Festus L. Adewunmi V. Plastex Nigeria Limited (1986)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The point in this appeal is short and direct and has aptly been stated in the Appellant’s brief in the following words:-

“The Court of Appeal had held that counsel’s duty was to prosecute the appeal, and not to withdraw it without express authority from the Defendant (hereinafter called “the Respondent”). The Appellant contended that it fell within the scope of counsel’s implied authority, and that the withdrawal was therefore binding on the Respondent.”

The facts of the case are as follows:-

The appellants, Plastex Nigeria Ltd., were the defendants in the High Court of Lagos State. They were tenants of the Plaintiff, Festus L. Adewunmi, in respect of a business premises described as Bournville House Iju Waterworks Road, Ifako, Agege in the Lagos State. The landlord took out a writ of Summons for recovery of possession of the premises on grounds of arrears of rent and breach of covenant of tenancy agreement.

The Plaintiff filed a Statement of claim, but the defendants failed to file any statement of defence throughout the hearing, although their counsel appeared at the trial and cross-examined the plaintiff who was the only witness at the hearing. At the close of plaintiff’s case, Mr. Abifarin, learned Counsel for the defendants, intimated the court that he was “resting the defendant case on the plaintiff’s.” After Mr. Iyanda, learned Counsel for the plaintiff had concluded his closing address, Mr. Abifarin on behalf of the defendants in reply, addressed the Court. Judgment was then reserved.

On the 29th day of July 1983 as would be expected the learned trial judge entered judgment in favour of the plaintiff in the absence of any challenging evidence and proof of service of apparently good statutory notices. He ordered the defendants to give up possession of the premises on 31st day of August 1983 and in addition ordered that they should pay N9,000.00 arrears of rent and in addition, pay mesne profits at the rate of N4,500.00 per annum with effect from 1st September 1982 until possession was given to the plaintiff.

The defendants then appealed to the Court of Appeal against the decision. However before the hearing of the appeal, the defendants filed an application on notice seeking “special leave to admit additional evidence before the Court,” and according to the application, the grounds for the application were as follows:-

“(i) The nature of the evidence which the Appellant now seeks leave to adduce is such that had it been before the Court at the trial of the action the Respondent action would have been dismissed. “(ii) The evidence which the Appellant now seeks to adduce will enable the Court of Appeal to discover the truth and to avoid any miscarriage of justice.

“(iii) The documents which the Appellant now seeks to tender were not available to the Appellant during trial. ”

The application was filed by an eminent and experienced Counsel, Professor A. B. Kasunmu, S.A.N., and was supported by an affidavit sworn to by one Lawai Obelawo, described as the Chairman of the defendants’ company.

And the Plaintiff himself swore to a counter-affidavit. The Plaintiff/Respondent then gave notice of a preliminary objection before the hearing of the application to the effect that the notice of appeal was filed out of time. On the 10th November 1983, when the application came before the court for hearing, Professor Kasunmu applied for an adjournment; meanwhile, the Respondent had levied execution by recovering possession of the premises and that was on the 3rd November 1983. The appellants’ application for a stay of execution was consequently struck out by the Court below on 8th December 1983 although on the 9th January 1984 the application of the appellant for extension of time to appeal was granted. A fresh application for leave to admit additional evidence on the same grounds as the earlier application was then filed by the appellants on the 12th day of January 1984. Professor Kasunmu moved the application on 14th March, 1984 and on the 8th day of May 1984, the application was dismissed in a reserved Ruling.

Faced with the dismissal of the application, it was not surprising that when the appeal came before the court on the 22nd May, 1984, one Mr. Lawson who appeared for the appellants, informed the Court that he was withdrawing the appeal and Mr. Iyanda for the Respondents not objecting, the Court made an order dismissing the appeal with N50 costs to the Respondent. It is obvious that learned Counsel for the appellants considered that without the fresh evidence sought to be adduced at the hearing of the appeal it will be an uphill task to secure a reversal of the decision of the trial court, based on the uncontradicted evidence of the Plaintiff/Respondent.

