S & F PANORAMIC TOURIST CO. LTD & ORS v. UKHUEGBE & ORS
(2020)LCN/15416(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, November 26, 2020
CA/B/146/2016(R)
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
1. S & F PANORAMIC TOURIST COMPANY LIMITED 2. MR. SYLVANUS OMONKHUELE AGBAREH 3. STARWOODS HOTELS AND RESORTS LIMITED APPELANT(S)
And
1. MR. GREGORY EDOSA UKHUEGBE 2. COMMISSIONER OF LANDS, SURVEY & HOUSING, EDO STATE 3. GOVERNOR OF EDO STATE 4. ATTORNEY-GENERAL OF EDO STATE MR. ORRIESO OSIME AGBAREH – PARTY SOUGHT TO BE SUBSTITUTED FOR 2ND APPELLANT/RESPONDENT RESPONDENT(S)
RATIO
THE RIGHT OF LITIGANTS TO CHOOSE THEIR COUNSEL
It’s almost, if I may say so, axiomatic that litigants have the right to choose their counsel, and a corollary right, perhaps the power to dispense with their retained counsel. It is when it relates to corporate bodies such as the 1st & 3rd Appellants, that the Court will be called to deal with the question as to who has the authority to brief and or to debrief counsel in pending matters, whether in Court or out of Court based on some other legal or statutory considerations. PER KOLAWOLE, J.C.A.
RIGHT TO CHOOSE A LEGAL COUNSEL FOR CORPORATE LEGAL PERSONALITY
My lords, the right to counsel of one’s choice is so fundamental that it has long ago been clothed with constitutional recognition in our law and therefore, cannot be toyed with at all. Thus, a party is entitled, even without any further assurance, to the right to counsel of his own choice.
Now, whilst the right to counsel of one’s own choice as exercisable by an individual, a natural person, may not pose any difficulty at all, it is not so with the right to counsel of one’s own choice when it comes to corporate or artificial legal personality, such as the 1st and 3rd Appellants/Applicants. This is so because such right is exercisable only in accordance with the law regulating the conduct of the business and affairs of corporate bodies. PER GEORGEWILL, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): On Wednesday, 18th November, 2020, this Court heard the arguments of Counsel in relation to a Motion on Notice dated 3rd November, 2020 and filed on 4th November, 2020 wherein the Appellants’ original Counsel on the record by virtue of the Notice of Appeal filed in this appeal on 21/1/16, challenged the decision of the High Court of Edo State, Benin Judicial Division delivered on 18/11/2015 and seeks the following prayers:
1. “An Order setting aside the Notice of Change of Counsel dated 4th March 2020 filed by Mr. Louis Ojomoh in so far as it relates to Mr. Louis Ojomoh acting as counsel for the 1st Appellant/Applicant (S & F Panoramic Tourist Company Limited) and 3rd Appellant (Starwoods Hotels and Resorts).
2. An Order restricting Mr. Louis Ojomoh of counsel to appear for Mr. Orrieso Osime Agbareh (the 2nd Appellant).
3. Such Further Order or Orders as this Honourable Court may deem fit to make in the circumstance.”
This application was predicated on a lone ground which reads thus:
“Mr Orrieso Osime Agbareh the 2nd Appellant who instructed Mr. Louis Ojomoh to file the Notice of Change of counsel dated 4th March 2020 signed by Mr. Louis Ojomoh has no legal authority of the 1st Appellant/Applicant and the 3rd Appellant/Applicant to act for them and or change their counsel Mr P.O. Jimoh-Lasisi SAN and the Law firm of P.O. Jimoh-Lasisi & Associates from handling this appeal on their behalf.”
The said Motion on Notice is supported by a six (6) paragraphed affidavit deposed to by one Igbinomwanhia Choice Osarumen, a Legal Secretary working with Mr. Simon Imoisi, one of the counsel handling the appeal with the learned SAN within jurisdiction.
The said affidavit has two documentary exhibits attached to it and were marked as Exhibits “S” and “S1″respectively. These are Forms CAC 2, being the Statement of Share Capital and Return of Allotment of Shares in respect of S & F Panoramic Tourist Limited, and the Form CAC 7, being the Particulars of Directors or Any Change Therein of S & F Panoramic Tourist Limited.
