➥ CASE SUMMARY OF:
Uzoho & Ors. v. National Council of Privatization & Anor. (SC.141/2007, Friday, May 13, 2022)
by Branham Chima.
➥ CASE FACT/HISTORY
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, inter alia: ‘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.’
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.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. 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 appellants’ originating summons presented Rules 45, 48 and 50 for interpretation with respect to the aforesaid publication?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. THE LOWER COURT AND THE TRIAL COURT DID NOT PREJUDGE THE CASE; THE ISSUES ARE ACADEMIC
[‘Now, at pages 33-34 of the record, the learned trial Judge held thus: The plaintiffs in their originating summons are seeking interpretation of the Rules of Professional Conduct binding on applicable or Legal Practitioners in Nigeria vis-a-vis the publication annexed as exh. A to the affidavit in support of the originating summons. The plaintiffs who are legal practitioners are alleging that the condition for practicing in the exercise violates provisions of the Rules of Professional Conduct binding on them as lawyers. That because their interest to participating cannot be realized due to these conditions, their civil rights have been infringed thus foisting them with locus to challenge same. I have read over several times the questions for determination and the reliefs sought. It may be true that it is exh. A that has triggered this action and the interpretation given to it by the plaintiffs but at the end of it. I find no live issue at hand. The reliefs sought have a blanket implication to them. The whole suit appears academic and the Court does not do academic exercises. If this were a live issue and the Court were to assume jurisdiction over it. I would Statutory easily come to the conclusion that the fear of the plaintiffs is misplaced. That Exh. A does not in any way imply what they have concluded and does not in any way violate the Rules of Professional Conduct. But as I have said, this is an academic exercise and the Court would not use its limited time in that. My Lords, I am unable to agree that, from the above passage, the learned trial Judge had pre-judged the substantive suit. Of course, in determining whether a Court has jurisdiction over a suit, the Court is bound to make reference to the pleadings of the appellant, in this case, the Originating Summons, Madukolu v. Nkemdilim [1962] 2 SCNLR 341; Enwezor v Onyejekwe [1964] 1 All NLR 14; Adeyemi v Opeyori [1976] 9-10 SC 31; Tukur v. Government of Gongola State [1989] 4 NWLR (pt. 117) 517.’
‘Requiring the trial Court to interpret Rules 45, 48 and 50 of the Rules of Professional Conduct for Legal Practitioners in Nigeria would have served no useful purpose. The Court would not have decided an existing lis between the parties who brought it. It would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour.’
PER E.A. AGIM: ‘I affirm the concurring decision of the two lower Courts that the appellants lack the locus standi to bring the suit on an interest common to all legal practitioners without showing how their personal right is peculiarly affected, with their unexpressed interest in the exercise has not crystallized into an existing interest entitled to legal protection and that the suit is academic and not valid for consideration.’]
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✓ DECISION:
‘In view of the foregoing, I have no hesitation in dismissing this appeal for lacking in merit. The judgment of the lower Court delivered January 15th, 2007, is hereby affirmed. Appeal dismissed; no order as to costs.’
➥ FURTHER DICTA:
⦿ A JUDGE IS TO EXAMINE CASES BEFORE HIM WITH DUE CARE, AND MAY RAISE ANY DEFECT IN A SUIT
This issue reminds of the dictum of this Court in Sodipo v Lemminkainem OY and Anor[1986] 1 NWLR (pt. 15) 220, According to the Court: “A Judge exists to determine disputes and examine with due care and microscopic senses all matters before him in his pursuit of justice.” This dictum, to my mind, is a complete answer to the criticism by the appellants to the way and manner the learned trial Judge resolved the preliminary objection. In the first place, the question of no “live issue” found in the suit, was not raised by any of the parties in arguing the preliminary objection. A trial Judge, however, is within his rights to properly inform himself of a defect in a suit, either with or without external intervention, because it touches directly on the competence of the suit and hence the jurisdiction to entertain it as such. Thus, the established principle that the issue of jurisdiction can be raised at any stage of the proceedings, at the instance of either the parties or by the Court suo motu, Amale v. Sokoto Local Govt and Ors. [2012] 1 SC (pt. IV) 45; Odiase v. Agho [1972] 1 All NLR (pt.1) 170; Petrojessica Entreprises Ltd v. Leventis Technical Co. Ltd, [1992] 2 NWLR (pt. 244) 675. Where however, the issue of jurisdiction is raised, it should be examined in all ramifications. It should not be compartmentalized and subjected to piecemeal examination and treatment, Oloba v Akereja [1988] 3 NWLR (pt. 84) 508. The very many faces of jurisdiction should come under the searchlight and be pronounced upon, notwithstanding that it might not have been brought to the attention of the Court. — C.C. Nweze, JSC.
