DR. (REV) OLAPADE AGORO V. OBA ADEKUNLE AROMOLARAN & ANOR.
(2011)LCN/4931(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of November, 2011
CA/I/223/2003
RATIO
AMICUS CURIAE: WHO IS AN AMICUS CURIAE
An amicus curiae is the Latin phrase for a “friend of the Court” and he is “A person who is not a party to a lawsuit but who petitions the court or is required by the court to file a brief in the action because that person has a strong interest in the subject matter” BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 93. In practice, a learned counsel does not need to have “strong interest”, or any interest at all, before he can be invited to brief address the court as an amicus curiae. PER MOORE A.A. ADUMEIN, J.C.A.
LEGAL REPRESENTATVE: MEANING OF THE PHRASE “LEGAL REPRESENTATIVE”
Under Order 1 rule 5 of the Court of Appeal Rules, a “Legal representative” means “a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the Court. PER MOORE A.A. ADUMEIN, J.C.A.
COUNSEL: DUTY OF A COUNSEL NOT TO CONDUCT HIMSELF IN SUCH A MANNER THAT THE ADMINISTRATION OF JUSTICE WILL BE HINDERED, OBSTRUCTED OR DELAYED
A learned counsel should always regard himself as an officer of the Court, which is in the hallowed temple of justice. Counsel is a minister in the holy temple of justice and his conduct must always be above board. Counsel should always endeavour to assist the Court instead of misleading it. Counsel should not frustrate the expeditious disposal of causes and matters in Court. Counsel should not be engaged or involved, directly or indirectly, in sharp practice. See BAWA V. BALARABE (1999) 6 NWLR (Pt.605) 51; KWAPTOE V. TSENYI (1999) 4 NWLR (Pt.600) 571 and PERE ROBERTO NIGERIA LIMITED V. A. A. ANI (2000) 13 NWLR (Pt. ) 522 at 535 where ADAMU, JCA, held thus: “Generally speaking, the attitude of the appellant’s counsel….by which he employed a delay tactic to frustrate the respondent and deprive him of acquiring lawful possession of his premises under the guise of a preliminary objection………. is very appalling and leaves very much to be desired. Such callous and unethical action amounts to sharp practice by the counsel and should be condemned by this court. No lawyer can claim ignorance of the fact that a lawyer is an officer of the Court and should not conduct himself in such a manner that the administration of justice will be hindered, obstructed or delayed. See Rule 3 of the Rules of Professional Conduct for Legal Practitioners, 2007 which provides as follows: “A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.” PER MOORE A.A. ADUMEIN, J.C.A.
SHARP PRACTICE: MEANING OF SHARP PRACTICE; DUTY OF THE COURT TO CHECK SHARP PRACTICE BY COUNSEL
Sharp practice means “unethical action or trickery” especially by a lawyer BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 1409. It has always been the responsibility of the courts to check sharp practice by counsel. In addition to the cases earlier cited in this ruling, see the very old case of IN RE SWIRE; MELLOR V. SWIRE (1882) L.R. 21 C.D. 649 where BACON, V.C. stated thus: “It is the duty of the Court to repress sharp practice.” PER MOORE A.A. ADUMEIN, J.C.A.
COUNTER AFFIDAVIT: CONSEQUENCE OF NOT FILING FURTHER AFFIDAVIT TO REFUTE AVERMENTS CONTAINED IN A COUNTER-AFFIDAVIT
The allegations made in the Appellants’ Counter Affidavit are very grave and constitute a serious attack on the integrity and professional ethics of the three learned counsel. So grave are the allegations that one would have expected the learned counsel to be anxious to clear their names by filing a further affidavit to refute them. They did not do so. The effect of failure to deny the averment is that they are deemed admitted. Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
DR. (REV) OLAPADE AGORO – Appellant(s)
AND
1. OBA ADEKUNLE AROMOLARAN
2. CHIEF SUNDAY TAIYE ADENIYI – Respondent(s)
MOORE A.A. ADUMEIN, J.C.A. (Delivering the Lead Ruling): The appellant/respondent was the plaintiff in Suit NO: HIL/47/90 between: DR. (REV.) OLAPADE AGORO (OWATAPA OF ITAPA) V. OBA ADEKUNLE AROMOLARAN (OWA OBOKUN OF IJESA LAND) and GHIEF SUNDAY TAIYE ADENIYI which was decided by the High Court of Osun State, sitting at Ilesa, on the 27th day of March, 1997. The appellant was not satisfied with the decision of the lower court and he appealed this court.
