MR. YEKINI ADEDOKUN OYEDARE (MOGAJI) & ORS v. AKIN OLAYIWOLA
(2012)LCN/5388(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of May, 2012
CA/I/112/2009
RATIO
ACTION: TESTS IN DETERMINING LOCUS STANDI
On the test to be applied in determining locus standi, the courts would apply the “interest” and “injury” tests in determining whether a Plaintiff has locus standi to institute an action against a Defendant as shown in the case of OLAWOYIN VS. ATTORNEY GENERAL OF NORTHERN NIGERIA (1961) 2 SCNLR Page 5. The same test was applied by the court in GANIOBA & ORS VS. ESEGI II & ORS (1961) ANLR, Page 608 at 613 where Brett FJ as he then was said:
“There is a further test to be applied in a case such as this one. It is always necessary where the Plaintiff claims a declaration that a law is invalid, that the court should be satisfied that the Plaintiff’s legal rights have been or are in imminent danger of being invaded in consequence of the law. We dealt with this point at length in OLAWOYIN VS. ATTORNEY GENERAL NORTHERN REGION (1961) ALL NLR AT 296 and it will be enough to say here that since the validity of a law is a matter of concern to the public at large, the court has a duty to form its own judgment as to the Plaintiff’s locus standi and should not assume it merely because the defendant admits it or does not dispute it. The Plaintiff’s locus standi in the present case has not yet been disclosed and if he has none, his claim must be dismissed on that ground and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also it is not yet clear that the question set out in Counsel’s application arisen.” PER MODUPE FASANMI, J.C.A.
JURISDICTION: WHO HAS THE LOCUS STANDI TO INVOKE THE JURISDICTION OF THE COURT TO RESTRAIN A COUNSEL FROM CARRYING OUT HIS DUTY
The pertinent question at this juncture is who has the locus standi to invoke the jurisdiction of the court to restrain a Counsel from carrying out his duty. The answer was supplied by the Supreme Court in ONIGBONGBO COMMUNITY VS. MINISTER OF LAGOS AFFAIRS (1971) N.S.C.C, Page 136 at 139 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.”
See also ANATOGUN VS. IWEKA (1995) 8 NWLR Part 415 page 414. The Apex Court in the report had stated the rationale for the rule thus:
“It is of course clear that every case must be considered on it own facts. There are, however, broader principles which the courts must observe in cases of this kind. On the one hand, the courts are not to prevent litigants from employing the services of Counsel of their own choice; on the other hand, a person must not be allowed to employ the service of Counsel, nor should Counsel accept a brief where it is clear that the service to be rendered flow out of or are closely connected with the previous service he had rendered to the opposing side. See LITTLE VS. KINGSWOOD COLLIERIES CO. (1882) 20 CH.D 733, 51, LJ CH. 498.”
From the above authorities, it follows therefore that for a litigant to possess the locus standi to invoke the jurisdiction of the court to restrain the other party’s Counsel from acting for that other party, he must convince the court that:
(a) the said legal practitioner was once his own counsel who had acted for him at the earlier stage of the case;
(b) that the service rendered was in respect of the same subject matter;
(c) that as a result of so acting, the legal practitioner had acquired some particular information which would be prejudicial if communicated to the new client;
(d) the legal practitioner owes a duty to the former client. PER MODUPE FASANMI, J.C.A.
JURISDICTION: PURPOSE OF JURISDICTION
See the case of OKOLO VS. UNION BANK OF NIGERIA LTD. (2004) 3 NWLR. Part 859 Page 87 where the Supreme Court at page 93 had this to say:
“Jurisdiction is the pillar upon which the entire case before a court stands. Filing an action in a court of law presupposes that the court has jurisdiction. But once the defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but it is entirely broken. In effect there is no case before the court for adjudication and therefore parties cannot be heard on the merits of the case.”
The absence of jurisdiction renders the entire foundation of a case not only shaken but completely broken. You cannot put something on nothing and expect it to stand. see MACFOY vs. U.A.C LTD. (1962) A. C. Page 152 at 160.
