THE POWERS OF THE HONOURABLE ATTORNEY GENERAL OF THE FEDERATION TO ENGAGE COUNSEL ON BEHALF OF THE F
THE POWERS OF THE HONOURABLE ATTORNEY GENERAL OF THE FEDERATION TO ENGAGE COUNSEL ON BEHALF OF THE FEDERAL GOVERNMENT OF NIGERIA IS NOT SUBJECT TO THE PROVISIONS OF THE PUBLIC PROCUREMENT ACT.
MR. OLADIPO OKPESEYI, SAN, FCIArb(UK), FNIM, FCTI
THIS 2ND DAY OF JUNE, 2020
DIPO OKPESEYI & Co., PUBLIC ENLIGHTENMENT SERIES...
I specially thank Almighty God for the time, efforts, and available resources put into this works and as my fountain of knowledge and wisdom. I would like to express my deepest appreciation to the Honourable Attorney-General of the Federation and Minister of Justice, Mr Abubukar Malami, SAN, for giving me the opportunity to put my research to good use and come up with this piece of work. I am grateful.
I also owe a debt of gratitude to my learned colleagues. Chris Nevo, Esq, LLB., BL., LLM, Kazeem Oniyide, Esq, LLB., BL., and Abimbola Akintola, (Miss), LLB, BL, of Dipo Okpeseyi & Co., who helped me with this research.
Thank you all.
1. The primary law governing procurement and disposal of public assets and services in Nigeria is the “Public Procurement Act 2007” (PPA) and “Public Procurement (Goods and Works) Regulation 2007(PPR)”. The question that comes to the fore is, does the PPA apply to the engagement for Legal Services by Honourable Attorney of the Federation for the Federal Government? The answer to this, is definitely in the negative. Engagement for Legal Services is not a procurement issue.
2. However, a recent online article in the Premium Times on engagement of counsel for the recovery of Abacha Loot III seems to suggest otherwise. A cursory look at the various issues raised in the article clearly does not raise valid legal questions, even when viewed against the provisions of the PPA which was allegedly breached in the engagement of counsel. May I quickly point out that of all the issues raised, the only one which touched on the alleged breach of the provisions of the PPA is the alleged ‘lack of competitive bidding before engagement of recovery agents by the government, hence the allegation of lack of due process or transparency. This is grossly misconceived and reasons for which will become obvious as we proceed.
TRANSPAPRENCY AND ACCOUNTABILITY.
3. The Government recovery process, under this –Buhari led administration has been consistently transparent and accountable at every turn of the corner. It has always been in the public domain, propelled by the need to keep the public perpetually updated and informed, in line with the administration cardinal policy of accountability and constant public engagement. Besides, all actions taken in respect of the recovery process have always met the requisite approval from the appropriate authority, inclusive of that of international institutions or bodies, such as World Bank, IMF, EU and/or governments holding the looted assets _ USA/UK / France &Switzerland etc. By virtue of the Asset Tracing, Recovery and Management Regulation 2019 (Notice No. 88)Vol. 163: Vol. 106, the AGF is required to take charge of the custody and management of all recovered and forfeited assets, operate and maintain a centralized database of all assets recovered within and outside Nigeria. This is open to the public. All agreements reached are not just available but available online. The specific projects or programmes to which recovered funds are deployed are all within public knowledge. This is the 1st time any of the above is happening in Nigeria.
4. It is therefore incorrect to claim that the recovery process is opaque, simply because one is aggrieved for not being part of the recovery processes, opposed to policy of government or remain unrepentant agent of the looters. Just yesterday, June 2, 2020, The African Network for Environment and Economic Justice, (ANEEJ) and Lead Organization of the Monitoring Transparency and Accountability on Returned Assets (MANTRA) expressed satisfaction with Federal Government of Nigeria’s transparency in the bid opening for third party monitors to monitor disbursement and utilization of the US$311Million repatriated from Bailiwick of Jersey known as the “ABACHA LOOT 111” to execute three legacy projects. The US$322Million from Switzerland is being supervised by World Bank amongst others. Accountability, credibility, integrity and or transparency of the process is therefore not an issue. The main issue therefore is whether the powers of HAGF to appoint counsel for the assignment is subject to the provisions of the PPA?.
