Balogun V Adejobi (2012)
LAWGLOBAL HUB Lead Judgment Report
In this appeal a motion on notice was filed by the respondents on the direction of this Court praying for:
“(a) An ORDER for restraining of CHIEF F.R.A. WILLIAMS from appearing or further appearing or acting or further acting as counsel for the appellants, having appeared for the opposing side (i.e. the respondents/applicants) in an earlier chapter of the subject matter of this appeal.
(b) For such further order or other orders as this Honourable court may deem fit to make in the circumstances.”
When the motion came before this court on the 27th day of February, 1995 it was adjourned to the 3rd day of July, 1995 for hearing and the parties were directed to file brief of argument in respect of the application. This was done. As the appeal was also adjourned for hearing on the same day as the motion, we heard both and decided that the ruling on the application and the judgment in the appeal would be delivered today. I intend to dispose of the ruling on the motion first.
Chief Williams, learned Senior Advocate, against whom the motion is directed did not appear in person in respect of the motion but he filed a brief of argument in his private capacity in reply to that filed on behalf of the respondents herein. It is pertinent to say that the appellants were not represented at the hearing of the appeal by Chief Williams nor did he prepare the appellants’ brief of argument in the appeal. All that was done by Mr. Balonwu, learned Senior advocate.
In moving the motion on notice, Chief Ikeazor, learned Senior Advocate, for the respondents, indicated that it has been brought pursuant to rules 10 and 22 of the Rules of Professional Conduct in the Legal Profession which were made by the General Council of the Bar in 1967 and were amended by the Council on the 5th of January, 1979. The rules were published in the Federal Republic of Nigeria Official Gazette No. 5 of 18th January, 1980, Volume 67. Rules 10 and 22 thereof provide:
“10 ADVERSE INFLUENCES AND CONFLICTING INTERESTS
(a) It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstance of his relations to the parties, and any interest in or connection with controversy which might influence the client in the selection of counsel.
(b) It is unprofessional conduct to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this rule, a lawyer represents conflicting interests when in respect of client for whom he presently contends the interests of that client touch or concern confidences of another client to whom the lawyer, at the same time, owes a duty of service.”
“22. JUSTIFIABLE AND UNJUSTIFIABLE LITIGATIONS “The lawyer must decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass or to injure the
opposite party or to insist upon the judgment of the court as to the legal merits of his client’s claim. His appearance in court should be deemed equivalent to an assertion on his honour that in his opinion his client’s case is one proper for judicial determination.”
Chief Ikeazor contends that on that 5th of May, 1982, the respondents herein brought an application in the High Court of Anambra State sitting at Onitsha, asking for an order of the court – .restraining the defendants/respondents from briefing, hiring, consulting and/or further briefing, hiring or consulting Chief F.R.A. Williams from further acting for the said defendants/respondents as their solicitor or appearing in this Honourable court on their behalf, having appeared for the opposing side that is to say the plaintiffs/applicants in an earlier chapter of the subject-matter of this suit……….”
The court (Chukwuani J.), in its ruling delivered on 10th June, 1982, ordered as prayed, thereby barring Chief Williams from appearing in the case for the defendants. There was no appeal against the ruling. Learned Senior Advocate states that in the meanwhile Chief Williams filed an originating summons on the 1st day of June, 1982 against the respondents’ people. The originating summons was heard by Umezinwa J. on 17th September, 1982. In the present case Chief Williams together with Mr. Belonwu, learned Senior Advocate for the appellants, jointly signed the statement of defence filed by the appellants on the 26th March, 1982, hence the application by the respondents for Chief Williams to be restrained from further appearing or acting as counsel for the appellants.
In his brief of argument Chief Williams contended that the application by the respondents should be dismissed because Umezinwa J. dealt with the issues in his ruling given on 17th September, 1982 and that he had the jurisdiction to do so. There was no appeal against his ruling allowing Chief Williams to appear for the appellants.
It is significant that the appellant’s brief of argument before us was prepared by Mr. Balonwu alone and nowhere is Chief Williams being mentioned or shown as counsel for the appellants. Further more, Chief Williams has not put up appearance before us to argue the appeal on behalf of the appellants. Nor did he sign or prepare the notice of appeal. In the circumstances I consider this application to be merely academic and an exercise in futility since there is not any other role for Chief Williams to perform in the case as it concerns this court. Accordingly, the application is hereby dismissed.
I will now turn to the appeal. In the High Court, the respondents brought an action against the appellants in which they claimed as follows, as per their further Amended Statement of Claim:
“(a) A review of the judgment of the Onitsha High Court in suit No. 0/3/49 Philip Akunne Anatogu and Anor. vs. Chief J.M. Kodilinye & Ors.
(b) An order setting aside the said judgment of the Onitsha High Court on suit No. 0/3/49.
