MRS. MARY E. ONYEKA & ANOR v. CELESTINE OGBONNA & ORS.
(2013)LCN/6146(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of May, 2013
CA/MK/22/2011
RATIO
COMPETENCE OF A COURT: WHAT QUALIFIES A COURT AS BEING COMPETENT?
It is now fully established that a court is competent when, (a) the court is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or the other, (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587; GALADIMA v. TAMBAI (2000) 6 SC (Pt.1) 196 SKENCONSULT v. UKEY (1981) 1 SC 6.
All the requirements above stated however co-exist hand in hand before jurisdiction can be exercised by the court. Consequently, if a court has no jurisdiction to hear and determine a case but proceeds to do so, it becomes an exercise in futility because any decision reached in such a case amounts to a nullity no matter how well conducted the proceedings may have been. ALAO v. ACB LTD. (2000) 6 SC (Pt.1) 27; ARAKA V. EJEAGUN (2000) 12 SC (Pt.1) 99.PER SAMUEL C. OSEJI, J.C.A.
LEGAL COUNSEL: WHETHER A COUNSEL CAN REPRESENT 2 OPPOSING PARTIES
In ANATOGU v. IWEKA II (1995) 8 NWLR (Pt. 415) 547, the Supreme Court, per Uwais J.S.C. (as he then was) held in the lead judgment at page 582 – 583 that:-
“Generally, the courts are not to prevent Litigants from employing the services of counsel of their own choice. However, a person must not be allowed to employ the services of a counsel, nor should a counsel accept a brief where it is clear that the services to be rendered flow out of or are closely connected with the previous services he had rendered to the opposing side. Clearly the jurisdiction to restrain counsel from acting for the antagonist of his client stems from the principle that a man ought to be restrained from doing any act contrary to the duty that he owes to another, and that the jurisdiction will be exercised at the instance of the former client”. (ONOGBONGBO COMMUNITY v. MINISTER OF LAGOS AFFAIRS (1971) 2 NCLR 186 at 192).PER SAMUEL C. OSEJI, J.C.A.
JURISDICTION: IMPORTANCE
The question of jurisdiction is no doubt very fundamental that it should be determined first by the courts before starting any proceedings because any such proceedings however well conducted will amount to a nullity if the court lacks the jurisdiction to so do. See UKWU v. BUNGE (1997) 8 NWLR (Pt.518) 527; A.G. LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt.111) 552 AND NWONYE v. ANYICHIE (2005) 2 NWLR (Pt.910) 623.PER SAMUEL C. OSEJI, J.C.A.
IMPORTANCE OF COUNSEL IN A MATTER
“This court will consider the motion to bar counsel from appearing and if it does not succeed the preliminary objection shall be considered.”
It is not only expedient but germane to establish the status of counsel in a matter vis-a-vis the parties they represent before they can proceed to conduct their cases. The cases of ONYEKE v. HARRICLEM (Supra) and ANATOGU v. IWEKA II (Supra) are of assistance here.PER SAMUEL C. OSEJI, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
Between
1. MRS. MARY E. ONYEKA
2. M/SM E. ONYEKA & COMPANY Appellant(s)
AND
1. CELESTINE OGBONNA
(Doing business under the name and Style of Cele Best Organisation)
2. OKENNA UDE
3. CHUKWUMA AKUNNE
(Doing business under the name and Style of Chumaco Investment Nig.)
4. CHIEF JIDEOFOR N. OBENZE
IN RE: BETWEEN
1. CELESINE OGBONNA
(Doing business under the name and Style of Cele Best Organization)
2. OKENNA UDE
3. CHUKWUMA AKUNNE
(Doing business under the name and Style of Chumaco Investment Nig.)
4. CHIEF JIDEOFOR N. OBENZE
v.
1. ECONOMIC AND FINANCIAL CRIMES COMMISSON (EFCC)
2. FIRST CITY MONUMENT BANK (FCMB)
3. DONGCHEN HIGHWAY NIGERIA LIMITED ENGR. DANIEL SHOBAYO Respondent(s)
SAMUEL C. OSEJI, J.C.A. (Delivering the leading Judgment): This appeal is against the ruling of Hon. Justice A. Obaseki of the Federal High Court Makurdi Division delivered on the 8th day of June 2010 wherein the learned Trial Judge granted the respondents application and restrained the appellants from further appearance on behalf of the First City Monument Bank in Suit No.FHC/CS/MKD/03/2010 and also ordered that all processes filed by the appellants be struck out and their clients directed to seek the services of another counsel.