On the 3rd day of December 2010, Hon. Kanmi Ajibola, Salihu Aliyu Esq. and Sumbo Afolabi Esq. filed a motion in which they sought the following relief:
“An order of this Honorable Court striking out this Appeal, that is Appeal No: CA/I/223/2003, filed against the judgment of the Ilesa High Court, delivered on the 27th day of March, 1997 off the hearing list of the Court of Appeal.”
The respondents/applicants predicated their application upon the following 6 (six) grounds:-
“1. The 2nd Respondent who was a necessary party to this Appeal is dead.
2. The Appellant won all his claims against the 1st Respondent/Appellant at the Ilesa High Court Osun State in this case.
3. The Appellant lost all his claims against the 2nd Respondent at Ilesa High Court of Osun State in this case.
4. The Appellant filed this appeal to challenge the holdings of the Ilesa High Court in favour of the 2nd Respondent only.
5. The 1st Respondent did not Cross-Appeal against the holdings of the Ilesa High Court in favour of the Appellant.
6. The cause of action appealed against does not survive the 2nd Respondent in this Appeal.”
The motion was supported with an affidavit of 25 paragraphs deposed to by one Alaba Akinlami, a Litigation Manager in Summit Chambers, Ilesa, Osun State.
In moving the court, Olasumbo Afolabi, Esq; who appeared for the 1st respondent/applicant relied on the affidavit in support of the motion and urged the Court to grant the relief sought by the respondents/applicants.
The appellant/respondent handled his reply personally. He relied on his counter affidavit of 20 paragraphs titled “PROTEST/CONDITIONAL COUNTER-AFFIDAVIT TO TWO NUMBERS MOTION ON NOTICE DATED AND FILED 3RD DECEMBER, 2010 RESPECTIVELY BY KANMI AJIBOLA ESQ. SALIHU ALIY, SUMBO AFOLABI ESQ.” The appellant/respondent adopted and relied on his said counter affidavit and the exhibits tendered therewith and argued that the learned counsel who filed the motion had “no locus standi in the matter”. He contended that the fact of the death of the 2nd respondent had not been formally notified the Court as required by Order 15 rules 1 and 2 of the Court of Appeal Rules, 2011.
The appellant/respondent argued further that there was no proof that the learned counsel who filed the motions were briefed by the respondents/applicants. He urged the Court to dismiss the motion and to order that the learned counsel be investigated.
Mr. Olakanmi Ogunyemi sought leave of the Court to appear as an amicus curiae in the matter because of the limitation of the appellant. He (Olakanmi Ogunyemi, Esq;) referred to exhibit OAS tendered by the appellant/respondent to show that the 2nd respondent’s brief was settled by O.A. Bada, Esq; but the learned counsel for the applicants surprisingly included the 1st respondent as a party to that brief. He stated that the 1st respondent never wanted to contest the appeal by the appellant. Mr. Ogunyemi said that the learned counsel “have a duty to prove to the Court who briefed them in this matter.” He argued that the motion was not brought by due process and that it should be struck out as the court had no jurisdiction to entertain it. He asked the court to order an investigation into the matter and that “any one found wanting should be punished.”
Mr. Olasunbo Afolabi had no reply on point of law.
The relief and grounds upon which the motion was based have been fully reproduced earlier in this ruling. For a proper appreciation of the facts of this matter, I shall hereunder fully reproduce the affidavit in support of the motion:-
“I, Alaba Akinlami, Male, Nigeria, Christian, Employee of St. Sunnimicks Chambers of Ajanaku Estate, Isokun, Ilesa Osun, State do hereby make an oath, and state as follows that:
1. I am a Litigation Manager in St. Sunnimicks Chambers, Solicitors to the Respondents/Applicants in this case.
2. By virtue of my position in the aforesaid law firm handling this suit, I’m very familiar and conversant with its facts.
3. I have the authority and consent of the 1st Respondent/Appellant and the Principal Counsel in the chambers to depose to this affidavit in support of the Notice of Motion in this Suit.
