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proceedings on the 15th of October, 2012 the Court informed itself of a similar motion by the same Applicants which was withdrawn and struck out on an oral application by a different Counsel, in the person of Mr.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.
- 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.
- 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.
At the point of commencing the hearing of the Application, the Learned Senior Counsel Mr. Hon. sought the Court’s indulgence for an adjournment on the ground that he needed time within which to prepare his response to the list of authorities just served on him in Court. Consequent upon the application for adjournment, and despite the objection raised by the Learned Senior Counsel, Chief Olanipekun, the Court nevertheless obliged and adjourned for hearing on the 8th of November, 2012.
Sequel to the order for an adjournment and on an application at the instance of the Senior Counsel Mr. Hon. which was not objected to by any of the Respondents’ Counsel, the motion filed the 8th of May, 2012 and earlier adjourned was again recalled by the Court.
At this point in time, Mr. Hon. SAN applied orally to withdraw the said motion and in the absence of any objection from the Respondents’ Counsel, same was accordingly struck out. Subsequent to the striking out, the same Applicants on the 19th of November, 2012 filed, another similar motion, now before us and seeking the following reliefs:
“1. An order setting aside the judgment of this Honourable Court in consolidated Appeals Nos. SC.18/2012 and SC.18A/2012: Chief Great Ovedgbe Ogboru & Anor. Vs. Dr. Emmanuel Ewetan Uduaghan & 2 Ors.
- An order directing the said consolidated Appeals to be determined on their merit, either by the Supreme Court or the Court of Appeal, by a different panel of justices.
- Such other order(s) as this Honourable Court may deem fit to make in the circumstances.”
On a critical perusal of the reliefs sought on the earlier application filed on 8th May, 2012 vis-a-vis those of the 19th November, 2012, the totality reveals that the two are very similar in nature. The certainty of this fact is conceded to by the Applicants themselves at paragraphs 19 and 20 of their affidavit in support of the motion wherein the former Counsel Mr. S. T. Hon. SAN was seriously indicted for allegedly acting without the clients’ authority in withdrawing the motion earlier struck out. The reproduction of the paragraphs is pertinent as follows:-
“19. That the said Sebastian T. Hon. (SAN), without the authority of the Appellants/Applicants and for some very curious reasons, withdrew the motion on the 15th Day of October, 2012, even when this Honourable Court had adjourned the matter to November 8, 2012.
- That the Appellants/Applicants wrote a letter to the Chief Justice of Nigeria (CJN) to disassociate themselves from the unauthorized withdrawal of their motion for a review of the consolidated Appeals Nos. SC.18/2012 and SC.18A/2012. Same was dispatched through DHL by one Mr. Efe Duku, an aide to the 1st Appellant/Applicant. A copy of the said letter with DHL’s dispatch note/receipt is attached herewith and marked EXHIBIT ‘E’.”
While all the learned Counsel representing the Respondents submitted as incompetent the subsequent application filed the 19th November, 2012 and therefore an abuse of court process, the Applicants’ Learned Counsel argued the contrary and held same as competent.
The Black’s Law Dictionary Ninth Edition at page 10 gave the definition of the word “abuse” as “A departure from legal or reasonable use; misuse.” The phrase “Abuse of process” was also defined at page 11 as:-
“The improper and tortuous use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope.”
It is an established fact by the deposition of the Applicants on their affidavit in support of the motion at paragraph 18 that Mr. Sebastian T. Hon. SAN was legitimately briefed to represent them as Counsel in handling their application which was earlier struck out. The averment for instance has this to say:-
“18. That the Appellants/Applicants being dissatisfied with the judgment of this honourable Court of 2nd Day of March, 2012, through the 1st Applicant, then briefed Mr. Sebastian T. Hon. (SAN) on Tuesday, 1st Day of May 2012 to file an Application for a review, by this Honorable Court, of its judgment of March 2, 2012 in the consolidated Appeals Nos. SC. 18/2012 and SC.18A/2012 with a view to getting same determined on the merit by the Noble Justices of the Supreme Court.”