This application was filed in order as it were, to challenge the Notice of Change of Counsel dated 4/3/20 filed by Louis Ojomoh, Esq. as counsel to “Appellants” on 5/3/20. The copy of the said Notice was attached to the instant Motion on Notice.
The 1st Respondent’s counsel, Dele Uche Igbinedion, Esq when served with the instant Motion on Notice, on 13/11/20, filed a “1st Respondent’s Counter Affidavit in opposition to the Motion on Notice Filed by P.O. Jimoh-Lasisi SAN on the 4th Day of November 2020”. It’s a five (5) paragraphed Counter Affidavit deposed to by one Kate Bob-Manuel, a Litigation Clerk in the Law firm of Dele Uche Igbinedion Chambers.
Likewise, Mr Louis Ojomoh, as the Appellants’ Counsel whose Notice of Change of the Appellants’ Counsel was in issue, filed “Appellants’ Counter Affidavit in Opposition to Motion Filed on the 4th November 2020 by P.O. Jimoh-Lasisi SAN”. It’s a six (6) paragraphed affidavit depositions which the learned counsel, unmindful of the well informed judicial caution made by the Court in WINIFRED HORN. v. ROBERT RICHARD (1963) 2 All NLR 40, by which counsel are advised to refrain except where it is impossible to do so, from deposing to affidavit in contentious applications such as in this instance, deposed to facts as to why he felt that the instant Motion on Notice should be dismissed. The said Counter Affidavit has five (5) Exhibits attached to it. These exhibits are a copy of a counter affidavit filed in the proceedings had to substitute the late 2nd Appellant with the present 2nd Appellant which was deposed to by one Babatunde Ajagbe on 17/1/20 as exhibit 1; exhibit 2 is a copy of email correspondence allegedly sent by the 2nd Appellant to Mr. Jimoh-Lasisi; exhibit 3 is a copy of a letter dated 4/3/20 written by the 2nd Appellant debriefing Mr. P.O. Jimoh-Lasisi SAN; exhibit 4 is a copy of the 2nd Appellant’s letter by which Mr. Louis Ojomoh was briefed by the 2nd Appellant to take over the conduct of the appeal, and exhibit 5 is a copy of the Notice of Change of Counsel filed by Mr. Louis Ojomoh on 5/3/20.
It was on the basis of these processes, that the instant Motion on Notice filed on 4/11/20 was argued and the Ruling was reserved.
In his oral submissions, the learned Senior Advocate adverted our attention to these processes, and cited two decisions of the Supreme Court, to wit:NIDOCCO LTD. V. MRS GBAJABIAMILA (2013) 6 -7 S.C. (PT. 4 @ 138 -139 and SOTUMINU VS. OCEAN STEAM SHIP (NIG) LTD (1987) 4 NWLR (PT 67) 691 in order to argue that whilst he was not concerned with the counsel legal representation of the 2nd Appellant as a natural person, the 2nd Appellant who has not shown that he is either a shareholder of the 1st & 3rd Appellants or a director in either of the two companies, being corporate bodies has not shown on or by whose authority he can competently act to debrief him as the original counsel to the Appellants, including the late 2nd Appellant who briefed him in the matter from the lower Court up to when he filed the Notice of Appeal in the Court of Appeal on 16/1/2016 in order to challenge the decision of the High Court delivered on 18/11/15. It is apparent on the face of the record, that the original 2nd Appellant, Sylvanus Omokhuele Agbareh died on 11/9/18 few years after the instant Appeal was filed in this Court. It was his argument, that its only the 1st & 3rd Appellants through their appropriate organs that can take such decisions as were taken by the 2nd Appellant as per the contents of exhibit 4 attached to the Counter Affidavit filed by learned counsel, Louis Ojomoh, Esq.
In relation to the 1st Respondent’s counter affidavit, the learned SAN argued that he lacks the locus standi to be involved in the decision as to who is the counsel to represent the Appellants, and in particular, the 1st & 3rd Appellants. The Court was urged to discountenance the said Counter Affidavit filed on behalf of the 1st Respondent.
In his response, the 1st Respondent’s Counsel, Dele Uche Igbinedion, Esq. drew the Court’s attention to the Counter affidavit filed in opposition to the instant Motion on Notice. Reading through the said Counter Affidavit, in real terms, the substance of the 1st Respondent’s opposition to the Motion on Notice is largely based on estoppel by conduct because, according to the 1st Respondent’s counsel, the learned SAN did not express any objection to the fact that he was duly notified of the change of counsel and based on that development, the Appellants and the 1st Respondent have entered into negotiation to settle the appeal amicably based on a Terms of Settlement dated 28/9/20 and filed on 28/9/20.