4. The Appellant/Respondent in this Suit commenced this Suit in 1990 against the Respondents/Appellants at the High Court of Osun State, in the Ilesa Judicial Division.
5. In Paragraph 73 of the Appellant/Respondent’s further Amended Statement of claim dated the 1st day of February, 1996, contained in page 3 to 11 of the records of Appeal, the Applicant/Respondent claimed against the Respondents/Applicants thus:
(i) Declaration that the purported suspension of the Plaintiff by the first Defendant as Owatapa of Itapa-Ijesa was irregular, unconstitutional as the purported decision to suspend and depose the Plaintiff as Owatapa of Itapa were against the rule of natural justice and against the custom and tradition of Itapa-Ijesa thereby rendered the purported deposition null and void and of no effect and be set aside.
(ii) Declaration that Atapa Chieftaincy title is an hereditary Chieftaincy title and not an honourary Chieftaincy title that could be conferred by the first Defendant to any Ijesa indigene.
(iii) Declaration that the town purportedly called Erinmo is from time immemorial known and called Itapa and the Chieftaincy known and called “Elerinmo” of Erinmo is subservient to Owatapa of Itapa as the Chieftaincy known and called Owatapa is the Landlord of the Chieftaincy title holder of Elerinmo of Erinmo both of Itapa in Oriade Local Government Council.
(iv) Declaration that the appointment and installation of Sunday Taiye Adeniyi as Elerinmo by the first Defendant in 1992 without complying with the custom and tradition of Itapa rendered the appointment and installation null and void.
(v) An order of injunction restraining the first Defendant from further desecration and interfering with Itapa native law and custom, and 2nd Defendant from parading himself as Elerinmo of Erinmo.
6. The Appellant/Respondent’s claim given above are as contained in the judgment of the Court below appealed against in this Suit. The said judgment is contained in pages 73 to 125 of the records of Appeal. 7. The Appellant/Respondent makes the claim in paragraph 5(i) and (ii) above against the 1st Respondent/Applicant in this Suit.
8. The Appellant/Respondent makes the claims in paragraph 5(iii) and (iv) above against the 2nd Respondent in this Suit.
9. The Appellant/Respondent makes the claim in paragraph 5(v) above against the 1st and 2nd Respondents/Applicants in this Suit.
10. On the Appellant/Respondent’s claims against the 1st Respondent as contained in paragraph 5(i) and
(ii) above, the Court below held in appellant’s favour thus:
“In the result, the first and second legs of the Plaintiff’s claim against the 1st Defendant for declaration that the purported suspension and deposition of the Plaintiff were done in breach of the rules of natural justice and therefore null and void and declaration that the Apata Chieftaincy is an hereditary and not honorary chieftaincy succeed. He is therefore granted the two declarations sought, but will be all important qualification that Apata Chieftaincy is a minor Chieftaincy and not an Oba,”
11. The holding of the Court below as given in Paragraph 10 above is contained in page 124 of the Records of Appeal in this Suit.
12. The 1st Respondent/Appellant in this Suit do not Cross-Appeal against the decision of the Court below in respect of the claims made against him as stated in paragraph 5 (i) and (ii) above.
13. On the Appellant/Respondent’s claims against the 2nd Respondent as contained in paragraph 5 (iii) and (iv) above, the Court below held in the 2nd Respondent’s favour thus: “The third and fourth legs of the Plaintiffs claim for declaration against the 2nd Defendant fail and are hereby dismissed.”
14. The holding of the Court below as given Paragraph 13 above is contained in Page 124 of the Records of Appeal in this suit.
15. On the Appellant/Respondent’s claim against the 1st and 2nd Respondents as contained in Paragraph 5(v) above, the Court below held in the 1st & 2nd Respondents’ favour thus:
“The fifth leg of the Plaintiff’s claim against for injunction to restrain the 1st Defendant from further desecration of and interfering with the native law and custom of Itapa fails and hereby dismissed because the 1st Defendant has been shown to have violated the rules of natural justice and not any custom. Similarly, the Plaintiff’s claim for injunction against the 2nd Defendant fails and is hereby dismissed because the 2nd Defendant is entitled to continue as Elerinmo”.
16. The holding of the Court below as given in Paragraph 15 above is contained in Pages 124 and 125 of the Records of Appeal in this Suit.
