MAINSTREET BANK LTD. v. EDDY MOTORS NIGERIA LTD.
(2013)LCN/5851(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of January, 2013
CA/E/234/98
RATIO
LEGAL PRACTITIONER: WHAT IS THE AUTHORITY OF A LEGAL COUNSEL IN COURT
“The law in my considered view is settled concerning courts vis-a-vis authority of counsel. The position of the law in this regard is that once a counsel appears in court in a case and announces his appearance, the court assumes that he has the authority of his client to conduct the case and is not under any duty to investigate or conduct an inquiry into his authority. It is also trite that once a counsel is instructed, and announces his appearance, it raises a presumption of his authority and he assumes full control of the conduct of the client’s case. See FEDERAL REPUBLIC OF NIGERIA v. ADEWUNMI [2007] All FWLR (Pt. 368) 978 at 999: COMMISSIONER OF POLICE v. AYI [2005] All FWLR (pt. 286) 679 (in which the cases of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Adewunmi v. Plastex (Nig.) Ltd. (1986) 3 NWLR (Pt. 32) 767 were applied; and ADEKANYE v. FEDERAL REPUBLIC OF NIGERIA [2005] All FWLR (Pt. 252) 514.” Per LOKULO-SODIPE, J.C.A.
LEGAL PRACTITIONER: WHETHER IT IS WITHIN THE COUNSELS AUTHORITY TO ABANDON COMPROMISE OR WITHDRAW A CASE
“It is also the law that it is within counsel’s general instruction for the conduct of the case to decide to compromise, withdraw, and abandon the case amongst others. See the cases of AMORI v. IYANDA [2008] All FWLR (Pt. 416) 1864 at 1886-1888; and NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR v. IBI [2009] All FWLR (Pt. 456) 1870 at 1888.” Per LOKULO-SODIPE, J.C.A.
APPEAL: NOTICE OF APPEAL: FUNCTION OF A NOTICE OF APPEAL
“The law is trite that a Notice of Appeal is the initiating process of an appeal.” Per LOKULO-SODIPE, J.C.A.
LEGAL PRACTITIONER: WHETHER A LAWYER WHO PROCURES ANOTHER LAWYER TO ACT FOR HIM NEEDS THE CONSENT OF THE CLIENT TO ACT
“It is clear from the depositions in the supporting affidavit that it was upon the advice of a lawyer that the Applicant brought the instant application in which Miss Echetebu has been portrayed as having acted in the Applicant’s matter without the authority and consent of the said Applicant. Whichever counsel that advised the Applicant would also appear to have portrayed to the Applicant that the position of the law is that where a party has retained a particular counsel, before any other counsel can appear in that case, the said counsel must equally procure the authority of the party. This is most unfortunate in the light of Rule 14(4) of the Rules of Professional Conduct for Legal Practitioners (S. I. No.6 of 2007) which enjoins a lawyer employed in respect of a court case to be personally present or to be properly represented throughout the proceedings in court. Surely the Rules of Professional Practice do not require a lawyer procured by another lawyer to handle a matter for him or on his behalf in court, to first procure the consent or authority of the client, before he handles any such matter.” Per LOKULO-SODIPE, J.C.A.
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MAINSTREET BANK LTD.
(FORMERLY AFRIBANK NIGERIA PLC) Appellant(s)
AND
EDDY MOTORS NIGERIA LTD. Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling): The party before the court which has described itself as appellant/applicant (but which will hereafter be simply referred to “the applicant”) brought the instant motion dated 21/3/2012 and filed on the same date, under Order 7 Rules 1, 8 & 11 of the Court of Appeal Rules 2011; Section (sic) 6(6)(b) and 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 64 of the Evidence Act, 2011 ; and under the Inherent Jurisdiction of the Court of Appeal. The reliefs which the Applicant seeks in the motion (supra) as set out therein are:-
“(1) AN ORDER setting aside the entire proceedings in Appeal No.CA/E/234M/98 dated 30th day of September, 2002 – “the oral withdrawal of the said appeal (duly entered on 25th day of November 1998): and the dismissal of same, with a cost of N1000, by the Court of Appeal.
(2) AN ORDER restoring Appeal No.CA/E/234/93 on the cause list of the Honourable Court of Appeal, to be dealt with on the merit.
(3) AN ORDER nullifying all acts done regarding the ‘RES’ in, Suit No.O/704/97 Appeal No.CA/E/234/98 (that is); the purported Sale/Execution of property belonging to the Appellant/Applicant in the hands of the Respondent, which was held as security for bank overdraft the subject matter in Appeal No.CA/E/234/98; arising from Suit No.O/704/97.
