Hon. Justice D.I Okungbowa of the Edo State High Court sitting in Benin on the 27th of April 2009 delivered ruling on a motion on notice filed by the Attorney General of Edo State on behalf of the 1st, 2nd & 5th Defendant/Applicants in SUIT NO: B/3/08/2009-MR LAWRENCE OGEIVA & 6 ORS V. COMRADE ADAMS ALIU OSHIOMOLE EXECUTIVE GOVERNOR OF EDO STATE & 6 ORS.

The ruling of the court considered the propriety of a law lecturer in public service engaging in private practice.

This article highlights arguments in the decision of the court and the principles of legal practice which the case highlighted.

Facts of the Case

The 1st, 2nd and 5th Defendants brought a motion on notice before the court on the 23rd of March 2009 pursuant to Rules 30 and 31 of the Rules of Professional Ethics of the legal profession and Section 1(2) of the Entitlement to Practice as a Barrister and Solicitor (Federal Officers) Order and Under the inherent jurisdiction of the Court praying for the following orders:

  1. An order that the counsel to the Plaintiffs being a public officer has no right of audience under the law; and
  2. That all processes filed by counsel to the Plaintiffs be set aside by the Honorable Court.

The motion was supported by an affidavit deposed to by a clerk in the Ministry of Justice and two further and better affidavits; one deposed to on 25th March 2009 and the other on 3rd April 2009.

In moving the motion. The Attorney General of Edo State, Dr. O.O. Obayuwana also brought the application under the 5th Schedule to the 1999 Constitution of the Federal Republic of Nigeria. The Honourable AG sought the leave of court to withdraw the original affidavit in support of the motion and to rely on the two further affidavits deposed on 25/3/2009 and 3/4/2009 respectively.

Argument of AG as Applicants Counsel

The Applicants in urging the court to grant the said motion argued:

  1. Relying on para 4 of the further affidavit of 25/3/2009, that the Plaintiff counsel is a public officer, being a lecturer on salaried employment in the faculty of law, University of Benin on full time basis and that this fact was not contradicted by Plaintiffs in any counter-affidavit.
  2. That Rule 31(a) of the Rules of Professional Conduct 1980 forbids appearance in court of the Plaintiff’s counsel, he being a member of the bar on salaried employment and that this position is reinforced by the Regulated and other Professions Private Practice Prohibition Act Cap. 390 LFN 1990 which prohibits public officers in professions (including law) from private practice.
  3. That the Regulated and other Professions Private Practice Prohibition Act (Law Lecturers Exemption) Order No. 2 of 1992 made pursuant to Cap. 390 LFN 1990 no longer enjoys validity as the principal legislation (i.e. Cap 390) has been repealed by the promulgation of the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree No. 63 of 1999 which expressly repealed Cap 390. He argued that since the subsidiary legislation was tied to the principal legislation, the principal legislation having been repealed, the subsidiary legislation had no validity. He relied on Section 6 and 19 of the Interpretation Act Cap. 123 LFN 2004.
  4. He further argued that the exemption order was contrary to the 5th Schedule of the Constitution which in its Paragraph 2 prohibits public officers employed on full-time basis from engaging in any private practice except farming and that the Plaintiff counsel being a public officer under the definition of item 15 of paragraph 2 of the 5th Schedule could not engage in private practice by the provisions of the 5th Counsel argued also that the Regulated and other Professions Private Practice Prohibition Act (Law Lecturers Exemption) Order No. 2 of 1992 was unconstitutional null and void for being contrary to the 5th schedule to the constitution.
  5. That the Plaintiff counsel had not denied that he is a public officer on full-time basis; he being a lecturer in the University of Benin. Applicants therefore invited the court to consider the originating summons taken out by the Plaintiff’s counsel as liable to be struck out, being an illegal engagement in private practice.
  6. The Applicants also argued that the right to counsel of one’s choice does not extend to counsel who may otherwise suffer legal disabilities and that payment of practicing fee cannot override the constitution.