(c) A declaration confirming the plaintiffs (sic) entitlement to the statutory and/or customary rights of occupancy under the Land Use Act and to possession of the said disputed land.
(d) Any, and all compensation received by the defendants from the Government in respect of the disputed property.
(e) Mense profits and/or damages.
(g) such further or other reliefs as may be just”
The appellants filed a further amended statement o£ defence. When the trial began before Nwazota, J. (as he then was) on 25th May, 1989 the respondents called their first witness, one Mr. Olatunji Adeyemi, who was an Assistant Investigation Officer, in the Land Registry of Lagos State. The witness testified that he was served with a subpoena to produce some documents in his custody, namely, volumes 1 and 2 of the Niger Lands Agreement and Volumes 2 and 3 of Treaty of Cession. The documents were tendered for admission in evidence. Mr. Balonwu, learned senior advocate, who was for the appellants, as defendants at the trial, raised objection to the documents being admitted in evidence. In his ruling, upholding the objection, the learned trial judge stated thus:- “
“I have heard and considered the points raised in the objections of P.O. Balonwu, Esq. SAN opposing the admission as evidence of the documents listed in the statement of Chief Ikeazor, Esq. SAN., in reply to these objections. I am very mindful of the age-old statements of the law in various court of the land………….. as to the conditions in which a party seeking to adduce fresh evidence in court must satisfy before such evidence can be received, and it is my considered view that on the strength of the statement made by pw1, I cannot reasonably hold that the plaintiffs have satisfied any or all those conditions as are aptly stated in the various authorities cited by P.O. Balonwu, Esq., SAN., of counsel in support of his objections…………………………………………………………………………….
I am satisfied that the objections taken are sound in law and well taken, and do, in the absence of further materials being placed before me by the learned Senior Advocate for the plaintiffs to justify my acceding to them as right in law. Accordingly, I rule that the documents now sought to be tendered as evidence for the plaintiffs cannot without more be admitted at this stage as it is my considered view that the plaintiffs have failed to satisfy me that they constitute fresh evidence within the meaning and intendment of the phrase in law. It is my considered judgment that issue of fresh evidence in court must be determined and disposed of before the court can be in a firm position to determine whether or not fraud as alleged in the pleadings of the plaintiffs can be discovered in the listed documents now sought to be tendered as evidence having regard to the state of the pleadings of the parties. I accordingly sustain the objection……………………… and rule that the listed documents as contained in the statement of pw1 cannot be received in evidence at this stage. List documents produced, tendered and rejected as marked accordingly.”
The respondents felt aggrieved and therefore appealed against the ruling to the Court of Appeal. In its judgment allowing the appeal, that court (Katsina-Alu, Oguntade and Uwaifo, JJCA.) stated as follows as per Oguntade, JCA.
“The lower court in its ruling reproduced earlier in this judgment was of the view that the plaintiffs ought first to show why the documents which were sought to be tendered had not been tendered in the previous case before they could be tendered in the current one. With respect, that approach betrays a misconception on the part of the lower court about the true nature of plaintiffs’ suit…………………………………………………………………..
It seems to me however that the better guide to the court on a matter as this are the pleadings of the parties. The plaintiffs pleaded that the judgment was obtained by fraud; the defendants deny this. The parties having joined issues on the point, the matter fell to be determined by evidence. And it would not be justice if the plaintiffs were to be stopped from leading evidence in proof of the fraud which they alleged.
Whichever way one looks at the matter, the conclusion is inescapable that the lower court had been in error to have rejected the documents produced by the plaintiffs for no other reason than that the plaintiffs had not first shown why the documents were not tendered in the previous suit. The approach of lower court is wrong and the decision of the court must do a grave injustice to the plaintiffs.”
In their appeal before us the appellant have raised the following issues for determination in their brief of argument
“1(a) Whether the documents sought to be tendered in evidence as fresh evidence satisfied the conditions precedent to the admission of such evidence as laid down by law.
(ii) Is the Court of Appeal right to have held that fresh evidence sought to be adduced on appeal is different from the instant case where fresh evidence is sought to be adduced in a fresh or new matter but which had been litigated before by the same parties?
(iii) Was the court below right in holding that since the parties had joined issues on fraud and discovery of fresh evidence, it was not necessary for the plaintiffs/respondents to explain why the documents sought to be tendered as fresh evidence were not tendered in the former trial.
(iv) Whether the issue of fraud as set out in the pleadings could be determined in a review case by merely admitting documents in evidence without the court first of all deciding or determining whether the said documents pleaded as “fresh evidence” is admissible in law.
(v) Whether the issue of PW1 giving his evidence without being sworn was a substantial issue of procedure; if the answer is in the affirmative, whether there was a miscarriage of justice in the Court of Appeal because it failed to determine the said issue.”