*Declares Processes Franked By Lawyers In NSCDC Employment Null And Void
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Hon. Justice Oluwakayode Ojo Arowosegbe of the National Industrial Court of Nigeria’s Enugu Division has ruled that those employed full-time and receiving a salary, including those working for the police, civil defense, and other government agencies, are not permitted to represent their employers in court proceedings.
The decision was delivered on the 27th of June, 2023 in the case of EZE TITUS ONYEDIKACHI VS NIGERIAN SECURITY AND CIVIL DEFENCE CORPS in SUIT NO.: NICN/EN/56/2019.
The suit commenced in November 26, 2019 and the Claimant framed the following reliefs for the Court’s consideration:
(i) A DECLRATION that the claimant’s employment is still valid and subsisting and that any purported termination of the claimant’s employment by the 1st defendant [sic] without notice and without payment of arrears of salaries and other employment benefits is unconstitutional, null and void.
(ii) AN ORDER of this Honourable court compelling the defendants [sic] to calculate and pay the claimant his outstanding/arrears of salaries and other employment benefits from 2007 till date.
(iii) AN ORDER of this court compelling the defendants [sic] to compensate the claimant for the permanent partial disability and injury he sustained in course of his duty and services to the 1st defendant [sic].
(iv) GENERAL AND EXEMPLARY DAMAGES of N10,000,000 (Ten Million Naira Only).
(v) Cost of this suit.
(vi) Pre-judgment interest on the unpaid salaries, monetary compensation on injury sustained and other employment benefit from 2007 till date.
(vii) Interest in the Judgment debts at the rate of 50% per annum or as this Honourable Court may deem fit to make in the circumstance calculated from the day of judgment until the debts are fully paid and satisfied.
Against the above, the defendant responded by filing Memo of Conditional Appearance, Statement of Defence on 19th February 2020 and motion for regularization on 14th October 2020.
During the trial, the Claimant Counsel, M.J. Eze raised oral objection against the appearance of counsel from the office of the defendant on the ground that, he was in fulltime salaried employment not as legal officer on 17th November 2022, the ruling of which was delivered on the same 17th November 2022. The fulcrum of the oral objection was that Rule 8(1)-(4) of the Rules of Professional Conducts for Legal Practitioners [RPC] and S. 45 of the National Industrial Court Act [NICA] forbid lawyers in full time employment, not as legal officers, from appearing in Court to prosecute cases on behalf of the defendant. The objection was upheld and, the learned counsel from the defendant’s office, whom the Court found, as not employed as legal officer, barred from appearing in the matter.
Subsequently, the case came up 31st January 2023 and Claimant’s Counsel, drew attention of the Court to the processes filed by the Lawyers earlier ruled as ineligible to appear. The grouse of the motion was that, all the processes filed by the defendant, having been franked by lawyers in full-time salaried employment, and not being employed as legal officers, were incompetent. On this date, a new Counsel, EVELYN O.O. CHARLES-IYANYA appeared for the defendant for the first time and the Claimant Counsel raised objection against her appearance on the same ground as in the previous objection upheld in his favour on 17th November 2022.
In deciding the objection, the Court relied on the provisions of the Rules of Professional Conduct (RPC) and the National Industrial Court Act (NICA).
According to the Court, ““Rule 8 of the Rules of Professional Conduct provides as follows: ‘8(1) A lawyer, 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. (2) A lawyer, whilst a servant or in salaried employment, shall not prepare, sign or frank pleadings, applications, instruments, agreements, contracts, deeds, letters, memoranda, reports, legal opinions or similar instruments or processes or file any such documents for his employer. (3) A director of a registered company shall not appear as advocate in Court or judicial Tribunal for his company. (4) A lawyer in full-time salaried employment may represent his employer as an officer or agent in cases where the employer is permitted by law to appear as an officer or agent, and in such cases the lawyer shall not wear robes. (5) An officer in the Armed Forces who is a lawyer may discharge any of the duties devolving on him as such officer and may appear at a Court Martial as long as he does so in his capacity as an officer and not as a lawyer.’ It is clear that the provisions state clearly that a lawyer in salaried employment cannot appear for his employer as an advocate in Court…”
The Court also relied on the case of Gladys & Ors v. Council of Legal Education where it was held that: ““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 [sic] or franks [sic] pleadings, applications, instrument agreements contracts deeds letters memoranda, reports [sic], legal opinion or similar instruments or processes or file any such documents for his employer.
According to Justice Arowosegbe, 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 for his employer.
“As a convergence of my foregoing holding, the processes franked and filed in this Court by the duo of Agomoh and Ekoh, and even those franked by the regnant counsel, who had been barred by this decision from appearing in this matter, are hereby struck out. The objections in issue 4 are upheld. I award cost of N50,000 [Fifty Thousand Naira] only against the defendant and in favour of the claimant.
The suit would be adjourned for hearing to enable the defendant sort out itself in accordance with the law by either engaging the office of the AGF to represent it or, hire a private legal practitioner or whatever” the Court concluded.
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