Conflict of Interests in Litigation (Part I)

by Oluwanonso

INTRODUCTION

The slogan of the Nigerian Bar Association is Promoting the Rule of Law. Every legal practitioner is expected to observe this duty of promoting the rule of law by virtue of Rule 1 of the Rules of Professional Conduct for Legal Practitioners (RPC). As the Court of Appeal stated in ANPP & Ors v. The Resident Electoral Commissioner, Akwa Ibom State & Ors (2008) LPELR-8322(CA):

“It is trite that a lawyer has an onerous duty to uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct and thus shall not engage in any conduct which is unbecoming of a legal practitioner.” Per Ibrahim Mohammed Musa Saulawa, JCA (Pp 61 – 62 Paras E – A).

The American Bar Association defines the rule of law as “a set of principles, or ideals, for ensuring an orderly and just society.”[1] Many countries throughout the world strive to uphold the rule of law where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary and human rights are guaranteed for all.[2]

Of course, the ideals for the rule of law can only be actualized when the gatekeepers of the law – legal practitioners – uphold and observe rule of law at all times. Lawyers are custodians of the laws of any society, they advise their clients (private persons, politicians, governments, and corporations) to comply with the law. It is therefore expected that lawyers obey the laws which they preach about, and also uphold the highest ethical standards in their professional dealings and interactions with one another and with their Clients.

This article introduces a new fortnight series which shall examine in practical detail (and through the lenses of decided authorities), the ethical obligations of every legal practitioner in Nigeria.

Conflict of Interests in Litigation (Part I)

AGAMORE ENERGY LTD v. ESSAR EXPLORATION & PRODUCTION LTD & ORS (2021) LPELR-54843(CA).

Lawyers are expected to abstain from taking new cases that conflicts with the interest of their existing clients. This is by virtue of the provisions of Rule 17(4) of the RPC which prohibits a lawyer from taking any new employment which is likely to involve the lawyer representing different interests, unless it is obvious that the lawyer can adequately represent the interest of each party, and each party consents to the representation after full disclosure of the effects of his representation of the parties.

This does not however mean that a lawyer cannot represent more than one party in a case. The rule only takes effect where the multiple parties have conflicting or divergent interests. In the case under review (Agamore Energy Ltd v Essar Exploration & Production Ltd), the Appellant entered into an agreement with the 1^st Respondent, for the Appellant to use its local expertise and contacts to facilitate the allocation of an oil block to the 1st Respondent, in return for 37% participation interest in the oil block.

The Appellant sued the 1^st Respondent to enforce this agreement, and added the Minister of Petroleum and NNPC (the regulators who were meant to have awarded the contract) as fourth and fifth defendants to the action. At the trial Court, Seni Adio SAN of Copley Partners entered appearance for all the defendants. The Appellants challenged his representation vide a motion on notice, on the grounds that the interests of the 1^st – 3^rd Defendants conflicted with that of the 4^th and 5^th Defendants.

This challenge was unsuccessful at the trial Court and upon appeal to the Court of Appeal, the appellate Court held that the interests of the 1^st -3^rd Respondents (the actual parties) did not conflict with that of the 4^th and 5^th Respondents, who were mere nominal parties, notwithstanding their status as regulators. Hence, they could be represented by the same Counsel. Further, the Court affirmed that where the lawyer informs the clients of the possible conflicting interests and the effect of same, the clients can still consent to the representation. Therefore, the participation of Seni Adio SAN of Copley Partners as counsel to all defendants/respondents was very proper.

In our next post, we shall examine instances where the court will disqualify a lawyer – and every other lawyer in his firm – from representing different parties in a suit.

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[1] https://www.americanbar.org/groups/public_education/resources/rule-of-law/

[2] Ibid.