Attorney-general of the Federation V. Institute of Chartered Accountants of Nigeria & Ors. (2002)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The first and second respondents who were plaintiffs in the court below, Federal High Court sitting in Lagos (Coram Sanyaolu J.) commenced proceedings against the appellant who was the first defendant and the third respondent who was the second defendant claiming against the two of them jointly and severally per paragraph 22 of their amended statement of claim the following reliefs:

(i) A declaration that the Decree No. 76 of 1993, published in Gazette No. 25 Vol. 80 of 1993 purportedly signed on 25th of August 1993 is illegal, invalid, null and void in that General Babangida in fact signed the Decree after he had left office.

(ii) Declaration that Decree No. 76 of 1993 does not qualify as a Decree and is therefore null and void in that:-

(a) The Decree was directed and made for the benefit of a particular class of persons.

(b) Section 17 (2) constitutes a judicial act rather than legislative enactment.

(c) The Decree is duplicitous of the provisions and intendment of ICAN ACT.

(3) Declaration that Decree 76 of 1993 is null and void in that it violates the provisions of African charter on Human and Peoples Rights.

(4) A declaration that having regard to the provisions of section 16a of the Institute of Chartered Accountants Act, 1965 vesting the 1st plaintiff with the power to regulate the standard, knowledge and skills to be attained by persons ascribing to be professional accountants in Nigeria, the provisions of section 1(1) of the Association of National Accountants of Nigeria Decree No. 76 of 1993 purporting to vest the same power to regulate the standard, knowledge and skills to be attained by persons ascribing to be professional accountants in Nigeria in the 1st defendant is repugnant, absurd, unreasonable, contrary to legislative norms and purposes and therefore void and of no effect whatsoever.

(5) A declaration that the provisions of section 17 (1) and (2) of the Association of National Accountants of Nigeria Decree No 76 making it a criminal offence for persons who are not registered with the 1st defendant to practice the accountancy profession in Nigeria, in expectation of reward with effect from the enactment of the said Decree constitute an unlawful interference with the 2nd plaintiff’s existing right to continue to practise as a professional accountant which became vested in him having been registered with the 1st plaintiff and are invalid unconstitutional, null and void and of no effect whatsoever.

(6) A declaration that having regard to the provisions of ICAN ACT 1965, section 8 of ANAN Decree No. 76 of 1993 which lower the standards and skills of persons to be registered as professional accountants is unreasonable, absurd, unconscionable and actuated by improper motive and designed to ridicule the profession of accountancy in Nigeria and is therefore void and of no effect.

7. A declaration that sub-sections (a) – (c) of section 8 of the ANAN Decree, 1993 conferring automatic membership of the Accountancy Profession on identified or identifiable groups of persons are violating the principles governing law-making and are therefore null and void.

(8) An order of the court setting aside the Association of National Accountants of Nigeria Decree No. 76 of 1993 for having been invalidity and illegally promulgated.

9. ALTERNATIVELY to paragraph (8) (supra) AN ORDER of the court setting aside the provisions of sections 1, 8(a) and 17(1) and (2) of the Association of National Accountants of Nigeria Decree No. 76 of 1993 for being repugnant, unreasonable and absurd and invalid.

(10) ALTERNATIVE to relief (9) supra.

AN order of perpetual injunction restraining the 2nd defendant from giving or further giving effect to the provisions of sections 1 and 17 (i) and (ii) of the Association of National Accountants of Nigeria Decree.

The pleadings finally filed with the leave of court and served between the parties are the amended statement of claim and the 2nd defendant’s amended statement of defence. The first defendant now the appellant did not file a defence. Subsequent to the exchange of pleadings, the 1st and 2nd plaintiffs (Institute of Chartered Accountants of Nigeria and Chief R. U. Uche) in the court below who are now 1st and 2nd respondents brought an application dated 13th March 2000 praying for an order disqualifying and/or barring Mr. Clement Akpamgbo, S.A.N. from appearing for the defendants before that court, now the appellant and the third respondent, as their counsel. By a notice dated 17th April 2000, the first defendant in the court below now the appellant before us signalled his intention to raise a preliminary objection to the jurisdiction of the court below in taking the suit. The learned trial Judge thereafter called for arguments of counsel on all sides as to which of the two applications should be taken first. In a reserved ruling delivered on 15th June, 2000 in ruling that the application seeking an order disqualifying Mr. Clement Akpamgbo S.A.N. from representing the defendants should be taken first, reasoned thus:

“I must say here that having listened to the arguments and submissions of learned counsel for the parties on the matter, this court has come to the conclusion that the Notice filed in this court on 14/3/2000 by learned S.A.N. for the plaintiff/applicant herein seeking for an order disqualifying and/or barring Clement Akpamgbo Esq. S.A.N. from appearing for the defendants in this case is one which deals with the constitutional right of the 2nd defendant to be represented by counsel of their choice in this proceedings, subject to the process of law, and as such should be first heard and I so rule.

I must add that the issue of representation which is raised in the said application must be first settled and that I do not agree with the submission by learned counsel for the 1st defendant herein that this raises an issue of jurisdiction. Assuming that the application raises an issue of jurisdiction, it is trite that this court has jurisdiction to decide whether or not it has the jurisdiction to deal with such matters…

I therefore call for arguments from Learned counsel for the parties herein on the said application.” Dissatisfied with the aforesaid ruling, the first defendant who is the present appellant appealed therefrom to this court upon a notice of appeal which carries one ground of appeal. In his brief of argument, the appellant raised one issue for determination which is in the following terms:-

“Whether the learned trial Judge was right in law, when he held that the application seeking to disqualify and/or bar Clement Akpamgbo S.A.N. should be taken first, having regard to the principles of law stated by the Supreme Court in the underlisted cases: A.-G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552 per Oputa, J.S.C. at page 556; and A.-G., Lagos State v. Onagoruwa (1992) 2 NWLR (Pt 224) 713 per Belgore J.S.C. at page 46”.

The 1st and 2nd respondents identified one issue for determination which is in pari materia with the issues raised by the appellant, couched in their brief of argument it is as follows:-

“Was the learned trial Judge right in holding that the motion seeking to disqualify and/or bar Clement Akpamgbo S.A.N. from representing the 2nd defendant/3rd defendant should be determined before the motion challenging the jurisdiction of the trial court to entertain the substantive suit?

The issue identified by the 3rd respondent for determination which is similar to the two similar ones above, is as set out in its brief of argument in the following terms:-

Whether the trial court is right when he held that the application seeking to disqualify and/or bar Clement Akpamgbo SAN, should be taken first and before the issue of jurisdiction.

In arguing the only issue, the appellant, in his brief of argument submitted that when a court is faced with the issue of jurisdiction on its competence to adjudicate in a matter, under our legal jurisprudence in this country, that crucial issue must first be resolved before any other step is taken in the matter, reliance was placed on a number of decisions the like of A.-G., Lagos State vs. Dosunmu (1989) 3 NWLR (Pt.111) 552 at page 566, State v. Onagoruwa (1992) 2 NWLR (Pt. 224) 713 at 46. He urged that the appeal be allowed and the ruling of the court below be set aside. The 1st and 2nd respondents while agreeing with the general principle that once the issue of jurisdiction is raised in a suit, the court must entertain that issue and resolve it one way or the other as, according to them, jurisdiction is the determinant of the power of a court to come into a matter before it, adding that where the court has no jurisdiction over a matter, it cannot validly exercise any judicial power over the case. For this broad general principle of law, reliance was placed on decisions the like of Agwuegbo v. Kagoma (2000) 14 NWLR (Pt. 687) 252 at 265; Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt.647) 77 and Maidawa v. Husaini (2000) 6 NWLR (Pt.662) 698. This principle, it was further argued, applies only to prevent the court from embarking on the determination of the case or from making any coercive order relating to the subject-matter or the res like an order of injunction citing in support the decisions in Alhaji Abubakar Uthman & An. v. Alhaji Sule Katagun (1985) 6 N.C.L.R. 138 and N.N.S. C. v. Sabana (1986) 5 NWLR (Pt.40) 204. However, they argued forcefully that the principle does not apply where the judicial act the court is called upon to do has nothing to do with the hearing of the suit or the granting of any coercive order of injunction against any party to the suit or any proceeding in the matter. It is on this submission that they contended that the dictum of Oputa, J.S.C. in A.-G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552 at page 566 supports their stand. They also relied on the decision of the Court of Appeal (Jos Division) in Matinja v. Mil. Adm. Plateau State (1998) 9 NWLR (Pt 567) 694 at 703-704 while urging that the appeal be dismissed the 3rd respondent, after re-stating the principles which under lie the issue of jurisdiction and citing the decisions in such case as Nwosu v. Imo State Environmental Sanitation Authority (Pt.135) 688 at 726-727; Onyema v. Oputa (1987)3 NWLR (Pt 60) 259 and A.-G., of Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552 submitted that the trial Judge acted in error of law by not taking first the issue of jurisdiction raised. He urged that the appeal be allowed and the case be remitted to the court below for the issue of jurisdiction to be determined by another Judge.