Counsel to the Plaintiffs argument in response.

The Plaintiffs’ counsel vehemently opposed the application and argued that:

  1. The Attorney General having withdrawn the affidavit in support of the motion, there was no affidavit in support of the motion as required by the rules of court and the motion was therefore incompetent, stood on nothing and could not stand. He relied on the case of Macfoy v. UAC (1961) 3 All E.R 1169 at 1172.
  2. That assuming without conceding that there was a motion, the failure to state the name of counsel who is a public officer sought to be disqualified from audience and the failure to establish by evidence that such counsel is on full-time employment was fatal to the application and the Applicants therefore had not met the standard of proof under section 135 (1) of the Evidence Act. Counsel argued that neither the affidavits nor motion mentioned with particularity who among the counsels for the Plaintiff in the suit suffered legal disability.
  3. Furthermore, counsel argued that assuming without conceding that the state of evidence was sufficient, as at the day the motion was moved there was no law as the Rules of Professional Conduct 1980 as the extant Rules Of Professional Conduct was the one of 2007 which had not the same provisions in its Rules 30 and 31 as the Rules of 1980.
  4. That jurisdiction to entertain complaints from violation of the RPC does not lie in the court but in the appropriate authority set up by the NBA. That the court therefore lacks jurisdiction to entertain complaints arising from the 5th Schedule to the 1999 Constitution because it deals with the code of conduct for public officers, which by paragraph 12 and 15 of the 5th schedule is exclusively reserved for the Code of Conduct Tribunal. Counsel relied on the Cases of Obuagu v. Obuagu (1980) FNR 360 and Nwankwo v. Nwankwo (1992) 4 NWLR Pt. 238, 693 at 697.
  5. The Counsel further argued that the Applicants had no locus to bring the application under the 5th Schedule as Code of Conduct being a public right, only the AG of the Federation and not of the States could enforce it.
  6. It was the argument of the Plaintiffs that assuming without conceding the court has jurisdiction on matters in the 5th Schedule, a full-time basis employed law lecturer has the right of audience in court by virtue of the Regulated and other Professions Private Practice Prohibition Act (Law Lecturers Exemption) Order No. 2 of 1992 which by Section 315 of the Constitution is an existing law and not repealed by Decree No. 63 of 1999 and the said Decree did not repeal Cap. 390.

Reply on points of law by AG as Applicants’ Counsel

In reply on points of law the Applicants submitted inter alia:

  1. That the legal definition of affidavit includes further affidavit and better affidavit under its definition in Black’s Law Dictionary 6th Edition at page 58 and Section 80 of the Evidence Act .
  2. That’s the RPC 2007 did not expressly overrule the rules of the RPC of 1980.
  3. That the case of Obuagu v. Obuagu (Supra) has been expressly overruled by the supreme court in Okoya vs Santilli (1993/1994) 1 All NLR (REPRINT) 387 at 415.
  4. That the issue of locus is one which must be raised by motion and, relying on the case of Fawehinmi v. The President (2007) 14 NWLR Pt. 1054 275 at 340-341, argued that the Plaintiffs could not raise same in submission of counsel.
  5. That by Section 315 of the Constitution all existing laws must be brought in conformity with the constitution.
  6. That the Applicant discharged the burden of proof, as paragraph 4 of its further affidavit of 25/03/ 2009 revealed, and same evidence was not controverted by the Plaintiffs and therefore requires no further proof.

Ruling of The Court

The courts in considering the arguments on both sides ruled as follows:

whether the application is competent in view of withdrawal of the affidavit in support of the motion.