Then came an application before the lower court filed by Mr. Molajo, S.A.N., on behalf of the Appellants, praying for an order

“That No Order or Orders be drawn up or entered in this appeal until further order of the Court of Appeal” and that the Defendant/Applicant do have leave to proceed with its appeal herein set down for 22nd May 1984 and for such further order or orders as this honourable court may deem fit to make in this (sic) circumstances.”

The application was purportedly made under “Order 59/5/3 Rules of the Supreme Court 1965 and Order 3 rule 3(1) and (2) Court of Appeal Order 3 rule 18 Rules 1981”. When the application came before the Court below, Mr. Molajo urged the Court to set aside the judgment dismissing the appeal consequent upon the withdrawal of the appeal. In the lead judgment, the President of the Court below stated:-

“I am of the firm view that where counsel appeared and acted against his instructions to the detriment of his client the court has power to intervene in the interest of justice. Justice is defeated where a party is not allowed to have the dispute between him and his adversary determined on the merits. In my opinion, all the authorities cited above lead to the conclusion that a Court has a duty as far as possible to see that cases are decided on their merits. Any Rules of Court empowering the Court to strike out or dismiss an appeal not on the merits but because of some procedural errors or blunders shall be construed in such a way that where a prompt action is taken by the party affected the Court has power to restore the appeal to be heard on the merits except where the order of the Court has been drawn up and entered. That is before the order has been so perfected as to make it outside the control of the Court.”

I express no opinion on the validity of the above statement as it is irrelevant to the point in issue. However, the learned President proceeded to say:”

In the present appeal, I am of the opinion that the Applicant company has taken necessary and prompt action to justify our intervention. I shall restore this appeal for hearing on the merits. I have not been shown sufficient reasons to justify any conclusion that the Respondent would be prejudiced or embarrassed by hearing the appeal on the merits.

The appeal is hereby restored.”

It is from this decision that the plaintiffs have appealed to this Court on three grounds. I have earlier in this judgment set out the issues which have been submitted for decision. The arguments have been copiously elaborated in the written briefs of Counsel for both parties who have rested their arguments on them. It becomes necessary therefore to set out their contending submissions. For the appellant, the argument is that the scope of the authority of counsel conducting a case or an appeal on behalf of his client must be defined within the general framework of his duties as agent and representative as set out by the learned authors of Halsbury’s Laws of England 4th Edition Vol. 3, paragraph 1180 as follows:-

“When 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.” (Italics added)

The brief continues:-

“Within this framework is the general authority of Counsel which entails the exercise of a wide and ample discretion and authority which, unless it is expressly limited, is (sic) some way entitles Counsel to make far reaching decisions which become binding on the client. The scope and amplitude of this authority is thus expressed at paragraph 1181 of the same volume of Halsbury’s referred to above:-

“At the trial of an action, counsel’s authority extends, when it is not expressly limited, to the conduct of the trial such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross-examining or not cross-examining witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or on the bearing of a motion for a new trial, consenting to a reduction of damages.

The client’s consent is not needed for a matter which is within the ordinary authority of counsel: thus if, in court, in the absence of the client. “compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound.” (Italics added).

“The Court of Appeal’s Views on the Scope Of The Authority

The main complaint of the Appellant in this appeal is that the Court of Appeal completely misunderstood the scope of the authority of Counsel. The passage in which the Court of Appeal expressed its views is at Page 156 lines 5-31:-

“It is trite law that any counsel instructed to conduct a case must he given free band to control the case. The free band, subject to counsel’s duty to the Court and the right of counsel to advise his clients to another course of action, must he exercised within the specific instructions given to counsel by his clients. It is not within the competence of counsel to conduct the case outside his specific instructions. In all cases, where counsel is shown to have exceeded his instructions in material particular and detrimental to the interests of the clients, the Courts have exercised their discretion to put the matter right. In addition to the cases cited above such cases as Masden v. Masden (1972) 2 All E.R. 1162 at 1165 and Neale v. Gordon Lennox (1902) A.C. 470 at 471 support the view that the Courts will reverse orders made in excess of authority of counsel.