It has now become an aphorism that the question of jurisdiction is so fundamental in an action in a law court that court must have the legal power which jurisdiction is, to try the case first before it can exercise any form of judicial power in the case.

A court is said to have original jurisdiction in a particular matter when that matter can be initiated before it, while it is said to have appellate jurisdiction when it can only go on into the matter on appeal after it had been adjudicated upon by a court of first instance. See Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17; (1985) 6 S.C. 62. The question then to ask is what are the determinants of the existence of jurisdiction-legal power-in a court of law? It is now well settled in the corpus of our jurisprudence that it is the claim of the plaintiff alone which determines the jurisdiction of a court entertaining it. See Adeyemi & Ors. v. Opeyori (1976) 9 & 10 S.C. 31.

As was said by the Supreme Court in Akinbobola v. Plisson Fisko (Nig) Ltd & Ors (1991) 1 NWLR (Pt. 167) 270 where a court has no jurisdiction to entertain a suit, it cannot enforce its coercive powers which themselves are premised on the existence of its legal jurisdiction to exercise the judicial powers of the Constitution. The full court of the Supreme Court put the importance of the issue of jurisdiction beyond peradventure when in A-G of Lagos State v. Hon. Justice, Dosunmu (1980) 3 NWLR (Pt.111) 552, Oputa J.S.C. delivering the judgment of the court observed at page 566 thus:

“When a court’s jurisdiction is thus challenged in a statement of defence, I think it is neater and far better to settle that issue one way or another before proceeding to hearing of the case on the merits. The reason is that jurisdiction is a radical and crucial question of competence. Either the court has jurisdiction to hear the case or it has not. If it has no jurisdiction, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been. The reason is that a defect in competence is not intrinsic to, but rather, it is extrinsic to the adjudication.”

Issue of jurisdiction when raised is an issue of law and an issue of competence of the court to adjudicate in the matter. Undoubtedly, jurisdiction is the power and authority by which a court of law proceeds with the hearing and determination of the particular case before it.The first application filed 14th March, 2000 sought to disqualify or bar Clement Akpamgbo Esq., SAN from appearing for the 3rd respondent in the case. The notice of preliminary objection dated 17th April, 2000 raises the issue of the jurisdiction of the court below to entertain the substantive suit. It has long been a recognized constitutional right of a client to decide either to conduct his case in person or to place himself in the hands of a counsel to conduct his case on his behalf. That is an inalienable right of any citizen in any environment which upholds the rule of law. See section 36 of the 1999 Constitution. The right to be heard necessarily includes the right to the choice of counsel by a party. The right to fair hearing is constitutionally guaranteed. There is nothing on the record to show that the 3rd respondent manifested any intention to brief another counsel to represent it other than Clement Akpamgbo Esq., SAN. True it is that the second application i.e. the notice of preliminary objection dated 17th April, 2000 raises the issue of jurisdiction. In as much as the 3rd respondent continued to retain the services of Clement Akpamgbo Esq. SAN, it goes without saying that is the counsel it would like to represent it in the argument of the notice of preliminary objection which is premised on jurisdiction. The issue of representation of the 3rd respondent by Clement Akpamgbo Esq. SAN, as highlighted by the application filed on 4th March, 2000 is different and completely distinct from the issue of jurisdiction of the court to entertain the suit which is the basis of the notice of preliminary objection. If the issue of counsel-representation is not first resolved before the notice of preliminary objection as to the jurisdiction is taken and in as much as the 3rd respondent has not indicated its choice of another counsel, Mr. Akpamgbo S.A.N. would still be its counsel to represent it. Justice would not have been seen to have been done to the plaintiffs/applicants whose application dated 13th March, 2000 and filed on 14th March, 2000 raising objection to the appearance of the learned SAN., in the matter. The plaint ffs/applicants in the court below had deposed to an affidavit in support of their application opposing the representation by the learned SAN. Paragraphs 7, 10, 11, 12, 13, 15, 17, 19 and 20 of the affidavit which I shall hereunder set out, are germane to the consideration of this appeal. The afore-mentioned paragraphs are as follows:

Para. 7

“That Mr. Clement Akpamgbo S.A.N. was Attorney-General and Minister of Justice to Babaginda Administration.

Para. 10

That during the time when Clement Akpamgbo S.A.N. was Attorney-General renewed efforts were made by the 2nd defendant to give legal recognition to the Association but on each occasion there were protests from the general public …

Para 11

That after General Babaginda left office, Clement Akpamgbo S.A.N. continued to act as counsel for the Government of General Abacha which took over from General Babaginda.

Para. 12

That ICAN representatives on several occasions met with Mr. Clement Akpamgbo S.A.N. in his capacity as the Attorney-General and submitted a number of documents to him to show the impropriety of according legal status to ANAN.

Para. 13

That Mr. Akpamgbo, S.A.N. played mediator roles in respect of the plaintiff’s protests against the intended promulgation of the ANAN Decree No. 76 of 1993.

Para. 15

That the position persisted until towards the end of the regime of Mr. Clement Akpamgbo, S.A.N. who kept on assuring ICAN that such a law would not emanate from his Ministry.

Para. 17

That surprisingly ICAN later found that Mr. Akpamgbo SAN., while assuring ICAN was secretly working towards the promulgation of the Decree and in fact succeeded in doing so after the AFRC could not deliberate on the matter any longer.

Para. 19

That Mr. Akpamgbo S.A.N .knows the facts of the plaintiff’s case by virtue of his special position as the Attorney-General of the Federation who drafted the Decree.

Para. 20

That several documents, which ICAN intends to make use of are in the possession of Mr. Akpamgbo SAN.

The above depositions clearly manifest fear on the part of the plaintiffs to get justice. Yet it is of fundamental importance that justice should not only be done it must undoubtedly be seen to be done in all matters before the court, and because justice is rooted in confidence it is of great importance that the issue of representation be first cleared. Where two applications are before the court, the one for the determination of who shall represent one of the parties in the matter and the other raising objection to the jurisdiction of the court to adjudicate in the matter, like those in the present matter, it seems to me that if the principle of fair hearing are to be adhered to, a proper exercise of judicial discretion of the court would find expression in the entertainment of the application for the determination of counsel representation. The application for the determination of counsel representation does not affect the substance of the suit; the entertainment by the court, of which objection is being taken.It is for the above that I agree with the contention of the 1st and 2nd respondents that the motion seeking to disqualify Mr. Clement Akpamgbo S.A.N. from appearing for the 2nd defendant should be taken first. The learned trial judge, in my judgment, was right to have so held in his ruling delivered on 15th June, 2000. The only issue raised by the appellant for determination while issue is in pari materia with the only issue identified by each set of the 1st and 2nd respondents and the 3rd respondent is resolved against the appellant.

In the final analysis, for all I have been saying supra, it is my judgment that this appeal is devoid of merit and it is accordingly dismissed. I affirm the ruling of the court below. The case is remitted to the court below for arguments of counsel on the application dated 13th march, 2000 and filed on 14th March, 2000 for the determination of counsel representation. The 1st and 2nd respondents are entitled to the cost of this appeal which I adjudge in their favour at N5,000.00.

---

Other Citations: (2002)LCN/1222(CA)