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)

2. Whether the learned trial judge was right in prejudging the substantive suit by holding at an interlocutory stage that the respondents’ request for expression of interest (eoi)” did not violate the legal practitioners’ rules of professional conduct, even though the appellants’ originating summons presented rules 45, 48 and 50 for determination with respect to the aforesaid publication. (ground 3).
3. Whether the learned trial judge was right in holding that the 1st respondent – national council on privatization – was not a juristic person even though it was created by a statute. (Ground 4)”

On the other hand, learned counsel for the respondents formulated four (4) issues for determination and they read thus:

1. Whether the trial court can suo motu decline jurisdiction and put an end to the proceedings in the suit at the lower court if it discovers at any stage and by any means that it lacks jurisdiction to entertain the suit.
2. Whether there was any live issue or a matter in actual controversy between the parties in the suit upon which the lower court would exercise its judicial authority.
3. Whether the 1st Respondent is a juristic person and whether the lower court has the judicial authority to adjudicate upon a matter where one of the parties to the suit is not a juristic person.
4. Whether the lower court had the jurisdiction to hear and determine the Appellants’ case on the merit.

I have examined the Issues formulated by the Appellants and the respondents and I am of the opinion that the issues identified by the appellants would determine the real grievance in this appeal. I shall now proceed to examine the issues seriatim.

ISSUE 1

Learned counsel for the appellants argued that the learned trial judge ‘suo motu’ in his ruling on the preliminary objection of the respondents raised and determined an issue that the suit of the appellants was academic in nature and based on this but without giving the parties especially the appellants an opportunity to be heard on that issue, struck out the suit. He submitted that the learned trial judge erred in this regard as this amounts to an infraction of the appellants’ right to fair hearing in accordance with the ”audi alteram partem” rule. That the appellants have therefore suffered a disadvantage and disability as a result of this. He relied on this point on the cases of:

(1) Kankara vs. C.O.P. (2002) 13 NWLR (Pt. 785) p. 596 at p.601;

(2) Ajao vs. Ashiru (1973) 11 SC p. 23;

(3) Kuti vs. Balogun (1978) 1 SC p.53;

(4) Ejowhomu vs. Edoy-Eter Mandilas Ltd (1986) 5 NWLR (Pt. 39) p. 1;

(5) Adegoke vs. Adibi (1992) 5 NWLR (Pt. 242) p. 410 at p. 607 – 608;

(6) Yakassi vs. Nig. Air Force (2002) 15 NWLR (Pt. 790) P.294 and

(7) Oshodi vs. Eyifunmi (2000) 13 NWLR (pt. 684) P. 298.

Learned counsel for the appellants canvassed that the preliminary objection of the respondents was neither grounded nor argued on the fact that the suit was an academic issue. That because the trial Judge relied primarily on that issue raised by him, his decision striking out the suit was clearly perverse and occasioned a grave miscarriage of justice to the appellants. Learned counsel contended that on the contrary, the suit of the appellants embodies live issues which when decided would affect the parties one way or the other.

He relied on the case of:

A. – G., Fed vs. A.N.P.P. (2003) 18 NWLR (pt. 851) p.182 at p. 215.

He submitted that the real fulcrum of the suit is whether it was proper to allow the retention of legal practitioners on their readiness to partner with non-lawyers by the respondents. That if the questions presented in this regard are determined by the trial court, the result would be the granting or refusal of the reliefs sought, thereby impacting on the rights of the parties. He therefore urged the Court to resolve this issue in the appellants’ favour.

On the other hand, learned counsel for the respondents argued that the court if after the consideration of a suit before it discovers that it does not posses the jurisdiction to adjudicate upon the suit, it can and is bound to put an end to the proceedings regarding same by declining jurisdiction and striking out the suit. That the court can do this either “suo motu” or on the raising of the issue of lack of jurisdiction by either of the parties in the suit. He referred to and relied on the cases of:

(1) The Registered Trustees, Pentecostal Assemblies Incorp. vs. the Registered Trustees of the African Apostolic Christ Church. (2002) 15 NWLR (Pt. 790) p. 424 at p. 449,

(2) Skenconsult (Nig.) Ltd & Anor. vs. S. Ukey (1981) 1 SC P.6 at p. 26:

(3) Management Enterprises Ltd & Anor. vs. Otusanya (1987) 2 NWLR (Pt. 55) p. 197 and (4) (4) Ejike vs. Ifeadi (1998) 8 NWLR (Pt. 561) P. 323 at p. 338.

