Chief Gani Fawehinmi V. Nigerian Bar Association & Ors (1989)
LawGlobal-Hub Lead Judgment Report
Obaseki, J.S.C.
On the 17th day of January, 1989, I overruled the objection of the appellant to the hearing of the addresses of Chief F. R. A. Williams, S.A.N., E. A. Molajo, S.A.N and Kehinde Sofola, S.A.N. (and more particularly, Chief F. R. A. Williams, S.A.N. who appeared as counsel for the Nigerian Bar Association and Mr. Kehinde Sofola, S.A.N. who appeared as counsel for Chief F. R. A. Williams, S.A.N. and Mr. E. A. Molajo, S.A.N.) from the Bar and reserved my reasons till today. I now proceed to give them.
On the 4th day of October, 1988 when this appeal came up for hearing, appearances were announced as follows from the Bar:
“Appellant ln Person
Chief F.R.A. Williams, S.A.N. For the Nigerian Bar Association (with him, Uche Nwokedi) and Kehinde Sofola, S.A.N.
Mr. Kehinde Sofola,S.A.N. For Chief F. R. A. Williams (with him, Miss O. A. Obaseki and E. A. Molajo, S.A.N.
and M. A. O. Okupe) For 5th Respondent,
Mr. O. Adio (Director of Civil Litigation, Federal Ministry of Justice, Lagos) General Council of the Bar.”
Chief Gani Fawehinmi, the appellant, was then called on to argue his appeal. He informed the Court that he had filed a brief of argument and that he relied entirely on the submissions contained therein. He then elaborated on some of the points made in the brief after giving a brief narration of the facts. He went on and concluded his argument in the appeal. At the close of his submission, further hearing in the appeal was adjourned to 8th November, 1988, counsel for the Respondents having applied earlier for adjournment. At the adjourned date, the case was called. Then the appellant and counsel for the Respondents announced their appearance as follows:
“Appellant In person
Kehinde Sofola, S.A.N. (with For the Nigerian Bar
Him, Miss. O. A. Obaseki and Association and Mr.
M. A. O. Okojie)
Chief F. R. A. Williams For Chief F. R. A. Williams
(With him, B. O. Ogundipe, Esq., and E. A. Molajo, S.A.N.
And O. M. Ayeni (Mrs.)
Mr. O. Adio (Director of For the 5th Respondent,
Civil Litigation, Federal
Ministry of Justice, Lagos)” General Council of the Bar
Thereafter, the Court called on counsel for the Respondents to present their reply to the arguments of Chief Gani Fawehinmi, the appellant, if any. As Chief F. R. A. Williams, S.A.N., rose to his feet to address the Court from the Bar, Chief Gani Fawehinmi rose to his feet and objected to either Chief F. R. A. Williams, S.A.N. or Kehinde Sofola. S.A.N. addressing the Court from the Bar; his main ground being that they are parties to the proceedings. Chief F. R. A. Williams, S.A.N. suggested that it would be of great assistance to the resolution of the issue if briefs were ordered to be filed and served setting out in full the arguments of counsel in respect of this objection as it is a novel point that is now being raised. Kehinde Sofola, S.A.N. was of the same view. Chief F. R. A. Williams, S.A.N. was however prepared to address the court from the well of the court outside the Bar to avoid further adjournment of the hearing and determination of the appeal.
On a proper consideration of the matter, we, the Court, decided to order and did order the filing of briefs setting out the arguments of the parties in respect of this objection. Further hearing of the appeal was then adjourned to the 17th day of January, 1989. Briefs were duly filed and served. I read the briefs studiously and when the case came up for further hearing on the 17th day of January, 1989, we saw no need to call on the parties and counsel for amplification of their submissions in the brief. I then overruled the objection and upheld the right of Chief F. R. A. Williams, S.A.N. and the right of Kehinde Sofola, S.A.N. to address the Court from the Bar.
The appellant utilised the opportunity offered by the order for briefs to be filed to formalise his objection in writing to read:
“1. That it is not competent for the 2nd, 3rd and 4th Respondents who are barristers and parties in this appeal to conduct their cases from the Bar and to be fully robed when addressing the court;
- That it is not competent for the 2nd, 3rd and 4th Respondents who are parties in this case to appear both in person and as counsel to another party in the appeal which concerns the 2nd, 3rd and 4th Respondents in their personal capacities;
- That it is not competent for any of the 2nd, 3rd and 4th Respondents to appear as counsel to any other party in this appeal since they are parties in this appeal which concerns the 2nd, 3rd, and 4th Respondents in their personal capacities.”
The ground of objection stated by the appellant in his brief is that:
“the appearances of the 2nd and 3rd Respondent” (i.e. Chief F. R. A. Williams, S.A.N. and Kehinde Sofola, S.A.N.) “if allowed as
announced on 8th November, 1988 will not be in accord with their professional role and duty to the court as “counsel” arguing a case before the highest court of the land and furthermore the appearances will not be in the tradition of the legal profession. ”
For this objection, the appellant relied in the main, on the case of Ajide v. Kelani (1985) 3 N.W.L.R. (Part 12) 248 at 257-258. This case dealt with the need to give notice and grounds of the objection in writing and in particular the interpretation of the Rule of Court Order 2 Rule 9(1) of the Supreme Court Rules, 1985.