NATURE OF LEGAL SERVICES.
5. Now, with specific reference to assets recovery cases or any other legal matter for which the HAGF has powers to appoint practitioners, it is submitted that this services require the skill of trained legal practitioner either as a Barrister and or as a Solicitor. This type of services does not in any way fall within the scope of the provisions of the PPA. These are legal services rendered by legal practitioners on behalf of the HAGF to the Federal Government of Nigeria. Sections 44-52 of the PPA which make provisions for the procurement of consultants by a procuring entity is not applicable. Although, the PPA did not make provision for what constitutes consulting services, Section 5 of the PPR defined “Consulting Services” to includes any one or a combination of advisory and review services, pre-investment or feasibility studies, designs, construction supervision, management and related services and other technical services or special studies. Nothing under this definition makes reference to legal services as a subject of a procurement exercise. The definition giving to the word “Services” in the Act as well as the Regulation were explicit to include contractor or supplier. A lawyer who has been engaged to provide legal services is not a contractor and or supplier of any goods but someone who is engaged to use his professional capability and wherewithal to provide solution to a lingering legal issue. This must be a Legal Practitioner. Then who is a legal Practitioner?
6. A legal practitioner by reasons of the Legal Practitioners Act (LPA) and its Rules of Professional Conduct (RPC)does not carry on its legal services as a contractor, supplier or trader. This will be in violation of its professional ethics as legal practitioner. A legal practitioner is a person qualified and called to the Nigerian Bar and or licensed to practice as a Barrister and Solicitor of the Supreme Court of Nigeria in accordance with the Law. See Section 2 of the Legal Practitioners Act 1975.
7. In the unreported case of Registered Trustee of Nigerian Bar Association –v- Attorney General of the Federation and Central Bank of Nigeria (NBA V. AGF/CBN) delivered in 2015 per Justice Kolawole of the Federal High Court, Abuja, (as he then was), the court held in striking out the inclusion of “Legal Practitioners” in the definition of Designated Non-Financial Institutions under Section 25 of the Money Laundering Act (2011) that that Legal Practitioners are not traders and do not have customers and ought not to be grouped in the category of persons who can be reasonable treated as traders.
The term “Designated Non-Financial Institution” was defined under Section 25 of the MLA 2011 as:
“dealers in jewellery, cars and luxury goods, chartered accountants, audit firms, tax consultants, clearing and settlement companies, legal practitioners, hotels, casinos, supermarkets or such other businesses as the Federal Ministry of Commerce or appropriate regulatory authorities may from time to time designate.”
8. In the said case of NBA v. AGF/CBN, the government via the Central Bank of Nigeria had issued a circular on the implementation of the provisions of Section 5 of Money Laundering Act (2011) for Law firms as “Designated Non-Financial Institutions”, to register with the Special Control Unit of the EFCC against Money Laundering, by disclosing information of customers in transactions of a sum exceeding US $1,000. The NBA instituted the action to nullify such provisions as it relates to Legal Practitioners. The court held that such provision as it relates to Legal Practitioners is null, void and inapplicable, runs contrary to the provisions of the Legal Practitioners Act, Rules of Professional Conduct for Legal Practitioners 2007 and Section 192 of the Evidence Act 2011 particularly the privilege/confidential relationship between a lawyer and its client. Note also that courts in several other countries took same view of legal practice as did the Nigerian Courts.