He further referred to the decision of the Supreme Court in the case of:

Mobil Producing (Nig.) United vs. SASEPA (2002) 18 NWLR (Pt. 798) p.1 at p. 31 that where on the face of proceedings, the court finds that it is incompetent to adjudicate upon a suit, the court should of itself take note of its own incompetence and decline to exercise jurisdiction even if the question had not been raised by the parties.

It is settled law that a court has no jurisdiction to raise an issue “suo motu” and make out a case for any of the parties before it, but where a court raises any issue “suo motu’; it must give an opportunity to the parties or their counsel to be heard on the issue so raised before pronouncing on it.

The term “suo motu” means when a Judge raises an issue on his own motion. Where an issue not in the contemplation of the parties and not before the court is raised, considered and concluded upon by the court, the issue is said to have been raised “suo motu”.

In the case of:

Oshodi vs. Eyifunmi Supra referred to by learned counsel for the appellants, the Supreme said that:

“On no account should a court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties—-. If it does so, as it did in the present case, it will be in breach of the party’s right to fair hearing.”

I also refer in this regard to the cases of:

(1) Oje vs. Babalola (1991) 4 NWLR (Pt.185) p. 267;

(2) Kuti vs. Balogun Supra at p. 60;

(3) Ugo vs. Obiekwe (989) 1 NWLR (Pt. 90) p. 582;

(4) Iriri vs. Enhuzhobara (1991) 2 NWLR (Pt. 72) p. 252:

(5) Ogamien v. Ogiamien (1967) NWLR p. 249 and

(6) Adeniyi vs. Adeniyi (1972) 4 SC p. 17.

The exception of course to the rule of affording counsel hearing on issues raised ”suo motu” by the court is where by virtue of statutory provisions, a Judge is expected to take judicial notice of a fact or situation. See the provisions of Sections 72 and 73 of the Evidence Act.

Hence, ordinarily it is not the business of court to examine an issue not before it, as the court has nothing to do with what is not before it, to do this will amount to a departure from the standards of fairness. The fundamental requisite of due process is the opportunity of all parties to be aware that a matter is pending, to make an informed choice whether to acquiesce or contest the matter and to be heard on it. Procedural fairness therefore entails affording parties in a matter the right to be heard before the court decides the matter. This simply is the principle of natural justice which embodies the ”audi alteram partem” rule which means, “Please hear the other side”. See the case of:

Apatira vs. L.I.L.G.C (2006) 17 NWLR (pt.1008) P.62 at p- 64- 65.

Another exception to the principle in Issue is that where the issue of jurisdiction is involved, considering its fundamental and germane nature, it can be raised by the court on its own motion or volition that is, ”suo motu’: This is in order to avoid an exercise in vain and in futility. The issue of jurisdiction is so serious and exceptional in all matters, so much that it cannot even be compromised by parties or the court. Parties cannot by consent or agreement confer jurisdiction on a court where there is none. Also, no party can waive his right on an issue bordering on jurisdiction. The competence of a court to adjudicate upon a matter is a legal and constitutional prerequisite without which a court is a lame duck. The effect of any proceedings conducted without jurisdiction is that such proceedings amount to a nullity. See the case of:

Oke vs. Oke (2006) 17 NWLR (pt. 1008) p. 224

Where a court therefore lacks jurisdiction to hear a matter and comes to that decision, the court has nothing to do with the merits of the matter because delving into the merits will be an exercise in futility.

It is settled law that a court is said to be competent to entertain and determine a matter placed before it if:

a. it is properly constituted as regards qualification of the members of the bench and no member is disqualified for one reason or another; and

b. the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

c. the case comes before the court initiated by due process of law- and upon fulfilment of any condition precedent to the exercise of jurisdiction.

All the three conditions stated above must co-exist for the court to be vested and clothed with proper competence and jurisdiction. See the case of:

Madukolu vs. Nkemdilim (1962) All NLR (Pt. 4) p. 587

Furthermore, in determining the jurisdiction of a court, the enabling law vesting jurisdiction has to be examined in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of the court as portrayed by the facts of the relief sought, the court must assume jurisdiction as it then has jurisdiction to do so. Conversely, the moment the relief sought does not come within the jurisdiction of the court as portrayed by the facts, the court must reject jurisdiction as it has no jurisdiction in the matter. See the cases of:

(1) A.P.C. Ltd. vs. NDIC (NUB Ltd.) (2006) 15 NWLR (Pt. 1002) p. 404 and

(2) Onwudiwe vs. FRN (2006) 10 NWLR (Pt 988) p. 382.