Where there is no foundation, there can be no construction. In the absence of jurisdiction the entire application at the lower court lacks the pillar upon which to stand. PER MODUPE FASANMI, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
(1) MR. YEKINI ADEDOKUN OYEDARE (MOGAJI)
(2) MR. LADITI AJANI
(3) MR. LAJIRE ADEDIRAN
(4) MR. LASISI ADESOKAN
(5) MR. DAUDA ADEPOJU
(6) MR. RAIMI YESUFU
(7) MADAM SILIFATU KAREEM
(For themselves and on behalf of other Members of Apete Family)
(8) PASTOR DADA ADENIYI Appellant(s)
AND
AKIN OLAYIWOLA Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of an Oyo State High Court sitting in Ibadan delivered on the l8th of July 2008.
The Respondent was the Plaintiff in the lower court where his claims against the Appellants as endorsed on his Writ of Summons were:
(1) Declaration that the purported execution of Judgment in suit I/467/84 on any of the Plaintiff parcel of land delineated and bounded by Survey pillars numbers YADV850, YADV851, YADV852, YADV853, YADV854, YADV855, YADV856, YADV857, YADL5860, YA6210, YADV858, YADV859, YADV86O, YADV849 and YADV861 shown on Plan No. MAM/OY/97/119 of 24th October 1997 situate lying and being at Ayinde Village, Kolomi Area, Liberty Academy via Odo-Ona Elewe, Ibadan is illegal, unjustifiable, unlawful, null and void;
(2) The sum of One Million Naira being special and general damages for trespass committed by the Defendants on the Plaintiff’s said land;
(3) An Order of perpetual injunctions restraining the Defendants from further entering into the Plaintiff’s land as delineated Survey Plan No.MAM/OY/97/119 personally by their agents, servants, privies or any one claiming through them with a view to or purported view to executing the judgment in suit no.I/467/84 or in any suit or for any purpose whatsoever.
All the Court processes filed were duly served on the Defendants who are now Appellants before this court. The Appellants entered joint appearance through Barrister Oluwole Aina. When the memorandum of appearance was served on the Respondent, he caused to be filed a motion dated 3rd April 2008 seeking an Order of Court restraining Barrister Oluwole Aina from appearing or taking up the defence for the Appellants in this matter. The Respondent attached six (6) exhibits numbered 1, 2, 2A, 3, 4 and 5 respectively.
In opposition to the Respondent’s motion, the Appellants filed a counter affidavit of 20 paragraphs sworn to by the 5th Appellant. The motion seeking to restrain Barrister Aina was heard on 13th May 2008 and ruling was delivered on 18th July 2008. The lower court found for the Respondent and restrained the Counsel to the Appellants from handling the matter at the lower court. Appellants being dissatisfied with the ruling appealed to this court by a notice of appeal dated 31st July 2008. In compliance with the rules of this court, Appellants filed their brief of argument on the 12th of June 2009 but was deemed properly filed and served on the 17th of June 2009. Respondent filed his brief of argument on the 15th of July 2009. Appellants’ reply brief was filed on 30th of July 2009. Appellants distilled four issues for determination from the six grounds of appeal filed as follows:
(1) Whether the learned trial Judge had jurisdiction to entertain the application and give ruling thereon, when the applicant possessed no locus standi to bring the application seeking to restrain an adversary’s legal practitioner from appearing for the adversary;
(2) Whether having regard to the totality of the affidavit evidence which the learned trial judge failed to evaluate and use, the decision of the learned trial Judge complained of is not against the weight of evidence;
(3) Whether the learned trial Judge did not misdirect himself in law when he relied on Rules 20 and 21 RPC 2007 to restrain a Counsel from doing his job when the rules are either inapplicable or the conditions precedent to the applicability of the Rules have not occurred or been fulfilled;
(4) Whether the learned trial Judge was right to overlook the Constitutional provisions of fair hearing that gives the right of choice of Counsel to a litigant, when he restrained the Appellants’ Counsel from appearing but allowed the Respondent to retain a Counsel of his own choice to present his case.