17. The 1st Defendant in the court below is the 1st Respondent in this Appeal.
18. The 2nd Defendant in the Court below was the 2nd Respondent in this Appeal.
19. The Appeal in the Suit is filed against the claims made against the 2nd Respondent.
20. The 2nd Respondent in this Appeal was a traditional ruler, the Elerinmo of Erinmo.
21. The 2nd Respondent was a necessary party in this Suit.
22. On the 13th day of April, 2010, the 2nd respondent passed on to join his ancestors.
23. This Appeal had to do personally against the person and conduct of the 2nd Respondent.
24. It will be in the best interest of justice to grant this Application.
25. I depose to this affidavit in good faith believing its contents to be true and in accordance with the oaths law.”
All the paragraphs of the appellant’s/respondent’s counter affidavit are all also hereby reproduced:
“1. That I am the Appellant in this Appeal and having its full facts.
2. That Hon, Kanmi Ajibola Esq. Salihu Aluyu Esq. and Sumbo Afolabi Esq. who named themselves as counsels on this Application dated and filed 3/12/2010 are reckless IMPOSTORS AND JUSTICE PERVERSION CONFUSIONISTS who are on their own REPRESENTING NONE OF THE RESPONDENTS to this own Appeal. BUT simple file the fricolous Applications to cause perversion of justice and TO CAUSE DELAY OF THE TRIAL.
3. That A.O. Bada Esq. will be discovered from the records of this Hon. Court to have personally endorsed and signed copy of the Hearing Notice dated 26th of November, 2010 in his office and positively not from an hospital.
4. That A.O, Bada Esq, of counsel ONLY to the late 2nd Respondent has not informed this Hon. Court of his withdrawal from the case and or having transferred the case file to Hon. Kanmi Ajibola, Salihu Aliyu and Sumbo Afolabi; and that he cannot unilaterally transfer the case file to another counsel without properly coming before this Hon. Court to do so.
5. That it will be discovered from all the Records of this Hon. Court that the 1st respondent has never shown any interest in this Appeal and was never represented by any counsel to date.
6. That the Records of Appeal was forwarded by High Court of Justice Ilesa on 17th June, 2003 to Chief S.O. Aoko the 1st defendant’s counsel who returned it back to the Court that the 1st Respondent was not interested pursuing the Appeal.
Copy of High Court of Justice Ilesa letter dated 17th June, 2003 forwarding the Records of Appeal to Chief S.O. Aoko is hereby annexed and marked as EXHIBIT OA1.
7. That E. Adeyeye Adelekun Esq. was the initial counsel to the late Chief Sunday Taiye Adeniyi the 2nd Respondent.
8 That this fact will be discovered in MOTION ON NOTIGE dated 31st March, 2006 and filed 11/4/06 for the 2nd Respondent and served on the Appellant and 1st Respondent respectively.
Copy of the Motion on Notice dated 31 March, 2006 and filed 11/4/06 for the 2nd Respondent is hereby annexed and marked as EXHIBIT OA 2.
9. That on the demise of E. Adeyeye Adelekun Esq. A.O. Bada Esq. took up the case for the 2nd Respondents.
10. That the 2nd Respondents filed a COUNTER-AFFIDAVIT dated and filed 15th day of February, 2007 before this Hon. COURT OF APPEAL; AND served it on the Appellant and 1st Respondent respectively. Copy of this Counter Affidavit is hereby annexed and marked as EXHIBIT OA3
11. That the 2nd Respondent MOTION ON NOTICE dated 7th day of August, 2008 and filed 2/9/08 was prepared by A.O. Bada Esq. and served on the Appellant and 1st Respondent Respectively.
Copy of this MOTION ON NOTICE is hereby annexed and marked as EXHIBIT OA4
12. That the 2nd Respondent’s MOTIOIN NO NOTICE dated 20th March, 2009 and filed 24/3/09 was served on the Appellant and 1st Respondent respectively. Copy of this MOTION ON NOTICE is hereby annexed and marked as EXHIBIT OA5
13. That it will be totally illogical and impossible for A.O. Bada Esq. to have therefore filed Joint Brief for the 1st and 2nd Respondents.