The basis of the authority of counsel in conducting any case is the instruction given to him by his clients. Where counsel bas been instructed to file and prosecute an appeal his duty, without further reference to the clients, is the prosecution of the appeal. The duty does not include the power to withdraw the appeal without further consultation. Learned Counsel may have very little to offer in the prosecution of the appeal but he must prosecute the appeal to the best of his ability.” (Italics mine)

3.03 The Appellant submits that there was no evidence of any such specific limitation in the present case. The only evidence before the Court of Appeal was the affidavit sworn to by the chairman of the Respondent company as follows:-

1. That I am the chairman of the board of directors of the defendant company.
2. That the board of directors was not consulted before the counsel announced to the court that be was withdrawing the appeal.
3. That I am dissatisfied with the withdrawal of the appeal.
4. That the defendant company bas machines worth over two million naira on the premises.
5. That I have on the instructions of the board of directors instructed Messrs. E. A. Molajo & Co., Solicitors of 2 Catholic Mission Street, Lagos to apply to this honourable court for leave to proceed with the appeal.
6. That I am advised that there are very important and substantial points of law to be argued for decision by this honourable court.
7. A copy of the resolution of the Board of directors is hereto attached and marked exhibit A.”

The resolution of the meeting of the board of directors of the Respondent company, which was apparently held the very next morning after the withdrawal of the appeal, resolved:-

“That the board of directors being dissatisfied with the withdrawal of Appeal number FCA/L/178/1983 between Plastex Niger;” Limited and Festus L. Adewunmi which was done without the appellants consent and instruction, another legal practitioner be instructed by the board to restore and prosecute the said appeal.”

Mr. Ajayi finally submitted that the Court below was in error in taking the view that counsel’s general authority does not include the discretion and authority to withdraw or compromise a case and that specific authority was required for that purpose.

The Reply of the Respondents in their brief reads inter alia:-

“That Counsel has no authority to take any step collateral to his instructions or general authority as counsel without specific instruction. It is submitted that a client may in certain circumstances be bound by the unauthorised act of counsel instructed to prosecute an appeal if such unauthorised act is incidental to the prosecution of the appeal.

It is also submitted that even in such a case where there is definite instruction by the client to counsel against the taking of such a step the client will not as a general rule be bound. Although it appears from a number of English authorities that the general authority of counsel to COMPROMISE his client’s claim is incidental to his instructions, as counsel, (See Little v. Spreadbury (1910) 2 1eB. 658 at pp.663, per Bray, J and 665 per Lord Coleridge J.) and therefore counsel in the absence of specific instructions to the contrary may enter into a compromise of the claim; such general authority does not extend to acts that are collateral. In Patience Swinfen v. Lord Chelmsford 157 E.R. 1436 at page 1448 the following passage appears:-

“We are of the opinion, that although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdrawing a juror calling no witness, or selecting such as in his discretion, he thinks ought to be called and other matters which properly belong to the suit and the management and conduct of the trial.

WE THINK HE HAS NOT, BY VIRTUE OF HIS RETAINER IN THE SUIT, ANY POWER OVER MATTERS THAT ARE COLLATERAL TO IT ….. ”

“It is therefore submitted that the withdrawal of an appeal cannot be an act of counsel incident to his client’91s instructions to argue the appeal. It is further submitted that before such a withdrawal can bind the client, it must have been with the prior consent or authority of the client”

It is submitted that although that was so, the learned justices of appeal are right in their decision in this case for two reasons which they adverted to namely

(1) the learned counsel who withdrew the appeal had no authority to withdraw the appeal; he had authority only to employ his learning and ability to argue the appeal.

(2) Withdrawal of the appeal is not incident to his instruction to argue the appeal but an act collateral to it.”