On his part, the Respondent distilled four issues for determination as follows:
(1) Whether the material facts placed before the court was sufficient to sustain the grant of the restraining order sought;
(2) Whether or not the Plaintiff/Respondent in this appeal possesses the requisite locus standi to apply for and the court jurisdiction to entertain and grant the Plaintiff’s prayer;
(3) Whether the order restraining the appearance of a particular Counsel for a party amounts to a breach of such party’s right to fair hearing;
(4) Whether or not time was ripe for the application for the grant of a restraining order when both were made.
I consider the issues formulated by the Appellants to be more appropriate in deciding this appeal. The issues formulated by Respondent are therefore subsumed in the Appellants issues.
ISSUE ONE
Whether the learned trial Judge had jurisdiction to entertain the application and give ruling thereon, when the applicant possessed no locus standi to bring the application seeking to restrain an adversary’s legal practitioner from appearing for the adversary.
Learned Counsel for the Appellants submitted that the Respondent has no locus standi to apply to restrain the Counsel of his adversary. He argued that Respondent has never been client to the Appellants’ Counsel in respect of this matter and therefore there is no likelihood of divulging confidential matters of former client to present client. Reliance was placed on the cases of IKPANA VS. REGISTERED TRUSTEES PCN (2006) ALL FWLR, Part 310 at 1703 and ONYEKE VS. HARRIDEM (NIG.) LTD. (1998) 7 NWLR Part 556 Page 64 at 72 where this court per Akpabio J.C.A. stated thus:
“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 one party say the Plaintiff at the early stages of a transaction and then turning round at a later stage of the same transaction to appear or act for his opponent. But where the transactions are different, the court will not restrain a Counsel from changing sides. For instance in the case of LAGRICOM CO. LTD. vs. U.B.N. LTD, (1996) 4 NWLR part 441 at 185 C.A. Chief Rotimi Williams was the Counsel for U.B.N. Ltd as Defendant, but in another case i.e. UNION BANK OF NIGERIA PLC VS. SPARKLING BREWERIES LTD (1997) 3 NWLR Part 491 Page 29 C. A. The same Chief Rotimi Williams Chambers (ably represented by Ifeanyi Nweze) turned round to represent SPARKLING BREWERIES against the Ughelli Branch of the same bank U.B.N. Plc. The court could not restrain Chief Rotimi Williams or his Chambers from acting against Union Bank in the later case simply because he had acted for the said Bank in the earlier case because the transactions were different and involved different sums of money at different branches of the bank in different towns.”
Submitted further that there is no dispute that the Respondent was a friend of Lawyer Aina and he introduced the lawyer to the Appellants when they were desirous of appealing to the Supreme Court. This was the ground upon which the Respondent predicated his application to court to restrain Aina from appearing for the Appellants. The Respondent having failed to disclose his locus standi in seeking this restraining order on his adversaries’ Counsel, the learned trial Judge acted without jurisdiction by entertaining his application and ultimately granting his request. Learned Counsel for the Appellants urged the court to resolve this issue in favour of the Appellants.
Learned Counsel for the Respondent in reply submitted that the locus of the Respondent is determinable from the totality of all the averment in his Statement of Claim. Here, it is the affidavit in support of the application together with the exhibits attached and not part thereof since it is the Statement of Claim that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed sufficient legal interest and how such interest has arisen in the subject matter. He relied on the cases of OWODUNNI VS. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2001) 10 NWLR Part 675 at 315 and AROWOLO V. AKAPO (2003) 8 NWLR Part 823 at 457.
Submitted further that in the affidavit in support of this application to restrain the Appellants, Respondent claimed to have bought the land in dispute from the Appellants and was driven out when the Appellants were driven out, was restored to possession when the Appellants were restored to the land by the leave to appeal and stay of execution granted by the Supreme Court. The fact that a person may not succeed in an action does not have anything to do with whether or not he has a standing to sue.
