Background

Mustapha v. Corporate Affairs Commission [2019] 10 NWLR (Pt. 1680) 355.

A legal practitioner, Adekola Mustapha Esq., (“the Appellant”) presented the names of three proposed companies to the Corporate Affairs Commission (CAC) (“the Respondent”) for reservation, in preparation for registration. CAC refused to approve any of the names for reservation on the ground that there were already in existence, registered companies with identical or similar names.

Dissatisfied with the decision of CAC, the Appellant filed an action in his name – a Writ of Certiorari  – at the Federal High Court seeking an order quashing the decision of CAC and an order compelling CAC to accept and reserve the names for registration.

The Appellant lacks the right to sue

The trial Court dismissed the action and the Court of Appeal upheld the decision. On further appeal to the Supreme Court, CAC contended that the Appellant lacked the locus standi (right or capacity to sue) to institute the action in the first place, in his name. In his reaction, the Appellant argued that his interest and that of his client co-existed and was jointly affected by the decision of CAC. The Supreme Court agreed with CAC, holding that the suit was incompetent and that the trial Court lacked the jurisdiction to entertain same. Okoro, JSC, in delivering the leading Judgment, explained the settled principles of locus standi and laid the matter to rest convincingly thus:

“With all I have said above in mind, can it be said that the Appellant herein had the requisite locus standi to institute this suit at the trial Court? The answer seems to be in the negative. I will explain. It has been settled in the litigation that the Appellant was counsel to the promoters of the business names sought to have been reserved/registered which were rejected by the Respondent on the ground that similar names have been registered before so as not to confuse the general public. It is trite law that counsel owes his client the duty of utmost devotion in presenting his client’s case and to the best of his ability with professional skill. It is the knowledge and professional expertise of the counsel that his client pays for and expects nothing but the best from the counsel within the tenets of the law and professionalism. See Adewunmi v. Plastex Ltd. (1986) 3 NWLR (Pt. 32) 767. But does this duty extend to counsel taking over and initiating proceedings in his own personal name without reference to the client? This is not and cannot be the position of the law. As a general rule, counsel is hired by his client to act for him in the subject matter which his client has interest. The interest of counsel is in and consists of the fee he is to collect from his client for representing him. The personal interest of the counsel does not extend and/or override that of his client to the extent that the counsel would become a party in the matter without more.”

The Supreme Court clearly concluded that the Appellant has no personal interest in the subject matter of the suit. Okoro, JSC continued:

“Quite apart from filing the matter on behalf of his client, and if he sued in his name as of right, the Appellant must state what right he has as a person in the subject matter, which was infringed by the decision of the Respondent being challenged. In the absence of any evidence from the Plaintiff/Appellant’s Affidavit/Pleading showing his personal interest in the subject matter that will be in jeopardy by the refusal of the Respondent to accept the proposed names for registration, the Plaintiff/Appellant’s standing becomes suspect and therefore questionable.”

Talking about personal interest, it was the contention of the Appellant that he has interest in the subject matter of the suit – that is, the professional fees he would have earned if he had carried on with the company registration. As interesting as this argument sounded, Okoro, JSC was not persuaded. Hear him:

“The Appellant had argued that his interest in the subject matter relates to the fees he would be paid by the promoters of the business names. I wish to remind learned counsel that the matter before us has nothing to do with counsel’s professional fees. Therefore, that argument does not fly at all.”

His Lordship further noted that even if the Appellant was given a power of attorney by his client, he can only institute the action in his client’s name and not in his personal name.

Counsel must be mindful

It must be mentioned that although CAC is staffed with highly competent and efficient officials, sometimes, certain decisions by a few others appear unsupported by law and can be infuriating. For instance, a CAC official had once insisted that a name submitted for registration which ended with “LIMITED” must be edited to read “LTD”. This is without considering the fact that “Limited” and “Ltd” means the same thing under the Companies and Allied Matters Act.

Nonetheless, counsel must be mindful that any step towards challenging any unacceptable decision of CAC through its officials must first begin with escalating the matter to superior authorities at CAC, up to the office of the Registrar General before commencing an action in court.

In commencing the action, the legal practitioner must bear in mind always that the action is not his personal action but an action filed on behalf of his client. Same thing goes when confronting all other institutions and agencies of Government on behalf of clients.