On his part, Louis Ojomoh, Esq. drew the Court’s attention to the documentary exhibits attached to the Counter Affidavit he deposed to oppose the instant Motion on Notice. It was his argument, that the 2nd Respondent having been substituted for his late father as the eldest surviving son who was originally, the 2nd Appellant, that event ipso facto, gives the 2nd Appellant the right to exercise the powers of his late father who was the majority shareholder in both the 1st & 3rd Appellants because, as the Managing Director, he had the power to appoint counsel or debrief counsel for the 1st & 3rd Appellants. Mr. Ojomoh’s arguments, based on the facts he deposed to in his counter affidavit bears some resemblance with the submissions of the 1st Respondent’s counsel submission by alluding to the fact that P.O. Jimoh-Lasisi, Esq. SAN did not reply to exhibits 3 & 4 attached to the counter affidavit filed and that at the proceedings of 15th September, 2020, the law firm of P.O. Jimoh-Lasisi, SAN was duly represented in Court by Simon Imoisi, Esq when the Notice of Change of Counsel was made known to the Court and that the said counsel who held brief for Mr Jimoh-Lasisi, SAN did not object to the said Notice of Change of Counsel. The attention of the Court was drawn to Rules 19 & 29 of the Rules of Professional Conduct in the LegalProfession, 2007, but the learned counsel failed to show in what regard these rules support his position. It’s almost, if I may say so, axiomatic that litigants have the right to choose their counsel, and a corollary right, perhaps the power to dispense with their retained counsel. It is when it relates to corporate bodies such as the 1st & 3rd Appellants, that the Court will be called to deal with the question as to who has the authority to brief and or to debrief counsel in pending matters, whether in Court or out of Court based on some other legal or statutory considerations.
After we have heard all learned counsel, we reserved the Ruling of the Court in order to afford us the opportunity to give a considered ruling even though the application argued did not raise any difficult or recondite issues of law which has not been previously settled by the decisions of the apex Court and of this Court.
In coming to a decision, it seems that Mr. Louis Ojomoh and the 2nd Appellant made erroneous assumptions that by the mere fact that the 2nd Appellant was substituted in place of his late father, that will automatically as it were, dispense with the calling of meeting of either the remaining or surviving Shareholders or Directors of the 1st & 3rd Appellants to pass necessary resolution to empower the 1st & 3rd Appellants to appoint the 2nd Appellant as their Managing Director and to take necessary decisions as regards pending cases in Courts which may include appointing new counsel and or debriefing existing retained counsel. I agree that the 2nd Appellant is the eldest son of his late father, and it’s not being stated that he is the only surviving child of his late father, and the question which normally would legally be asked is why would he assume that the majority shares held in both the 1st & 3rd Appellants, would upon his father’s demise, be automatically transmitted to him and which would enable him to assume the position of the Managing Director of both companies hitherto occupied by his late father. In the administration of companies duly incorporated under the Companies And Allied Matters Act, 2004, shares of limited liability companies do not devolve or are automatically transmitted to any child of the deceased holder of the said shares merely on the ground that he is the eldest surviving son of the late father who held the shares in the company.
In the factual circumstance of this case, the apposite questions will be whether the 2nd Appellant’s late father, died intestate in which case, the shares he hitherto held in the 1st & 3rd Appellants will be accounted as part of his estate, and may be distributed by his Administrators. Where he made a Will, the question is whether he had granted all of his shares to the 2nd Appellant or were distributed amongst his children or all were granted to the 2nd Appellant. My view is that in which ever form it comes, the 2nd Appellant cannot by pass the organs of the 1st & 3rd Appellants who will at an appropriate meeting, take decisions that will enable the restructuring of the share holding in both the 1st & 3rd Appellants. The 2nd Appellant cannot assume that by reason of his being substituted in place of his late father, he would thereby assume the position hitherto occupied by his late father in terms of the administration and management of the 1st & 3rd Appellants.