This is a hard-and-fast rule and an immutable principle of law. The determination of courts’ competence however depends on the circumstances of each case as no two cases are really the same.

There are guidelines for dealing with issues of incompetence of court. One of such is that where on the face of the proceedings, the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. The rationale behind this is that if the court fails to do this, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain an indelible blemish and stain in the garment of the proceedings. Put differently the proceedings become terminally and incurably deceased. See the case of:

Mobil Prod. (Nig.) Limited vs. LASEPA supra at p. 31 – 32.

Hence, the earlier it is raised, the better, in order to prevent a waste of precious judicial time, resources and undue physical and mental exertion.

I consider it necessary at this stage to examine the cause of action and the reliefs being sought by the appellants by setting them out for ease of reference. The questions placed before the trial court for its determination as per the appellants’ originating summons are as follows:

“1. Whether 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 law, it was proper 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:

2. Whether having regard to Rule 45 of the Rules of Professional Conduct binding on and applicable to legal practitioners 117 Nigeria which bars legal practitioners from sharing legal fees with non-lawyers, it was proper 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.
3. Whether having regard to Rule 48 of the Rules 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 proper 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. Whether 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 not 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. Whether 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 not a violation of the aforesaid Rule 45 for legal practitioners, including the plaintiffs, to share legal fees with non-lawyers by virtue of their participation In a partnership/consortium of professionals in relation to the privatization of the Pipeline & Products Marketing Company.
6. Whether having regard to Rule 48 of the Rules 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 not 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 professionals led by an investment bank in relation to the privatization of the Pipeline & Products Marketing Company.
7. Whether 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 can, in relation to the privatization of Pipelines & Products Marketing Company validly retain the professional services of lawyers who are not entitled to practice law in Nigeria.
8. Whether having regard to the defendant’s publication Inviting Expressions of Interests for legal services in relation to the privatization of Pipelines & Products Marketing Company and the qualifications therein contained, the defendants are indeed acting in good faith with respect to the invitation of Expressions of Interests from legal practitioners in Nigeria.”

Sequel to the above stated endorsements, the appellants sought twelve (12) reliefs which I have already set out verbatim earlier on in this judgment.

The respondents filed a notice of preliminary objection that the trial court lacks jurisdiction to hear and determine the action. The objection was predicated on the grounds that the appellants have no “locus standi” to institute the action and that the 1st respondent is not a juristic person. It is apposite to note that the preliminary objection was duly argued by counsel for the respondents and the appellants equally reacted through their own counsel by way of opposition to the arguments of the respondents’ counsel. I refer to pages 23 through to page 27 of the record of proceedings where counsel for both parties duly marshaled their respective points supported by legal authorities. It was at the close of all arguments of both counsels that the learned trial Judge adjourned the matter for a considered ruling on the preliminary objection. The ruling which is the subject-matter of this appeal is contained at pages 28 – 34 of the record of proceedings.

It is therefore crystal clear that as a matter of fact both parties in this case were given fair hearing by the learned trial Judge. It was in the course of determining whether the trial court has jurisdiction to entertain the suit of the appellants that the learned trial Judge came to the conclusion that the suit of the appellants appeared to him misplaced, not being a live issue and therefore academic in nature and he thereby declined jurisdiction to adjudicate upon the suit. In my respectful opinion, I fail to see how the learned trial Judge can be indicted for raising any issue ”suo motu” in this matter. It was the learned trial Judge’s opinion and conclusion based upon the consideration of the reasons advanced by both counsel that he held that there is no live issue involved in the appellants’ suit. The phrase “live issue” was employed by the learned trial Judge in the course of the ruling on the argued preliminary objection. The phrase is not an issue of law or innovation which should necessity for the trial court to call on counsel for special consideration of. It is indeed in response to the earlier submissions of counsel. It was in the process of justifying the reasoning and conclusion of the learned trial court that the phase was used. This is a comment and an opinion of the learned trial Judge. It is clearly not an issue raised ”suo motu’. It would therefore have been absurd for the learned trial Judge in the circumstances to invite the parties’ counsel to address him on whether the suit is an academic exercise. Such addresses would not resolve anything or any issue, as no issue was raised by the said phrase or words. To my mind, the phrase is a very clear reason why the learned trial Judge upheld the preliminary objection and struck out the suit of the appellants.