A brief history of this case was that sometime in December 2009 the respondents with some other persons obtained the services of the 1st appellant (Mrs. Mary E. Onyeka) who is a private legal practitioner to write a letter of complaint on their behalf to the Assistant Inspector General of Police, zone 4, Makurdi against one Engr. Daniel Shobayo for criminal breach of trust. The sum of N30,000 was paid to the 1st appellant for her services. Subsequently, the respondents as plaintiff filed a writ of summons in the lower court against four defendants. To wit. (a) Economic and Financial Crimes Commission (EFCC) (b) First City Monument Bank (FCMB) (c) Dongchen Highway Nigeria Ltd (d) Engr. Daniel Shobayo. The claims as per paragraph 20 of the plaintiffs joint statement of claim dated 11-1-2010 and filed on 18/1/2010 reads thus:- (see pages 11-12 of the record)
WHEREFORE the plaintiffs claim from the defendants as follows:
a. AN order of mandatory injunction directing the 1st defendant to carry out her statutory duties under the Economic and Financial Crimes Commission (Establishment Act) 2004 as amended, to wit: investigate, fish out, arrest and prosecute the 3rd and 4th defendants and any other person found to have been involved in or benefited from the contract scam between the 2nd defendant and 3rd defendant for the construction of the 2nd defendant’s branch office building materials and cash all valued at N7.3 million Naira and to recover the said money.
b. The cost of filing and prosecuting this action, including filing, legal and solicitors’ fees.
Alternatively
c. AN ORDER of the Honourable court directing the 2nd defendant pay to the plaintiffs moneys due to them from the building materials and cash collected from them by the 3rd and 4th defendants in the process of executing a contract awarded to the 3rd defendant by the 2nd defendant, which building materials were actually used in the construction of the 2nd defendant’s branch office Building in Makurdi, for which the plaintiffs were not paid, totaling N7.3 Million Naira.
Or
d. A DECLARATION that the plaintiffs, who are victims of the economic crime committed by the 3rd and 4th defendants, which proceeds of the crime are used in developing the 2nd defendant’s branch office building in Makurdi, are co-investors and part owners of the said Branch Office Building and are therefore entitled to a lien on the property and rents thereon from the 2nd defendants.
And thereafter
e. An order of the Honourable court appointing an Estate Valuer to value the interest of the plaintiffs in the property, the 2nd defendant’s branch office building, for the purpose of determining the plaintiffs’ equity in the property and to calculate the annual rents due to the plaintiffs as part-owners and co-investors.
f. AN order of injunction restraining the 2nd defendant howsoever and by whomsoever from taking over occupying and putting to use, the Branch Office Building until the plaintiffs’ interest are clearly determined and secured.
g. The cost of this action, including filing fees and legal charges.
Subsequently, the 1st appellant as counsel represented the first City Monument Bank (2nd defendant) and also filed all the necessary papers on her behalf and this includes a Notice of Preliminary objection. In an apparent effort to restrain the 1st appellant who had earlier been of service to them from going ahead to represent the 2nd defendant, the respondents filed a motion on notice on 6-4-2010 wherein they prayed the court for the following reliefs: –
(1) “An order of the Honourable court restraining Mary E. Onyeka Esq. and the law office of Messrs M. E. Onyeka and Co. from further appearance in the matter on behalf of any of the defendants’ having acted on behalf of the plaintiffs’ in this matter before the institution of this action for a fee.
(2) Any other order that the Honourable Court may make in the circumstance as to meet the justice of the case.” (see pages 80 -81 of the record)
The said motion is supported by a 6 paragraph affidavit to which is attached a document marked Exhibit COL. The 1st appellant reacted by filing a counter affidavit of 6 paragraphs deposed to by one Daniela Amaechi. (See pages 99 – 101 of the record) there is also what is termed (affidavit of Alhaji Danbala Japan in support of the counter affidavit of Mrs. Onyeka of M. E. Onyeka & Co.) and another one headed (Affidavit of G. E. Onoh DCP (RTD) in support of counter affidavit of Mrs. Mary Onyeka). It is pertinent to note that both parties also filed written addresses. At the resumed sitting of the lower court on 3-6-2010 the 2nd defendants’ notice of preliminary objection as well as the respondents’ motion on notice to restrain the 1st appellant from acting for the 2nd defendant were heard together, though the motion to restrain was heard first. Thereafter, the lower court ordered as follows:
“The court will consider the motion to bar counsel from appearing and if it does not succeed the preliminary objection shall be considered, ruling fixed for 8th June 2010.”
(See Page 117 of the record).
In the said ruling delivered on 8-6-2010, the learned Trial Judge held as follows:-
In the overall dispassionate evaluation of the circumstances and rule 17 (1) (2), 19, (1) & (4) of the rules of conduct. I am entirely in agreement with the plaintiff’s counsel that M. Onyeka and her firm have acted most unprofessionally and ought to be restrained from acting for and on behalf of 2nd defendant bank, the facts which form the foundation of this case before: (sic)
(1) The M. O. Onyeka and M. O. Onyeka & Company are restrained from acting for and on behalf of 2nd defendant Bank in this action.
(2) I further recommend that a report be made to the Makurdi N.B.A to examine the circumstances of the conduct of the lawyer and determine same within the rules of the profession for disciplinary action, to set the precedent for others who indulge in taking the members of the public for a ride.
(3)The plaintiffs shall notify the 2nd defendant of the representation in court.
(4) The 2nd defendants are given 14 days within which to get fresh counsel in the matter
(5) All processes filed by the M. Onyeka on behalf of 2nd defendant are hereby struck out as she lacks the power of representation under the rule of professional conduct.
(6) Matter shall be adjourned to 19th July 2010 for hearing.”