(4) AN ORDER directing that the Appellant/Applicant be forthwith reinstated/put in immediate possession or occupancy of the said property/assets.
(5) AN ORDER directing the Deputy Chief Registrar of the Court of Appeal, Enugu to take step by writing to the Nigeria Police Force, to wit: Commissioner of Police, Nigerian (sic) Police Force, Enugu Police Command; to enforce the directing Order relief (4) above:”
The grounds of the application as set out in the motion (supra) are: –
“A. The judgment of the Court of Appeal in appeal No.CA/E/234/98 dated the 30th day of September, 2002 is a NULLITY. Specific particulars.
(i) The Appellant’s Notice of Appeal in Suit No.O/704/97 dated and filed on 10/7/98 was prepared and signed by Appellant’s Legal representative one Chief J. N. EJIKEME of Counsel PP: Chief J. N. EJIKEME & Co (Enujeke Chambers) 9, Ozala Road, Onitsha.
See: EXHIBIT ‘A’ attached.
(ii) The Appellant’s legal representative in Suit No.O/704/97 that settled and prepared the Notice of Appeal is Chief J. N. EJIKEME of Counsel, and the Appellant never changed its Counsel to one MISS ECHETEBU ESQ., who appeared on the proceeding dated 30/9/2002, purportedly acting on behalf of the Appellant, and erroneous, misrepresenting the Appellant, by an oral application made to the Court of Appeal withdrawing the appeal.
See: EXHIBIT ‘B’; Certified True Copy of the proceeding in Appeal No.CA/E/234/98, dated 30/9/2002.
(iii) Both the Civil FORM 8 (Certificate of Service of Notice of Appeal on AFRIBANK NIGERIA PLC, the Respondent); and the CIVIL FORM 9 (the certification that the Appellant duly and punctually complied with the conditions of appeal imposed) were issued on 12/11/98.
See: EXHIBIT ‘C’ attached.
(iv) The Appellant’s Appeal No.CA/E/234/98 was duly entered on 25/11/98.
(v) The Drawn-up Order in appeal No.CA/E/234/98, dated 30/9/202 is marked EXHIBIT ‘D’ attached.
(vi) The Order of the Honourable Court of Appeal in appeal No.CA/E/234/98 violated the statutory provision that must be satisfied, as a condition precedent to WITHDRAWAL OF AN APPEAL by virtue of Order 3 Rule 18(1) Court of Appeal Rules 2002.
The law is trite that the withdrawal of a pending appeal or suit must be done on Notice/Writing.
B. The void and null decision of the Honourable Court of Appeal in appeal No.CA/E/234/98, dated 30/9/2002, represented in EXHIBIT ‘C’ being a null decision/order cannot confer any right to the RES in this appeal on the RESPONDENT.
C. The Court of Appeal has the jurisdiction to set aside its null decision dated 30/9/2002, in appeal No.CA/E/234/98, having due regards to the purported withdrawal of the appeal in purview of the Supreme Court decision, in TOMTEC NIGERIA LIMITED v. F.H.A. (2009) 18 NWLR (part. 1173) 358.”
The Applicant also stated in the motion paper thus: –
“NOTICE IS HEREBY GIVEN that at the hearing of this application for setting aside the Judgment/Order in appeal No.CA/E/234/98; the Appellant/Applicant shall place reliance on the RECORD OF APPEAL duly entered at the Registry of the Court on 25/11/98.”
The Court entertained the motion (supra) when it came up on 27/11/2012 as there was proof of service of the motion and of the hearing date of the said motion on the respondent therein, i.e. Mainstreet Bank Ltd. In moving the motion, Chiobi Ekpechi, learned counsel for the applicant relied on the supporting affidavit of the said motion, the exhibits attached thereto as well as all the cases cited in the Schedule of decided cases also attached to the said motion. Learned counsel further cited the case of Ede v. Uba (2011) 11 NWLR (Pt. 1278) in urging the Court to grant the reliefs sought in the motion.