The basis and connotation of the principle of fair hearing is that fairness is the determinant for the application of the principle of natural justice. Put in other words, natural justice is fair play in an action. Therefore, the hearing of a matter in court cannot be said to be fair if any of the parties appearing before the court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence in support of his case. The principle of fair hearing is satisfied if the party complaining is given the opportunity to be heard.

See the cases of:

(1) A.G. Rivers State vs. Ude (2006) 17 NWLR (Pt 1008) p.436 and

(2) B.O.N. Ltd. vs. Adegoke (2006) 10 NWLR (Pt. 988) p. 339.

In the instant case as can be patently observed on the face of the record of proceedings, the appellants cannot certainly be heard to complain that they were not given fair hearing. I hold and without any equivocation that they were indeed duly afforded a good opportunity by the trial court to present their case and they did so appropriately. This issue therefore fails.

ISSUE 2

Learned counsel for the appellants submitted that the trial court erred in prejudging the substantive suit by holding that the respondents’ request for expression of interest did not violate the Rules of Professional Conduct for Legal Practitioners. It is the contention of learned counsel for the appellants that the appellants in their originating summons presented some specific rules that is, rules 45, 48 & 50 of the said Rules for interpretation and determination by the trial court. He argued that the trial court was wrong in holding at an interlocutory stage, that is, in the argument and determination of the preliminary objection that the rules were not violated by the respondents. This in his opinion amounts to prejudging the issues in the substantive suit which is yet to be decided by court. He referred to the cases of:

(1) Mobil Oil Nig. Plc. vs. Kena (2001) 1 NWLR (Pt. 695) p. 555:

(2) A.G.. Fed. vs. A- G., Abia State (2001) 11 NWLR (Pt. 7252 p. 689:

(3) Commercial Bank Credit Lyonna’s vs. Unibix (Nig.) Ltd. (2000) 9 NWLR (Pt. 673) p. 491 at p. 497 – 498:

(4) A-G., Anambra State & Ors. vs. Onitsha North Govt. & Anor. (2001) 9 NWLR (Pt. 717) p.105 and

(5) Abacha vs. State (2002) 11 NWLR (Pt. 779) p. 437 at p. 501 – 506.

Referring to the endorsements in the originating summons, learned counsel for the appellants contended further that in the trial court’s ruling on the preliminary objection of the respondents, the trial court decided on substantial triable issues at that interlocutory stage which according to him ought not to have been done. That the trial court ought not to have delved into the substantive matter but rather defer the consideration of same to the substantive stage. It was therefore contended that the trial court ought not to have interpreted and considered the rules under reference in its ruling on the preliminary objection, the issues involved being live issues. That the alleged error on the part of the trial court is an infringement on the appellants’ right to fair hearing, rendering such interpretation null and void.

Contrarily, learned counsel for the respondents submitted that there is no live issues whatsoever between the appellants upon which the trial court could exercise its judicial powers. He argued that the Rules of Professional Conduct for Legal Practitioners which the appellants are masquerading to protect are only binding on and applicable to legal practitioners. He went further to submit that the respondents are not legal practitioners and therefore the Rules have no bearing to, do not apply to and are not binding on the respondents. He also contended that prior to this action, there was no relationship between the appellants and the respondents whatsoever. But that the appellants’ suit is only a reaction to the advertisement which the 2nd respondent placed in THIS DAY newspaper of 22/04/04 in the performance of its statutory duty, which act of the respondents does not violate any of the legal rights of the appellants. Learned counsel argued that the appellants have no powers whatsoever to enforce or procure the enforcement of the said Rules even where there is a violation of them as such power resides in the Supreme Court, the Body of Benchers and the Disciplinary Committee of the Nigerian Bar Association.

Finally on this issue, it was further contended by learned counsel for the respondents that as rightly held in the ruling of the trial court, since there is no controversy between the parties, there is no live issue upon which the court could exercise its judicial authority. He referred to the case of: A.- G., Fed. vs. ANPP (2003) 18 NWLR (Pt, 851) p. 182 at p. 215-216.

The Supreme Court held “inter alia” in that case that there must exist between parties a matter in actual controversy having regard to their claims and counter-claims which the court is called upon to decide as living issue. That having regard to the extant ground norm upon which our judicial authority is based, courts in this country have no jurisdiction to give advisory opinions. And any judgment which does not decide a living issue is academic or hypothetical.

