The Position of the Nigeria as regards Law Lecturers engaging in Private Practice

Over the years, there is this reasoning that Law Lecturers in public tertiary institutions are exempted from engaging in private legal practice. The basis for this reasoning emanated from the provision of Section 2(b) of Part 1 of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria which will be referred to as Section 2(b) subsequently in this article. The provision of “Section 2 (b)” of the Constitution restricts public officers including Legal Practitioners who are Law Lecturers from engaging in private practice or any commercial ventures. Now, the question that has been begging for answers over the years is what was the intention of the law makers while they were drafting “Section 2b” of the Constitution?

In order to ascertain their intentions, we have to look at the judicial interpretation vis-a-vis pronouncement on matters like this. Unfortunately the courts over the years has not been able to determine matters of this kind until the Supreme Court determined the case of AHMED v. AHMED (2013) LPELR-SC.279/2012, (2013) ALL FWLR (PT. 699) 1025, where the court held that the sole/exclusive power to hear a matter revolving around breach of Code of Conduct for public officers is vested on the Code of Conduct Tribunal. Sadly, the court didn’t address the provision of Section 2(b) of the Constitution and what was the true intentions of the lawmakers.

Notwithstanding, there is a recent pronouncement of the Court of Appeal as regards this issue and to my mind, the decision has provided the answers to this questions that has been lingering for decades.

In PLATEAU STATE UNIVERSITY vs. JOSEPH & ORS.(2018)LPELR-46049(CA), the Court of Appeal held that: “While I shall adopt the issues framed by appellant, inelegant as they are, it is my humble opinion that the main issue for determination from its Preliminary Objection and here is: Whether full-time employment as a Law Lecturer with a University, precisely the University of Jos, made Mr. P. M. Lere’s employment one in the ‘Civil Service of the Federation’ as to make him amenable to the provisions of Order 1(1) and (2) of the Entitlement to Practice as Barristers and Solicitors (Federal Officers) Order (S. 1) 10 of 1992. That question supersedes and encompasses every other issue in the appeal, because if Mr. Lere is not a person employed in the ‘Civil Service of the Federation’ as assumed by appellant in its objection, the objection collapses and all the other issues in the appeal including whether there was a proper reply address to the objection become academic. . So, is the full-time employment of Mr. Lere with the University of Jos one in the ‘civil service of the Federation’ as to bring him within the ambit of Order 1(1) and (2) of the Entitlement to Practice as Barristers and Solicitors (Federal Officers) Order (S.1) 10 of 1992 and barred by it. I think not. Employment with the University of Jos, a Federal educational institution, is rather employment in the ‘public service of the Federation’ which does not by any means equate to service in the civil service of the Federation.

Fortunately, both expressions – civil service of the Federation and public service of the Federation – are defined by Section 318 of Constitution of the Federal Republic of Nigeria, 1999 as follows: “Civil service of the Federation” means service of the Federation in a civil capacity as a staff of the office of the President, the Vice-President, a ministry or department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation.” In contrast, public service of the Federation is there defined thus: “public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as: (a) Clerk or other staff of the National Assembly or of such each House of the National Assembly; (b) Member of staff of the Supreme Court, the Court of Appeal, the National Industrial Court, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other Courts established for the Federation by the Constitution and by an Act of the National Assembly; (c) Member of the staff of the any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly. (d) Staff of any area council; (e) Staff of any statutory corporation established by an Act of the National Assembly; (f) Staff of any educational institution established or financed principally by the Government of the Federation; (g) Staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and (h) Members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.”