Being aggrieved by the said ruling, the appellants with leave of lower court filed a notice of appeal dated 2-8-2010 and filed on 3-8-2010. There are five grounds of appeal which, shorn of their particulars reads thus:-
GROUNDS OF APPEAL
1. The learned Trial Judge of the Federal High Court, sitting in Makurdi, Hon. Justice A. O. Obaseki erred in law and acted without jurisdiction when he heard and determined a motion dated 6/4/2010 and filed on the same day by the respondents herein and proceeded in this grave errors to make far reaching orders against the appellants, and this has occasioned a gross miscarriage of Justice.
2. The learned Trial Judge of the Federal High Court sitting in Makurdi, Hon. Justice A. O. Obaseki erred in law and acted without jurisdiction when he heard and determined a motion dated 6/4/2010 and filed on the same day.
3. The learned Trial Judge, Hon. Justice A. O. Obaseki of Federal High court sitting in Makurdi, erred in law, when he heard and determined a motion dated 6/4/2010 and filed on the same day and proceeded in this grave error to make orders affecting the rights, duties and obligations of the appellants to the 2nd defendant in suit No.FHC/MKD/CS/03/2010, when he was completely without jurisdiction to do so.
4. The learned Trial Judge, Hon. Justice A. O. Obaseki of the Federal High court sitting in Makurdi, erred in law when he heard and determined the motion dated 6/4/2010 and filed the same day, when there was a pending notice of preliminary objection challenging the jurisdiction of court to hear the claim of the respondents herein against the 2nd defendant in Suit No.FHC/MKD/CS/03/2010 and this error has occasioned a gross miscarriage of justice.
5. The learned Trial Judge, Hon. Justice A. O. Obaseki, of the Federal High Court sitting in Makurdi, erred in law, and completely misconstrued and misconceived the provisions of rule 17 of the rules of professional conduct for legal practitioners and in this grave error proceeded to reject evidence and facts that clearly showed that appellants were not in breach of the said rules.
Briefs of argument were in accordance with the rules of this court, subsequently filed and exchanged.
The appellants’ brief of argument is dated 14/6/12 but filed on 15-6-12. While their reply to the respondent’s brief is dated 8/9/2012 and filed on 19-9-12. The respondents’ brief of argument is dated 12-7-12 but filed on 13-7-2012.
In their brief of argument, the appellants raised three issues for determination. To wit:-
(1) Whether the learned Trial Judge had jurisdiction to hear and determine the motion dated and filed on the 6-4-2010 and to find the 1st appellant guilty of professional misconduct (Grounds 1, 2 and 4)
(2) Whether from the affidavit evidence before the lower court, the court was right under S. 77 of the Rule of Professional Conduct for legal practitioners to have found the appellant guilty of professional misconduct. (Ground 5 of the Notice of Appeal)
(3) Whether the learned Trial Judge was right to make the order on 8/5/2010 against the appellants when the appellants were not parties to the suit. (Ground 3 of the Notice of Appeal)
For the respondents, two issues were formulated for determination in their brief of argument as follows:-
(a) “Whether the learned Trial Judge had the jurisdiction to hear and determine the motion of the respondent dated 6/4/2010. (Ground 1, 2 & 3)
(b) Whether the learned Trial Judge was right in restraining the Appellants from breaching their duty of confidentiality to the Respondents and whether that restraining order amounted to a verdict that the appellants were guilty of professional misconduct. (Grounds 4 and 5)”
The two issues raised in the Respondents brief of argument are not dissimilar with the three issues as formulated by the appellants except for the mode of couching. I will for the purpose of consideration of this appeal adopt the appellant’s three issues.
ISSUE 1
Dwelling on this issue, J. S. Okutekpa SAN of counsel for the appellants submitted that the learned trial Judge had no jurisdiction to hear and determine the Respondents motion dated and filed on 6-4-2010, which borders on a complaint of professional misconduct against the appellants for acting for the respondents for a fee before the institution of Suit No.FHC/MKD/CS/03/2010.
Relying on the authorities of MADUKOLUM v. NKEMDILIM (1962) 2 SCNLR 341 at 348 and OGUNIMOKUN v. MILITARY ADMINISTRATOR OSUN STATE (1999) 3 NWLR (Pt.594) 261 at 279-280.
Learned Senior Counsel stated when a court is competent to entertain a matter as follows:-
a) “It is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another; and
b) The subject matter of the case as within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
c) The case comes before the court initiated by due process of the law and upon the fulfillment of any condition precedent to the exercise of jurisdiction”.
He further contended that even if there was a case of professional misconduct against the appellants, the respondents by filling a motion did not follow the proper procedure for instituting complaints of professional misconduct and this failure robs the court of the jurisdiction to determine the issue. He added that under section 10 (1) of the Legal practitioners Act CAP L11, Laws of the Federation 2004, it is only the Legal practitioners Disciplinary committee that has the duty of considering and determining the allegation of professional misconduct against a Legal practitioner whose name is on the Roll of Legal Practitioners upon complaint from an aggrieved person. Consequently, he says, during proceedings before a court, any allegation of breach of conduct by a counsel must be referred to and dealt with by the appropriate disciplinary body and not the court. He cited NDUKWE v. L.P.D.C. (2007) ALL FWLR (PT 359) 1277 at 1255.