14. That on very close observation, a pertinent FACT to this case will be discovered of A.O. Bada having singed for the 2nd Defendant ONLY in the 1st and 2nd RESPONDENTS BRIEF OF ARGUMENT. Copy of the endorsement on the RESPONDENT’S BRIEF OF ARGUMENT is hereby annexed and marked as EXHIBIT OA6.
15. That at the 8/11/10 sitting of this Hon. Court in an attempt to pervert the cause of justice, a counsel never known to have represented any of the Respondents, suddenly announced his appearance but for God directing the minds of the Presiding judge and their Lordships, a lot of damage to the cause of Justice would have been done.
16. That consequent upon this I wrote a letter dated 09/11/2010 to this High Court and had same filed before the High Court.
Copy of this letter is hereby annexed and marked as EXHIBIT OA7
17. That the two Applications filed by Hon. Kanmi Ajibola, Salihu Aliyu and Sumbo Afolabi dated and filed 3rd December 2010 are meant to mislead the trial into confusion of this Appeal and to cause perversion of justice.
18. That the two Applications filed by Hon. Kanmi Ajibola, Salihu Aliyu and Sumbo Afolabi are justice delivered hindrance with criminal intention in nature and should be treated as such.
19. That the two frivolous Applications filed by Kanmi Ajibola, Salihu Aliyu and Sumbo Afolabi should be dismissed and with carriage of weight of recommended punishments against the impostors, Kanmi Ajibola, Salihu Aliyu and Sumbo Afolabi respectively.
20. That I swear to this Affidavit in good faith, knowing and believing its contents to be true in accordance to the Oaths Act of the Federation.”
Mr. Ogunyemi, sought leave of the court to appear as an amicus curiae in this matter. An amicus curiae is the Latin phrase for a “friend of the Court” and he is “A person who is not a party to a lawsuit but who petitions the court or is required by the court to file a brief in the action because that person has a strong interest in the subject matter” BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 93. In practice, a learned counsel does not need to have “strong interest”, or any interest at all, before he can be invited to brief address the court as an amicus curiae. In the present case, Mr. Olakanmi Ogunyemi showed strong interest in the matter for two reasons – that the appellant/respondent had limitations, as he is not legal practitioner and, secondly, that the nature of the matter called for an investigation so that any identified culprit could be punished. I accept Mr. Olakanmi Ogunyemi as an amicus in this matter.
The issue of the legal right of the learned counsel – Hon. Kanmi Ajibola, Salihu Aliyu Esq and Sumbo Afolabi, Esq; to file their motion, the subject matter of this ruling is very fundamental to the jurisdiction of this Court. In this application, the persons indicated on the face of the motion paper as “RESPONDENTS/APPLICANTS” are two, namely:
“1. OBA ADEKUNLE AROMOLARAN
2. CHIEF SUNDAY TAIYE ADENIYI”
In paragraph 2 of the appellant/respondent’s counter affidavit, reproduced above, he deposed to the fact, that the three learned counsel, who filed this motion, were “reckless IMPOSTORS, AND JUSTICE PERVERSION CONFUSIONISTS who are on their own REPRESENTING NONE OF THE RESPONDENTS to this Appeal.” The appellant also deposed that the application was to cause delay. The appellant/respondent deposed in paragraphs 5 and 6 of his counter affidavit that the 1st respondent had never been represented by any counsel “to date” as he was not interested in defending this appeal. In paragraphs 9, 11, 13 and 14, the appellant deposed to the fact that the counsel for the 2nd respondent, as borne out by the records of this Court, is one A.O. Bada. Esq.
The allegations levelled by the appellant against the learned counsel who filed this motion are very serious and important, as they tend to impugn the professional integrity of the three learned counsel. Surprisingly, the learned counsel did not deem it fit to file any further affidavit to deny, disprove or rebut these serious accusations. In the eyes of the law, the three lawyers are deemed to have admitted the allegations levelled against them by the appellant. See ADEJEKPEMAVOR V. ONAFEHO (2000) FWLR (Pt. 9) 1425 at 1436. This motion on notice was filed pursuant Order 7 rule 1 and Order 15 rules of the Court of Appeal Rules, 2007. Order 7 rule 1 of the Court of Appeal rules, 2007 provides thus: “Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought,”
The head/side note to rule 1 of Order 7 indicates that the application ought to be as in Form 4. Order 1 rule 4 of the Court of Appeal Rules, 2007 provides thus:
“The forms set out in the First and Second Schedule to these Rules, or forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable,” An examination of Form 4 in the First Schedule to the Court of Appeal Rules, 2007 shows clearly that the application or notice of motion should be signed by the “Applicant or his legal representative.”