The learned trial judge having considered the meaning of the word “affidavit” and the word “further” under the Black’s Law Dictionary and having considered the dictum of Lord Denning in Macfoy v. UAC(Supra) held that:

“In the instant case there is no suggestion that the affidavit that was withdrawn is a nullity, on the contrary, this is a situation where 3 written declarations/affidavit support one motion and one was withdrawn. I have read the contents of the other affidavit and I am satisfied that the circumstances of this case are different from the one in Military Governor of Lagos State v. Ojukwu (supra) in that the contents of the further and better affidavit and the further affidavit are sufficient to support the prayers sought in the motion paper.”

On whether counsel sought to be disqualified is clearly ascertainable.

The court in considering the further affidavit in support and held:

“In order to ascertain who truly took out the originating summons the natural thing to do is to look at the originating summons itself…while the originating summons is stated to have been taken out by FO Osadolor Esq. it was nevertheless signed by Nosa Iyekekpolor Esq. who did not, in doing so, indicate that he was signing for FO Osadolor Esq… I do not think that he’s signing it contradicts the express claim in the originating summons that the said summons was taken out by FO Osadolor Esq. of Osadolor & Co. In the circumstances I hold the Plaintiffs’ counsel who took out the originating summons is FO Osadolor Esq… A combined reading of paragraph 2 of the further affidavit shows that FO Osadolor Esq. who took out the originating summons is the public officer sought to be denied his right of audience in law.”

On Whether the Rules of Professional Conduct 2007 is the extant law applicable.

“I have looked at the 2007 Rules and I do not see where the old set of rules was repealed. Rule 30 and 31 of the old rules were re-enacted as Rules 7 and 8 of the 2007 rules with substantial modification…”

The court went further, and in relying on Cotecha Industries Ltd V. Churchgate Nigeria Ltd.  (2004) 11 NWLR Pt. 883 at 128, held:

“… it is my view that the makers of the new rules deliberately excluded the general limitation in Rule 1 of the old rules from the new one ostensibly because of its harsh provisions…”

On the issue of jurisdiction of the court to entertain issues raised by the application.

The court considering the judicial powers under Section 6 and held that:

“The right of audience of a legal practitioner is statutory. See Section 8 of the Legal Practitioners’ Act. In considering the statutory provisions aforesaid the inherent powers or jurisdiction of the court would attach”.

On whether the Regulated and other Professions Private Practice Prohibition (Law Lecturers Exemption) Order No. 2 of 1992 has been repealed by the repeal of its principal legislation.

The court held:

“I have looked at the Constitution of the Federal Republic of Nigeria ( Certain Consequential Repeals) Decree No. 63 of 1999 and I see that the Regulated and other Professions (Private Practice Prohibition) Decree No. 34 of 1984 as one of the enactments that was repealed… the next issue is the effect of the said repeal on the Regulated and other Professions (Private Practice Prohibition) (Law Lecturers Exemption) Order (No. 2) of 1992…I have already held that Decree No. 63 of 1999 expressly repealed the principal Act. In doing so the repeal was made subject to Section 6 of the Interpretation Act which provides:

  1. Effect of repeals, expiration, etc. (1) The repeal of an enactment shall not… (b) affect the previous operation of the enactment or anything duly done or suffered under the enactment”

The court further in relying on the decision in Addullahi v. Military Administrator, Kaduna State (2004) 5 NWLR Pt. 866 at 232, concluded that:

“There is no doubt that the Regulated and other Professions (Private Practice Prohibition) (Law Lecturers Exemption) Order (No. 2) of 1992 is a subsidiary instrument within the meaning of the expression in Section 37 of the Interpretation Act and consequently a law within the meaning of laws under Section 18(1) of the Interpretation Act Cap. 192 LFN 1990….the Regulated and other Professions (Private Practice Prohibition) (Law Lecturers Exemption) Order (No. 2) of 1992 is an existing law by virtue of Section 315 of the Constitution”

On the issue whether the Applicant had met the standard of proof.

The Learned Trial Judge held that:

“This is a civil case and the body of proof is not static. It shifts.”

