 8 and 15 of the Rules of Professional Conduct for Legal Practitioners 2007, Rules 30 and 31 of the Rules of Professional Ethics of the Legal Professional 1980, and under the Inherent Jurisdiction of the Court.
The application is seeking for the following orders. They are: ‘1. A declaration that counsel to the defendant is a full salary based employee/public officer in a public institution, the Nigerian Law School and under the direct employment/service of the defendant. 2. A declaration that the counsel to the defendant, being a full salary based employee/public officer in a public institution, the Nigerian Law School and under the direct employment/service of the defendant, is disallowed in law from engaging in private practice by way of representing a litigant in court in a private capacity as counsel, and therefore has no right of audience in this suit under the law. 3. An order prohibiting counsel to the defendant from representing the defendant in court in this suit as long as he remains a full salary based employee/public officer in a public institution, the Nigeria Law School and under the direct employment/service. 4. An order that the application filed by the counsel to the defendant dated 12th April 2018 praying the court for the grant of leave for the extension of be struck out, same having been wittingly signed, franked and filed by a counsel who already suffers a legal disability and for a Defendant who knows or ought to have known that its counsel is with the said legal disability. 5. An order directing this matter to immediately proceed to hearing as the Defendant, since after it was served claimants’ processes in this matter Eight Months ago (precisely on 29th January 2018) has not made an appearance, or filed any memorandum of appearance in this matter.’
The application is supported by a 7 paragraphs affidavit sworn to by the 1st Claimant.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether or not Dr. E. O. Olowononi, Esq; being a public officer in full salaried employment of the defendant is allowed in law to provide legal representation in court for and on behalf of the defendant (his employer)?
RESOLUTION: IN APPELLANT’S FAVOUR. (Cannot provide legal representation for his employer).
[THE EARLIER COUNSEL (DR. E O. OLOWONONI) CANNOT APPEAR FOR HIS EMPLOYER BUT CAN FOR OUTSIDERS, EXCEPT HE IS EMPLOYED AS A LEGAL OFFICER
‘The watchword here (Rule 8 of the Rules of Professional Conduct) is for his employer which clearly qualifies the intention of the law preventing in-house lawyers like Dr. E. O. Olowononi, Esq; from personally handling briefs of their employers. The provisions of the Rules of Professional Conduct for Legal Practitioners clearly goes to show that the objective of this provision is to guarantee source of employment for external counsel in order to check monopoly and a situation where companies would rather employ lawyers and place them on salary only to be handling their cases based on the fixed salary instead of paying professional fees. Nothing in this provision prevents law teachers/lecturers from law practice. From all I have been saying above is that the law does not prohibit or disallow a law lecturer from engaging in private legal practice in so far as it is to render services to third party and not to his employer. This means that a law lecturer like Dr. E. O. Olowononi, Esq; cannot appear in court in a matter involving his employer for purposes of providing legal representation for his employer (the defendant in this case). But, he can appear in respect of other persons.’]
II. Whether the defendant’s motion on notice filed on 12/4/18 filed by Dr. E. O. Olowononi, Esq; is liable to be struck out for having been wittingly signed, franked and filed by a counsel who is in the employment of the defendant?
RESOLUTION: IN APPLICANTS’ FAVOUR. ().
[THE PROCESSES FILED FOR HIS EMPLOYER ARE INCOMPETENT AND HEREBY STRUCK OUT
‘Having held that an employee of the defendant cannot provide legal representation for the defendant in court, this also means that he cannot in view of the provisions of Rule 8(2) prepare, signed or franks pleadings, applications, instrument agreements contracts deeds letters memoranda, reports, legal opinion or similar instruments or processes or file any such documents for his employer. With the state of the law it is only a private legal practitioner or a legal officer from the office of the Honourable Attorney General of the Federation that can provide legal representation in court for and on behalf of the defendant. In view of the clear and unambiguous provisions of Rule 8(2) of the Rules of Professional Conduct for Legal Practitioners, I hereby struck out all processes filed by Dr. E. O. Olowononi, Esq; in this suit for not being properly before the Court. Ruling is entered accordingly.’]
➥ FURTHER DICTA:
⦿ WHAT LAW PRACTICE INVOLVES
It is apparent that Law Practice involves in a representative capacity appearing as an advocate or drawing up papers, pleadings or documents, or performing any act in connection with proceedings before a court or body, board, committee, commission or officers constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state or any subdivision thereof. It is also part of a lawyers’ vocation to render expert opinions on matters of law and to be engaged as a consultant by public or private bodies to render professional services including drafting of legal or administrative documents, statutes, regulations, etc. — S. Kado J.
