There’s a long held opinion, among Lawyers and Legal Scholars, that a Law Lecturer employed in a Nigerian public institution cannot engage in private legal practice. The reason usually proffered for the argument is that section 2(b) of Part 1 of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria (hereafter simply referred to as “section 2(b)”) forbids public officers from private practice or business or trade. By section 318 of the Constitution, the definition of public officer includes Lecturers in government -owned higher institutions or public institutions. However, the question that agitates my mind is, does the said section 2(b) actually say what it is alleged to have said? I don’t think so. The Nigerian Supreme Court and Court of Appeal have not, to the best of my knowledge, information and belief, pronounced on this vexed issue yet. The closest the Supreme Court of Nigeria had gone on the matter was to have held that the regular Courts of Law, like the Federal and State High Courts lack the vires or jurisdiction to entertain any questions as to whether a Law Lecturer has breached the provisions of section 2(b). That was in the case of AHMED v AHMED (2013) LPELR-21143 where the apex Court held that it is only the Code of Conduct Tribunal that can decide whether there has been a breach of the section and impose any punishment on the violator. The Court, however, did not have the opportunity to pronounce on the main issue on the import of section 2(b), as the appeal before it didn’t, frontally, address the issue. I’m not unaware of recent decisions of some State High Courts to the effect that, by virtue of section 2(b) of the Constitution, a Law Lecturer in a public institution cannot engage in a private legal practice. While I hope that some day, the Court of Appeal or Supreme Court would have an opportunity to give a firm decision on the issue, I have, however, personally dissected the touted section and come up with my personal thoughts. Now let’s look at the said section. “Fifth Schedule Part I: Code of Conduct for Public Officers General Conflict of Interest with Duty 1. A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities. 2. Without prejudice to the generality of the foregoing paragraph, a public officer shall not (a) receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public office; (b) except where he is not employed on a 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.” Contrary to the view held over the years, it is my considered opinion that the above section 2(b) does not preclude or forbid Public Institutions’ Law Lecturers or any public officer from engaging in private practice. A calm review of section 2(b) would reveal that what the section forbids is not engagement in private practice, but management or running of private practice. No! I’m not playing the semantics game here! The key words to look out for in the said section are “management” and “running”. These words are synonymous but neither of them is synonymous with the word “engagement”. It is a trite principle of the Law that where words in a statute are clear or unambiguous, they must be given their ordinary, literal, grammatical or dictionary meaning. This is what the Lawyers call the Literal Rule of Interpretation and it is the first port of call in the interpretive function of a judicial or quasi-judicial body. What then is the ordinary or dictionary meaning of the words “management” and “running “? According to the Oxford Advanced Learner’s Dictionary, 8th edition as edited by AS Hornby (Oxford: Oxford University Press, 2010), p. 902, “management” means ‘The act of running and controlling a business or similar organisations’. At page 1298, the same dictionary defines “running” as ‘The activity of managing or operating something ‘. Against the backdrop of this literal interpretation of the words in focus, one thing stands out and that is, section 2(b) seeks to prevent or forbid Law Lecturers and other public officers from MANAGING OR RUNNING OR CONTROLLING private practice or business, it doesn’t stop them from ENGAGING in private practice or business. What is the significance of this argument vis-a-vis the counter -argument? My thesis here is that a Law Lecturer in a public institution has the constitutional and statutory right to engage in law practice by belonging to a law firm that represents clients in Court and other tribunals. However, by the import and purport of section 2(b) above, he does not have the right to establish a law firm and then be managing, running or controlling it. If he must establish a law firm or chambers, he cannot be the managing partner who is responsible for the day to day RUNNING of the chambers. That’s what the above constitutional provision seeks to forbid, not otherwise. In other words, practice your law under some chambers managed by someone else, not you running your own chambers! To help drive the point home, it would be pertinent to give a community reading to sections 1 and 2 of the above constitutional regime. Such a community reading would reveal that what the Constitution actually seeks to prevent is divided attention which the running or management of a law firm would occasion in the life of a public officer of a Law Lecturer’s standing. That is why section one talks of conflict of interest and section 2(b) talks about double remuneration. The opening clause in section 2(b) which provides that “except where he is not employed on a full-time basis” further reveals this intention that what the Constitution guards against is not practice per se, but controlling or management power that would prevent the lecturer from devoting his time to his full time public service job. A Law Lecturer who is not the manager or managing partner of the firm he practises with can conveniently juggle between his lecturing job and his court cases. The Constitution could not have intended to discard the countless benefits which court room practice heralds in the classroom. I say, without fear of contradictions, that the best and most up-to-date Lecturers are the practising Lecturers. They don’t just teach students abstract things or theories, but they bring their court room experience and law report review to bear in the lives of their students. Further, Law Lecturers often draw research inspiration from their court room experience. This, no doubts, enhances the robust development of the Law. The right of Law Lecturers to practise Law in the Court room is statutorily donated by the provisions of the Legal Practitioners Act. That statutory right enures for all time, provided they keep to the condition of payment of practising fee and abide by the Rules of Professional Conduct. The right can only be removed by an amendment to the Act or by an overriding constitutional provision. Section 1(1) and (3) of the Constitution gives the Constitution preeminence over and above any statute, including the Legal Practitioners Act. Assuming I’m wrong in my analysis of section 2(b) above, then the statutory right to practice under the Act would give way to the provisions of the Constitution. However, assuming my position is what the said section 2(b) intends, then there’s no conflict between the Legal Practitioners Act-donated right to practice and the Constitution; both can thus live together, like happily married couple. Finally, to my mind, the debate as to whether the Regulated and other Professions (Private Practice Prohibition)(Law Lecturers Exemption) Order (no. 2) of 1992 is an existing Law, that could be deemed to be an Act of the National Assembly, pursuant to section 315 of the Constitution is not necessary. That Order sought to exempt Law Lecturers from the private practice prohibition rule. That argument would only be necessary where it has been shown that section 2(b) indeed prohibits private practice or business by Law Lecturers, nay public officers. That clearly has not been shown. It has thus become needless to discuss whether an existing Order which conflicts with the Constitution can validly exist side by side with the Constitution.]]>

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