Learned senior counsel further referred to section 251 of the 1999 constitution as amended to contend that the jurisdiction of the lower court does not extend to the determination of allegation of professional misconduct and such jurisdiction cannot be merely inferred and having acted without jurisdiction in hearing the respondents motion of 6-4-2010, the proceedings and the resultant ruling delivered on 8/6/2010 will amount to a nullity.
On the other hand however, learned senior counsel submitted, that, assuming but not conceding that the learned trial judge could hear and determine the respondent’s motion, he however erred for failing to first of all hear and determine the preliminary objection pending before it and touching on its jurisdiction to hear the suit. This is because, once the issue of jurisdiction of a court is challenged, it must be resolved first before taking another step. He cited the following authorities in support. D.E.N.R. LTD. v. TRANS INT’L BANK LTD. (2008) 18 NWLR (Pt. 1119) 388, HASSAN v. ALIYU (2010) 17 NWLR (Pt.1223) 547, OGUNMOKUN v. MILITARY ADMINISTRATOR OSUN STATE SUPRA; AWAJI SHEHU GAFAR v. GOVT. OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 403 and NEPA v. OBIESIE (1999) 10 NWLR (Pt. 623) 47. He then urged this court to hold that the learned trial Judge was in error to have entertained the motion and to have come to the conclusion that it reached having lacked the jurisdiction to do so.
For the Respondents, it was submitted by T. O. Aorabee Esq. of counsel, that the Federal High Court being a superior court of Record has inherent jurisdiction under section 6 (6)(a) and (b) of the 1999 constitution and such inherent jurisdiction includes the power to regulate the conduct of trials, apply the law and regulate the practice of law. He referred to the cases of A.G. ABIA STATE & ORS. v. A.G. FEDERATION (2002) 3 SCNJ 158 AT 236 AND CONSORTIUM v. NEPA (1992) 7 SCDJ (Pt.1) 1 and IKPAIJA v. REGD. TRUSTEES OF P.C.N. (2000) ALL FWLR (Pt.310) 1703 at 1720 and 1722.
Learnt counsel added that in the circumstance, having regard to section 6(b) of the 1999 constitution, the Legal Practitioners Act and the Rule of Professional Conduct for Legal Practitioners, the lower court acted rightly in the exercise of its inherent jurisdiction to preserve the dignity of the court and the legal profession. Learned counsel also referred to a number of cases to show that the courts have without recourse to the Legal Practitioners Disciplinary Committee intervened where the conduct of counsel breaches professional ethics as per Rules 16, 17 and 19 of the Rules of professional conduct in the Legal Professions. The cases are:- MBCI v. MGI CO. LTD. (1992) 2 NWLR (Pt. 221) 71; J. ONYEKE v. HARRICLEM (NIG.) LTD. (1998) 7 NWLR (Pt. 556) 64; LAGRICOM CO. LTD. v. UBN LTD. (1996) 4 NWLR (Pt.441) 185; HORN v. RICHARD (1963) 2 ALL NLR 40.
Learned counsel further submitted that the Respondents motion on notice was not intended for the lower court to try, find guilty and punish the appellants for professional misconduct but merely an application made within a cause to bring the attention of the trial court to the fact that the appellants were about to breach their duty of confidentiality owed to the respondents and to restrain them from doing so.
He also submitted that section 251 of the 1999 constitution does not override the inherent jurisdiction of the lower court to interfere with a party’s choice of counsel by restraining such counsel from appearing on behalf of such Party, citing ONIGBONGBO v. MINISTER (1971) 7 NSCC 136 at 139 and ONYEKE v. HARRICLEM (1998) 7 NWLR (Pt.556) at 71.
On the contention of the appellants counsel that the preliminary objection by the appellants ought to have been heard first, he argued that the motion to restrain the appellants touched on their competence to act for the 2nd defendants in the matter and by extension, the competence of the preliminary objection filed by them. So the lower court was right in giving priority to the respondents’ motion over the preliminary object.
The appellants’ response on this issue in their reply brief will be duly addressed as the need arises in the course of my consideration of the issues raised.
It is now fully established that a court is competent when, (a) the court is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or the other, (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587; GALADIMA v. TAMBAI (2000) 6 SC (Pt.1) 196 SKENCONSULT v. UKEY (1981) 1 SC 6.
All the requirements above stated however co-exist hand in hand before jurisdiction can be exercised by the court. Consequently, if a court has no jurisdiction to hear and determine a case but proceeds to do so, it becomes an exercise in futility because any decision reached in such a case amounts to a nullity no matter how well conducted the proceedings may have been. ALAO v. ACB LTD. (2000) 6 SC (Pt.1) 27; ARAKA V. EJEAGUN (2000) 12 SC (Pt.1) 99.
In the instant case, the contention of the learned senior counsel for the appellants is that, even if there was a case of professional misconduct against the appellants, the proper procedure for instituting such a complaint was not followed by the respondents by virtue of section 10(1) of the Legal Practitioners Act wherein only the Legal Practitioners Disciplinary Committee has the statutory duty to consider and determine any allegation of professional misconduct.