This case was filed in the trial court after the respondents placed an advertisement in THISDAY newspaper on 24/04/04. The advertisement is Exhibit A at p.18 of the record of proceedings. The gist of the advertisement is that the 2nd respondent invited interested and eligible consultants including lawyers, with expertise in petroleum logistics in the oil and gas industry to indicate their interests in providing certain required consultancy services. The appellants who are lawyers were very uncomfortable with and exacerbated by the above advertisement. They are of the view that it offends their rights and those of other lawyers generally. In their opinion legal practitioners should not be invited to offer legal services to the respondents on the condition that and as lawyers they should render such services in partnership and sharing legal fees with other persons who are not lawyers. In their opinion the said advertisement violates rules 45, 48 and 50 of the Rules of Professional Conduct for Legal Practitioners in Nigeria. The appellants therefore filed the suit that in relation to legal practitioners, the advertisement was improper and asked the court to restrain the respondents from hiring legal practitioners in partnership with other persons who are non-lawyers in rendering the said services and setting a closing date or deadline for the indication of interest by legal practitioners. The learned trial Judge in his ruling delivered on 21/10/04 after counsel for both parties had extensively submitted for and against whether or not the suit is indeed justiciable under the circumstances, held ‘inter alia’ that the advertisement which triggered the action and the interpretation given to it by the appellants are misplaced and do not constitute a live issue upon which he could assume jurisdiction to determine. The learned trial Judge held that the appellants are merely asking the court to embark upon an academic exercise which is unknown to law, he therefore declined jurisdiction to adjudicate upon the appellants’ suit based on this reasoning and conclusion.

I must observe at this stage that I tend to agree with the reasoning and conclusion of the learned trial Judge that under the circumstances of this case, the appellants have no justiciable right that they are claiming. There is no shred of evidence to show that the appellants applied to render services to the respondents in response to the advertisement under attack. They have also not presented the names of legal practitioners who have so applied so as to justify their claim, indeed their fear that the rights of such legal practitioners are in actual or imminent jeopardy, violation and infringement is unsubstantiated and therefore misplaced. As a matter of fact, the appellants have an added legal responsibility to satisfy the court that they have an interest over and above that of the entire legal practitioners in Nigeria and that their own overriding interest has been breached. They have to show that the interest of some named and not faceless legal practitioners’ rights have been infringed and that they have been briefed to help remedy the infringement in court. The reliefs sought by them have not revealed any of these. The question to ask thence from is, do the appellants have a ”locus standi” to sue as they have done in the suit filed in the trial court in the given circumstances as enumerated above?

“Locus standi” is an issue which goes to jurisdiction. In the case of:

Hon. Justice Ovie-Whysky & Ors vs. Chief Olawoyin & Ors. (1985) 6 N.C.L.R.Q. 156, ”Locus Standi” was defined as the right of a party to appear and be heard on a question before any court or tribunal.

In determining “Locus Standi’; the court’s judicial powers are being Invoked and the matters in which judicial powers can be exercised are as contained in the provisions of Section 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria. The rule of Locus standi” in civil cases was laid down in the case of:

Senator Adesanya vs. The President of Nigeria (1981) 5 SC p. 112.

Failure of a plaintiff to disclose his “Locus standi” was settled by the court in the case of: Olawoyin vs. A.- G., Northern Region (1961) 1 All NLR p. 269.

Indeed the rule about “locus standi” evolved primarily to protect the courts from being used as a playing ground by professional litigants, meddlers, interlopers, prank-players and other cranks who have no real stake or interest in the subject-matter of the litigation they are professing to be interested in. I shall now proceed to consider some of the explanations of “locus standi” given by our courts over time.

(i) On the meaning of ”Locus Standi’:–

”Locus Standi” or standing to sue is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction, let or hindrance from any person or body whatsoever. In other words, ‘Locus standi” is the right of appearance in a court of justice or before a legislative body on a given question. See the cases of:

(1) Ogbuechi Vs. Gov. of Imo State (1995) 9 NWLR (pt. 417) p.53;

(2) Bani Guda & Ors Vs. Jumbo Kitta (999) 12 NWLR (Pt.629) P. 21 and

(3) Lawrence Elende & Ors vs. F. Ekwoaba & Ors. (1995) 3 NWLR (Pt. 386) p. 704.

(ii) On what a litigant must show to establish “locus standi’”:-

For a person to have ”locus standi in an action he must be able to show that his civil rights and obligations have been or are in danger of being infringed The fact that a person may not succeed in an action does not have anything to do with whether or not he has a standing to sue in this regard.