The question therefore is whether in the absence of any specific instruction to the counsel and in the circumstance in which learned counsel was faced in court, it was within the general scope of his powers to withdraw the appeal particularly when his client was not present in court. Put in other words, was the withdrawal of the appeal an act directly involving the exercise of his skill, discretion of judgment in conducting the appeal or was it an act which was not directly connected with but by the side or parallel with his professional discretion as a counsel in the appeal

I have carefully considered the submissions of both counsel and have no doubt that the contention of the appellants is to be preferred. It is clear from the affidavit of the chairman of the Respondent’s Company, Mr. Obelawo, that they did not specifically limit the general including the implied authority of Counsel- in which to conduct the appeal. The withdrawal of the appeal in the circumstance of the appeal was not collateral, but an act within his implied authority, as counsel conducting the appeal. The sum total of what he deposed to is that Counsel did not consult him or other director before he decided to withdraw the appeal and that the company did not approve of his decision. Faced with the situation, after the Ruling of the Court, learned Counsel found himself against a brickwall, had no reasonable alternative but honourably to withdraw the appeal, particularly when the court below rightly held in its Ruling that:-

“Although the applicant had opportunity to put any question to the plaintiff/respondent during cross-examination, nothing was said about the documents titled “Receipt” and “Letter of Undertaking” both dated 27/3/78 now sought to be put in evidence. Nothing was also mentioned about any N100,000.00 being paid to the defendant or anybody at all. If the applicants really had any defence during the trial, it was the duty of Counsel to put it across either in their own Statement of Defence or during cross-examination of plaintiff’s witness. They did neither. If the defence had been filed and the “Receipt and” Letter”, pleaded or if they had been raised in cross-examination of the plaintiff, one would be in a position to say easily that the Receipt and the Letter were probably not available at the trial. But that is not all. Under normal circumstance if a matter is not pleaded, it is always necessary to apply first to the court for leave to amend the pleadings before being allowed to lead evidence thereon. Here there is no pleading to be amended as no defence was filed. So the situation in this application is a hopeless one because the new or further evidence has no foundation on which to stand.

Furthermore the applicant in paragraph 16 of the Further and Better Affidavit states:-

“16. The documents were discovered among the documents littered over our premises when the Resident broke into our office to levy execution after obtaining judgment at the High Court.”

This clearly shows too that the applicant did not exercise reasonable diligence to obtain the documents for use at the trial. It shows that neither Mr. Awosika the Accountant (who died in 1979) nor the Chairman, Mr. Obelawo, who was said to be outside the country during the trial, had any of the documents privately with him. The documents remained in the defendants company offices throughout. It is to me therefore a sham defence to say that only Mr. Awosika and Mr. Obelawo knew about the existence of the documents.

I am therefore clearly of the view that there.is no merit in the application; and as was candidly stated by Coker, J.S.C. in the case of Asaboro v. Aruwaji (Supra)

“We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower court, or who, for one reason or another, had called insufficient evidence at the trial with comparative ease, to bring forward for the first time before the court the evidence which could and should have been adduced before the trial Judge. Such an attitude would be disastrous to the principle of seeing an end to litigation ……..

So it is in this case. The defendant/appellant filed no statement of defence nor called any evidence at the trial it would certainly be a dangerous precedent to reopen the case again.”

Faced with the situation, Counsel had to take a decision whether he could in honour continue with the appeal with any reasonable hope of success. Was there any point which the could urge in favour of his clients, in the absence of any evidence to support the points which could be raised in the appeal

The principle and facts are similar to those in Straus v. Francis (1866) L.R. Q.B.D. 379, where counsel for the plaintiff withdrew the case and declined to tender the book subject -matter of the scurrilous attack by the defendant in his review, even though the client requested him to do so. The court held that it is within the general authority of counsel retained to conduct a cause to consent to the withdrawal of the case and that a compromise is within his apparent authority and binding on the client notwithstanding he (the client) may have dissented, unless the dissent was brought to the notice of the opposite party at the time.

