Uzoho & Ors V. National Council Of Privatization & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellants, herein, commenced an action by way of Originating Summons at the Federal High Court, Abuja Judicial Division (hereinafter, simply, referred to as “the Trial Court”). They sought both declaratory and injunctive reliefs against the respondents with respect to the propriety on their advertisement on April 22nd, 2004 issue of THISDAY Newspaper.

The said advertisement was titled a “Request for expression of Interest.” It invited Legal Practitioners, amongst other professionals, with expertise in petroleum logistics in the Oil and Gas industry, to offer legal services to the respondents on the condition that lawyers subordinated themselves to non-lawyers, shared legal fees with non-lawyers and engaged 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 and 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 and 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 and 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 and 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 and 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 an 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 1999, the defendant cannot, in relation to the privatization of the Pipelines and 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 22nd, 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 and 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 Expression 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.

The respondents filed a notice of Preliminary Objection challenging the jurisdiction of the trial Court, on the grounds that:

i) The appellants have no locus standi to institute the action; and

ii) The first respondent is not a juristic person.

By a ruling delivered on October 21st, 2004, the trial Court held that the suit is academic in nature. It, consequently, struck it out. The trial Court also struck out the name of the first respondent as being a non-juristic person.

​Dissatisfied with that ruling, the appellants then appealed to Court of Appeal, Abuja Judicial Division, (hereinafter, simply, called “the lower Court”) via a Notice of Appeal. By its judgment, delivered on January 15th, 2007, the lower Court dismissed the appeal in part, by holding that the trial Court was right to have struck out the substantive suit on the ground that it was academic. It reversed the holding of the trial Court that the first respondent was not a juristic personality.

Dissatisfied with the judgment of the lower Court, the appellants have now appealed to this Court via an Amended Notice of Appeal containing nine grounds.

​Now, distilled from the nine Grounds of Appeal, the appellants put forward the following four issues for the determination of this Court:

1. Whether the lower Court was right in not reversing the trial Court for prejudging the substantive suit by holding at an interlocutory stage that the respondent’s ‘Request for expression of interest [EOI]’ did not violate the Legal Practitioner’s Rules of Professional Conduct, notwithstanding that the appellant’s originating summons presented rules 45, 48 and 50 for interpretation with respect to the aforesaid publication?
2. Whether the lower Court was right in not reversing the trial Court’s ruling on the basis that the trial Court, suo motu, raised and considered the substantive suit as academic and on that basis struck out the same without affording the appellants the opportunity of being herd, and if so, whether the substantive suit was indeed academic?
3. Whether the lower Court was right to have dismissed the appeal on the basis of ‘non-justiciability and/or lack of locus standi’ notwithstanding that

a. The trial Court did not strike out the substantive suit on the basis of non-justiciability and/or lack of locus standi;

b. None of the Grounds of Appeal challenged the ruling on the basis of the justiciability of the substantive suit and/or lack of locus standi;