(iii) On the test for determining “locus standi”:-

There are two tests used in determining the ”locus standi” of a person. They are:

(a) The action must be justifiable; and

(b) There must be a dispute between the parties.

(iv) On how to maintain “locus standi”:

To maintain “Locus Stand”‘; there must be proper and necessary parties before the court.

(v) On what a party must show to invoke judicial power:-

To entitle a person to invoke judicial power, he must show that either his personal interest will immediately or imminently be or has been adversely affected by the action of another person or body or that he has sustained or likely to sustain an injury to himself, which interest or injury is over and above that of the general public.

(vi) On the condition precedent to right of action:-

A plaintiff must have sufficient legal interest in seeking redress in court. Without such sufficient legal interest a party cannot completely seek redress in a Court of law.

See Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999, which states that: ‘:Any person who alleges that any provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress. ”

(vii)) On the determination of sufficient interest:-

The term ”sufficient interest” could be determined in the light of the peculiar facts and circumstances of each case.

The overriding objective of the above stated rule of “locus standi” in summation is that all the appellants need to do is to show that their civil rights and obligations have been or are in imminent danger of being infringed. Having duly examined the case of the appellants contained in the originating summons filed by them in the trial Court and the reliefs being sought by them, I am in agreement with the learned trial Judge that the appellants have not been able to show that their personal interest will imminently or immediately be or has been or likely to be affected adversely by the advert of the respondents or that they have sustained or are likely to sustain an injury to themselves and that the interest and injury are over and above those of the general public in this case other legal practitioners in Nigeria. Indeed, I fail to see any dispute between the appellants and the respondents. The respondents through the 2nd respondent have merely placed an advert inviting interested persons or bodies to render certain services to them. None of the appellants has applied to the respondents to show or indicate an interest in that regard whatsoever. In my humble view; I do not think the advert is a sufficient catalyst to arouse any grouse against the respondents by the appellants or anyone at that. Furthermore, the respondents not being legal practitioners are not subscribers to the Rules of Professional Conduct for Legal Practitioners; hence the rules have no bearing to and cannot be enforced against them. Indeed, if in the event of any legal practitioner responding to the respondents’ advert to render the required services, such legal practitioner would be seen to have willingly and by choice done so and in the absence of any fraud or unlikely coercion, there cannot be a cause of action against the respondents.

In my respectful view, the Ruling of the learned trial Judge on the preliminary objection of the respondents that the appellants have no “locus standi” to institute the alleged action is quite right having regard to the facts and circumstances of the case. There is nothing to adjudicate upon. The ruling is very clear; it does not amount to prejudging the alleged substantive action. Indeed, there is no substantive action, there being no live or living issue and dispute between the parties. The learned trial Judge was therefore right in declining jurisdiction to adjudicate upon the case of the appellants. To have done otherwise will be absurd as the resultant effect would be merely and totally speculative. My observation with due respect, is that the appellants are purely busybodies, interlopers, meddlers and rabble rousers who have no serious business in hand to grapple with and are merely seeking for cheap popularity.

Therefore the answer to my earlier question on whether the appellants have the “locus standi” to commence their alleged suit will be and it is hereby answered in the negative. Consequent upon the above, issue No.2 also fails.

ISSUE 3

Learned counsel for the appellants submitted that the trial Court was wrong in holding that the 1st respondent is not a juristic person and as such could not be sued. He contended that the learned trial Judge therefore erred in striking out the name of the 1st respondent from the suit. It was further contended by the learned counsel for the appellants that even though the Public Enterprises (Privatisation and Commercialization) Decree No. 28 of 1999, the statute which created the 1st respondent does not specifically provide that the 1st respondent can sue and be sued having been created by a statute which confers on it elaborate functions, the 1st respondent by implication can indeed sue and be sued. His view is predicated on the fact that where a statute has conferred a body such as the 1st respondent with various functions, it is reasonable to imply that the body in the discharge of those functions will exercise the rights of legal persons which would affect third parties and will therefore be liable to be sued in the Courts. He concluded that such a body possesses juristic personality. He argued that it will amount to injustice if such third parties cannot seek redress for any wrong done to them. On the alleged various functions of the 1st respondent, learned counsel for the appellants referred to the provisions of Sections 9 and 11 of Decree No. 28 supra. He also referred to the cases of:

(1) Provost Alyan Ikoku College of Education vs. Amuneke (1991) 9 NWLR (pt. 213) P. 49;

(2) Fawehinmi vs. NBA (No. 2) (1989) 2 NWLR (pt, 105) P. 558 at P. 639;

(3) Bank of Baroda vs. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt 735) P. 551 and

(4) Carlen Nig. Ltd. vs. Unijos (1994) 1 NWLR (Pt.3232 P. 631.