9. The Rules of Professional Conduct for Legal Practitioner (RPC) 2007 guides the conduct and operation of Legal Practitioner in the practice of the profession. Of particular reference to the issue of discuss is Rule 4 of the RPC 2007 which provides thus:
“A lawyer shall not permit his professional services to be controlled by any lay agency, personal or corporate, which intervenes between him and the client. Charitable Societies or another institutions rendering aid to the indigent are not deemed to be such intermediaries.”
Also Rule 39 (2) (c)
of the RPC2007 forbids a lawyer from engaging in any advertisement or promotion of his practice of law which makes comparison with or criticizes other lawyers or other professions or professionals.
10. The heterogeneity and peculiar nature of the legal service is a challenge for its inclusion in a procurement process. The fact that a single legal issue can involve different areas of law, will be time and money consuming for the Government, any agency or person to initiate procurement process for the different aspects of law involved in a case, hence engaging private lawyers for legal services are modelled individually and carried out without recourse to the PPA 2007. By reason of the above and in deference to the provisions of RPC, legal services cannot be subjected to a procurement process in defiance to the already set down laws.
POWERS OF ATTORNEY GENERAL OF FEDERATION TO ENGAGE COUNSEL
11. More importantly, the engagement of law firms or private legal practitioners for legal services fall within the integral function, duties or powers of the Honourable Attorney General of the Federation (HAGF) as the Chief Law Officer of the Federation as duly entrenched in Section 150 and by virtue of Section 174(1) &( 2)of the Constitution of the FRN (CFRN) 1999 as amended, such duties can be delegated to any officer of his department or private practitioner by way of fiat or instruction to act on his behalf.
12. The constitutional power vested on the AGF under Section 174 of the 1999 CFRN (as amended) is in respect of prosecution of criminal matters without any express provisions in respect of civil matters. It is worthy to note that aside the officers of his department, the HAGF can delegate his powers to other individuals /authorities not in his department, that is, private lawyers. When such powers are delegated, the donee steps into the shoes of the HAGF to carry out all that he is expected to do in respect of the particular case. See. F.R.N. v. Adewunmi (2007) 4 SC (Pt. III) 30 where Ogbuagu JSC held thus:
“......There is no doubt that under the scheme of things in 1997, the Attorney-General of the Federation could in appropriate circumstances authorize a private legal practitioner to undertake the prosecution of offences under Decree No. 18 of 1994. It is also noteworthy that only the Attorney-General of the Federation could at the time raise questions as whether or not such authority to prosecute was properly given'.
I entirely agree with the Court of Appeal on this.”
“In the case of The State v. Collins Aibangbee & Anor. (1988) 3 NWLR (Pt. 84) 548 at 578, (1988) 7 SCNJ (Pt. 1) 128 at 137, 153 which dealt with the propriety of a private legal practitioner instituting and undertaking a criminal prosecution within the meaning of section 191 of the 1979 Constitution, now section 174 of the 1999 Constitution, this court ' - Per Eso JSC, stated that the court had had occasion to rule before that institution and undertaking of a criminal prosecution within the meaning of section 191 of the 1979 Constitution, means the Attorney-General and his staff and that they can commence and make themselves responsible for a criminal prosecution and not that they cannot brief private practitioners to appear on behalf of the Attorney-General either alone or together with a member of the Attorney-General's staff. The cases of DPP v. Akazor (1962) 1 ALL NLR 324, were referred to. See also Brett & Mclean Commentary in Article 202 at page 54........”
13. Also, one of the Key words in the provision of Section 174 of the 1999 CFRN as amended is “any........ person”. It was held in the case of Federal Republic of Nigeria –v- George Osahon & 7 Ors(2006) Legalpedia(SC) 17181 per Belgore JSC that
“To appear in all superior court of record in Nigeria to prosecute any case, civil or criminal, the person is presumed to be a legal practitioner as provided in the Legal Practitioners Act. So the words “any....person” presumes as represented by a legal practitioner...”
