G.O.k Ajayi V. Lagos City Council (1969) LLJR-SC

G.O.k Ajayi V. Lagos City Council (1969)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

The plaintiff, a legal practitioner, in the Lagos High Court in suit No. LD/112/1967 claimed for professional fees-in terms of paragraph 14 of his statement of claim which reads:-

“14. Whereupon the plaintiff claims the sum of FOUR THOUSAND GUINEAS i.e. (£4,200) being fee for professional services rendered to the defendant between the 20th day of June, 1966 and September, 1966 inclusive at the defendant Council’s request.”

On the 21st of October, 1967, Lambo J., dismissed the claim and ordered each side to bear its own costs, and against that decision the plaintiff has appealed to this Court. It is not in dispute that on the 20th of June, 1966, the then Town Clerk to the Lagos City Council wrote a letter to the plaintiff (exhibit ‘A’) which reads:-

“Town Clerk’s Department,

City Hall,

Private Mail Bag No. 2015,

Lagos.

Nigeria.

20th June, 1966.

G.O.K. Ajayi Esq.,

Solicitor & Advocate,

126/130 Nnamdi Azikiwe Street,

Lagos.

Dear Sir,

TRIBUNAL OF INQUIRY INTO L.C.C.

I hereby retain you on behalf of the Lagos City Council to represent and watch the interest of the said Council in connection with the Tribunal of Inquiry which has been set to inquiry into the affairs of the Council during the period 15th October, 1962 and 18th April, 1966. A copy of Gazette No. 56 Vol. 53 of 7th June, 1966, setting out the terms of the Inquiry is hereby attached.

Yours faithfully,

(Sgd.) S. Mayaki,  Town Clerk.”

As a result of that letter the plaintiff received a full briefing from the office of the Town Clerk and appeared at the hearing of the Tribunal of Inquiry into the affairs of the Lagos City Council on the 6th of July, 1966, but when he announced his appearance as representing the Lagos City Council, the Tribunal ruled that the Lagos City Council had ceased to exist as a legal person and, accordingly, the Tribunal refused to allow the plaintiff to represent the Lagos City Council before them. The then Town Clerk after this instructed the plaintiff further and the plaintiff pleaded in regard to it in paragraphs 9, 10 and 11 of the Statement of claim as follows:-

“9. The then Town Clerk thereafter instructed the plaintiff that the interests of the Lagos City Council could effectively be watched in accordance with the plaintiff’s instructions if each department of the Council was represented through its head.

10. The Town Clerk thereupon instructed the plaintiff to continue to represent and to watch the interests of the defendant Council by appearing for the heads of departments of the defendant Council through whom and on whose advice the functions of the Council are performed.

11. The plaintiff thereupon announced his representation for each of the heads of departments of the Council and thereafter participated fully in the activities of the Tribunal presenting the case and watching the interests of the defendant Council in accordance with instructions given from time to time by the Town Clerk and other officials of the defendant Council.”

The Lagos City Council Caretaker Committee on the 18th of August, 1966 refused to agree to the payment of the plaintiff’s fees and has continued to do so. It is again not in dispute that the Lagos City Council never at any time specifically authorised the employment of the plaintiff on its behalf at the Tribunal of Inquiry, but the main issues on this appeal are:-

“1. Whether from the evidence authority for the Town Clerk to brief the plaintiff on behalf of the Lagos City Council can be implied?; or

2. Whether by virtue of section 170 of the Lagos Local Government Act, 1959 when read in conjunction with the Town Clerk’s duties and responsibilities to be found in that Act, the Town Clerk had the right to brief the plaintiff without any authorization of the Lagos City Council?; or

3. Whether if either 1 or 2 are found in the plaintiff’s favour he was still entitled and did in fact represent the Lagos City Council before the Tribunal of Inquiry in the hearings subsequent to the 6th of July, 1966? Mr. Molajo for the plaintiff/appellant does not in any way rest his case on the principles of agency, but puts it squarely on the authority which he submits the Lagos Local Government Act, 1959 gave to the Town Clerk to brief counsel in such circumstances on behalf of the Lagos City Council and to bind the Lagos City Council by his action. Section 170 of the Lagos Local Government Act, 1959 reads:-

“170. (1) The council may appear in any legal proceedings by the town clerk or by an officer of the council authorised generally or in respect of any proceedings by resolution of the council.

(2) The town clerk or any officer so authorised as aforesaid, shall be at liberty to prosecute or defend any proceedings which the council is authorised to prosecute or defend under this or any other Ordinance sub ject always to any directions which may be given to him by the council.”

It is the submission of Mr. Molajo that section 170(1) gave the Town Clerk the automatic right to appear in any legal proceedings for the Lagos City Council whilst other persons could only appear for the Council if generally or specifically authorised by a resolution of the Council. He further submitted that similarly under section 170(2) the Town Clerk could automatically be at liberty to prosecute or defend proceedings which the Council is authorised to prosecute or defend or defend under any Act, subject only to a specific direction (if any) to the contrary. Mr. Molajo then submits that by virtue of section 18 of the Tribunals of Inquiry Decree, 1966 (No. 41 of 1966) which reads:-

“Any person whose conduct or affairs are the subject of inquiry under this Decree or who is in any way implicated or concerned in the matter under inquiry shall be entitled to be represented by counsel at the whole of the inquiry, and subject to paragraph (d) of section 2(1) of this Decree, any other person may, with the leave of members, be rep-resented in like manner.”

A person who on the authority of the Interpretation Act 1964 would in his submission include a Corporation such as the Lagos City Council, is entitled to be represented if his conduct is inquired into, and under the Tribunals of Inquiry Decree 1966, a Tribunal of Inquiry was set up to inquire into the affairs of the Lagos City Council by L.N. 43 of 1966, so that the Lagos City Council was entitled to be represented before that Tribunal by counsel.

He then submits that any litigant is entitled to appear either in person or by counsel and that as the Town Clerk by virtue of section 170(2) can appear to defend the Lagos City Council in any proceedings he stands in the shoes of the Lagos City Council, so that he can brief counsel to represent it and appear on behalf of the Lagos City Council so as to bind the Lagos City Council by this action unless there is a specific instruction to the contrary, and it was not disputed here that there was not any such contrary instruction on the 20th of June, 1966.

Alternatively, Mr. Molajo argued that if section 170(2) is to be construed as limiting the Town Clerk to appearing in person to defend proceedings which the Lagos City Council is authorised to defend and that he can only brief counsel if instructed to do so by the Lagos City Council, then he submits that on the uncontradicted evidence of the 4th plaintiff witness, Mr. Sylvester Mayaki, the then Town Clerk of Lagos, the authority of the Lagos City Council for the Town Clerk to brief counsel was to be implied by past conduct in that respect, and from the fact that he had a vote for legal expenses which included the briefing of such counsel. Mr. Molajo relies on the following passages in the evidence of the 4th plaintiff witness to establish the practice:-

Q . Mr. Mayaki, was that the fast time you instructed counsel on behalf of the L.C.C.?

A. No. I did so from time to time in the course of my administrative duties. Before I became a Town Clerk I w

Other Citation: (1969) LCN/1651(SC)