Furthermore, learned counsel for the appellants argued that the appellants are entitled to sue the Federal Government through the 1st respondent. He referred to Order 12 rule 26 of the Federal High Court Rules, 2000 which states that

“Any person carrying on business within jurisdiction in a name or style other than his own name may be sued in that name or style as if it were a firm name; and- so far as the nature of the case will permit, all Rules relating to proceedings against firms shall apply.”

Learned counsel also on this assertion referred to the case of:

Iyke Med. Merch. Vs. Pfizer (2001) 10 NWLR (Pt 722) P. 540.

On the other side, learned counsel for the respondents submitted that the 1st respondent is not a juristic person and cannot sue or be sued in its name. He argued that the statute that created the 1st respondent, that is, Decree No. 28 Supra, does not clearly and categorically state that the 1st respondent is a body corporate with a common seal and perpetual succession which can sue or be sued in its corporate name in line with the interpretation rule of “expression unius est exclusio alterius”, meaning that the 1st respondent is excluded impliedly from the category of a legal personality, the Decree having expressly made the 2nd respondent a legal personality that can sue or be sued. He referred to the cases of:

(1) Chief Gani Fawehinmi vs. MBA supra at p. 602 & p- 635 and

(2) Iyke Med. Merch vs. Pfizer Inco. supra at p. 555.

Ordinarily, even though the issue of whether or not the 1st respondent is a juristic person was one of the grounds contended for in the preliminary objection of the respondents, the trial court having found and ruled that it does not possess the jurisdiction to adjudicate upon the case, thereby striking out the suit for that reason, the suit became extinct. However, to fulfil all the righteousness of this issue.

I will now proceed to consider it all the same.

It is a fundamental and an established rule of law that any person, natural or artificial may sue and be sued. No action can therefore be brought by or against any party other than a natural or artificial person or persons expressly or impliedly, unless such a party has been given by statute, rules of court or by common law either a legal ‘persona’ under a name or a right to sue and be sued by that name. See the cases of:

(1) Chief Gani Fawehinmi vs. NBA (No.2) Supra and

(2) Iyke Med Merch vs. Pfizer Inca. supra.

The power of a party including corporate bodies to sue and be sued can therefore be expressly conferred on it by the statute creating it. Also, it is clear that such power can equally be inferred from the creating or enabling statute. Hence, when as in the instant case under consideration, the question for determination is whether in the absence of express statutory provision, a body like the 1st respondent has the status of a legal personality, the court in determining whether to infer such legal personality status of the body must of necessity go through the task of examining meticulously the relevant statutory provisions of the statute which establishes, confers rights and imposes duties on the body. The court should also in doing this bear in mind the relationship of the body to other persons or bodies such that unless legal personality is ascribed to it, an injustice to such other persons or bodies might result. This principle was succinctly put as follows by Ogundare J.S.C. (as he then was) in the case of:

Carlen Nig. Ltd. vs. Unijos supra.

“The University of Jos Act has not expressly conferred on the Council of the University or the Vice-Chancellor such a right to sue or be sued ‘eo nomine’ that is, by or in those names.

If there be such right or obligation. It can only be derived by implication from the Act.”

The learned J.S.C in that case therefore went ahead to consider the nature of the functions, powers, duties and responsibilities conferred on the Council and the Vice-Chancellor of the University, such as the power to discipline the staff and students of the University and rightly came to the conclusion that:

“……. it cannot be doubted that in their exercise of these functions and powers, the rights of third parties would necessarily be affected and it will amount to injustice if such third parties cannot seek redress for any wrong done to them—-”

I have gone through the provisions of Decree No. 28 supra which created the 1st respondent Council especially in its Section 9 and the various serious, delicate and far reaching functions and powers contained in Section 11 of the Decree. For purposes of ease of reference and clarity, I hereunder reproduce the provisions of said Section 11 dealing with the functions of the 1st respondent as follows:

“11. The functions and powers of the Council are to –

(a) determine the political, economic and social objectives of privatization and commercialization of public enterprises,”

(b) approve policies on privatization and commercialization”

(c) approve guidelines and criteria for valuation of public enterprises for privatization and choice of strategic investors;

(d) approve public enterprises to be privatized or commercialized”

(e) approve the legal and regulatory framework for the public enterprises to be privatized”

(f) determine whether the shares of a listed public enterprise should be by public or private issue or otherwise and advise the Government of the Federation, accordingly;

(g) determine the time and when a public enterprise is to be privatized”

(h) approve the prices for shares or assets of the public enterprise to be offered for sale;

(i) review, from time to time, the socio-economic effects of the programme of privatization and commercialization and decide on appropriate remedies,’

(j) approve the appointment of privatization advisers and consultants and their remuneration.