⦿ ONCE JURISDICTION IS LACKING, THE SUIT COMES TO AN END
Once the Court finds that it lacks jurisdiction over the matter before it, it has a duty to put an end to the proceedings, Sken-consult (Nig.) Ltd v Ukey [1981] 1 SC 6, 25; Adesokan and Ors. v. Adetunji and Ors. [1994] LPELR-152 (SC); Metilelu v. Olowo-Opejo and Anor [2006] LPELR-11598 (SC). — C.C. Nweze, JSC.
⦿ WHEN IS THERE NO LIVE ISSUE BETWEEN THE PARTIES
There cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. In the instant case, it would be, in my opinion, the pursuit of great injustice, if the learned trial Judge, discovering the absence of a live issue in the suit, had allowed sleeping dogs to lie. — C.C. Nweze, JSC.
⦿ ORIGINATING SUMMONS AND AFFIDAVITS
In this appeal, the main action was commenced by way of Originating Summons. Under this procedure, pleadings are not filed nor witnesses called. It is, generally, heard on affidavit evidence deposed to in support and in opposition, with documents exhibited, Famfa Oil Ltd v. Attorney-General, Federation and Anor [2003] LPELR-1239 (SC); JEV and Anor v. Iyortyom and Ors[2014] LPELR-23000 (SC); Zakirai v. Muhammmad and Ors [2017] LPELR- 42349 (SC). As earlier stated, in deciding an interlocutory application, a Court should endeavor to limit itself to the dispositions made in the affidavit evidence before it. Thus, having regard to the nature of the originating process, and there being nothing but documentary evidence placed before the lower Court, the lower Court was in a good position to examine the entire affidavit evidence and the other documents placed before the trial Court in determining whether the ruling of the trial Court with regards to the preliminary objection was correct, Chief Agbaisi and Ors v Ebikorefe and Ors [1997] 4 SCNJ 147, 160; Agbahomovo and Ors v. Eduyegbe and Ors. [1999] 3 NWLR (pt. 594) 170; Jikantoro and Ors, v. Dantoro and Ors. [2004] 5 SCNJ 152, 177; Agbareh and Anor v. Mimrah and Ors, [2008] LPELR-43211 (SC). — C.C. Nweze, JSC.
⦿ AN APPELLATE COURT IS ONLY INTERESTED IN THE CORRECTNESS OF THE DECISION, NOT THE REASON BY WHICH IT WAS REACHED
It is apposite to state here that it has been established by sufficient authority that an appellate Court is only interested in the correctness of a judgment/ruling or conclusion reached and not with the correctness of the reason by which the Court arrived at its decision, unless it has occasioned a miscarriage of justice, Taiwo and Ors v Sowemimo [1982] 5 SC 60, 74-75; Ibuluya v Dikibo [2011] 3 WRN 1, 23; Agbeje v Ajibola [2002] 2 NWLR (pt. 750) 127; Hillary Farms Ltd. v MV Mahtra[2007] 14 NWLR (pt. 1054) 210. — C.C. Nweze, JSC.
➥ PARTIES:
⦿ APPELLANT
Barrister Okey Uzoho
Barrister Austin Inya
Barrister Calistus Nnadi
Barrister Mike Nkwocha
Barrister Benson Ibezim
⦿ RESPONDENT
National Council of Privatization
Bureau of Public Entreprises
➥ SUBJECT MATTER
Academic suit; no live issue.
➥ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Fedinard Onukugbe, Esq.
⦿ FOR THE RESPONDENT
Okechukwu Ajunwa, Esq., with him, C.M. Okpara, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
