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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge DATE: June 22, 2011 SUIT NO. NIC/EN/09/2010 BETWEEN The Hon. Attorney-General of Enugu State. - Claimant/Applicant AND 1. Judiciary Staff Union of Nigeria (JUSUN) 2. Comrade C. O. Okonkwo (Chairman, Judiciary Staff Union of Nigeria, Enugu State Branch) 3. Mr. M. N. Mamah (Secretary, Judiciary Staff Union of Nigeria, Enugu State Branch) - Defendants/Respondents REPRESENTATION Sam Orji (State Counsel), for the claimant. P. Nnamani, for the 1st respondent. B. C Oguine, for the 2nd and 3rd respondents. RULING This is a notice of preliminary objection dated 12th October 2010 but filed on the 14th October, 2010 and brought pursuant to Order 11 Rule 1 of the NIC rules 2007 and under the inherent jurisdiction of the court by the claimant praying the court for the following orders – 1. An order of court restraining P. Nnamani Esq. from appearing as counsel for the 1st respondent in this suit. 2. An order of court striking out any processes already filed by P. Nnamani Esq. in his purported appearance in this suit as counsel for the 1st respondent. 3. And for such further or other orders as the court may seem fit in the circumstance. The grounds upon which this application is made are as follows – (a) P. Nnamani Esq. is a party to this suit being one of those on whose behalf the 2nd and 3rd respondents on record are sued. (b) Being a party to this suit, P. Nnamani Esq. is incompetent in law to act as a legal practitioner in this suit. The motion is supported by a 4-paragraphed affidavit sworn to by Charles Udeh, a litigation secretary. In reaction, the 1st respondent filed a 6-paragraphed counter-affidavit sworn to by Christian Okonkwo, a civil servant and member of the 1st respondent on the 18th November 2010. Parties filed written addresses in support of their arguments and adopted same. Learned counsel to the 2nd and 3rd respondents informed the court that he had no contribution to make in respect of this application and would be holding a watching brief. The claimants’ written address is dated the 12th of October but filed on 14th October while the 1st respondent’s is dated 15th November 2010 but filed on the 18th November 2010. There was no reply on points of law. The claimant’s counsel raised two issues for determination as follows – (a) Whether P. Nnamani Esq. is a party i.e. defendant to this suit; and (b) If issue (a) is answered in the positive, whether P. Nnamani Esq. can appear as counsel to the 1st defendant/respondent in the circumstance. He submitted that every person claiming a relief or against whom a relief is being claimed, in an action is a party to that action and, therefore, every person named on the face of a process as either a claimant or a defendant is a party to the suit. He referred to the case of Fawehinmi v. N.B.A (No.1) [1989] 2 NWLR (Pt. 105) 494 at 505 paras G – H where Oputa, JSC considered the meaning of the word “party” and stated that “his lordship went on to infer that the word party in its legal connotation should therefore ordinarily be referable to someone seeking to enforce a right or seeking a remedy as well as those against whom such right or remedy may be enforced. There must be a dispute between those who can properly be called parties”. Learned counsel to the claimant then went on to argue that a person may be named on a process as a claimant or defendant without having his name expressly stated on the processes through the instrumentality of the legal concept of a representative action. He submitted that a representative action allows all those having common interests in an action to be sued together by suing one or two of them as representative of all those falling under that class without having to name each and every member of the class expressly on the face of the processes. He further submitted that as a rule of convenience, it does not diminish or increase the status of the person not expressly named and who is representing the others as a party in the action. He cited Ononye v. Odita & anor [2008] 10 NWLR (Pt. 1096) 483 at 491 and argued that suing a person through a representative is to all intents and purposes as good as suing him personally in an action. That it is immaterial that a person’s name is not expressly mentioned in an action if he is among those represented by a person whose name is expressly so mentioned; then he is a party to the action. He submitted, therefore, that P. Nnamani Esq. is a party defending this suit in so far as he is a staff of the Judiciary in Enugu State and as such among those being represented by the 2nd and 3rd respondents on record. In respect of issue (b), counsel submitted that it is the law that a legal practitioner who happens to be a party in an action ceases to be a legal practitioner for the purposes of that action. He cannot, therefore, have a right of audience in court as a legal practitioner in any proceedings in respect of that action. He referred to Fawehinmi v. N.B.A. (No. 1) (supra) where Karibi-Whyte JSC had this to say – Although by section 7(1) of the Legal Practitioners Act 1975, a legal practitioner has the right to represent another and ‘shall have the right of audience in all courts of law sitting in Nigeria’, this right can only be exercised whilst it is available and not when it is in abeyance. The right of audience as a legal practitioner before the court is in abeyance, whilst a legal practitioner is also a litigant before the court. Finally, the claimant submitted that P. Nnamani Esq., being a defendant to this action cannot act as a legal practioner in respect of this action as he is incompetent to represent any other party to this action. He urged the Court to uphold the claimant’s objection to the appearance of P. Nnamani Esq. for the 1st respondent. In reply, learned counsel to the 1st respondent conceded that