The Interpretation Act in its Section 18 also says that “‘public officer” means member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of the State.’ See also Ahmed v. Ahmed (2013) LPELR- SC.279/2012, (2013) ALL FWLR (PT. 699) 1025 @ 1061, A-D, (SC). From the definitions, it follows that the provisions of Order 1(1) and (2) of the Entitlement to Practice as Barristers and Solicitors (Federal Officers) Order (S.1) 10 of 1992 directed at ‘any person holding office in the civil service of the Federation’ will not apply to Mr. P. M. Lere, a public servant. And that renders academic all the other issues canvassed by appellant, which issues were all built on the assumption that Mr. Lere is a ‘person holding office in the civil service of the Federation’ and so affected by Order 1(1) and (2) of the Entitlement to Practice as Barristers and Solicitors (Federal Officers) Order (S.1) 10 of 1992. ”

After taking a cursory look at the above judgement, there are some certain issues that are quite instrumental in establishing the position of law in relation to the matter at hand. Before determining if a Law lecturer can engage in private legal practice, we have to consider whether he or she is a civil servant or a public servant which will make such individual to or not to be amenable to the provisions of Order 1(1) and (2) of the Entitlement to Practice as Barristers and Solicitors (Federal Officers) Order (S. 1) 10 of 1992.

In reiterating the court’s position, it’s only a law lecturer who is a civil servant that’s barred from engaging in private legal practice and a law lecturer whose employment is with a Federal educational institution, which is rather employment in the ‘public service of the Federation’ and by the virtue of that such person is not barred or under any form of restrictions from engaging in private practice. It is noteworthy that the court in the above-mentioned judgement has clearly distinguished between who is a public officer and a civil officer. Another fundamental question is which court has the jurisdiction to hear the matter per adventure a law lecturer who is also a public officer decides to breach the Code of Conduct for public officers? In answering this, I will adopt the wordings of the Court of Appeal in PLATEAU STATE UNIVERSITY vs. JOSEPH & ORS.(2018)LPELR-46049(CA), the court held that: “I am afraid this Court possesses no such jurisdiction. Fortunately, this same issue came frontally before this Court and the apex Court on further appeal in Ahmed v. Ahmed (2013) LPELR-SC.279/2012, (2013) ALL FWLR (PT. 699) 1025 and it was held both here and in the Supreme Court that the power to punish erring public officers for breach of the Constitutional provisions relating to the Code of Conduct for public officers, and that includes the power to declare invalid processes filed by such public officer as a private legal practitioner, strictly speaking, lie exclusively with the Code of Conduct Bureau and the Tribunal established by the Constitution; that the regular Courts, including the lower Court, this Court and even the apex Court lack that jurisdiction; that this Court and even the apex Court can only exercise jurisdiction over such matters on a proper appeal from the Code of Conduct Tribunal. ”

Another fundamental question is which court has the jurisdiction to hear the matter per adventure a law lecturer who is also a public officer decides to breach the Code of Conduct for public officers? In answering this, I will adopt the wordings of the Court of Appeal in PLATEAU STATE UNIVERSITY vs. JOSEPH & ORS.(2018)LPELR-46049(CA), the court held that: “I am afraid this Court possesses no such jurisdiction. Fortunately, this same issue came frontally before this Court and the apex Court on further appeal in Ahmed v. Ahmed (2013) LPELR-SC.279/2012, (2013) ALL FWLR (PT. 699) 1025 and it was held both here and in the Supreme Court that the power to punish erring public officers for breach of the Constitutional provisions relating to the Code of Conduct for public officers, and that includes the power to declare invalid processes filed by such public officer as a private legal practitioner, strictly speaking, lie exclusively with the Code of Conduct Bureau and the Tribunal established by the Constitution; that the regular Courts, including the lower Court, this Court and even the apex Court lack that jurisdiction; that this Court and even the apex Court can only exercise jurisdiction over such matters on a proper appeal from the Code of Conduct Tribunal. ”

I must commend the Court of Appeal judges who came up with a landmark judgement like this which has been able to answer these age-long questions which has been lingering for decades and i do hope the decision will be tested at them Supreme Court very soon. God bless the Legal Profession! God bless Nigeria!

About The Author

Toheeb Mustapha Babalola is a Pupil of Law,a content creator, a blogger & a student of Faculty of Law, Bayero University, Kano. He is the Founder of Lex Updates Publications, a Deputy Cordinator,North West Zone, MIPLG. He is interested in advocacy, academic writing, legal writing/history, activism and a plethora of positivism. To reach him, email: [email protected] or contact/whatsapp:08106244073.