In this case, the parties indicated as the applicants were the respondents Oba Adekunle Aromolaran and Chief Sunday Taiye Adeniyi. However, the motion was signed by:
“Hon. Kanmi Ajibola
Salihu Aliyu Esq,
Sumbo Afolabi Esq.”
St. Sunnimicks Chambers
Ajanaku Estate
lsokun Ilesa
Osun State”.
By signing the motion on notice, the learned counsel put forward themselves as the legal representatives of the respondents/applicants. This was confirmed in open Court, at the hearing of the motion, when Mr. Olasumbo Afolabi announced appearance for the 1st respondent.
Under Order 1 rule 5 of the Court of Appeal Rules, a “Legal representative” means “a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the Court.” Since objection has been raised by the appellant, the three legal representatives’ who filed this motion have a burden to establish that the respondents on record, in the substantive appeal, retained them to file this now controversial motion on notice. Unfortunately, I am of the firm view that the three learned counsel have woefully failed to show that they were briefed or retained by any of the parties in the appeal. This is confirmed by the fact that the “1st & 2ND RESPONDENTS’ BRIEF OF ARGUMENT” was settled by “A.O. BADA ESQ”, and signed on behalf of the 2nd respondent only. There is no evidence of change of counsel by the respondents.
The respondents have an undoubted constitutional right to change their counsel. If there had been a change of the respondents’ counsel in this appeal, a corresponding professional duty has been imposed on counsel to inform the court of such a change. See Rule 29(2) of the Rules of Professional Conduct for Legal Practitioners, 2007 which provides thus:
“Where in litigation, a client changes his lawyer, both the old lawyer and the new lawyer shall give notice of the change to the court.”
Under Rule 56 of the said Rules of Professional Conduct, the word “lawyer” means “legal practitioner as defined by the legal Practitioners Act.” In this appeal, the three learned counsel and A.O. Bada, Esq. have not given any notice of change of counsel to the Court.
I do not want to say much in this matter. It is obvious, from the materials supplied by the appellant and the records of this court, that the three learned counsel who filed this motion on notice appear to be complete strangers to this appeal. They are not parties to the appeal and they have not been able to prove they were retained by any of the parties.
To further confirm that the three learned counsel are acting on their own, there is no endorsement on the face motion paper that they are counsel for either the respondents or the appellant.
“Wonders”, it is commonly acknowledged, “will never end”. However, in the overall interest of the highly revered legal profession, such “wonders” that impact negatively on the image of the legal profession and, by extension the judicial system, should not be condoned or encouraged but strongly condemned.
A learned counsel should always regard himself as an officer of the Court, which is in the hallowed temple of justice. Counsel is a minister in the holy temple of justice and his conduct must always be above board. Counsel should always endeavour to assist the Court instead of misleading it. Counsel should not frustrate the expeditious disposal of causes and matters in Court. Counsel should not be engaged or involved, directly or indirectly, in sharp practice. See BAWA V. BALARABE (1999) 6 NWLR (Pt.605) 51; KWAPTOE V. TSENYI (1999) 4 NWLR (Pt.600) 571 and PERE ROBERTO NIGERIA LIMITED V. A. A. ANI (2000) 13 NWLR (Pt. ) 522 at 535 where ADAMU, JCA, held thus:
“Generally speaking, the attitude of the appellant’s counsel….by which he employed a delay tactic to frustrate the respondent and deprive him of acquiring lawful possession of his premises under the guise of a preliminary objection………. is very appalling and leaves very much to be desired. Such callous and unethical action amounts to sharp practice by the counsel and should be condemned by this court.