This is to say that the Attorney General is not subject to any control, so far as the exercise of his powers under the constitution are concerned and except for public opinion and the reaction of his appointor. These powers include delegating his authority to a legal practitioner of his choice or put differently appointing or engaging a legal practitioner to act on his behalf in any matter involving government interest. The Supreme Court in State v. Ilori (1983) 14 NSCC 69 described the powers of the Attorney General as not subject to control or review but a master unto himself.
ATTORNEY GENERAL AS COUNSEL TO THE STATE.
14. Section 36 (6) (c) of the CFRN 1999 (as amended) provides for the right of a party to a dispute to engage a counsel of his choice. This has now become one of the beacons of fair hearing and Fundamental Human Right. The power to represent the FRN is constitutionally vested in HAGF and the powers vested in him also entitles the HAGF to delegate this power to represent FGN or appoint someone else to act on his behalf. The only limitation is that the person so appointed must be a Legal Practitioner. It follows therefore that only the HAGF knows and determines the criteria for such appointment because whoever he engages, act on his behalf and report to him. Consequently and by virtue of Section 150 of the CFRN 1999 (as amended), the AGF is the Chief Law Officer for Nigeria. He is therefore the constitutionally engaged counsel for Nigeria, and in him resides the power to delegate if, and whenever, he so decides, the authority to represent the state.
ESTABLISHED ADMINISTRATIVE PROTOCOL.
15. In furtherance of our submission above, reference is made to the series of circulars issued by Federal Government through its Secretary to the Government of the Federation particularly those with Ref. Nos. SGF/PS/CIR/625/1/1 of 16th July, 2003, SGF/PS/CIR/625/1 of 12th July, 2010, SGF.6/S.16/T/172 of 15th October 2012 and SGF/PS/CIR/625 of 25th July, 2013 ascribing the power to engage external solicitors for the Federal Government, its Ministries, Departments and agencies (MDAs) on the HAGF. By the said circulars, all engagement of external solicitors and payment of their fees for legal services by the MDAs must be with the approval of the HAGF. This clearly exempts the engagement of legal services from the applicability of the PPA and makes it purely a matter within the prerogative of the HAGF which cannot be exercised by any other intermediary. It must be affirmed that this circulars are in full compliance with the provisions of Sections 150 and 174 of the CFRN.
16. Under the Common Law, the AGF is the Chief Law Officer of a State. This historical origin dates back to the 16th and 17th Centuries and is still relevant till date. See Section 150 of the CFRN 1999 (as amended). Today he is not just the government's lawyer but more an independent public official responsible for justice. In the case of R. v Comptroller General of Customs (1899) 1QB.909 at 1914, it was held that, when the Attorney General is exercising his functions as an officer of the crown, such functions were not subject to the review by the courts of the Queen’s Bench Division or any other court. This was also the position of the Supreme Court of Nigeria in State v Ilori (supra). Under the Common Law therefore, the HAGF has the unquestionable authority to act for the state and where necessary appoint counsel to act on his behalf for the state.
17. We now take a cursory look at the position taken by other countries in the engagement of Legal Practitioners for legal services for and on behalf of the state, to establish whether same is subjected to Public Procurement practices or left to the AGF’s absolute discretion as in Nigeria.
i. In Canada, for instance, the Policy on “Contracting for Legal Services and Legal Agents Appointment” which was made pursuant to Sections 4 and 5 of the Department of Justice Act, R.S., 1985,c. J-2, Sections 3 (1) (d) and 4 of the “Government Contracts Regulation SOR/87-402” provides that contract for legal services maybe entered into only by or under the authority of the Minister of Justice and such are not subject to the requirement of the Government Contracts Regulation or the Treasury Board Contracting Policy to clearly take such issues out of Public Procurement requirements. Section 4(1) of the Said Government Contracts regulation provides thus:
“4 (1) Contracts for the performance of legal services may be entered into only by or under the authority of the Minister of Justice”.