Relying on Section 137 of the Evidence Act  the court concluded that since the Applicant had by affidavit established a prima facie case the onus shifted to the Plaintiff to disprove same which it failed to do and that:

“The law is clear that in a situation such as this where the affidavit evidence of one party is not challenged or controverted, the other party is deemed to have admitted the unchallenged evidence. It is also trite that what is admitted needs no further proof.”

On the issue of jurisdiction of the court to enquire into violation the provisions of the 5th Schedule to the 1999 constitution

The court in agreeing that the decision in the case of Obuagu v. Obuagu (Supra) had been overruled by the Supreme Court in the case of Okoya v. Santilli Nig Ltd. (Supra) concluded that:

“The case of Okoya v. Santilli Nig Ltd. (Supra) is a decision of the supreme court delivered on the 22nd of April 2004 and by the principle of stare decisis it is superior to the case of Nwankwo v. Nwankwo (Supra) and to Obuagu v. Obuagu (supra) which was held to have been wrongly decided. Therefore, this court must take cognizance of any illegality brought to its attention even if not triable in this court but in another tribunal… The prayer on the face of the motion as it relates to the Plaintiff’s Counsel is that he in the circumstances has no right of audience in this court in this case, therefore the court has not been called upon to impose any of the sanctions of the Code of Conduct Tribunal has powers to impose on any public officer under paragraph 18 of the 5th Schedule to the 1999 Constitution.”

On the validity of the Regulated and other Professions (Private Practice Prohibition) (Law Lecturers Exemption) Order (No. 2) of 1992 in light of constitutional provisions

Relying on Section 315 of the Constitution and the Court of Appeal decision in Togun v. Oputa (No. 2) (2001) 16 NWLR Pt. 740 at 597, the court held that the Regulated and other Professions (Private Practice Prohibition) (Law Lecturers Exemption) Order (No. 2) of 1992 is an existing law and deemed to be an Act of the National Assembly being a matter under the National Assembly’s legislative competence. The exemption according to the court however runs contrary to paragraph 2 of the 5th schedule which prohibits a public officer on basis of full-time employment from engaging or participating in the management or running of a private business, profession or trade and since the exemption has not been modified to confirm with the provisions of the 1999 Constitution, particularly the 5th Schedule, same is inconsistent with the constitution and is null and void.

“Accordingly, in exercise of the powers enabling me in that behalf by… Section 315 (3) of the Constitution of the Federal Republic of Nigeria 1999, I hereby declare that the Regulated and other Professions (Private Practice Prohibition) (Law Lecturers Exemption) Order (No. 2) of 1992  is inconsistent with the provisions of paragraph 2(b) of the Constitution of the Federal Republic Of Nigeria 1999 and by virtue of Section 1 (3) of the same Constitution, I declare the said order void for inconsistency.

On whether payment of practicing ispo facto entitles counsel with legal disability to be granted audience in court.

The court considering Section 8(2) of the Legal Practitioners’ Act held that:

“…the payment of practicing fees by a legal practitioner who is not entitled to private practice does not override the legal disability to practice.”

On the implication of a legal practitioner employed on full time basis in public service engaging in private practice.

The court concluded that:       

“It seems to me that it will be a breach of this oath for a judicial officer to allow a public officer in breach of the provisions of the constitution of the Federal Republic of Nigeria to engage in private practice by granting him a right of audience notwithstanding that he has paid his practicing fees. In such circumstances the court can exercise its inherent powers to ensure that proceeding in his court are not conducted in violation of the Constitution of the Federal Republic of Nigeria. In other words, the court has inherent powers to prevent the continued commission of an illegality in the face of the court…In the circumstances FO Osadolor Esq…who is a public officer in that he is employed as a Lecturer in the faculty of law, University of Benin, Benin City on full time basis cannot while still such a public officer continue to appear in this court as counsel in this matter.”

 

Oliver Omoredia Esq.
Associate, OBIAGWU & OBIAGWU LLP.
08100193573 oliveromoredia@yahoo.com

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