No lawyer can claim ignorance of the fact that a lawyer is an officer of the Court and should not conduct himself in such a manner that the administration of justice will be hindered, obstructed or delayed. See Rule 3 of the Rules of Professional Conduct for Legal Practitioners, 2007 which provides as follows:
“A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.” In the present case, the three learned counsel, mentioned earlier in this judgment, decided to descend into an arena of legal conflict without any invitation by any of the parties or the Court and proceeded to file this application accompanied with the copious affidavit reproduced above aimed at not only misleading the Court but to deliberately delay or scuttle justice in the appeal, This is an unprecedented unethical behaviour and I can rightly describe same as sharp practice. Sharp practice means “unethical action or trickery” especially by a lawyer BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 1409. It has always been the responsibility of the courts to check sharp practice by counsel. In addition to the cases earlier cited in this ruling, see the very old case of IN RE SWIRE; MELLOR V. SWIRE (1882) L.R. 21 C.D. 649 where BACON, V.C. stated thus:
“It is the duty of the Court to repress sharp practice.” In the instant case, the sharp practice ought not only to be repressed, the three learned counsel should be reprimanded for their unethical and shameful conduct. No matter the motive or consideration for their condemnable conduct, the three learned counsel ought to have restrained themselves and refrained from such unethical act – a conduct which is also a clear sign of disrespect for this court. The conduct of these learned gentlemen is a conduct that is, my humble view, grossly unbecoming of learned counsel and it is clearly contrary to what the legal profession expects from legal practitioners Please, see Rule 1 of the Rules of Professional Conduct, 2007 which states thus:
“A lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct”. (Underlining mine)
Without more, the applicants’ motion, the subject matter of this ruling was initiated without due process. This Court has no jurisdiction to entertain the said motion. The applicants’ motion on notice dated the 3rd day of December, 2010 and filed on the same day by Messrs Kanmi Ajibola, Salihu Aliyu and Sumbo Afolabi is hereby struck out.
The sum of N20,000.00 is hereby awarded as costs against Hon. Kanmi Ajibola, Salihu Aliyu, Esq. and Sumbo Afolabi, Esq. jointly and/or severally in favour of the appellant/respondent.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read before now the ruling of my learned brother Adumein, JCA just delivered. I agree with the reasoning and conclusion therein.
By a motion dated and filed on 3/12/2010, three legal practitioners, namely Hon. Kanmi Ajibola, Salihu Aliyu Esq. and Sumbo Afolabi Esq. of St. Sunnimicks Chambers sought the following order:
“An order of this Honourable Court striking out this Appeal, that is Appeal No. CA/I/223/2003, filed against the judgment of the Ilesa High Court, delivered on the 27th day of March, 1997 off the hearing list of the Court of Appeal,”
The grounds for the application are:
1. “The 2nd Respondent who was a necessary party to this Appeal is dead.
2. The Appellant won all his claims against the 1st Respondent/Applicant at the Ilesa High Court of Osun State in this case,
3. The Appellant lost all his claims against the 2nd Respondent at Ilesa High Court of Osun State in this case.
4. The Appellant filed this appeal to challenge the holdings of the Ilesa High Court in favour of the 2nd Respondent only.
5. The 1st Respondent did not Cross-Appeal against the holdings of the Ilesa High Court in favour of the Appellant.
6. The cause of action appealed against does not survive the 2nd Respondent in this Appeal,”
The application is supported by a 25 paragraph affidavit deposed to by one Alaba Akinlami, Litigation Manager in St, Sunnimicks Chambers, Solicitors to the Respondents/Applicants.
The Appellant/Respondent strongly opposed the application on the ground that the three learned counsel who filed same are interlopers and strangers to the appeal. Of particular relevance to this contention are the averments in paragraphs 2, 4, 5, 6, 7, 13 and 14 of the Appellant’s “protest/conditional counter-affidavit to two numbers motion on notice dated and filed 3rd December, 2010 respectively by Kanmi Ajibola Esq., Salihu Aliyu, Sumbo Afolabi Esq. which are reproduced hereunder:
2. “That Hon. Kanmi Ajibola Esq., Salihu Aliyu Esq., Sumbo Afolabi Esq. who named themselves as counsels on this application dated and filed on 3/12/2010 are reckless IMPOSTORS, AND JUSTICE PERVERSION CONFUSIONISTS who are on their own REPRESENTING NONE OF THE RESPONDENTS to this Appeal. BUT simply file the frivolous Applications to cause perversion of justice and TO CAUSE DELAY OF THE TRIAL.