By this reasoning and proposition, the 1st & 3rd Appellants would need to call a meeting in accordance with the Articles and Memorandum of Association of both companies filed at their incorporation or amended and in accordance with the provisions of the Companies And Allied Matters Act, supra in order to effect necessary changes which the death of the 2nd Appellant’s late father had occasioned in the management of both companies. These are not issues in which the principles of estoppel by conduct can be used to side track, but serious issues of law which are largely guided by the relevant provisions of the Companies And Allied Matters Act, supra read and applied vis a vis the relevant provisions in the 1st & 3rd Appellants’ Articles and Memorandum of Association filed when the companies were incorporated. It’s not an issue which can be addressed or settled based on native law and or customary practice by being the eldest surviving son of the original 2nd Appellant who held the majority shares in both companies as it was shown in exhibits “S” and “S1” attached to the affidavit filed in support of the instant Motion on Notice.
Let me say that it’s in recognition of the principle of law, of the absolute right of litigant to appoint and debrief their counsel, that may have informed the clever way the learned silk couched the prayers 1 and 2 in the instant Motion on Notice by excluding the 2nd Appellant from the parties he is representing in this appeal. Being the counsel who commenced the proceedings in this Court by the Notice of Appeal filed on 16/1/16 and filed the Appellants’ Brief of Argument on 15/8/16, he is presumed to have the authority to be recognised as the 1st & 3rd Appellants’ counsel on the record as he cannot force himself on the 2nd Appellant who as a natural person, ordinarily, can act on his own, whereas, the 1st & 3rd Appellants can only act through their organs duly recognised by law, and until the organs, which include their shareholders and board of directors through a meeting duly called in accordance with their Articles and Memorandum of Association, take necessary decisions on the continued retention or otherwise of the learned silk, the 2nd Appellant does not have the power to usurp the powers of the organs of both the 1st & 3rd Appellants on the appointment of Mr. Louis Ojomoh as counsel in this appeal for the 1st and 3rd Appellants. It was for this reason, that the learned silk may have given the correspondence and other communication made to him by both the 2nd Appellant and Mr. Louis Ojomoh, a dignified silence, and it’s not an issue in which the equitable doctrine of estoppel by conduct can be used to address. It’s an issue of statutory provisions, pure and simple!
Let me conclude this Ruling by making a remark that the Counter Affidavit filed by the 1st Respondent is discountenanced as the 1st Respondent, except if he wants this Court to adjudge him as being involved in a collusive suit with the 2nd Appellant, which constitutes a grave abuse of the Court’s process, cannot be heard on the issues as to who is the appropriate counsel for the 1st & 3rd Appellants. The Counter Affidavit filed on 13/11/20 was a Court’s process filed by an interloper and a busy body and it’s accordingly discountenanced and it’s hereby dismissed as it constitutes a gross abuse of the Court’s process. See the Supreme Court’s decision in ARUBO V. AIYELERU (1993)3 NWLR (PT. 280) 126 @ 142 – 143.
In conclusion, the instant Motion on Notice dated 3/11/20 and filed on 4/11/20 succeeds as prayed, and the appearance of learned counsel, Louis Ojomoh, Esq. is hereby limited only to the 2nd Appellant, the earlier Notice of Change of Counsel dated 4/3/20 and filed on 5/3/20 shall be construed on the authority of this decision to apply to only the 2nd Appellant.
This is the Ruling that was reserved on 18/11/20 after we listened to the arguments and submissions of both parties through their counsel on the said Motion on Notice which succeeds wholly. There shall be no order as to costs, both parties shall bear their respective costs of these proceedings.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the ruling just rendered by my learned brother, Gabriel Omoniyi Kolawole, JCA.
My learned brother has advanced elaborate reasons for granting the motion on notice filed on 04/11/2020 by the 1st and 3rd appellants/applicants.
The notice of appeal was filed by P.O. Jimoh-Lasisi (SAN) on behalf of the three original appellants. However, upon the death of the original 2nd appellant- Mr. Sylvanus Omonkhuele Agbareh, this Court on the 16th day of September, 2020 granted leave to Mr. Orrieso Osime Agbareh to substitute his late father, as the 2nd appellant.