(k) appoint as and when necessary committees comprising persons from private and public sectors with requisite technical competence to advise on the privatizatian or commercialization of specific public enterprises,’

(l) approve the budget of the Council;

(m) approve the budget of the Bureau;

(n) supervise the activities of the Bureau and issue directions on the Implementation of the privatization and commercialization pragramme;

(0) receive and consider, for approval, the audited accounts of the Bureau;

(p) submit to the Head of State, Commander-in-Chief of the Armed Forces in each year a report on the activities of the Council and the Bureau;

(q) receive regular and periodic reports from the Bureau on progamme implementation and give appropriate directions; and

(r) perform such other functions as may, from time to time be necessary to achieve its objectives.”

The learned counsel for the respondents rightly argued that unlike the 1st respondent, the 2nd respondent which is a creation of the same Decree No. 28 Supra, was expressly made a body corporate with perpetual succession and common seal and may sue and be sued in its corporate name.

However, it is quite clear that part of the functions of the 1st respondent include, the approval of the budget of the 2nd respondent; supervision of the activities of the 2nd respondent such as receiving and the consideration for approval, the audited accounts of the 2nd respondent, submission to the Head of State ( Now President), Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria in each year a report on its own activities and those of the 2nd respondent; receiving regular and periodic reports from the 2nd respondent on programme implementation and giving of appropriate directions to the 2nd respondent in this regard. See the provisions of Section 11 (m), (n), (o), (p) & (q) of the Decree, already reproduced above.

From the foregoing enumerated functions of the 1st respondent especially its supervisory role on the 2nd respondent, it would appear to me that though not expressly stated in the Decree, the intention of the draftsmen of the Decree could not have been anything short of also conferring on the 1st respondent a legal personality status as they did the 2nd respondent. As earlier on observed, the functions of the 1st respondent are so enormous and indeed complex that third parties are bound to be affected in the course of running its affairs and those of the 2nd respondent. The logical conclusion is therefore that in the interest of fairness, pursuant to the rules of natural justice and equity, such third parties should be entitled to remedy or redress in court in the likely event of an infraction of the rights of such parties. By implication, the 1st respondent should be accorded the status of and it is hereby declared a legal personality. This is my humble opinion and I hold so. Issue No 3 must therefore succeed and it succeeds.

Consequent upon my above reasoning and conclusions, I hold that there not being in existence any relationship and or dispute between the appellants and the respondents in view of the reliefs being sought by the appellants, the learned trial Judge was right to hold in his ruling on the preliminary objection of the respondents that the trial court has no jurisdiction to adjudicate upon the suit. Of a truth, the issue involved is not a live or living one. I further hold that the phrase, “The whole suit appears academic and the court does not do academic exercises’; employed by the learned trial Judge in the said ruling is a mere expression of opinion and not an issue to warrant parties being invited by the learned trial judge for consideration and determination. The fulcrum of the preliminary objection of the respondents was duly argued by both parties as their respective counsel submitted for and against it. It is therefore less than correct for the appellants to claim that they were not given fair hearing. It is also my view and I hold that the learned trial Judge did not prejudge the alleged substantive case of the appellants, rather, he duly considered the issues, the subject-matter of the preliminary objection brought before him and came to the right conclusions save for the issue of the status of the 1st respondent, which I find and hold to be a legal personality that can sue and be sued.

Even though Issue 3 succeeds I hereby resolve in favour of the respondents Issues 1 and 2. Consequently, this appeal ought not to succeed, it is hereby declared as lacking in merit and it fails. The appeal in the result is dismissed. The appellants are hereby ordered to pay the sum of N5,000= to each of the two respondents as the costs of this appeal.

Pronouncement: (Section 249(2) of the Constitution): Hon. Justice I.T. Muhammad who participated in the appeal before his elevation to the Supreme Court bench agreed at a conference that the appeal be dismissed.

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Other Citations: (2007)LCN/2174(CA)