In the supporting affidavit of the motion the deponent – Chief Eddy Offomah having described himself as the Managing Director of the Applicant, and that he was mandated at the general meeting of the applicant held on 10/10/2011, to depose to the affidavit in question, further disclosed that he was very conversant with the facts of this case which originated from Suit No.O/704/97 decided in favour of the respondent by the Anambra State High Court in its judgment delivered on 29/4/1998. The deponent having deposed in paragraph 4 of the affidavit in question as follows:-
“That we became aware of the Order of this Honourable Court in appeal No.CA/E/234/98 dated 30/9/2002, only in July, 2011, and not being knowledgeable in Law, we consulted a lawyer who was able to convey the implication of the order, which was obtained against the Appellant/Applicant without our knowledge and consent as the lawyer one MISS ECHETEBU of counsel, had never represented the Appellant neither was she briefed by the Company. And I know as a fact that not being our legal representative, she acted without our permission, these are verily well known to me.”
went on to incorporate the grounds of the application hereinbefore reproduced as depositions in the affidavit in support of the motion. In the penultimate paragraph of the supporting affidavit, the deponent again expressed his belief that the oral application to withdraw Appeal No.CA/E/234/98 was not done with any authority or consent of the Applicant.
It is no doubt undisputable that on the face of Exhibit ‘A’ attached to the supporting affidavit of the motion (supra), that the Applicant appealed against the judgment delivered on the 29th day of April, 1988 by the Anambra State High Court presided over by C. E. Iyizoba J, (as he then was) in Suit No.O/704/97 and that the Notice of Appeal in that regard filed on 10/7/98, was signed by one Chief J. N. Ejimeke of Chief J. N. Ejimeke & Co. (Underlining supplied by me). In other words, the judgment appealed against by the Applicant is that delivered on 29/4/1988, by the Anambra State High Court in Suit No.O/704/97 – AFRIBANK NIGERIA PLC v. EDDY MOTORS NICORS NIG. It therefore requires no complicated thought process to infer that Exhibit ‘C’ attached to the supporting affidavit of the motion (supra) relates to the appeal lodged by Exhibit ‘A’. This is so despite the fact that the Parties in Exhibit ‘C’ now read “ARIBANK NIGERIA PLC” and “EDDY MOTORS NIGERIA LTD” respectively. It would appear that as at 30/9/2002 when the appeal lodged by the Applicant against the judgment delivered on 29/4/1988 by the Anambra State High Court came up, the appeal had acquired an appeal number namely, CA/E/234M/98 and later CA/E/234/98 having regard to Exhibit ‘D’ attached to the motion (supra) (underlining provided by me). It was this appeal (i.e. Appeal No.CA/E/234M/98 and/or CA/E/234/98) lodged against the judgment delivered on 29/4/1988 in Suit No.O/704/97 by the Anambra State High Court that learned counsel for the Applicant Miss C. C. Echetebu on 30/9/2002 applied to withdraw and which was consequently dismissed by the Court, the application for withdrawal having not been opposed.
It is most glaringly from the deposition in paragraph 4 of the supporting affidavit of the motion (supra) that Appeal No.CA/E/234/98 which the Applicant is seeking for its restoration amongst others, relates to the judgment delivered on 29/4/1998 by the High Court of Anambra State and which appeal was initiated by a Notice of Appeal filed and signed by Chief J. N. Ejikeme. Exhibit ‘A’ relied upon by the Applicant has however glaringly shown that the fact of any appeal having been lodged by Chief Ejikeme against any judgment delivered on 29/4/1998 in any case involving it and the Respondent must reside only in the imagination of the Appellant as it is in respect of a judgment delivered on 29/4/1988 in a case involving the Applicant and the Respondent that Chief J. N. Ejikeme lodged and filed Exhibit ‘A’. The law is trite that a Notice of Appeal is the initiating process of an appeal. Therefore Exhibit ‘A’ being in respect of a judgment delivered on 29/4/1988, an appeal predicated on such a Notice of Appeal and which was withdrawn rightly or wrongly and consequently dismissed by the Court cannot in my considered view be used to resuscitate an appeal in respect of a judgment delivered on 29/4/1998 in as much as there had never been any such appeal against the said judgment in the first place.
The Applicant has forcefully depicted a situation that the learned counsel who applied to this Court to withdraw the appeal it now seeks to restore amongst others, did not have its authority or consent in that regard and that the application for withdrawal in any case was done orally instead of doing so on notice or in writing.
