All Purpose Shelters Ltd V. Dennis & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C.

This is a motion on notice filed on the 11th day of November, 2020, brought pursuant to Order 2 Rules 28 and 29, Order 3 Rules 14 and 15 of the Supreme Court Rules and the inherent jurisdiction of this Court. In the application, the Appellant/applicant is seeking for the following orders:

An order striking out the 3rd and 425 others Respondent’s brief of argument filed 29th January, 2020 and the 1st and 279th others respondent’s brief of argument filed on the 29th day of January, 2020, and the 1st and 279th Respondents brief of argument filed on the 3rd day of March, 2020 for being an abuse of Court process of this Court.

Alternatively;

An order of this Court directing the 1st and 279th other Respondents and the 3rd and 425th other Respondents to retain one counsel in this appeal.

The application is supported by 18-paragraph affidavit sworn to by Chisom Laura Ikeudeoba, Esq legal practitioner in the law firm of J.S Okutepa SAN. Counsel for the Appellant/Applicant.

The grounds upon which the application is premised are as follows:

1. The 1st and 279th other Respondents and the 3rd and 425th other Respondents were part of the 1st -707th claimants before the trial Court who jointly sought and obtained the leave of the trial Court to file suit No. CV/440/2012/ Abah Dennis and 707th Ors. (suing for themselves and also representing all persons allocated with shops and /or open spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority and who are also disputing the imposition of additional money as purchase price for the said shops and/open spaces lying and situate in Wuye Ultra- Modern Market/ Wuye, Abuja) V. Honourable Minister Federal Capital Territory & 3 Ors.
2. The suit No. CV/440/2012/ Abah Dennis and 707th Ors. (suing for themselves and also representing all persons allocated with shops and/or open spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority and who are also disputing the imposition of additional money as purchases prices for the said shops and/open spaces lying and situate in Wuye Ultra-Modern Market, Wuye, Abuja) V. Honourable Minister Federal Capital Territory & 3 Ors, was filed in a representative capacity.
3. The trial Court delivered its judgment in suit No. CV/440/2012 on the 29th day of April 2015, in favour of the 1st-707th claimants in a representative capacity.
4. The Appellant highly dissatisfied with the decision of the high Court of the Federal Capital Territory delivered on the 29th April, 2015, in suit No. CV/440.2012, appealed to the Court below and the 1st- 707th respondents defended the appeal in a representative capacity.
5. The Court below, after hearing the appeal of the Appellant/ delivered its judgment on the 16/12/2016 wherein it dismissed the appeal of the Appellant for being an abuse of Court process without considering the merit of the appeal.
6. The Appellant being highly dissatisfied with the judgment of the Court below, appealed to this Hon Court via a notice and grounds of appeal filed on 23rd January, 2017 and filed the Appellants brief of Argument on 27th March , 2018.
7. The 1st and 279th other Respondents and the 3rd and 425th other Respondents who are part of the 1st -707th Respondents have elected to split themselves before this Honourable Court and to file two separate briefs of arguments for the 1st set of Respondents before this Honourable Court.
8. The 1st and 279th other Respondents and the 3rd and 425th other Respondents who are part of the 1st to -707th respondents that jointly sought and obtained leave of the trial Court to file the instant action in a representative capacity and maintained one counsel at the trial Court and at the Court below cannot split themselves and file two separate Respondent’s briefs of argument in this Honourable Court.
9. An appeal is the continuation of the case filed in the trial Court and since the 1st and 279th Respondents and the 3rd and 425th other Respondents cannot be allowed to file more than one written address at the trial Court, the 1st and 279th Respondents and the 3rd and 425th other Respondents cannot be allowed to file more than one brief of argument before this Honourable Court.

​On the 2nd day of November, 2021 when the application was heard, learned Senior counsel for the applicant J.S Okutepa, SAN, referred to the application, the affidavit in support of the motion, exhibits and the written address filed by the applicant pursuant to the order of this Court made on the 2nd day of March, 2021. Learned Counsel also filed reply. In the written address filed in support of the application, learned senior Counsel for the Applicants submitted that the 1st -707th Respondents in this appeal filed an amended writ of summons and an amended statement of claim before the trial Court in which they jointly sought for and obtained the leave of the trial Court to file suit No. CV/440/2012, suing for themselves and representing all persons allocated with shops and/or spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority. Counsel submitted that suit No. CV/440/2012 was filed in a representative capacity in which the plaintiffs at the trial Court sued for themselves and also representing other occupants of the shops located in the market. Learned senior Counsel submitted that in both the trial Court and the lower Court, the 1st-707th Respondents retained one counsel, S.C Peters Esq who filed single process in defence of the interest of the 1st- 707th Respondents.

