Barrister Okey Uzoho & Ors. V. National Council On Privatization & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the ruling of B.F.M. Nyako J. of the Federal High Court, Abuja Division delivered on 21/10/04. The appellants were plaintiffs while the respondents were defendants in the suit commenced by originating summons seeking both declaratory and injunctive reliefs regarding an advertisement made by the 2nd respondent in THISDAY Newspaper of April 22, 2004 inviting interested and eligible consultants with expertise in petroleum logistics in the oil and gas industry to indicate their interests in providing the required consultancy services, on the ground that the said advertisement violates Rules 45, 48 and 50 of the Rules of Professional Conduct for Legal Practitioners in Nigeria. The appellants are challenging the propriety of the said advertisement of a ”request for expression of interest” inviting legal practitioners to offer legal services to the respondents on the condition that lawyers subordinate themselves to non-lawyers, share legal fees with non-lawyers and engage in partnership relationships with non-lawyers.

The Appellants therefore sought the following reliefs:

“1. A declaration that having regard to Rule 50 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars partnerships between lawyers and members of other professions or non-professional persons where any part of the partnership’s employment consists of the practice of law, it was improper for the defendants to invite “expressions of interest” from legal practitioners in relation to the privatization of the Pipeline & Products Marketing Company on the condition that legal practitioners participate in a partnership/consortium led by an investment bank

2. A declaration that having regard to Rule 45 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars legal practitioners from sharing legal fees with non-lawyers, it was improper for the defendants to invite “expressions of interest” from legal practitioners in relation to the privatization of the Pipeline & Products Marketing Company on the condition that legal practitioners participate in partnership/consortium led by an investment bank.
3. A declaration that having regard to Rule 48 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which provides that a lawyer’s relation to his client should be personal and that the responsibility should be direct to the client, it was improper for the defendant to invite “expressions of interest” from legal practitioners in relation to the privatization of the Pipeline & Products Marketing Company on the condition that legal practitioners participate in a partnership/consortium led by an investment bank.
4. A declaration that having regard to Rule 50 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars partnerships between lawyers and members of other professions or non-professional persons where any part of the partnership’s employment consists of the practice of law, it is a violation of the aforesaid Rule 50 for legal practitioners, including the plaintiffs, to join a partnership/consortium with other professionals or non-professional persons to provide legal services in relation to the privatization of the Pipeline & Products Marketing Company.
5. A declaration that having regard to Rule 45 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars legal practitioners from sharing legal fees with non-lawyers, it is a violation of the aforesaid Rule 45 for legal practitioners, including the plaintiffs, to share legal fees with non-lawyers by their participant in a partnership/consortium of professional in relation to the privatization of the Pipeline & Products Marketing Company.
6. A declaration that having regard to Rule 48 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which provides that a lawyer’s relation to his client should be personal and that the responsibility should be direct to the client, it is a violation of the aforesaid Rule 48 for legal practitioners, including the plaintiffs, to offer and/or provide legal services to the defendant by participating in a partnership/consortium of professional led by and investment bank in relation to the privatization of the Pipeline& Products Marketing company.
7. A declaration that having regard to the provisions of the Legal Practitioners Act, 1990, and the Public Enterprises (Privatization and Commercialization) Decree No. 28 of 1998, the defendant cannot, in relation to the privatization of the Pipelines & Products Marketing Company, validly retain the professional services of lawyers who are not entitled to practice law in Nigeria.
8. A declaration that having regard to the defendants’ publication inviting Expressions of Interests for legal services in relation to the privatization of the Pipelines & Products Marketing Company and the qualifications therein contained, the defendants are indeed not acting in good faith with respect to the invitation of Expressions of Interests from legal practitioners in Nigeria.
9. An order restraining the defendants, their officers, employees, agents, assigns and/or representatives from enforcing the conditions stipulated in its April 22, 2004 Request for Expressions of Interest and violating the Rules of Professional Conduct applicable to the Nigerian legal profession with respect to the short-listing and/or hiring of applicants for the position of legal adviser for the privatization of the Pipelines & Products Marketing Company;
10. An order perpetually restraining the defendants, their officers, employees, agents, assigns and/or representatives from seeking Expressions of Interests from legal practitioners and/or hiring legal practitioners with respect to the Nigerian privatization programme on conditions that contravene the Rules of Professional Conduct applicable to the Nigerian legal profession.
11. An order for an interlocutory injunction restraining the defendants from closing the deadline for the submission of Expressions of Interests by Nigerian legal practitioners with respect to the position of legal adviser on the privatization of the Pipelines & Products Marketing Company pending the hearing and determination of the substantive suit;
12. And for such further or other orders as the Honourable Court may deem fit under the prevailing circumstances.”

Before the hearing of the suit in the trial court the respondents filed a notice of preliminary objection on the grounds that:

(i) The appellants have no “locus standi” to institute the action.

(ii) The 1st respondent is not a juristic person.

The objection was that the action as presently constituted does not vest jurisdiction on the Honourable Court.

The learned trial Judge heard arguments on the preliminary objection on 9/5/04, in a considered ruling delivered on 21/10/04, the learned trial Judge held that the suit is academic in nature and thereby struck it out.

Dissatisfied with the ruling, the appellants appealed to this Court.

At the hearing of the appeal on 16/10/05, learned counsel for the appellants Mr. Tony Anyanwu adopted his brief of argument, urged the court to allow the appeal by reversing the ruing of the lower court and remit the suit to the Federal High Court, Abuja Division for rehearing before another Judge.

Learned counsel for the respondents Mr. Mike Ugwuanyi in adopting his brief of argument abandoned issue four (4) and urged the court to dismiss the appeal as being frivolous and completely unmeritorious, with the sum of N5,000= as costs in favour of each of the respondents. Issue four (4) is therefore hereby struck out.

Learned counsel for the appellants identified three (3) issues for the court to determine, they are:

“1. whether the learned trial judge was right, suo motu, to have raised and considered the suit as academic and on that basis struck out the same without affording the appellant the opportunity of being heard- and if so, whether the suit was indeed academic. (Grounds 1 & 2)