Interestingly, the very mandate and authority given Mr. Hon. SAN as shown in paragraph 18 supra is now a serious subject of question by the Applicants per their deposition at paragraphs 19 and 20 of the affidavit reproduced earlier in the course of this judgment. Following from the foregoing deductions, the pertinent question begging for an answer is, would Dr. Osuala be right on his allegation against Mr. Hon. SAN that he acted without authority on the 15th October, 2012 In otherwords, was the Senior Counsel not competent in representing the Applicants The answer to this question is not farfetched in view of paragraph 18 of the affidavit of the Applicants supra.
On whether or not the exercise of discretion by a Counsel could be subject to question, judicial authorities on the views held by this Court are very instructive. For instance in the case of Akanbi V. Alao (supra) his Lordship Craig, JSC subscribed and adopted the view held by Eso, JSC in the case of Mosheshe General Merchant Ltd. V. Nigeria Steel Products Ltd. and said:-
“A Counsel who has been briefed and has accepted the brief and also has indicated to the Court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him; so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court. The only thing open to the client is to withdraw instructions from the Counsel or if the Counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.” (emphasis are mine).
The conclusion that can be drawn from the foregoing view point is obvious; that is to say, the conduct of a case lies wholly with Counsel. A free hand concept given to Counsel therefore includes his compromising a client’s case even to the extent of submitting to judgment provided he acted in proper manner, good faith and not shown to over reach or defraud his client. In otherwords, where a party chooses a Counsel he should be given a free hand to act and conduct his client’s case in a manner befitting his professional competence and ability. The Independence of a Counsel should be asserted; this is not however to encourage a Counsel to be negligent in the conduct of his client’s case. On the part of a client, he is also expected to deliberately engage a diligent Counsel whom he believes would deliver and not act to his detriment or put his interest in jeopardy.
A Counsel stands in a position of an Advocate in place of his client as fully empowered and not in half measure. To hold a Counsel in less capacity or esteem is to set a dangerous precedent for the legal profession and erode Independence of representation.
The fiduciary relationship of counsel and client is that of trust.
As rightly submitted and argued by the Learned Senior Counsel Chief Olanipekun, a counsel is neither a steward nor a servant of his client but stands at the bar as an authority. The learned authors Halburys’ Laws of England 4th Edition Volume 3 at paragraph 1180 had set out the scope and authority of Counsel conducting a case or an appeal on behalf of his client. In defining the general frame work of a Counsel’s duties as agent and representative of his client therefore, it was specifically said as follows:-
“When a Counsel is instructed, then subject to his duties to the Court, and subject to his right to advise another course of action, he must accept and adhere to the instructions given by or on behalf of his client, but Counsel is entitled to insist, and as a general rule, ought to have complete control over how those instructions are carried out and over the actual conduct of the case. If he is not given this control he is entitled to refuse or return the brief.”
A Counsel’s control over the instructions given him by client must either be complete and total or none.
On the affidavit evidence supporting the motion, the Applicants alleged that their former Counsel Mr. Hon. SAN did not consult them before he withdrew the motion and hence he acted without instructions. In the circumstance at hand, and before the depositions could hold ground, the Applicants must as a matter of obligation prove that the general authority given Mr. Hon. SAN in conducting their case was expressly and specifically limited to the exclusion of the withdrawal made. Regrettably, such facts have not been placed before this Court on the affidavit evidence.
A client, having engaged a Counsel to conduct his case, is bound by that Counsel’s agreement, however much he may disapprove of that course; see Adewunmi V. Plastex (Nig) Ltd Vol. 17 (1986) Part II NSCC p. 852 at 861. The brief facts in the foregoing case are intriguing where Plastex Nig. Ltd. were the tenants of Festus Adewunmi who sued for recovery of the premises and arrears of rent. In the absence of Plastex calling any evidence at the trial, judgment was given in favour of the Plaintiff. On appeal before the lower Court, the Learned Counsel representing Plastex sought leave to adduce additional evidence. The application was refused and Counsel applied to withdraw the appeal. In the absence of any objection from the Respondent’s Counsel, the appeal was accordingly dismissed.
