Public Officers and Restriction to Practice

By Ibrahim Ahmad Kala, LL.M

The headline: “NO LAW BAR A LEGAL PRACTITIONER IN SALARY EMPLOYMENT FROM APPEARING IN COURT AS ADVOCATE ~JUSTICE ISAAC ESSIEN” stirred another controversy especially among the legal pundits.

It’s a National Industrial Court sitting in Makurdi, Bunue State on January 23 that ruled that no law bars a Legal Practitioner in salary employment from appearing in court as advocate to represent the interest of his or her clients.

Justice Essien delivered the ruling in suit Number NICN/MKD/96/2020 filed by Comrade Ngodoo Toryem & One Other V Nigerian Civil Service Union, Benue Chapter & Three Others following a Notice of preliminary objection pursuant to Rule 8 of the Rules of Professional Conduct for Legal Practitioners challenging the competence of A. A. Ikpa, Esq to appear for the defendants sequel to the legal tursle that he is currently in the employment of the Benue State Government where he draws salaries and even an official Gac Sport car to his credit.

In his ruling, Hon. Justice Isaac Essien held inter alia, that he has carefully perused the provisions of Rule 8(1)(2) of the Rules of Professional Conduct for Legal Practitioners 2007 and finds the arguments of A.A. Ikpa, Esq as being valid on the the strength that while a Legal Practitioner, whilst a servant or in a salaried employment of any kind, shall not appear as advocate in a court or judicial tribunal for his employer except where the lawyer is employed as a legal officer in a Government department or shall not prepare, sign, or frank pleadings, applications, instruments, agreements, contracts, deeds, letters, memoranda, reports, legal opinion or similar instruments or processes or file any such document for his employer, the law did not in any way contemplate any restriction on any lawyer appearing for his clients other than his employer or as law officer and accordingly ruled that A.A. Ikpa, Esq a Principal Special Assistant to the Governor of Benue State on legal matters has the right of audience before him to defend the interest of the defendants in the instance case.

While reviewing this recent judgment of the NIC, I shall start my going back to history when the express prohibition of public officers from engaging or continuing to engage in private practice dates back to the enactment and coming into effect of the Regulated and Other Professions (Private Practice Prohibition) Act on the 12th day of December, 1984, in connection with any of the scheduled professions. The scheduled professions or calling are Architecture, Accountancy, Dental Technology, Engineering, Estate Management, Law, Medical Technology, Medicine and Dentistry, Midwifery and Nursing, Pharmacy, Psyiotherapy, Quantity Surveying, Radiography, Surveying, Teaching, and Veterinary Medicine, and more particularly, the Legal officers, Legal Assistant, and or Law Lecturers in the employment of public service of either the state or federal government. However, in 1992 those Law lecturers cried out for the need to allow them practice law as business outside their official engagements in Nigeria. This saw the promulgation of a Decree known as Regulated and other Professions (Private Practice Prohibition) (Law Lectures Exemption) (No. 2) Order, 1992.

This Decree of 1992 existed uptil 1998 when the 1999 Constitution of the Federal Republic of Nigeria (as amended) was promulgated. The 1999 Constitution has not preserved the then existing legal orders, but by implication impliedly nullified and repealed those EXEMPTIONS, when it brought into force, the provisions of paragraphs 1 and 2(b) of the 5th Schedule to the Constitution which are in pari materia with sections 5 and 6 of CCBT Act – an extension of the constitution itself.

It follows therefore, that any Act or Decree that exist in conflict with the constitutional provisions is to the extend of its inconsistencies null and void, – and if the extent of the conflict covered all aspect, the entire Decree simply become dead letters without any live of its own.

Effectively, the public officers engaged in the practice of law as full-time lecturers in the Universities, Polytechnics, Nigerian Law School, and allied academic and research institutes are prohibited from engaging or continuing to engage in private practice by virtue of the Codes of Conduct for Public Officers contained in the 1999 Constitution of the Federal Republic of Nigeria (as amended), and Court of Conduct and Tribunal Act.

The decision of the NIC, Makurdi division relying merely only on the Rules of Professional Conduct of Legal Practitioners, without recourse to the glaring provisions of Code of Conduct for public officers in Nigeria as contained in the constitution – being the grund norm, to sanction practice of law in public service should be viewed with strong reservation. This issue came up several times in the past. However, all the cases were struck out for want of jurisdiction because all of them came up before High Courts instead of Code of Conduct Tribunal. See Ahmed V Ahmed (2013) ALL FWLR (PT. 699) 1025 and the recent Plateau State University Bokkos V Joseph (2018) LPELR-46049.

It would have been more convenient and better for the NIC to just strike out the P. O. raised against the appearance of the Senior Special Assistant to the Governor on ground of lack of jurisdiction over subject matter of the P. O. which fall within the purview of CCT and still maintain the presence of the defendant counsel in the case, than justifying the legality of appearance of the SSA in blatant affront to the constitutional provisions. Once, the court declined jurisdiction and strike out the P. O., the SSA would still have continued with his case – since the power to determine whether or not the SSA has right of audience in such cases in court is CCT, and not NIC.

Although, there is dearth of authority from the Court of Conduct Tribunal (CCT) in determination of the status of such a professional engaging in private practice while in salary employment, it is my humble opinion that the provisions of paragraphs 1 and 2(b) of the 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) which are in pari materia with sections 5 and 6 of CCBT Act, prohibit a Legal Practitioner in salary employment from appearing in court as advocate.

Kala, Esq. is the Head of Litigation Department, Court of Appeal, Gombe Division©️


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