And Paragraph 1 of the said policy provides thus:-
“......Contracts for the performance of legal services entered into, by, or under the authority of the Minister of Justice are otherwise not subject to the requirements of the Government Contracts Regulations or the Treasury Board Contracting Policy.”
ii. Also, in the United Kingdom, under the Procurement Laws of England and Wales, that is, Regulation 10 of Public Procurement Regulations 2015 (PCR 2015) which is synonymous with Article 10 of Directive 2014/24 of European Law Directives, makes provision for exemption of some public services contract from the operation of part 2 of the Regulation which includes legal services. The said Regulation 10 particularly paragraph d provides thus:
“10. This part does not apply to public services contracts-
(d) Any of the following legal services:
(i) legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC (25) in:
- an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance; or
- judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions;
(ii) legal advice given in preparation of any of the proceedings referred to in point (i) of this point or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a lawyer within the meaning of Article 1 of Directive 77/249/EEC;
(iii) document certification and authentication services which must be provided by notaries;
(iv) legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;
(v) other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority.”
iii. In Australia, under the Judiciary Act of 1903, the Attorney General is empowered to appoint lawyers as well make directions regarding legal services for the commonwealth entities. One of such directions is the Legal Services Direction 2017 which provides under Clause 3.2 and 4 that all claims by Commonwealth entities are to be reported to the Attorney General and no settlement can be reached without the agreement of the Attorney General.
This direction is synonymous to the circulars issued by the Federal Government to the MDAs on the need for the approval of the HAGF in engaging external solicitors. The right of the Attorney General to appoint lawyers in Australia was further buttressed under the Commonwealth Procurement Rules 2019, Appendix A Clause 7, which provided for the exemption of the engagement of experts including counsel and barrister from some rules of procurement law. Clause 7 Appendix A provides thus:
“Procurements of the following kinds of goods and services are exempt from the rules of Division 2 of the CPRs, and from paragraphs 4.7, 4.8 and 7.26 of Division1. Division 2 does not apply to:
7. the engagement of an expert or neutral person, including engaging counsel or barristers, for any current or anticipated litigation or dispute.”
UNITED STATES OF AMERICA
iv. Similarly in the United States of America, under 31 U.S Code S.3718 (B, 1a &b) the Attorney General may make contracts retaining private counsel to furnish legal services including representation in negotiation, compromise settlement and litigation in the case of any claim of indebtedness owed the United States and such contract shall be in accordance to terms and conditions deemed necessary by the Attorney General. The Attorney General in carrying out this obligation must have recourse to the competition requirement as provided in of 41 US Code Division C.
The Attorney General may make contracts retaining private counsel to furnish legal services, including representation in negotiation, compromise, settlement, and litigation, in the case of any claim of indebtedness owed the United States. Each such contract shall include such terms and conditions as the Attorney General considers necessary and appropriate, including a provision specifying the amount of the fee to be paid to the private counsel under such contract or the method for calculating that fee. The amount of the fee payable for legal services furnished under any such contract may not exceed the fee that counsel engaged in the private practice of law in the area or areas where the legal services are furnished typically charge clients for furnishing legal services in the collection of claims of indebtedness, as determined by the Attorney General, considering the amount, age, and nature of the indebtedness and whether the debtor is an individual or a business entity. Nothing in this subparagraph shall relieve the Attorney General of the competition requirements set forth in division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
The Attorney General shall use his best efforts to enter into contracts under this paragraph with law firms owned and controlled by socially and economically disadvantaged individuals and law firms that are qualified HUB Zone small business concerns (as defined in section 31(b) of the Small Business Act), so as to enable each agency to comply with paragraph (3).”
PPA NOT APPLICABLE TO THE APPOINTMENT OF LEGAL COUNSEL.
18. The significance of the power vested in the HAGF over legal matters of government gives the HAGF the discretion to engage external solicitors for legal services on behalf of the government. Part of the reasons for taking the engagement for legal services out of the purview of the provisions of the PPA, is that, most of the criteria set out by the Act are not be applicable.