The issue here is whether there was a complaint of breach of professional conduct against the appellants.
A perusal of the respondents’ motion on notice dated 6-4-2010 show that this is not really the case and for clarity purposes I herein below reproduce the reliefs sought therein. It reads:-
“(1) An order of the Honourable court restraining Mary E. Onyeka Esq. and the law office of Messrs M. E. Onyeka & Co. from further appearance in this matter on behalf of any of the defendants, having acted on behalf of the plaintiffs in this matter before the institution of this action for a fee.”
In paragraph 5 of the affidavit in support of the motion it was deposed as follows:-
5. “That it will be in the interest of Justice to restrain MRS. Mary Onyeka and anybody from her chambers from appearing in this matter against the applicants as she is likely to breach the lawyer-client confidentiality in this matter.”
From the above reproduced portions, it seems to me that the whole purport of the respondents’ motion is to restrain or stop the appellants from representing the 2nd defendant in the action and as such avoid a breach of the confidentiality that has been established between them in an earlier transaction which is linked or has connection with the present suit before the lower court. In other words, the lower court was not by the motion, invited to try the appellants for a breach of the rule of professional conduct (which no doubt is the statutory responsibility of the Legal Practitioners Disciplinary Committee) but rather to look into the propriety of the appellants representing the 2nd defendant in an action which has a bearing with a matter they earlier on acted upon on behalf of the respondents. I am therefore in total agreement with the submission of learned counsel for the respondents that the basis for their motion is not for the court below to find the appellants guilty and punish them for professional misconduct but to draw the attention of the lower court to the fact that the appellants were about to breach their duty of confidentiality to the respondents.
There are a number of authorities to support the action of the respondents in this regard. In ONYEKE v. HARRICLEM (NIG.) LTD (1998) 7 NWLR (Pt.556) 64. This court had cause to restrain a counsel Obi Akpudo Esq. or any counsel from his chambers from acting for the respondent (Harriclem (Nig.) Ltd.) against the appellant (Onyeke) in any case involving the subject matter in which he had earlier been briefed and obtained information from the appellant.
In this regard, their lordships per Akpabio, J.C.A. stated at page 72 as follows:-
“Before concluding, I must add by way of emphasis that what is being frowned upon by the court is the idea of a counsel appearing for the party, say the plaintiff, at an early stage of a transaction and their turning around at a later stage of the some transaction to appeal or act for his opponent.”
In his concurring judgment, at page 73 Salami, J.C.A. (as he then was) added that:
“The important thing is not the party or parties but rather it is the subject matter, so long the subject matter of this action in litigation, counsel who had acted in it previously on behalf of a party would not be heard to represent the opposing interest.”
In ANATOGU v. IWEKA II (1995) 8 NWLR (Pt. 415) 547, the Supreme Court, per Uwais J.S.C. (as he then was) held in the lead judgment at page 582 – 583 that:-
“Generally, the courts are not to prevent Litigants from employing the services of counsel of their own choice. However, a person must not be allowed to employ the services of a counsel, nor should a counsel accept a brief where it is clear that the services to be rendered flow out of or are closely connected with the previous services he had rendered to the opposing side. Clearly the jurisdiction to restrain counsel from acting for the antagonist of his client stems from the principle that a man ought to be restrained from doing any act contrary to the duty that he owes to another, and that the jurisdiction will be exercised at the instance of the former client”. (ONOGBONGBO COMMUNITY v. MINISTER OF LAGOS AFFAIRS (1971) 2 NCLR 186 at 192).
From the above authorities, it is clear that the lower court or any court for that matter has jurisdiction to inquire into, and where necessary restrain a counsel from appearing for a party where there is conflict of interest. This inherent power of the courts has nothing to do with the statutory jurisdiction of the legal practitioners Disciplinary Committee in matters relating to allegation of professional misconduct.
The lower court might have made reference to professional conduct or misconduct in the Ruling but this does not in any way alter or affect the relief sought by the Respondents in their motion or the order subsequently made in the Ruling delivered on the 8/10/2010 by the lower court, neither did it affect its jurisdiction to entertain the said motion.
On the contention of the learned senior counsel for the appellants that the learned trial judge erred for failing to first of all hear and determine the preliminary objection pending before it and touching on its jurisdiction to hear the suit.
The question of jurisdiction is no doubt very fundamental that it should be determined first by the courts before starting any proceedings because any such proceedings however well conducted will amount to a nullity if the court lacks the jurisdiction to so do. See UKWU v. BUNGE (1997) 8 NWLR (Pt.518) 527; A.G. LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt.111) 552 AND NWONYE v. ANYICHIE (2005) 2 NWLR (Pt.910) 623.
The instant case seems however to be peculiar if not all together exceptional having regard to the fact that the competence of the counsel who filed the notice of preliminary objection challenging inter alia, the jurisdiction of the lower court to entertain the suit is being questioned vide a motion on notice filed by the respondents as plaintiffs.