4. That A. O. Bada Esq. of counsel ONLY to the late 2nd Respondent has not informed this Hon. Court of his withdrawal from the case and or having transferred the case file to Hon. Kanmi Aiibola, Salihu Aliyu and Sumbo Afolabi; And that he cannot unilaterally transfer the case file to another counsel without properly coming before this Hon. Court to do so.
5. That it will be discovered from all the Records of this Hon. Court that the 1st Respondent has never shown any interest in this Appeal and was never represented by any counsel to date.
6. That the Records of Appeal was forwarded by High Court of Justice Ilesa on 17th June, 2003 to Chief S. O. Aoko, the 1st Defendant counsel who returned it back to the court that the 1st Respondent was not interested pursuing the Appeal. Copy of High Court of Justice, Ilesa letter dated 17th June, 2003 forwarding the Records of Appeal to Chief S.O. Aoko is hereby annexed and marked as EXHIBIT OA 1. 7. That E. Adeyeye Adelekun Esq. was the initial counsel to the late Chief Sunday Taiye Adeniyi, the 2nd Respondent.
13. That it will be totally illogical and impossible for A.O. Bada Esq. to have therefore filed Joint Brief for the 1st and 2nd Respondents.
14. That on very close observation, a pertinent FACT to this case will be discovered of A. O. Bada having signed for the 2nd Defendant ONLY in the 1st and 2nd RESPONDENTS BRIEF OF ARGUMENT.”
In paragraphs 8 – 12 of the Counter Affidavit, the Appellant referred to various processes prepared on behalf of the 2nd Respondent and served on the Appellant and 1st Respondent respectively to show that the 1st and 2nd Respondents had always been represented by separate counsel.
The Appellant, a layman, argued the application personally. With the leave of court at the hearing of application, Mr. Olakanmi Ogunyemi addressed the court on the Appellant’s behalf as amicus curiae.
The allegations made in the Appellants’ Counter Affidavit are very grave and constitute a serious attack on the integrity and professional ethics of the three learned counsel.
So grave are the allegations that one would have expected the learned counsel to be anxious to clear their names by filing a further affidavit to refute them. They did not do so. The effect of failure to deny the averment is that they are deemed admitted.
At the hearing of the application, Mr. Afolabi merely moved the application without more. He did not address any of the allegations. A careful examination of the various processes filed in this appeal, some of which are attached to the counter affidavit as exhibits show clearly that the 2nd Respondent was initially represented by E. Adeleye Adelekun Esq. and later by A. O. Bada Esq. The 1st Respondent was always served with processes independently of the 2nd Respondent.
The averment in paragraph 6 of the counter affidavit that Chief S. O. Aoko, learned counsel for the 1st Respondent returned the Record of Appeal to the Registry of this court on the ground that the 1st Respondent was not interested in pursuing the appeal is also uncontroverted.
The Brief of Argument annexed to the counter-affidavit and marked Exhibit OA 7 was clearly prepared by A. O. Bada Esq. on behalf of the 2nd Respondent alone. The addition of “1st and” on the document was clearly super imposed thereon.
The 2nd Respondent is said to be deceased. On whose behalf then was the application filed? The answer cannot be found on the face of the motion paper because learned counsel cleverly omitted to state that fact.
The effect of all these observations is that the three learned counsel who filed this application have no business with this appeal. They are busy bodies, meddlesome interlopers out to pervert the course of justice.
The action of learned counsel must be condemned and is hereby condemned in the strongest terms. The legal profession is an honourable and noble one. As officers in the hallowed temple of justice, it is the duty of counsel to conduct their affairs with integrity and in the best traditions of the Bar. Their role is to assist the court in reaching a just resolution of any matter before it. The three learned counsel who filed this application have failed woefully in this regard. The filing of this application is clearly an abuse of process. It is hereby struck out. I abide by the order on costs.
CHINWE E. IYIZOBA, (J.C.A.): I read before now the ruling just delivered by my learned brother, Moore A.A. Adumein JCA. It is comprehensive and he has said all that needs to be said in this unfortunate motion where the three counsels have put their integrity to question. I agree entirely with the ruling. I have nothing more to add. I abide by the order as to costs.
Appearances
Olasumbo Afolabi, Esq.
Amicus Curiae:
Olakanmi Ogunyemi, Esq. For Appellant
AND
For Respondent