The client had deposed that his counsel Mr. Sergeant Ballantine who acted throughout entirely upon his own personal responsibility. He testified that:

“I never authorised him to propose that a juror should be withdrawn. My instructions to him were to let the case go to the jury, no matter what the issue might be. I was not consulted in the matter, and I never gave my counselor attorney, or any other person, any authority whatever to propose or consent to the withdrawing a juror and no consideration would have induced me to consent to such proposal.-

On those facts, Blackburn, J., at p.381 stated:

“The plaintiff by no means makes out that there was any express dissent on his part to withdrawing a juror; there is nothing on the affidavits to show that the client absolutely withdrew all authority, nor is there anything to show that Counsel had done so unprofessional a thing as to undertake the conduct of a cause giving up all discretion as to how he should conduct it; still less is there anything to show that there was the slightest knowledge on the part of the other side that the apparent general authority of counsel had been in fact limited.

Mr. Kenealy has ventured to suggest that the retainer of counsel in a cause simply implies the exercise of his power of argument and eloquence. But counsel has far higher attributes; namely: the exercise of judgment and discretion on emergences arising in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill, and discretion. Few counsels, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client.

Counsel, therefore, being ordinarily retained to conduct a cause without any limitation, the apparent authority with which he is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause: and if within the limits of this apparent authority he enters into an agreement with the opposite counsel as to the cause, on every principle this agreement should be held binding. The case of Swinfen v. Swinfen was peculiar.-

I entirely agree with his view. And after stating the facts distinguishing that case the learned Judge went on:-

“In Swinfen v. Lord Chelmsford (3), the Chief Baron makes a distinction between authority which a counsel has as to all matters connected with the conduct of a cause, in which he expressly include withdrawing a juror, and his authority in matters collateral to the suit. In Preatwich v. Poley (4) the question was as to the authority of an attorney to settle an action, and the compromise was held binding, there being no express prohibition communicated to the other side; and Erie, C.J., and the other members of the Court, treat Swinfen v. Swinfen as an anomalous case.

I am therefore clearly of opinion that the withdrawal of a juror in the present case is binding. In so deciding, I do not mean to say that counsel can compel a client to enter into a compromise by consenting to the withdrawal of a juror against his will. If the counsel cannot induce his client to act on his advice in such a case, the proper course is to return his brief. Nor do we decide that, if the client’s dissent were known to the other side, such a compromise would be binding. All we decide is, that when a counsel, acting within his apparent authority, consents to withdraw a juror, the other side, acting fairly, may safely rely on the compromise being binding; and that, in order to invalidate the arrangement, not only must It be shown that the counsel’s authority was limited, but that the limitation was known to the other side at the time. ” (Italics mine)

Shee, J., stated the same principle at p.384:-

“The question in the present case is whether the plaintiff is bound by what his counsel did; and as to this it appears to me that we are concluded by authority, and cannot say otherwise than that the client, having retained a counsel to conduct his cause, is bound by that counsel’s agreement to withdraw a juror, however much he may disapprove of that course. Withdrawing a juror is clearly within the authority given to a counsel to conduct a cause; and it is obviously for the interest of the client that it should be so; otherwise no compromise could ever be come to during the progress of a cause unless the client himself were there to assent. In Swinfen v. Lord Chelmsford(1), the question was whether an action would lie against the defendant for having, as counsel, consented to a compromise, and the decision was that no action would lie; but the Lord Chief Baron’s judgment went much further, for after stating that counsel has no authority over matters collateral to the suit, he adds, “although he has complete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdrawing a juror, calling no witnesses, and other matters which properly belong to the suit and the management and conduct of the trial” The Court of Exchequer, therefore, expressly includes the withdrawing a juror within the apparent authority given to a counsel to conduct a cause; so that the opposite party, having agreed to the withdrawal, can insist upon the arrangement being carried out.”