A perusal of the record particularly pages 61 – 74 show that the appellants filed all the processes in the lower court on behalf of the 2nd defendant and the 1st appellant has been representing the 2nd defendant in the proceedings until the order restraining her was made by the lower court. It is tradition in our courts that when a matter is called up for hearing that counsel for the parties (where represented) will first announce their appearance and then proceed to conduct the matter on behalf of their clients. It follows therefore, that the competence of such counsel to appear in the said matter must be ascertained or assured before being allowed by the court to conduct the case.
Instances abound where a party in a suit has denied or refused a counsel to represent him or her in a matter. There are also cases where two different counsel announce appearance for a party and such state of confusion is left for the court to resolve in an effort to restore decorum and protect the dignity and integrity of the legal profession. In such situations it will be improper to expect a court to first determine whether or not it has jurisdiction to hear the matter when the certainty of the counsel to conduct the case is yet to be determined.
In the instant case the lower court took the right step which I entirely support when it recorded during the proceedings of 3-6-2010 as follows (See pages 117 of the record)
“This court will consider the motion to bar counsel from appearing and if it does not succeed the preliminary objection shall be considered.”
It is not only expedient but germane to establish the status of counsel in a matter vis-a-vis the parties they represent before they can proceed to conduct their cases. The cases of ONYEKE v. HARRICLEM (Supra) and ANATOGU v. IWEKA II (Supra) are of assistance here.
I therefore agree with learned counsel for the respondents that their motion to restrain the appellants touched on their competence to act in the matter and by extension the competence of the Notice of Preliminary objection filed on behalf of the 2nd defendant and the lower court was right to have considered and determined the said motion first.
On the whole, issue 1 is hereby resolve in favour of the respondents.
ISSUE 2
Dwelling on this issue, learned counsel for the appellants submitted that it was wrong for the lower court to have rejected the two other affidavits in support of the counter affidavit on the basis that it was unknown to law. Referring to order 27 Rule 3 of the Federal High Court Civil procedure Rules 2009, he argued that where a defect in an affidavit is as to form, the court should exercise its discretion and accept the documents if it is relevant to the proceedings before it; and in this case the only defect in the affidavit rejected by the lower Court relates to heading which goes to form and not the substance of the affidavits.
Learned counsel was also of the contention that before rejecting the two affidavits supporting the counter affidavit of the appellant, the lower court came to the wrong conclusion that there was no counter affidavit of “Mrs. Mary Onyeka of M. E. Onyeka & Co.”
He added that if the court had considered the two affidavits deposed to by Danbala Japan and George Onoh in support of the counter affidavit, it would have come to the conclusion that the appellants were not guilty of professional misconduct. So, rejecting them occasioned miscarriage of justice because the appellants were shut out as there was no other forum for them to defend themselves on the issue of the integrity of a legal practitioner and her law office as raised in the respondent’s motion.
Responding on this issue, learned counsel for the respondents adopted his earlier submission on issue 1 and urged this court to hold that the lower court was right in restraining the appellants from further appearing in the matter in which they had acted on behalf of the respondents on the same transaction leading to the institution of the suit.
On the contention by the appellants that the lower court was wrong to have rejected the two affidavits supporting the counter affidavit of Mrs. Mary Onyeka, learned counsel submitted that the affidavits are not known to the Law of Evidence or the Federal High Court Civil Procedure Rules, 2009. He then referred to Order 26, Rules 3, 4 and 5 of the Rules to contend that the lower court was right to have rejected the strange affidavits.
Learned counsel further submitted that the lower court having found that the appellants acted on behalf of the respondents for a fee in the same transaction leading to the action before it and the appellants having not denied that fact, the lower court was right to restrain the 1st appellant in line with the rules of professional conduct having acted within its inherent powers as a court of Justice.
He added that restraining the appellants from appearing for the parties on the matter does not in any way amount to finding them guilty of professional misconduct as canvassed by the appellants. Learned counsel referred to pages 131 – 132 of the record, which contains the decision and order of the lower court to submit that nowhere therein did the lower court find the appellants guilty of professional misconduct but rather recommended that a report be made to the Nigeria Bar Association on the issue for necessary action. He submitted that the fact that the lower court in trying to arrive at a decision to restrain the appellant held that “M. Onyeka is guilty of breach of Rule 17(1) and (2) does not translate to a finding of being guilty of professional misconduct”.
Now the two affidavits said to have been wrongly struck out by the lower Court are at pages 107 to 114 of the record. The first one is headed as follows:-
“AFFIDAVIT OF ALHAJA DANABALA (SIC) JAPAN IN SUPPORT OF THE COUNTER AFFIDAVIT OF MRS. ONYEKA MARY OF M. E. ONYEKA & CO.”
The second one is also headed thus:-
“AFFIDAVIT OF G. E. ONOH DCP (RETIRED) IN SUPPORT OF COUNTER AFFIDAVIT OF MRS. ONYEKA MARY”
The first affidavit was deposed to by one Alhaji Danbala Japan while the second was deposed to by George Onoh.
