OKE WALI, SAN V. AMAELFULE, ESQ & ORS.
In the Court of Appeal Holden at Lagos Division
1. OKEY WALI, ESQ. (SAN) PRESIDENT, NIGERIAN BAR ASSOCIATION 2. THE REGISTERED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION 3. THE GENERAL COUNCIL OF THE BARTHE HONOURABLE ATTORNEY GENERAL OF THE FEDERATION
1. SETH O. AMAELFULE, ESQ. 2. MISS AMAKA ANEKE 3. CELESTINE NWANKWO 4. CHARLES OLA-ONI 5. MRS TAYO AROJO 6. TAIWO O. TAIWO, ESQ. CHAIRMAN, NBA LAGOS BRANCH 7. MONDAY O. UBANI, ESQ. Chairman, NBA Ikeja Branch
CITATION CA/899/2013 JOSEPH SHAGBAOR IKYEGH, J.C.A
(Presided AND Read the Leading Judgment)
The 4th appellant in consultation with the 2nd appellant through the 1st and 3rd appellants effected an increment in the Bar practicing fees of practicing members of the legal profession of the Nigerian Bar Association (NBA). The increment appeared to have been effected under the Legal Practitioners Act. Cap. L. 11, Laws of the Federation of Nigeria, 2004.
Aggrieved, the respondents instituted an action against the appellants at the Federal High court sitting at Lagos. By the action, the respondents challenged the legality or otherwise of the increment in the Bar Practicing Fees and sought declaratory and injunctive reliefs towards quashing the increased practicing fees. In the interim, the respondents filed a motion for interlocutory injunction restraining the appellants from implanting/enforcing the increased practicing fees. At the conclusion of hearing, the trial court granted the application.
Aggrieved, the appellants appealed to the Court of Appeal challenging the grant of the application in favour of the respondents. Their appeal was hinged on the ground that the respondents lacked the legal capacity to be granted the interlocutory injunction to prevent the collection of new practicing fees from lawyers in Nigeria, when only five lawyers sued in their personal capacities.
ISSUE FOR DETERMINATION:
Whether or not there was any legal basis for the Court of Appeal to interfere in the exercise of discretion by the trial court in granting an order of interlocutory injunction against the appellants.
The appellants’ brief contended that the respondents had alleged in their suit and application for interlocutory injunction that the increased practicing fees were on the high side and not affordable considering the economic realities affecting members of the NBA such that they would be unable to pay the increased in the papers filed against the suit and the motion to the effect that they caused a 50% reduction in the increased practicing fees to make it affordable for members of the NBA, showing there was no serious issue to be tried in the substantive action, therefore the court below acted in vain and exercised its discretion in vacuo by granting application for interlocutory injunction which, the appellants urged, should be set aside on the issue citing in support the cases of Adenuga v. Odumeru (2003) 4 SC (Pt. 1 at 11, (2003) 8 NWLR (Pt. 821) 163; Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419; Egbe v. Onogun (1972) 1 All NLR 99; Nwosu v. Nnajiuba (1997) 12 NWLR (Pt. 531) 160; Ololakasun v.Governor of Kwara State (1996) 1 NWLR (Pt. 425) 453; Emeshie v. Abiose (1991) 2 NWLR (Pt. 172) 192.
