Chief Great Ovedje Ogboru & Anor V. Dr. Emmanuel Ewetan Uduaghan & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The two appeals in this case were by the order of this Court consolidated and fixed for hearing on the 25th of March, 2013. On the said date, the three sets of Respondents through their respective Counsel intimated the Court of their Notices of Preliminary Objections challenging the competence of the application on notice filed by the Appellants/Applicants on the 19th of November, 2012. The submissions on the objections are all filed vide the written addresses therein.

On the onset and just before the hearing of the appeal, the Learned Counsel Dr. Dickson I. Osuala representing the Appellants informed the Court of the aforementioned existing motion which seeks for three reliefs predicated on 24 grounds. It is also supported by an affidavit and a written address. The totality of the application is for an order of this Court setting aside its decision made on the 2nd day of March, 2012 in the two consolidated appeals SC.18/2012 and SC.18A/2012.

At this point and as revealed from its proceedings on the 15th of October, 2012 the Court informed itself of a similar motion by the same Applicants which was withdrawn and struck out on an oral application by a different Counsel, in the person of Mr. Sebastian T. Hon. SAN, who represented the Appellants/Applicants. As a result of this discovery, the Counsel Dr. Osuala was called upon to address this Court as to why the application now before us should not be treated as an abuse of court process in view of the earlier similar application which was struck out on the 15th of October, 2012.

The reproduction of the pending application is as follows:-

“1. AN ORDER setting aside the judgment of this Honourable Court delivered on the 2nd day of March, 2012 in consolidated Appeals No. SC.18/2012 and SC.18A/2012: CHIEF GREAT OVEDJE OGBORU & ANOR. V. DR. EMMANUEL EWETAN UDUAGHAN & 2 ORS.

2. AN ORDER directing the said consolidated Appeals to be determined on the merit by a Re-constituted Panel of seven (7) Justices of this Honourable Court.
3. Such further or other ORDER (S) as this Honourable Court may deem fit to make in the circumstances.”

The 24 grounds predicating the application are all clearly spelt out and supported by a 21 paragraphs affidavit deposed to by one Chukwudebelu Ejike, a Counsel in the law firm of Dickson D. I. Osuala & Co., solicitors to the Appellants/Applicants.

In defence of the question raised by the Court on the competence of the application, the Learned Appellants/Applicants’ Counsel, Dr. Osuala submitted that the withdrawal of the earlier motion by Mr. Hon. SAN on the 15th of October, 2012 was done on his own instruction and authority. Reference was drawn to the letter Exhibit ‘E’ at paragraph 20 of the affidavit in support of the application which the Learned Counsel submitted was addressed to the Chief Justice of Nigeria (CJN) and he therefore sought to rely thereon as evidence of the Applicants disassociating themselves from the alleged unauthorized withdrawal of their motion.

The Learned Senior Counsel Chief Olanipekun represented the 1st Respondent and vehemently disagreed with the submission put forward on behalf of the Applicants on the extent and authority of a client’s control over his counsel. Put differently he argued, that having been briefed, the Counsel is deemed well equipped to handle any matter as an authority on behalf of his client. To further drive the point squarely home, he emphasized that a counsel is neither a steward nor a servant of his client and therefore needed no further added instruction to perform his duties but stands sufficient. See Akanbi V. Alao (1989) 3 NWLR (Pt. 108) P. 118 and Adewunmi V. Plastex (Nig) Ltd. (1986) 2 NSCC 852. Learned Counsel therefore urged that the application be dismissed.

Mrs. J. O. Adesina of Counsel represented the 2nd Respondent and aligned with the submission advanced by 1st Respondent’s Counsel. Also in further substantiation and to re-establish her stance, reliance was placed on the case of Afegbai V. A-G Edo State (2001) 14 NWLR (pt. 733) p. 425. The Learned Counsel re-iterated that whatever decision was taken by Sebastian Hon. SAN on the 15th October, 2012, it stands binding on the clients; the order striking out, Counsel submitted, did not give further authority to reopen. On the totality therefore she also urged in favour of dismissing the application with substantial costs.

On behalf of the 3rd Respondent, the Learned Counsel Dr. Ikpeazu, SAN implored the Court to consider the proceedings of the 15th October, 2012 when a similar application seeking to set aside the judgment of this Court was the subject matter; that the withdrawal made and followed by the subsequent order striking out are still binding on the applicants. Counsel related to the authority in the case of Ukachukwu V. Uba (2005) 18 NWLR (Pt. 956) page 1 and also prayed that the application be dismissed.

Responding to the submission supra, Dr. Osuala, the Learned Applicants’ Counsel re-affirmed his stance and argued as inapplicable the cases cited on behalf of the 1st Respondent on the ground that none is related to failure to act on clients’ authority. In further re-iteration, Learned Counsel restated the established position of the law whereby a withdrawal of one motion does not preclude or shut out a party from filing a subsequent application; see Akpan V. Ekpo (2001) 5 NWLR (Pt. 707) p. 502. The application, Learned Counsel argued, was never heard on its merit and hence the Counsel Mr. Hon. SAN had no reason to have withdrawn same without authority.

The only issue at hand and which calls for determination relates to the competence or not of the application filed on the 19th of November, 2012 in view of the withdrawal of a similar motion on the 15th of October, 2012 and which was struck out.

In order to properly comprehend and appreciate the proceedings which transpired in Court on the 15th of October, 2012 a recapitulation is very necessary. At the initial inception for instance, all Counsel representing the various parties announced their appearances, wherein the Learned Counsel Mr. S. T. Hon. SAN represented the Applicants and introduced their application filed 8th May, 2012. The three sets of Respondents each filed Notice of Preliminary Objection challenging the competence of the motion. The Learned Counsel Messrs Wale Olanipekun, SAN, A. Adenipekun, SAN and C. Ikpeazu (Miss.) represented the three sets of Respondents respectively.