IT IS THE CODE OF CONDUCT TRIBUNAL THAT CAN RESOLVE ISSUE WHETHER PUBLIC OFFICER CAN ENGAGE IN PRIVATE PRACTICE
‘In order to prove entitlement to prayers being sought by the claimants as per their motion on notice, reliance was heavily placed on the provision of paragraph 2(b) of the 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999, (as amended), in raising objection to the appearance of Dr. E. O. Olowononi, Esq; as counsel for the defendant in this suit. Paragraph 2(b) of the 5th Schedule to the Constitution, as amended, read:- ‘‘(b) except where he is not employed on full time basis, engage or participate in the management or running of any private business, profession or trade but nothing in this sub-paragraph shall prevent a public officer from engaging in farming’’ … The determination of whether such strictly professional engagement by teachers regarded as “outside work” by British academics can be regarded as business. This can only be dealt with at appropriate fora, and not this Court. This is because the highest court of the land had already taken the position that it is only the Code of Conduct Tribunal that is vested with requisite power to deal with the issue of interpretation of the provisions of the Code of Conduct for Public Officers. See AHMED V AHMED (2013) LPELR-2143(SC). … Paragraph 2b of the Code of Conduct for Public Officers clearly sets to prevent conflict of interest in business transactions where a civil servant is involved, and also clash of time between the time available to his duties and time he allocates to his private business. Whether the law never intended to classify law lecturers as civil servants or persons under salaried employments under the strict restrictions that an interpretation of paragraph 2(b) of Code of Conduct for Public Officers may present is yet to be seen as the said provision is yet to be interpreted by the Code of Conduct Tribunal which the Supreme Court held is the only body that has power to do so. In the case of AHMED V AHMED (supra), the Supreme Court made exhaustive ruling on this, where the court clearly declared while declining the objection to disentitle a law lecturer from appearance as follows; “…I do not see how any ordinary regular courts save the Tribunal established under the code could have assumed the power to interpret and enforce these provisions albeit in furtherance of its (i.e. the regular court) duty to interpret and enforce the provisions of the Constitution in regard to a matter placed before it. I think in this regard that the cross-appellants must have totally misconceived the import and purport of the said provisions of paragraphs 1 and 2 Part 1) of the 5th Schedule (supra) as regards its ouster clause and the forum that has been endowed with the exclusive powers to adjudicate on all matters of violations of its provisions. The judicial powers of the trial court under section 6(6) of the 1999 Constitution does not avail it to do so’’ … It is very clear that in the case of AHMED V AHMED (supra) the Supreme Court affirmed that the paragraph 2(b) of the Code of Conduct for Public Officers as contained in 5th Schedule of the Constitution requires to be interpreted by the Code of Conduct Tribunal. Suffice to state that since there is no such interpretation from the Code of Conduct Tribunal this Court cannot in view of the decision of the Apex Court in the case of AHMED V AHMED (supra), engage in such endeavour to attempt to do that will be in defiance of clear and unambiguous decision of the Supreme Court. The Supreme Court being the highest and final court of the land, its decisions are binding on every court, authority or person in Nigeria. By the doctrine of stare decisis this court is duty bound to follow the decisions of the Supreme Court. The doctrine is sine quo non for certainty to the practice and application of law. A refusal, therefore, by a judge of any court to be bound by the decisions of the apex court will amount to gross insubordination. The doctrine of judicial precedent otherwise known as stare decisis is not a stranger to our jurisprudence. It is based on settled principle of judicial policy which must be strictly adhered to by all courts.’ — S. Kado J.
PENDING DETERMINATION BY THE CCT, THERE IS NO LAW THAT PROHIBITS A LEGAL PRACTITIONER (EVEN IF A PUBLIC SERVANT) FROM RIGHT OF AUDIENCE IN COURT
‘The right of audience in court is governed by the Legal Practitioners Act. It is clear from the provisions of sections 2 and 8 of the Legal Practitioners Act that as long as the name of a legal practitioner remains on the roll, it is wrong to deny him right of audience in court. The procedure for removal of names of legal practitioners from the roll or to deny a legal practitioner right of audience in court is clearly set out under the Legal Practitioners Act. It is only for non-payment of the yearly practising fee that a court can deny a legal practitioner whose name is on the roll the right of audience in Court. The Legal Practitioners Act, does not provide for any other circumstances for denying a Legal Practitioner the right of audience in court apart from the direction of the disciplinary committee or by implication from the constitution, as a result of an Order by the Code of Conduct Tribunal. Support for this view can be found in the decision of Benin High Court Presided by Justice Ogbonine, in the case of OLOYO V ALEGBE (1981) 2 NCLR 680, where his Lordship Ogbobine, J. rejected an objection against the appearance of Mr. Alegbe in court (and while leading other lawyers) for himself as the speaker of the Bendel State House of Assembly. Hear his Lordship. “I do not think it is right for any court to disqualify a Legal Practitioner from practicing his profession, except on very sound grounds set out under the Legal Practitioner’s Act and other enabling law and regulations made to that effect”. It is beyond reproach that the primary legislation that disqualifies any person whose name is on the roll from acting as Barrister and or Solicitor officially or in private is sections 8 (2) of the Legal Practitioner’s Act, which deals with payment of practicing fee.’ — S. Kado J.
Akazor Gladys, Daodu Grace, Margrate Kure, Peter Ladi, Ini Paul Okon, Ogwuwgbu Binifae, Mr. E. Adagba, Duniya Josephine Kande, Timothy Ohi Isaac, Tukura Pauline (Suing for themselves and on behalf of 139 Others).
Council of legal Education
➥ LEAD JUDGEMENT DELIVERED BY:
Honourable Mr. Justice Sanusi Kado
⦿ FOR THE APPELLANT(S)
Joseph O. Ilorah, Esq.
⦿ FOR THE RESPONDENT(S)
H.D Bwala, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Regulated and Other Professions Private Practice Prohibition Act Cap 390. LFN 1990;
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)