Interestingly, and consequent upon the dismissal, Plastex briefed another Counsel who applied to the Court of Appeal for reinstatement of the appeal on the ground that the former Counsel had no instructions to withdraw same. The lower Court granted the application following which Adewunmi was aggrieved and therefore appealed to this Court. The main issue for determination in the appeal was the scope of authority of Counsel in a case. In allowing the appeal, Eso, JSC at pages 863 – 864 in his concurring judgment had this to say:-
“Once a Counsel appears in Court in a case, and announces his appearance, the Court assumes he has the authority of his client for the conduct of the case. It is not for a client to announce the appearance of his Counsel…It is not for the Court to start an enquiry into his authority and the Court never does…, once he is so instructed, and his appearance and announcement in Court, that he is so instructed, raises the presumption of his authority he assumes full control of the conduct of his client’s case… once a matter is within the ordinary authority of Counsel… For a client to jettison one Counsel for another, for the simple reason that the first Counsel failed to win his case, and the other would be required to conduct the same case in that Court, or to make such failure to win a case a ground of appeal in a higher Court is a complete misconception of the authority of the lawyer.” (emphasis are mine).
The foregoing pronouncement is clear and speaks for itself. Put in another way, where a Counsel apparently acts within the scope of his actual authority without any express or implied limitation, the client is bound by the exercise of such authority, see Afegbai V. A – G, Edo State supra.
The duty of a Counsel is to advise his client out of Court and to act for him in Court, and until his authority is withdrawn, he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client, see again Afegbai V. A – G. Edo State at 458. Counsel therefore has general and apparent authority to exercise his discretion within his professional skill and act in the best interest of his client.
From the community reading of the views held by this Court on the authorities in reference supra, the Applicants on their affidavit in support of the Application at hand, have not shown sufficient reason that Mr. Hon. SAN did act without their authority on the 15th October, 2012. In otherwords there was no express evidence adduced to show that the Learned Senior Counsel exceeded the authority given him. I have expressed an earlier view that the Applicants are introducing a very dangerous trend which no doubt will subject a Counsel to the clients’ intimidation. This precedent will certainly not augur well for the legal profession which, from time immemorial had recognized the liberty of a Counsel’s exercise of discretion to act on behalf of his client. This does not however condone negligence or purposeful compromise in the conduct of a client’s case to his detriment which can be subject of intervention by the Legal Practitioners Disciplinary Committee (LPDC).
I hasten to also add that with the Learned Counsel Mr. Hon. SAN being a very senior member of the bar, the nature of allegation against him had put his reputation and integrity at stake. In otherwords, the use of the words, “gross misconduct against him,” are so weighty and require the confirmation that he is properly and adequately informed. I am mindful that the signatories to Exhibit “E” were the clients who are laymen. However and that notwithstanding, they are adequately guided and represented by a legal practitioner in the caliber of Dr. Osuala, who with all respect and without reservation I would say should not glory in subjecting the honourable profession to ridicule at the altar of disrepute. It is significant to note further that the deponent of the affidavit is one Chukwudebelu Ejike, a Counsel in the law firm of Dickson I. Osuala & Co, who is also of the legal profession. Emphatically and for all intent and purpose, I hold the firm view that it is not enough as shown on the deposition at paragraph 20 of the affidavit in support and earlier reproduced that the Learned Counsel Mr. Hon. SAN had infact been put on notice. Even at the risk of being repetitive, I will still restate as unfortunate, and also heart breaking that clients as laymen should be allowed to castigate and reduce a very Senior Counsel to the level of such lowest ebb. The present Counsel Dr. Osuala who is promoting their course, is more to blame than the petitioners. There is no conclusive evidence before us that Exhibit ‘E’ was infact ever served on the Senior Counsel, Mr. Hon. Paragraph 20 of the affidavit has not in my opinion disclosed enough material substantiating the allegation levied. The Court acts on facts and not mere speculation.