​Learned Counsel submitted that ordinarily, the Respondents are entitled to retain separate counsel, but having filed one process in a representative capacity at the trial Court, they cannot and have no right to split themselves before this Court. Counsel further contended that allowing them to do so, will amount to an abuse of Court process, learned Counsel further submitted that the right to retain Counsel even though ordinarily available to a Respondent, becomes restrictive and exercisable within some bounds, that the right is also subject to other rights, he submitted that there must be sanity in the exercise by a party of its Constitutional right. Counsel cited and relied on the decisions in LADOJA V. AJIMOBI (2016) 10 NWLR (pt. 1519) 87 at 129. PDP V. PETERSIDE (2016) 7 NWLR (Pt. 1512) 574 at 584 and BUKOYE V. ADEYEMO (2017) NWLR (Pt. 1546) 173 AT 193 in support of his submissions. It was also the contention of learned Counsel that the submissions of the Respondents on the rights of the Respondents to retain Counsel of their choice cannot be right because if that is allowed it will encroach on other rights.

​Learned Counsel further submitted that an appeal is a continuation of the case as constituted at the trial Court that since the 1st -707th Respondents could not have been allowed to use two or more counsel to file different processes for them at the trial Court, having filed a representative action, they cannot and have no right to file two or more briefs before this Court, he relied on PDP V. SYLVA (2017) 5 NWLR (pt. 1557) 74 at 93, OREDOYIN V, AROWOLO (1989)4 NWLR (pt. 174) 172 at 211 and ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (pt. 109) 250.

Learned Counsel also submitted that there cannot be more than one dominus litis in a matter, and the dominus litis in this matter being Abah Dennis, whatever action is taken by him is final and binding, including but not limited to choice of counsel and legal argument in support of their joint interest. Counsel submitted that the 1st -707th Respondents instituted the action at the trial Court as one in Representative capacity. They also filed one brief of argument at the lower Court, but decided to file multiple briefs in this Court. Counsel contended that having filed one originating process at the trial and lower Courts in representative capacity as instructed by their dominus litis they are bound to continue in the same manner because that is the law, he said there cannot be two dominus litis in one action, and urged this Court to so hold, he referred to the decision of this Court in OKONJI & ORS V. NJOKANMA & ORS (1989) LPELR-2478 (SC), and RE: APEH & ORS (2017) LPELR-42035 (SC).

Learned Counsel then submitted that the daunting question in this application is whether a party who argued his case in a singular manner before the trial and lower Courts could be allowed to proliferate his case by filing more than one brief of argument in this Court, the answer as proffered by the learned Senior Counsel is in the negative because so doing will constitute an abuse of Court process. Learned counsel finally urge this Court to hold that the 1st -707th Respondents cannot split themselves before this Court, and grant the application as prayed.

​In opposing the motion on behalf of the 1st and 279 other Respondents, Learned Senior Counsel A.O. Maduabuchi SAN said he filed a counter affidavit and written address on the 5th day of October, 2021. In the written address filed on behalf of the 1st and 279 other Respondents, learned senior Counsel submitted that the 1st to 707th Respondents who had been acting in a representative capacity had disagreement amongst themselves, and could not agree on the Counsel who will represent them. Counsel further submitted that the disagreement was affecting the flow of the matter and on the 11th December, 2018 this Court directed S.C Peters Esq to submit the list of the Respondents he was representing, and the remaining would be assumed to be represented by Solo Akunma SAN, learned Counsel submitted that it was in compliance with the directives that S.C Peters Esq submitted the list of 1st and 276 others as the Respondents he represents, while the rest of the Respondents will be represented by Akunma SAN.

Counsel further submitted that since the order has not been set aside, it remains extant and must be obeyed by both parties, learned counsel relied on the decision in LADOJA V. AJIMOBI (2016) 10 NWLR (pt.1519) 87 to support his contention. Counsel said nothing can be more irritating than relitigating an issue that had been effectively decided, he maintained that the issue had been laid to rest at the time this Court made the order directing S.C Peters to submit the list of the Respondents he represents, he finally urged that this application be dismissed.

Learned senior Counsel for the 3rd and 425 other Respondents, Chief Solo Akuma SAN, filed Counter Affidavit and written address on the 24th day of February, 2021 and 16th March, 2021 respectively.

In the written address, learned senior Counsel formulated a sole issue for determination on behalf of the 3rd and 425 other Respondents, the issue is as follows;

“whether the exercise of the right of 1st-707 respondents who have engage two distinct counsel to represent them and have filed two separate briefs of argument on their behalf constitute as abuse of Court process and has the appellant any right to determine the counsel to represent any set of respondents amongst 1st – 707th respondent in this appeal.”

Counsel submitted that the right to choose Counsel is solely that of a party in any legal proceedings, he cited and relied on the decision in FESTUS V. AFRICAN ACTION CONGRESS & ORS (2020) 4 NWLR (pt. 1713) Pg. 105, to argue that parties are entitled to counsel of their choice without interference from the Court or any other party, he further submitted that a litigant is always entitled to brief a Counsel of his choice to handle his case. Counsel said in deciding the case of FESTUS V. AFRICAN ACTION CONGRESS (Supra), the Court relied on its decision in PDP V. EZEONWUKA (2018) 3 NWLR (Pt. 1606) Pg. 187 at 255. Learned senior counsel further submitted that the first set of Respondents have the right to choose separate Counsel to represent them in this appeal, and having chosen to separate Counsel to represent them, they have not infringed upon any law or rules of this Court, he therefore urged this Court to so hold.