The 1st and 3rd appellants are companies duly incorporated in Nigeria, with legal identities or personalities distinct and separate from the deceased 2nd appellant, Mr. Sylvanus Omonkhuele Agbareh. If the 2nd appellant has briefed Louis Momoh, Esq. of Louis Ojomoh & Co. to represent him, that briefing per se does not dislodge the presumption in favour of P. O. Jimoh-Lasisi (SAN) to continue representing the 1st and 3rd appellants. The 2nd appellant’s counter affidavit does not state, identify or refer to any resolution of the boards of the 1st and 3rd appellants’ companies debriefing P. O. Jimoh-Lasisi (SAN) and authorizing Louis Ojomoh, Esq. to represent them in this appeal.
It is for the foregoing reasons and for the fuller reasons advanced by my learned brother that I also grant the motion on notice as prayed.
I abide by the order as to costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in advance the draft of the Ruling just delivered by my learned Brother, Gabriel Omoniyi Kolawole JCA„ and I am in complete agreement with lucid reasoning and the resultant inescapable conclusion that the Application of the 1st and 3rd Appellant/Application has merit and should be granted.
I shall by way of adding my voice to the detailed rich discourse in the lead Ruling on some of the salient issues thrown up by the Application just say a word or two in support.
My lords, the right to counsel of one’s choice is so fundamental that it has long ago been clothed with constitutional recognition in our law and therefore, cannot be toyed with at all. Thus, a party is entitled, even without any further assurance, to the right to counsel of his own choice.
Now, whilst the right to counsel of one’s own choice as exercisable by an individual, a natural person, may not pose any difficulty at all, it is not so with the right to counsel of one’s own choice when it comes to corporate or artificial legal personality, such as the 1st and 3rd Appellants/Applicants. This is so because such right is exercisable only in accordance with the law regulating the conduct of the business and affairs of corporate bodies. It is in this sense. I find the apt contention by the learned SAN for the 1st and 2nd Appellants/Applicants as unassailable in that it was not open merely to the 2nd Appellant, admittedly a son of the original 2nd Appellant now deceased, to brief a new counsel on behalf of the 1st and 3rd Appellants/Applicants without any evidence of due authorization in compliance with the requirement of law as to how decisions of the 1st and 3rd Appellants/Applicants are reached, communicated and acted upon.
I cannot therefore, but accept the proposition of law by the learned SAN for the 1st and 3rd Appellants/Applicants that unless and until the relevant organs of the 1st and 3rd Appellants/Applicants act in line with their Articles and Memorandum of Association as required by law to authorize the 2nd Appellant to act on their behalf, the 2nd Appellant lacks the power, capacity and authority to merely on his own volition debrief the counsel legally briefed by the 1st and 2nd Appellants/Applicants with a view to briefing on their behalf, and without any evidence of due authorization, a new counsel to take over the conduct of this appeal in so far as it relates to their rights, obligations and liabilities.
Having said as above, I thought I should observe, though in passing, that a professional and or business letter, such as Exhibit 3 written to the learned SAN by an intending new counsel to the 2nd Appellant, ought in the natural course of the conduct of professional and or business affairs to receive a written response. I do not think that an oral response by the learned SAN to the contents of a written professional letter dated 4/3/2020, annexed as Exhibit 3, from his professional colleague and duly received by counsel in his Chambers on 6/3/2020 was in order. I need not say anything more on this!
However, since the right to counsel of one’s own choice is inviolable, I do not consider whatever the consequences of failure to respond in writing should be to have any adverse effect on the rights of the 1st and 3rd Appellants/Applicants to counsel of their own choice having legally briefed and retained the services of the learned SAN in the absence of any evidence that they had debriefed him.
It is for the above few comments of mine and the fuller reasons adroitly marshaled out in the lead ruling that I too hold that the Application by the 1st and 3rd Appellants/Applicants has merit and should be granted. Accordingly, it is also granted by me. I shall abide by the consequential Orders made in the lead Ruling, including the Order as to no cost.
Appearances:
P. O. JIMOH-LASISI, SAN, with him, I. IMADEGBELO, ESQ. – for the 1st and 3rd Appellants
L. O. OJOMOH, ESQ. – for the 1st, 2nd and 3rd Appellants For Appellant(s)
DELE UCHE IGBINEDION, ESQ., with him, O. E. OGUNDANA, ESQ. – for the 1st Respondent
S. U. IBADON, ESQ., with him, MRS. O. U. EGBON (Senior State Counsel); MRS. B. IDEHEN (Senior State Counsel) and MRS. U. O. OJEHONMON (Senior State Counsel) – for the 2nd – 4th Respondents For Respondent(s)