On the question of exercise of authority by Mr. Hon. SAN therefore, it is my firm view that he acted within the powers given him by the Applicants who were his clients. The withdrawal of the motion on the 15th of October, 2012 was efficiently and rightly exercised within that mandate.
In view of the foregoing conclusion, the next point for consideration is the effect of the pending application. While all the Respondents’ Counsel submitted it’s an abuse of court process, the Learned Counsel Dr. Osuala on behalf of the Applicants argued the contrary.
The general principle of law as rightly submitted by the Learned Counsel Dr. Osuala is well established that a party whose motion is struck out has the option and is at liberty to either file a fresh application or apply that the one struck out be re-listed; see Akpan V. Ekpo (supra).
The question however is whether the said principle applies to the case at hand. The answer to this question will require a critical analysis of the motion filed 8th May, 2012 which was struck out on 15th October, 2012 as against the one filed on 19th November, 2012, now before us. On close perusal of the two motions, it will be discovered that, not only are the parties the same, but the subject-matter and the reliefs sought are also the same.
The concept of “abuse of court process” has been given a precise definition, which is to say the process of the Court has not been used bona fide and properly. See Central Bank of Nigeria V. Ahmed & Ors. (2001) 5 SC. (Pt. 11) 146; Edjerode V. Ikine (2001) 12 SC (pt. 11) 125. It involves an improper use of judicial process by a party in litigation, see Agwasim V. Ojichue (2004) 10 NWLR (Pt. 882) 613 at 624 – 625.
Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause. It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for purpose of accommodating actions in bad faith. It impugns the dignity of the Court. Further still, and in the legal parlance, the phrase abuse of judicial process is generally employed when a party improperly uses to the irritation and annoyance of his opponent the efficient and effective administration of justice. An example is where a multiplicity of actions on the same subject-matter are instituted against the same opponents on the same issues. See Okorodudu V. Okoromadu (1977) 3 SC 21; Okafor V. A-G. Anambra State (1991) 6 NWLR (Pt. 200) 659 and A.C.B. Plc V. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380. The concept of abuse therefore lies in the multiplicity and the manner employed for the exercise of the right. See Saraki V. Kotoye (supra). In otherwords, the right availing the applicants to either re-file or re-list a motion struck out is not applicable to the case at hand as wrongly conceived and submitted by their Learned Counsel. This is not to say however that the right does not at all exist in appropriate situational circumstance. In the case at hand for instance, the Applicants have lost the opportunity in view of the manner they sought to portray their former Counsel in bad light. With the earlier motion having been struck out, the subsequent re-filing of the present application without any reasonable facts deposed to on the affidavit in support, is in itself a gross abuse of court process. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and which will interfere with the administration of justice. See Harriman V. Harriman (1989) 5 NWLR (Pt. 119) 6.
The power of the Court to ward off an abuse of its process is inherent for it to exercise for purpose of maintaining its sanctity and dignity, see Papersack (Nig) Ltd. V. Odutola (2011) 10 NWLR Part 1255 p.244 at 250.
I have said earlier in the course of this ruling that as a general rule, a party whose application is withdrawn and struck out has the option to re-file a fresh application. The situation at hand, I repeat is however distinguishable where the application filed 19th November, 2012 is employed for purpose of disowning the representation and also challenging the authority of the Senior Counsel Mr. Hon. as well as bringing his integrity into question. I have also held the firm view that acceding the application will work a dangerous precedent against the entire legal profession especially where the use of judicial process against a very senior Counsel without any iota of proven evidence to substantiate is reckless and frivolous. The Applicants in the case at hand had not justified their right to institute a fresh action in place of the earlier one withdrawn and struck out. There must be an end to litigation and hence the Applicants have as a result lost the opportunity to relitigate the application filed 19th November, 2012 which is hereby dismissed as an abuse of court process.
The Application is dismissed and I make an order that N50,000.00 costs be awarded to each set of Respondents against the Applicants.
SC.18/2012(R)