Now the counter affidavit challenging the affidavit in support of the respondents’ motion was deposed to by DANIELA AMAECHI as shown at pages 97 to 101 of the record. I ventured further to carefully peruse the entire record in search of “COUNTER AFFIDAVIT OF MRS. ONYEKA MARY” but found none. In other words, there is no counter affidavit deposed to by Mrs. Onyeka Mary in the record and this to my mind, means that the two aforementioned affidavits are indeed in support of a nonexistent counter affidavit. The only counter affidavit on record being that deposed to by one Daniela Amaechi. In this regard, the learned Trial Judge found as follows: at page 126 of the record:-
“I have also seen the affidavit of Alhaji Danbala Japan in support and that of George Onoh DCP (Retired) ” in support of a counter affidavit of Mrs. Onyeka Mary” At this stage I must observe that there is no counter affidavit of Mrs. Mary Onyeka & Co. in the file, there is only a counter affidavit deposed to by one Daniela Amaechi a litigation Secretary in the law firm of M. E. Onyeka & Co. surely these individuals are different in law and cannot be said to act for one another. See section 86 of the Evidence Act.
Furthermore, under our Rules of Procedure, an affidavit is filed, a counter affidavit is a response and a further and better affidavit is what is known to law. An affidavit does not support a counter affidavit in the cause of a party filing responses. However in the light of the above defect, I shall discountenance both affidavits as the affidavit is in support of a non existence (sic) counter affidavit. They are both struck out.”
I entirely agree with above finding and conclusion of the lower court. Firstly, there is no provision in our laws for an affidavit in support of a counter affidavit. For instance, the Federal High court (civil Procedure) Rules 2009 provide in order 26 Rules 3, 4 and 5 for every motion to be supported by an affidavit and a party on whom a motion has been served shall in response file a counter affidavit. There is no room both in the Evidence Act or the Rules of court for a stranger to an application to file an affidavit in support of counter affidavit. The only instance that is established by authorities for a stranger to be involved is where there are conflicts in parties’ affidavit and counter affidavit in which case evidence whether oral or documentary are called to resolve such conflicts.
Added to the misadventure here is the fact that there is no counter affidavit of Mrs. Onyeka Mary. It is therefore a case of every which way but lose. The lower court was therefore right to have discountenanced the two affidavits and I do not see any miscarriage of justice in so doing.
What is more, in the light of the serious allegation of likely breach of client confidentiality against the 1st appellant, it behoves her to have personally deposed to a counter affidavit to challenge or counter the facts as deposed to in the respondents’ affidavit in support of their motion; and having not done so leaves much to be desired, for the 1st appellant to have delegated such an important responsibility to a litigation clerk. See the case ONYEKE v. HARRICLEM (NIG.) LTD. supra at 71 where these Court frowned at such an important omission by a counsel.
In the circumstance, issue 2 is also resolved in favour of the respondents.
ISSUE 3
Herein, the learned senior counsel for the appellants submitted that the lower Court was in error when it made Orders in its ruling of 8/6/2010 against the appellants who were not parties before it. He added that there is no process before the lower Court wherein the appellants sued as plaintiffs or were sued as defendants neither were they joined as parties.
Learned senior counsel further submitted that a Court cannot make an Order against a person who is not a party before it. He cited BABATOLA v. ALADEJANA (2010) 6 SC 124 at 134; CHUKWUOGOR v. A.G. CROSSRIVER STATE (1998) 1 NWLR (Pt.534) 375; DIVINE IDEAS LTD. v. UMORU (2007) ALL FWLR (Pt.380) 1468 at 1504 and BELLO v. INEC supra.
Learned senior counsel also submitted that there was no proper service of the respondents’ motion on the parties because only the 1st appellant was served in her personal capacity as M. E. Onyeka (Mrs.) and not as solicitor to the 2nd defendant. He added that the 2nd defendant ought to have been served with a copy of the motion seeking to restrain the counsel briefed to represent her in the matter and this non service and opportunity to be heard occasioned a miscarriage of justice. He further submitted that failure to serve the 2nd defendant with the said motion to restrain her counsel from further appearing in the matter was a fundamental omission which robbed the lower Court of jurisdiction to entertain the said motion and thus vitiate the proceedings and ruling of 8/6/2010.
Responding on this in their issue (one) learned counsel for the respondent submitted that every legal practitioner appearing before a Court is subject to the jurisdiction of the Court and Orders can be directed against such persons in a matter he or she appears to represent a client as in this case. He added that the authorities cited by the appellants’ counsel are proper where they apply to regulate matters but not in a situation relating to the restraining Order against a legal practitioner who as in this case represents the 2nd defendant and need not be parties to the suit.
He further submitted that since the appellants where acting on behalf of the 2nd defendant whose address of service was through the law office of the appellants, any service on the appellants is deemed to be proper service on the 2nd defendant in which case, there will be no need for a separate service on the 2nd defendant. He then urged the court to dismiss the appeal as frivolous and unmeritorious.
It is not in doubt that the appellants are representing the 2nd defendant in suit No.FHC/MKD/CS/03/2010 filed in the Federal High Court Makurdi. It is also not in dispute that all the processes relating to the 2nd defendant in the said suit were signed and filed by the appellants. Equally of note is that the 1st appellant has been appearing for the 2nd defendant in all the proceedings relating to the suit until the order of the lower court restraining them from doing so. The respondents’ motion was filed in the lower court to restrain the appellants from further representing the 2nd defendant in the said Suit No.FHC/MKD/CS/03/2010. In order to avoid a likely breach of client/counsel confidentiality or conflicting interest with respect to the learned senior counsel for the appellants, the fact that the appellants are not parties to the suit before the lower Court does not stop the respondents by the appellants where they deemed it wrong to do so.