P. Nnamani Esq. is a staff of Enugu State Judiciary and also represented as a party by the 2nd and 3rd respondents as shown in the suit. He argued that the claimant having conceded the fact that P. Nnamani Esq. is a member of the 1st respondent failed to avert his mind to the fact that the said P. Nnamani Esq. is a principal officer of the union, the legal adviser. He argued that the claimant’s counsel cannot severe the legal relationship existing between the respondents because of his belief that the cause of the action against the 1st respondent is different from the cause of action against the 2nd and 3rd respondents. The 1st respondent’s counsel further argued that the claimant’s claims against the respondents is a joint claim and that both the 2nd and 3rd respondents are members of the 1st respondent and operate one constitution and that there is no conflict of interest in his appearance for the 1st respondent. He then referred to the case of Gani v. NBA (No2) [1989] 2 NWLR (Pt. 105) at 558 in support of his contention that where there is no conflict of interest, counsel cannot be stopped from appearing. He submitted that the Supreme Court in Gani v. NBA (supra) while reviewing the case of IBWA Ltd v. Imano (Nig.) Ltd [1988] 3 NWLR (Pt. 85) 633 stated as follows – If none of the rules of professional conduct in the Legal Profession is breached by the three gentlemen appearing for the 1st respondent, than each of them cannot be restrained from appearing for that party. The 1st respondent’s counsel then contended that in the claimant’s objection, there has been no complaint of professional misconduct under the rules against him, P. Nnamani Esq. Learned counsel then stated that the question to be answered is whether he, P. Nnamani Esq., can represent the 1st respondent. He submitted that the cases cited by the claimant’s counsel are not on all fours with this case and does not support the objection. That P. Nnamani Esq., while a staff of the Enugu State Judiciary remains a member of the 1st respondent and also a principal officer of the 1st respondent. He finally submitted that no law forbids a party or a legal practitioner to appear for himself in a suit or a society, association, or union in which he is a member. He finally urged the Court to dismiss the objection as it is misconceived and was brought in bad faith. Having considered the arguments of counsel and the authorities referred to, the question to be resolved is whether P. Nnamani Esq., a member of the 1st respondent and its legal adviser, is a party to this action and if so whether he can properly appear as counsel to the 1st respondent. On the 17th of September 2010, P. Nnamani Esq. entered an appearance as counsel for the 1st respondent. A conditional appearance was entered for the 2nd and 3rd respondents by B. C. Oguine Esq. It is pertinent to state here that the 2nd and 3rd respondents are sued for themselves and as representing all members of the 1st respondent and all other staff of the Judiciary in Enugu State excluding Judicial Officers. The first issue for determination is the competence of this application. The claimant came under Order 11 Rule 1 of the National Industrial Court Rules and under the inherent jurisdiction of the court. The said Order 11 Rule 1 is a general Rule stating that a motion must come under a particular rule or law. It cannot be the rule or law itself as counsel to the claimant made out. On this score alone, the application is incompetent. The second issue for determination is whether P. Nnamani Esq. is a party to this action in order to be denied the right of legal representation of the 1st respondent. The claimant argued forcefully, citing the case of Fawehinmi v. NBA (No. 1) [1989] 2 NWLR (Pt. 105) 494. For the purpose of this ruling we shall be using the citation of the case as is in [1989] 2 NSCC 1. We took time to study this case especially the lead judgment of Obaseki, JSC and the concurring judgment of Karibi-Whyte. The combined reading of both judgments reveal that a legal practitioner can only be denied legal representation in court as counsel in any of the following two cases: 1) if he is guilty of professional misconduct or a proved allegation of infamous conduct in a professional respect; and 2) where he is a party in the real sense of the word, which Karibi-Whyte, JSC qualified to mean where there is a claim against him. In the instant case, there is nothing against P. Nnamani Esq. to indicate that he is guilty of professional misconduct or infamous conduct; neither is there any claim against him by the claimant. Additionally, Obaseki, JSC indicated at page 22 of [1989] 2 NSCC 1 that the conduct of the counsel sought to be barred from appearing as counsel must also be prejudicial to the interest of justice. Once again this has not been shown to be the case in the instant case. Moreover, section 46 of the National Industrial Court Act 2006 provides that – All persons admitted as legal practitioners to practice in Nigeria shall, subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and the Legal Practitioners Act, have right to practice in the Court: Provided that a party to a dispute before the Court may represent himself or herself or be represented by the organization to which he or she belongs. P. Nnamani Esq. has been shown to be the legal adviser of the 1st respondent. In that capacity, he is an officer of the union with capacity to represent it in actions before this court. For all these reasons we hereby hold that the objection of the claimant lacks merit. P. Nnamani Esq. is competent to appear as counsel in the manner that he did in this case. The objection of the claimant is hereby dismissed. Ruling is entered accordingly. We make no order as to costs. ………………………….. Hon. Justice B. B. Kanyip Presiding Judge ………………………………… …...………………………………… Hon. Justice F. I. Kola-Olalere Hon. Justice O. A. Obaseki-Osaghae Judge Judge