19. It is pertinent to note and flowing from the above, that no AGF has ever acted within the purview of the PPA, rather they have drawn their powers from the provisions of the 1999 CFRN (as amended), Legal Practitioners Act, Common Law and Case Law authorities in the engagement and disengagement of counsel for and on behalf of the FRN because it is not a procurement issue. A few glaring examples will bring the inapplicability of the PPA in this matter to light:-
i. HAGF does not pay 15% mobilization to engaged counsel.
ii. He pays a flat retainer to counsel where applicable. This has no relationship to the brief which may have no monetary considerations.
iii. He also does not pay any mobilization at all, in most case, he agrees the fee and payment schedule with the engaged counsel.
iv. The relationship between the AGF and the engaged counsel is covered by the principle of Privileged Communication and confidentiality (client/counsel).
v. The time to conclude a matter may never be known to a lawyer. He cannot be definite on time.
vi. That in the course of a matter, other issues may arise which were not obvious at the time of issuing letter of instruction. This may and may not affect fee payable.
vii. Lawyers also work on contingency or success fee, this is not so in contracts.
SUPREMACY OF THE CONSTITUTION.
20. The inherent powers of the AGF to delegate some of his duties, vide administrative fiat to private legal practitioner as his Legal Representative and to commence, initiate, take over or discontinue all such proceedings in Court is now well settled, and such constitutional power which extends to civil or other legal matters cannot be fettered by the statutory requirement of PPA. The constitutional provisions of Sections 150 and 174 of the CFRN 1999 (as amended) would also take pre-eminence, in the event of conflict or inconsistency with any other law (including the PPA) to render null and void the very provision inconsistent with the CFRN 1999. See Section 1(3) of the CFRN 1999 (as amended) which provides thus:
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
21. The AGF is not constrained to give consideration to famous and popular Law firms in the selection or appointment of counsel for assets recovery or any other legal matters. Competence, diligence, character, in addition to requisite skills and experience all weigh heavily on the AGF in favour of the choice to be made in the appointment or selection process. The motivating factor and prior consideration in conduct of the AGF in the discharge of his duties and responsibilities remains the public interest and the need to prevent abuse of legal process and not ‘how big the deal is’ or the law firm.
22. In this respect, the law firms engaged by the HAGF to recover the looted assets in foreign countries have returned very good successes and recovered a lot of assets for the benefit of the Government and people of Nigeria. The HAGF therefore has credibly discharged his duties under the Constitution to the Government and the People of Nigeria.
23. We submit respectfully, that the survey of these countries listed in this write up, clearly show that the engagement of counsel for legal services on behalf of the State falls squarely within the authority of the AGF. It is also clear that such matters are not to be treated as regular procurement matter. The Constitution of Nigeria is the Supreme Law in Nigeria. The Supreme Court of Nigeria has interpreted Sections 150 and 174 of CFRN 1999(as amended) to declare that the AGF has absolute discretion in the engagement of counsel on behalf of government of Nigeria subject only to public opinion, his appointor and to avoid abuse of power.
24. Pursuant to the provisions of the CFRN, the Common law and the Supreme Court of Nigeria in FRN-v- Osahon (supra) and State v. Ilori (supra), it is our submission that the appointment/selection of any private legal practitioner to act for and on behalf of the AGF for the benefit of the FGN is the sole responsibility of the AGF and the performance of such core function cannot be construed as services contemplated by provisions of the PPA. The exigency of the legal services needed and overwhelming nature of the administrative /bureaucratic bottleneck involved in procurement processes makes very difficult, if not impossible, for such legal services to be subjected to the dictates of PPA or subsumed under Part VIII the PPA pertaining to Procurement Consultant (Services) even if that was the case, the provision of the CFRN 1999 (as amended) will intervene to render such action null and void.