As to how the situation has adversely affected him i.e. the Respondent, Learned Counsel for the Respondent submitted that by the provisions of the Rules of Professional Practice (sic conduct) in the Legal profession 2007, Respondent as a client has a right defined and protected under the law and by implication can sustain an action. He contended that there is no hard and fast rule as to the criteria to be met by the Respondent before he is said to have locus standi. He urged the court not to give an unduly restrictive interpretation to the expression “locus standi”. Learned Counsel referred to the case of ELEDU VS. OKWDABA (1995) 3 NWLR, Part 356 Page 709 at 737. In view of the facts contained in the affidavit evidence, the decided authorities and the provisions of the Rules of Professional Practice Conduct in the Legal Profession, Learned Counsel urged the court to hold that the Respondent has disclosed his locus standi and further urged that issue one should be resolved against the Appellants.
On the test to be applied in determining locus standi, the courts would apply the “interest” and “injury” tests in determining whether a Plaintiff has locus standi to institute an action against a Defendant as shown in the case of OLAWOYIN VS. ATTORNEY GENERAL OF NORTHERN NIGERIA (1961) 2 SCNLR Page 5. The same test was applied by the court in GANIOBA & ORS VS. ESEGI II & ORS (1961) ANLR, Page 608 at 613 where Brett FJ as he then was said:
“There is a further test to be applied in a case such as this one. It is always necessary where the Plaintiff claims a declaration that a law is invalid, that the court should be satisfied that the Plaintiff’s legal rights have been or are in imminent danger of being invaded in consequence of the law. We dealt with this point at length in OLAWOYIN VS. ATTORNEY GENERAL NORTHERN REGION (1961) ALL NLR AT 296 and it will be enough to say here that since the validity of a law is a matter of concern to the public at large, the court has a duty to form its own judgment as to the Plaintiff’s locus standi and should not assume it merely because the defendant admits it or does not dispute it. The Plaintiff’s locus standi in the present case has not yet been disclosed and if he has none, his claim must be dismissed on that ground and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also it is not yet clear that the question set out in Counsel’s application arisen.”
The pertinent question at this juncture is who has the locus standi to invoke the jurisdiction of the court to restrain a Counsel from carrying out his duty. The answer was supplied by the Supreme Court in ONIGBONGBO COMMUNITY VS. MINISTER OF LAGOS AFFAIRS (1971) N.S.C.C, Page 136 at 139 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.”
See also ANATOGUN VS. IWEKA (1995) 8 NWLR Part 415 page 414. The Apex Court in the report had stated the rationale for the rule thus:
“It is of course clear that every case must be considered on it own facts. There are, however, broader principles which the courts must observe in cases of this kind. On the one hand, the courts are not to prevent litigants from employing the services of Counsel of their own choice; on the other hand, a person must not be allowed to employ the service of Counsel, nor should Counsel accept a brief where it is clear that the service to be rendered flow out of or are closely connected with the previous service he had rendered to the opposing side. See LITTLE VS. KINGSWOOD COLLIERIES CO. (1882) 20 CH.D 733, 51, LJ CH. 498.”
From the above authorities, it follows therefore that for a litigant to possess the locus standi to invoke the jurisdiction of the court to restrain the other party’s Counsel from acting for that other party, he must convince the court that:
(a) the said legal practitioner was once his own counsel who had acted for him at the earlier stage of the case;
(b) that the service rendered was in respect of the same subject matter;
(c) that as a result of so acting, the legal practitioner had acquired some particular information which would be prejudicial if communicated to the new client;
(d) the legal practitioner owes a duty to the former client.The ground upon which the Respondent predicated his application to restrain Appellants’ Counsel from appearing for them is clearly brought out in paragraph 4 of his affidavit at page 49 of the record thus:
“That I am opposed to the appearance of Lawyer Oluwole Aina for the Defendants because he had acted for both of us (i.e. defendants and myself) jointly on the land as I was the intermediary between himself and the defendants.”