Reference was made by the 1st – 5th respondents to the reliefs sought in paragraph 20 of the statement of claim in pages 2-5 of the record to contend that apart from complaining of the quantum of the increment of the practicing fees, their other important complaint is that the appropriate authority responsible for fixing the practicing fees and the due process for fixing it as laid down by both section 8(2) of the Legal Practitioners Act. Cap. L.11, Laws of the Federation, 2004 (L.P.A.) and sections 5, 6(4) and 19 of the Constitution of the Nigerian Bar Association (NBA) were not followed by the appellants in increasing the practicing fees; hence reliefs (a), (d), (e), (f), and (g) of the statement of claim (supra). Responding to the contention by the appellants on the new regime of practicing fees contained in exhibits A and B attached to their counter affidavit in pages 182-191 of the record, the 1st – 5th respondents referred to pages 231-255 of the record where they alleged exhibits A and B were “fabricated” documents produced during the pendency of the suit as both bear 2013, whereas the suit was filed in 2012; that the appellants brought C attached to their 2nd further counter affidavit in pages 256-259 of the record to replace exhibit B to shore up their assertion that the 4th appellant qua the Honourable Attorney-General of the Federation approved the reduction of the increased practicing fees by 50%, whereas the 1st and 2nd appellants had their “bulk sms” sent to lawyers in Nigeria on 21st December, 2012 and 9th January, 2013 asserted that it was the General Council of the Bar (3rd appellant) who effected the 50% reduction, which the court below consciously avoided in pages 364-365 of the record to decide at the interlocutory stage of the proceedings as the issues revolves round the substantive suit. DECISION: The Appellate court unanimously allowed the appeal. The plain implication of the excerpt from the holding of the court below (supra) is to halt the chain of activities starting from the exercise of the statutory powers of the 4th appellant under section 8 of the L.P.A. to regulate the scale of practicing fees with the attendant result of forestalling the collection of the said increased practicing fees by the 1st and 3rd appellants on behalf of the 2nd appellant for onward remittance to the Chief Registrar of the Supreme Court for eventual disbursement of 9/10th of the gross sum to the national body of the NBA, which smacked of lopsided justice amounting to giving the respondents interim judgment contrary to the underlying principle of issuing orders of interlocutory injunction. See John Holt Nigeria Limited and Anor. V. Holts African Workers Union of Nigeria and Cameroons (1963) A.N.L.R. 389, (1963) 2 SCNLR 383 at p. 387. Therefore, this is a veritable occasion to interfere with the exercise of the discretion of the court below, as it had not acted judicially and judiciously in granting the application for interlocutory injunction. The only comment I desire to pass is that an order of interlocutory injunction or an order of injunction for that matter should not be expressed to cover an indeterminate/anonymous group of persons.
By issuing the order of temporary injunction in favour of the entire members of the NBA in respect of what is not perishable (payment of practicing fees) the court below, with respects, was lavish/outlandish and overlooked the fact that the discretionary equitable remedy it granted if stretched may include members of the NBA that are prepared or willing to pay the increased practicing fees. In matters of this nature, elementary caution is the answer to the handling of the delicate issue of interlocutory injunction. The net result is that the appeal is meritorious. I hereby allow it and set aside the ruling of the court below (Ofili-Ajumogobia, J.) granting an interlocutory injunction against the appellants of the N.B.A. For the avoidance of doubt, the said order of interlocutory injunction is dissolved or set aside; and the motion for interlocutory injunction filed by the respondents at the court below on 17.12.12 is, also, hereby dismissed under section 15 of the Court of Appeal Act, 2004. Accelerated hearing of the substantive suit is hereby ordered. In light of the arbitrary exercise of discretion by the court below in granting the order of interlocutory injunction against the appellants in the case in hand, I order that the substantive suit be heard by another learned Judge of the Federal High Court in Lagos (other than Ofili-Ajumogobia, J.) to be designated by the Chief Judge of the Federal High Court. Parties to bear their costs. I must, however, express my reservation on the hard language used by the 1st-5th and 7th respondents in their respective briefs against their professional colleagues or learned friends, the 1st and 4th appellants, as well as members of the legal profession serving under the 2nd and 3rd appellants. Decorum and polished vocabulary is the hallmark of the legal profession. It is gratifying that learned senior counsel, Mr. Oyetibo, for the appellants, did not follow the band-wagon of intemperate or ungentlemanly language used in some places in the 1st-5th and 7th respondents’ respective briefs accusing the appellants of fabrication of documents for the purpose of the substantive suit. I rest here. Share with your friends….