The law in my considered view is settled concerning courts vis-a-vis authority of counsel. The position of the law in this regard is that once a counsel appears in court in a case and announces his appearance, the court assumes that he has the authority of his client to conduct the case and is not under any duty to investigate or conduct an inquiry into his authority. It is also trite that once a counsel is instructed, and announces his appearance, it raises a presumption of his authority and he assumes full control of the conduct of the client’s case. See FEDERAL REPUBLIC OF NIGERIA v. ADEWUNMI [2007] All FWLR (Pt. 368) 978 at 999: COMMISSIONER OF POLICE v. AYI [2005] All FWLR (pt. 286) 679 (in which the cases of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Adewunmi v. Plastex (Nig.) Ltd. (1986) 3 NWLR (Pt. 32) 767 were applied; and ADEKANYE v. FEDERAL REPUBLIC OF NIGERIA [2005] All FWLR (Pt. 252) 514. It is also the law that it is within counsel’s general instruction for the conduct of the case to decide to compromise, withdraw, and abandon the case amongst others. See the cases of AMORI v. IYANDA [2008] All FWLR (Pt. 416) 1864 at 1886-1888; and NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR v. IBI [2009] All FWLR (Pt. 456) 1870 at 1888.
It is clear from the depositions in the supporting affidavit that it was upon the advice of a lawyer that the Applicant brought the instant application in which Miss Echetebu has been portrayed as having acted in the Applicant’s matter without the authority and consent of the said Applicant. Whichever counsel that advised the Applicant would also appear to have portrayed to the Applicant that the position of the law is that where a party has retained a particular counsel, before any other counsel can appear in that case, the said counsel must equally procure the authority of the party. This is most unfortunate in the light of Rule 14(4) of the Rules of Professional Conduct for Legal Practitioners (S. I. No.6 of 2007) which enjoins a lawyer employed in respect of a court case to be personally present or to be properly represented throughout the proceedings in court. Surely the Rules of Professional Practice do not require a lawyer procured by another lawyer to handle a matter for him or on his behalf in court, to first procure the consent or authority of the client, before he handles any such matter. The unfortunate scenario in the instant matter does not end at this. This is because I simply do not see how the Applicant could expect a court of law and justice, to act upon the ipse dixit of the deponent to the supporting affidavit without making Miss Echetebu aware of the allegations made against her and/or even exhibiting to the motion (supra) an affidavit from Chief J.N. Ejikeme to the effect that it was not at his instant that Miss Echetebu was instructed to go and withdraw the appeal initiated by the Notice of Appeal which he filed and signed (i.e. Exhibit ‘A’) having realised that it was seriously flawed or defective as the judgment he disclosed himself to have appealed against in Exhibit ‘A’ is glaringly different from the a judgment delivered on 29/4/1998 by the High Court of Anambra State.
From all that has been said, the reliance by the Applicant on the alleged lack of authority on its part before Miss Echetebu appeared before this Court to withdraw the appeal initiated by Exhibit ‘A’ against the judgment delivered on 29/4/1988 in Suit No.O/704/97 is in my considered view an assault or onslaught on the sensibilities or awareness of this Court in relation to “courts vis-a-vis authority of counsel”. The bottom line from all that has been said above, is that the Applicant has woefully failed to show that Miss Echetebu in withdrawing the appeal predicated on the Notice of Appeal filed and signed by Chief J. N. Ejikeme was an interloper or persona non grata in the matter.
The allegation that the withdrawal was wrongfully done orally needs no serious consideration given the failure of the Applicant to establish at all, that Miss Echetebu had no authority to have appeared in the matter in the first place. This is because the settled position of the law is that a party who had acquiesced to a wrongful procedure in a matter cannot later on complain about the adoption of that procedure by the court. This position of the law is always invoked against the adversary of the party which called the wrong procedure into play. Against the backdrop of the position of the law as stated hereinbefore, it simply becomes weird or strange when it is the very party that brought or called the alleged wrong procedure into play as in the instant case, the Applicant; that is now complaining about the procedure. This situation is most incomprehensible and totally beats me hollow.
In the final analysis, I not only find the instant motion to have been seriously misconceived but that it even indicts the prowess or expertise of learned counsel for the Applicant. It is a total waste of the precious time of the Court and little wander; the Respondent did not consider it worthwhile to respond in any manner to the motion.
The motion dated 21/3/2012 and filed on the same date is hereby dismissed.
JOHN INYANG OKORO, J.C.A.: I had the advantage of reading in advance the Ruling of my learned brother Ayobode Olujimi Lokulo-Sodipe, J.C.A. just delivered. I agree completely with him that this application has no merit at all and is also dismissed by me. I abide by the order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, AYOBODE O. LOKULO-SODIPE J.C.A. gave me the privilege of reading the draft of the lead judgment just delivered. I fully agree with the reasoning of my learned brother and the conclusion that the application has been misconceived and it is dismissed by me.
Appearances
Chiobi Ekpechi with O. Nzemadu (Mrs.)For Appellant
AND
For Respondent