The above paragraph and other paragraphs in the affidavit in support of the application to restrain Appellants’ Counsel from appearing for them do not include that the legal practitioner was at any time in the past the applicant’s i.e. Respondent’s Solicitor at all in respect of the same subject matter. On the contrary the facts before the court show that the said legal practitioner Aina had always acted for only the Appellants in respect of their land. Contrary to paragraph 4 of the affidavit in support of the Respondent’s application, Appellants replied at pages 79-80 of the record thus:
(4) That paragraph 4 of the said affidavit is false because in respect of our family land, there was never a time that Lawyer Aina acted for both of us (i.e. Plaintiff and us) jointly on the land. Mr. Oluwole Aina never acted at all for the Plaintiff in respect of this land.
(5) With further reference to paragraph 4, the Plaintiff is not a member of our family and neither himself not Mr Aina was a party to our case suit no. I/467/84 which was handled for us in the Supreme Court only by Lawyer Aina who was introduced to us by the Plaintiff in 1999.”
From the above, I am of the view and I also hold that Respondent has no locus standi to invoke the jurisdiction of the court to restrain the Appellants’ Counsel from carrying out his duty. Issue one is hereby resolved in favour of the Appellants.
Having resolved issue one which is on the question of the locus standi to invoke the jurisdiction of the court against the Respondent and in favour of the Appellants, the consideration of the other issues would only amount to an academic exercise. See the case of OKOLO VS. UNION BANK OF NIGERIA LTD. (2004) 3 NWLR. Part 859 Page 87 where the Supreme Court at page 93 had this to say:
“Jurisdiction is the pillar upon which the entire case before a court stands. Filing an action in a court of law presupposes that the court has jurisdiction. But once the defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but it is entirely broken. In effect there is no case before the court for adjudication and therefore parties cannot be heard on the merits of the case.”
The absence of jurisdiction renders the entire foundation of a case not only shaken but completely broken. You cannot put something on nothing and expect it to stand. see MACFOY vs. U.A.C LTD. (1962) A. C. Page 152 at 160.
Where there is no foundation, there can be no construction. In the absence of jurisdiction the entire application at the lower court lacks the pillar upon which to stand. The other Appellants issues 2, 3 and 4 are therefore all subsumed by issue one.
In the result, the totality of the Respondent’s application at the lower court lacked foundation and consequently to which the appeal has merit and it is hereby allowed. I therefore make an order setting aside the ruling of the lower court delivered on the 18th of July 2008 in suit no.I/102/2008. There shall be cost of N30,000,00k awarded in favour of the Appellants against the Respondent.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in draft a copy of the lead Judgment of my learned brother, FASANMI, J.C.A., just delivered. I completely agree with the reasoning and conclusion contained therein. The respondent has no locus standi to invoke the jurisdiction of the court to restrain the appellants’ counsel from carrying out his duty, having failed to convince the court that the legal practitioner was at any time in the past the applicant’s i.e. respondent’s, solicitor in respect of the same subject matter. The facts before the court show that the said legal practitioner Aina had always acted for only the Appellants in respect of the land. For the same reasons clearly stated in the lead Judgment, which I adopt as mine, I too allow the appeal as same is meritorious. I endorse all the consequential orders made in the lead Judgment, inclusive of costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment just delivered by my learned brother, Fasanmi, JCA, which I had the honour of reading in advance.
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 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 counsel of his choice, provided counsel is entitled to practice in Nigeria – See Rewane v. Okotie-Eboh (1960) 5 F.S.C. 200.
The respondent did not furnish sound and cogent ground(s) suggesting Mr. Aina had acted for him previously against his present clients in respect of the same dispute or transaction or in respect of a matter closely connected and/or aligned with the present dispute, therefore the restraint sought against Mr. Aina should not have been granted by the court below, as the granting of same unjustly deprived his present clients of the services of counsel of their choice.
It is for the reason given above and the more elaborate reasons contained in the judgment just delivered that I too see merit in the appeal and hereby allow it with N30,000 costs to the appellants against the respondent.
Appearances
Oluwole Aina with E. A Imomoh, E. E. Ita and S. AkhetuamehFor Appellant
AND
L. O. OlatunjiFor Respondent