Let me make it clear and simple. A party to an action can in the same suit apply to the court to restrain a legal practitioner from representing an adversary where the legal practitioner has acquired information in the course of a transaction with the said party and such information is likely to be prejudicial to him if communicated to the party’s adversary and this is so even where the legal practitioner is not a party in the substantive suit. This stance of mine has the support of a number of authorities. In ONIGBONGBO COMMUNITY v. MINISTER OF LAGOS AFFAIRS supra at page 139 the Supreme Court per Ademola CJN held inter alia that:-
“On the other hand, the Courts are not to prevent litigants from employing the service of counsel of their choice; on the other hand, a person must not be allowed to employ the services of counsel, nor counsel accept a brief, where it is clear that the services to render flows out of or ore closely connected with the previous services he had rendered to the opposing side”.
The above decision was fully approved and followed by the Supreme Court in ANATOGU v. IWEKA II supra, where it was emphasized that:
“The jurisdiction to restrain a counsel from acting for the antagonist of his former client stems from the principle that a man ought to be restrained from doing any act contrary to the duty that he owed to another; and that the jurisdiction will be exercised at the instance of the former client”
In the above case an interlocutory application was filed at the Supreme Court during the pendency of an appeal there without recourse to whether or not the counsel was a party in the substantive appeal. A similar but clearer picture akin to the instant case was painted in ONYEKE v. HARRICLEM NIG. CO. LTD. Supra. Here while suit No.0/343/94 was pending in the Anambra State High Court, the appellant filed an interlocutory application for an order restraining Obi Akpudo Esq. from appearing for the respondent on the ground that a confidential relationship had existed between him and the said Obi Akpudo who had acted for him in an earlier action on the same subject matter. The application was refused by the High Court but an appeal to the Court of Appeal was allowed wherein the Court held that what Obi Akpudo did was unprofessional. He was therefore restrained along with any other counsel from his chambers to act for and on behalf of the respondent in the matter.
From the above judicial precedent, I am of the firm view that the lower Court was right to have made an order of restraint against the appellants. This issue 3 is also resolved in favour of the respondents.
However, I find the 2nd Order made by the lower Court that a report be made to NBA Makurdi to be extreme and uncalled for, moreso that it was a relief not asked for by the applicants, neither is the said order ancillary to the main relief sought. It is accordingly set aside.
On the whole I hold that this appeal lacks merit and is hereby dismissed. The Ruling of the Federal High Court Makurdi delivered on 8/6/2010 in suit No.FHC/MKD/CS/03/2010 is hereby affirmed except for the order that a report be made to the NBA Makurdi which is hereby set aside.
I make no order as to cost.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother S. C. Oseji, JCA. I agree with the reasons given in it and the conclusion reached. Therefore the appeal lacks merit and I dismiss it.
I affirm the ruling of the Federal High Court, Makurdi delivered on 08/06/2010 in Suit No.FHC/MKD/CS/03/2010. I also set aside the order that a report be made to the N.B.A. Makurdi.
I make no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother Oseji, J.C.A, just delivered. I completely agree with the reasoning and conclusions contained therein.
Care and caution must be taken to ensure a client is not deprived of representation by counsel of his choice, except it is sufficiently established that counsel had previously acted for the former client against his antagonist in a closely interwoven dispute before an application at the instance of the former client to restrain counsel from appearing for the present client may be entertained.
The application to restrain counsel from appearing in such circumstances is not open to the world at large but to the aggrieved previous client if the new matter is intertwined with the former brief. It has to be so because a client is entitled as of right to engage the services of a counsel of his choice, provided counsel is entitled to practice in Nigeria. See Rewane v. Okotie-Eboh (1960) 5 F.S.C. 200. The Supreme Court in Onigbongbo Community v. Minister of Lagos Affairs (1971) N.S.C. C 1.36 at 139 stated thus:
“clearly the jurisdiction to restrain counsel from acting for the antagonist of his former client stems from the principle that a man ought to be restrained from doing any act contrary to the duty that he owes to another and the jurisdiction will be exercised at the instance of the former client. Admittedly it is difficult sometimes to find a dividing line, but it is wrong to think or to suggest that counsel may not act against someone whom it had his privilege to serve or act for at one time, in a matter bearing no semblance or unconnected with the new case”.
In the instant case the lower court found that the appellants acted on behalf of the respondents for a fee in the same transaction leading to the action before it. This fact was not controverted by the appellants. The lower court was therefore right to restrain the 1st appellant in line with the rules of professional conduct.
It is for the reason given above and the more elaborate reasons contained in the lead judgment that I too hold that this appeal is devoid of merit and is hereby dismissed. I endorse all the consequential orders made in the lead judgment, inclusive of costs.
Appearances
A. C. Uchin (Mrs.) with S. U. AkohFor Appellant
AND
T. O. Aorabee with T. Agatse K. IorzendaFor Respondent