In Marsden v. Marsden (1972) 3 WLR at p. 139, it is clear from the finding of the trial Judge that counsel was given clear instructions by the Solicitor not to enter into any agreement and that those instructions were not thereafter countermanded by the wife personally. Watkins J. at p.139 expressed the view that

“Counsel has an implied authority to enter into a compromise subject to any express limitation imposed upon that authority by the client. He requires an express authority to give an undertaking on behalf of his client. Instructions of limitation must, it is said, be clear and unequivocal. I find that clear and unequivocal instructions of limitation were given in this case and that no authority, express or otherwise, was given for the undertakings which formed part of the agreement.

With regard to the circumstances in which the court should interfere to set aside an order based upon a compromise I have been referred to a number of authorities. They all show that the court should view such applications as this with extreme caution and that a court will not grant such an application except in a case which calls clearly for interference with the offer made. It is a discretionary remedy to be exercised with care and with regard to the injustice or otherwise of allowing an order to stand.”

In this connection it is pertinent to refer to the Rules of Professional Conduct in the Legal Profession, made by the General Council of the Bar on the 25th December 1967 as amended at its meeting held on the 15th January 1979.

Every lawyer upon his own responsibility must decide what cases he will bring into Court for plaintiffs and what cases he will contest in Court for defendants. His is the responsibility for advising as to questionable transactions, for bringing questionable suits and for arguing questionable defences. He cannot escape it by arguing as an excuse that he is only following his client’s instructions. (emphasis mine)

In this case there is no suggestion that counsel for the appellant acted under a misapprehension or against the specific prohibition by the appellant as in Sheppard v. Robinson (1919) 1 K.B. 474. or in Marsden case supra. The proceedings of the court below show clearly that the decision of learned Counsel to withdraw the appeal was taken after full consideration of the special circumstances of the case as disclosed in the Ruling and particularly the portion which I have earlier referred to. The decision to withdraw was the exercise of judgment and discretion on emergency arising in the conduct of the appeal. Learned Counsel in my view was right in the circumstance of the case and justified in the decision. Apparently, faced with the sensible observations of the justices of appeal on the evidence and the conduct of the defence case in the trial court, it was clear to learned counsel that the appeal was hopeless and stood no ghost or chance of success. It will be most uncharitable for any Court to impugn the wisdom of his decision in the circumstance.

I am satisfied that the Court below erred and misdirected itself in coming to the decision that the learned Counsel in withdrawing the appeal committed an act outside the ordinary or implied scope of his authority. It was for the Respondent not only to allege but to prove that his Counsel’s general authority in conducting the appeal was expressly and specifically limited and could therefore not withdraw the appeal. They made no such allegation and equally failed to prove any other circumstances which justified the court below in reversing its earlier order dismissing the appeal. I am in complete agreement with Brett J., when he stated in Earl of Beauchamp v. Madresfield VIII (1872-73) L.R.C.P.C.245 at p.253:-

“When the counsel has satisfied himself that he has no argument to offer in support of his case, it is his duty at once to say so, and to withdraw altogether. The Counsel is master of the argument and of the case in court, and should at once retire if he finds it wholly unsustainable, unless indeed he has express instructions to the contrary. ”

(Italics mine)

The Court below erred in finding that the Respondents gave specific instructions to their solicitor limiting his apparent authority. All the affidavit disclosed is that the Respondents were not consulted before their counsel withdrew the appeal and that they dissented from the exercise of his (counsel) discretion. The issue of prejudice or embarrassment to the Respondents is irrelevant, this is not a case were the decision to withdraw was not bona fide nor was it a decision made by him under misapprehension nor in excess of the express or ostensible authority of counsel conducting the appeal.

The point is that the Respondents failed to make a case for setting aside the order of dismissal. In Babaiide v. Aisa (1966) 1 All N.L.R. 254, there was clear evidence that the newly qualified solicitor who consented to judgment did so under a misapprehension of his instruction. There was no such evidence in this case.

I will therefore allow the appeal and set aside the Ruling of the Court below made on the 31st day of July, 1984. The judgment of the High Court given on 22nd May 1984 is restored. The Appellant is awarded the costs of this appeal fixed at N300.00.

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SC.26/1985