Learned senior counsel submitted that the cases of LADOJA V. AJIMOBI, PDP V. PETERSIDE, and BUKOYE V. ADEYEMI (Supra) relied on by the applicant in support of his submissions are not applicable in the instant application. Learned Counsel also contended that Abah Dennis is not the only dominus litis in the instant case as claimed by the applicant. The 1st-707th Respondents who are named parties representing all persons allocated with shops and open space are dominus litis and they are not bound by the choice of Counsel by Abah Dennis.

​Learned Counsel finally submitted that the application is frivolous, misconceived and designed to truncate the expeditious hearing and determination of the appeal, he further submitted that the application is an abuse of process, he therefore urged this Court to hold that the application lacks merit and dismiss it.

RESOLUTION

The argument of the Applicant in this application is that, where a party initiates an action in representative capacity at the trial Court and briefs single Counsel to prosecute the action, the party cannot subsequently break and engage different counsel to handle the same action on appeal, the party must continue to act through the same single Counsel. The Respondents on the other hand contended that a party may split and engage different Counsel in the same action whenever the need for so doing arises.

By the provisions of Section 36 of the Constitution of Nigeria, 1999 (as amended) in the determination of his civil rights and obligations, a citizen has the fundamental right to a Counsel of his own choice. In MARCEL NNAKWE v. THE STATE (2013) LPELR-20941(SC) this Court held as follows:

“with reference to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, the law is well settled that every party to a case has an unfettered right of representation by counsel of his choice. See Nwambe v. The State (1995) 3 NWLR (Pt. 384) 358.”

See also; SEBASTIAN ADIGWE v. FEDERAL REPUBLIC OF NIGERIA (2015) LPELR-24694 (SC). It is the law, that a party in litigation has the right and freedom to engage Counsel of his Choice without interference or hindrance at any stage of the matter, this Court in ISIAKA & ORS V. OGUNDIMU & ORS (2006) LPELR-1552 (SC) per KUTIGI JSC (CJN) (of blessed memory) held as follows:

“A litigant is free to engage counsel of his choice at any time and may equally terminate such engagement at any time.”

​From the foregoing therefore, it is well settled that a litigant is free and at liberty to change his counsel, and where parties agree to engage one Counsel and along the line some irreconcilable or other differences occur, any party that is not satisfied is at liberty to pull out of any prior arrangement and engage Counsel of his choice, a party may decide to change Counsel at any time for any reason or without reason at all, the Court cannot participate in the choice of Counsel for a litigant. A party desirous of changing Counsel can do so personally in Court by announcing it or through any counsel of his choice. The Court cannot intervene in any form under the guise of exercising its discretion, the entire decision is that of the party. The Court has no discretion to grant or refuse leave to a litigant to change his counsel. If such discretion were to exist, it would also imply that the Court could refuse such leave and that would be odious in the extreme, both to the litigant and the legal profession. May this day never come.

The right to represent a party in a matter before a Court of law involves the right to brief and instruct any counsel or a number of counsel a litigant may wish to engage, this Court cannot validly exercise any discretion to curtail this fundamental right as provided under Section 36 of the Constitution of the Federal Republic of Nigeria (1999) (as amended). In this application, what the applicant is requesting this Court to do, that is compelling some Respondents to retain a particular Counsel is in clear contravention of the Constitution and the right of the parties to engage Counsel of their choice.

This Court in its recent decision in FESTUS V. A.A.C & ORS – SC. (2020) 4 NWLR (Pt. 1713) 105 re-stated the settled position of the law, when the Court held as follows:

“Parties are entitled to counsel of their choice without interference from the Court or any other party. A party having exercised such right cannot be gauged or questioned for any reason. Thus the 1st respondent in the instant case having debriefed the firm of Tawo E. Tawo SAN & Co and appointed H. A Bello Esq to represent it in Court, had the right to do so and the appellant had no right to interfere with the choice of counsel representing the 1st respondent. PDP V. Ezeonwuka (2018) 3 NWLR (pt. 1606) 187 referred to.”

Finally, the position of this Court on this matter has always been the same, it has not changed and it will not be changed by this application, the position of this Court is therefore that the Appellant in this appeal has no right to question and or interfere with the choice of Counsel to represent the Respondents. It is proper to say that a party coming to Court with such an application must ensure that it is not founded on trifles. The application lacks merit and therefore deserves to be and is hereby dismissed. It is hereby ordered that, parties march to hearing of this appeal on the merit without delay.

Application is dismissed.

Parties shall bear their respective costs.

SC.1028/2016(R)