Court Bars Lawyers Under the Employment of NSCDC, Police from Courtroom Advocacy and Franking Court Processes.

National Industrial Court

The Enugu Judicial Division of the National Industrial Court of Nigeria, presided over by Honourable Justice O.O Arowosegbe, has barred legal officers under the full employment of the Nigerian Civil Defence Corps from franking court processes for filing and making appearance in court to prosecute matters before any court in Nigeria vide his Judgment delivered on Tuesday, 27th of June 2023, in the case of Eze Titus Onyedikachi v. NSCDC with Suit No: NICN/EN/56/2019.

The Claimant instituted the said suit on the 26th day of November 2019, against the Nigerian Security and Civil Defence Corps (NSCDC) claiming among other reliefs, that the Claimant’s employment is still valid and an Order of the court compelling the Defendant to pay all outstanding salaries and other employment benefits of the Claimant from 2007 till date.

On the 17th day of November 2022, counsel to the Claimant, Mr. M.J. Eze raised an oral objection against the appearance of the Defendant’s Counsel, C.C. Agomoh and Ekoh S.N., on the ground that the Defendant’s Counsel was in fulltime salaried employment of the Defendant and not as a legal officer. He stated that Rule 8 (1)-(4) of the Rules of Professional Conducts for Legal Practitioners and Section 45 of the National Industrial Court Act forbid a salaried employed lawyer who has been employed by the government or its agency as a non-legal officer from appearing in court to prosecute cases on behalf of the Defendant. The objection was upheld and the counsel from the Defendant’s office was barred from appearing in the matter.

Subsequently, the matter came up on the 31st of January 2023, and the Claimant’s Counsel brought the attention of the Court to the Notice of Preliminary Objection filed on the 29th of November 2022, his contention was that all the processes filed by lawyers in fulltime salaried employment, and not being employed as legal officers, were incompetent. Evelyn O.O. Charles-Iyanya appeared for the Defendant on this date and Claimant’s Counsel raised objection against her appearance on the same ground as in the previous objection and drew the Court’s attention to its previous ruling on 17th November 2022, submitting that the court was bound by it.

The Defendant’s counsel countered that she was employed as legal officer and was from the office of the Director of Legal Services of the defendant. She argued further that based on her letter of appointment and acceptance letter, she was appointed on GL 9, and accepted the said appointment on GL 9 as legal officer after which she got posted to the Legal Department of the Defendant on that basis. The Court looking at the issue as raising questions of actions in personam, asked parties to file processes to fully ventilate their positions so that a more informed decision could be rendered. The matter was then adjourned to the 29th day of March 2023 for hearing of the Objection.

On the next adjourned date, parties adopted their pending Applications before the Court and argued same. After the arguments by both parties, the four issues that was raised as objection by the Claimants counsel for consideration by the Honourable Court are- 1) Whether the court is functus officio to take the same issue twice? 2) Whether the condition precedent too regularization of the defence processes has been fulfilled? 3) Whether the change of counsel and address and, the failure to produce email address, are fatal to the defendant’s processes? And 4) Whether the lawyers that franked the defence processes and the extant defence lawyer, are barred from franking the processes and from advocating this case for the Defendant?

The Court dismissed the first issue as lacking in merits. On the second issue, it was held that regularisation of the Defendant’s processes has been fulfilled and therefore dismissed the objection. In determining the third issue, Justice Arowosegbe stated on the first part, that change of counsel in the same chambers does not necessitate the need to file Notice of Change of Counsel, hence dismissed the third issue as lacking totally in merits. On the second leg of the objection about change of address and refusal to submit email address in accordance with the rules of the court, Justice Arowosegbe declined the invitation of the Claimant’s Counsel to strike out the processes and instead order the Defendant to comply with the Rules of the Court.

In determining the fourth issues, Justice Arowosegbe examined his earlier ruling of the 17th of November 2022 to determine if same applied to the current counsel of the Defendant. The Court relied on the case of Gladys & Ors v. Council of Legal Education as cited by the Claimant’s Counsel where it was 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) of the Rules of Professional Conduct (RPC) prepare, signed (sic) or franks (sic) pleadings, applications, instrument, agreements, contracts, deeds, letters, memoranda (sic) reports, legal opinions or similar instruments or processes or file any such documents for his employer. 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.

The Court also relied on Forson v. Calabar Municipal Govt. & Anor where learned Justices of the Court of Appeal agreed that there are clear statutory provisions that in-house salaried lawyers could represent the local governments in court on the basis that there are provisions in an enabling statutes which created the department and granted the in-house salaried law officers or legal officers or lawyers therein the direct powers to frank court processes and advocate cases for the local governments in Cross River State, and not by way of necessary implications of administrative fiats. According to the learned Judge, there is no equivalent provision in the NSCDC Act as the provisions of Section 3(1)(f) of the NSCDC Act which gives officers of the Corps power to institute legal proceedings by or in the name of the Attorney General of the Federation only covers criminal cases and not civil cases, and this provision is similar to Section 23 of the Police Act. Thus, the provision of Section 3(1)(b) of the NSCDC Act did not nullify the provisions of Rule 8(1) of the RPC with respect to the prosecution of civil cases.

It is on the strength of the foregoing that the Learned Judge held that for lawyers employed by the Defendant in fulltime salaried employment to process the rights to frank court processes and audience to advocate in court for it in civil cases, these lawyers must be employed as legal officers in accordance with the Legal Practitioners Act and Law Officers Act’s convergent definitions of law officers or, by a statute specifically creating an exception for such lawyers as held in Forson’s case. Therefore, all processes franked and filed before the court by the Defendant was thereby struck out and cost of Fifty Thousand Naira only was awarded in favour of the Claimant. The suit was adjourned for hearing to enable the Defendant sort out itself in accordance with the law by either engaging the office of the Attorney General of the Federation to represent it or hire a private legal practitioner.


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