Four issues were formulated by the appellant as arising for consideration and resolution. They are:
(1) Whether a party who is also a legal practitioner can appear for himself and conduct the case from the Bar (in a lawyer’s robe);
(2) Whether a party who is also a legal practitioner can appear for another Party in the same suit as a legal practitioner and conduct the other Parties case from the Bar;
(3) Whether a legal practitioner who is a party in a case can appear in person and as counsel to another party in the case arguing their cases out of the Bar (i.e. in the well of the court);
(4) What is the implication on issues 2 and 3 of section 33( 6)( c) of the 1979 Constitution, i.e. on the right of an accused in a criminal case to a legal practitioner of his choice
Chief F. R. A. Williams, S.A.N. formulated the questions for determination in his brief filed on behalf of the Nigerian Bar Association and Mr. Kehinde Sofola, S.A.N. differently as follows:
(1) whether it would be proper for the Supreme Court to refuse to permit Chief Rotimi Williams, S.A.N. or Mr. Kehinde Sofola, S.A.N. to represent the Nigerian Bar Association.
Put more fully, this question reads as follows:
whether the plaintiff at whose instance 3 legal practitioners were prohibited from appearing for the 1st Defendant by an order of injunction which was subsequently discharged by the Court of Appeal is entitled to insist that the Supreme Court must not allow two of the said legal practitioners to appear for the 1st Defendant at hearing of an appeal by the plaintiff from decisions of the Court of Appeal:
(2) where the Court of Appeal in the course of its judgment decided that the High Court, ought not to have barred Defendant’s counsel from further appearance in a case and also found, contrary to the decision of the High Court, that the 1st Defendant was not a juristic person and accordingly struck out the action, in an appeal by the plaintiff to the Supreme Court from both decisions
(a) is the plaintiff entitled to insist that the counsel who had succeeded in convincing the Court of Appeal that the bar imposed on him by the High Court was wrong, should be barred from representing the Defendant in the appeal
(b) must the counsel concerned cease to function as such for the purpose of replying to the plaintiffs appeal to have the bar imposed on counsel restored
Mr. Kehinda Sofola, S.A.N. formulated the issues for determination still slightly differently as follows:
(a) Whether a party to a civil suit who is also a legal practitioner can appear for himself and conduct his case from the Bar;
(b) Whether such a party can also appear for another person, who is a co-Defendant with him and conduct the other party’s case from the Bar;
(c) whether in the latter case he can do so at all events from the Bar. Mr. M. O. A. Adio adopted the issues formulated by Mr. Kehinda Sofola, S.A.N. as the issues for determination in this objection.
Issues Nos. 1, 2 and 3 formulated by Chief Gani Fawehinmi arise from the objection. Issue No.4 does not arise for determination in this objection.
Issue No. (1) formulated by Chief F. R. A. Williams does not arise but issues No. (2) could have been differently formulated to bring out the substance of the objection.
Issues (a), (b) and (c) formulated by Mr. Kehinde Sofola arise for determination and best expressed the pith of the objection.
Before dealing with these issues, it is desirable to give a brief narration of the relevant facts.
The appellant, by originating summons dated 19th day of November, 1984 instituted an action against the 1st and 2nd Respondents, i.e. (1) The Nigerian Bar Association and (2) the General Council of the Bar in the Lagos State High Court held at Lagos. The appellant claimed for determination the following questions:
(1) Whether (within the con of the Constitution of the Federal Republic of Nigeria 1979 as affected by Decree No.1 of 1984, the Constitution of the Nigerian Bar Association; the Legal Practitioners Act 1975; the Rules of Professional Conduct in the Legal Profession, made by the General Council of the Bar) the 1st Defendant is legally competent to take a decision to boycott the special Military Tribunal established under Decree No.3 of 1984 – Recovery of Public Property (Special Military Tribunals) Decree 1984;
(2) Whether the appearance of the plaintiff before the special Military Tribunal Lagos Zone is legally and professionally proper and justifiable (within the con of the Constitution of the Federal Republic of Nigeria 1979 as affected by Decree No.1 of 1984, the Constitution of the Nigerian Bar Association, the Legal Practitioners Act 1975; the Rule of Professional Conduct in the Legal Profession made by the General Council of the Bar)
(3) whether, by virtue of section 1 of the Legal Practitioners Act, 1975, the 1st Defendant is competent to direct the affairs of the Legal Practitioners in Nigeria on the matter of appearance before the Special Military Tribunals established under Decree No.3 of 1984 – Recovery of Public Property (Special Military Tribunal) Decree, 1984 without prior approval and/or authority of the 2nd Defendant”
AND the plaintiff claimed the following reliefs:
“(1) A declaration that the decision of the Nigerian Bar Association taken as its National Executive Meeting in Jos in April, 1984 and ratified at an emergency general meeting on the 8th day of May, 1984 in Lagos that its members must not appear before the special Military Tribunals established under Decree No.3 of 1984 – Recovery of Public Property (Special Military Tribunals) Decree, 1984 is unconstitutional, illegal, null and void and of no effect whatsoever;
(2) A declaration that the decision of the Nigerian Bar Association taken at the meeting of its National Executive Committee held in Lagos on the 2nd and 3rd November, 1984 on the issue of members (of the Nigerian Bar Association) appearing before the Special Military Tribunal particularly the decision on the plaintiff is unconstitutional, illegal, null and void and of no effect whatsoever.”
When the matter came up for hearing on Thursday, the 19th day of February, 1985, the plaintiff, now appellant appeared in person. Benson, S.A.N. with Aloghe appeared as counsel for 1st Defendant. Also appearing with Benson S.A.N. were Segun Onakoya, Dan Kukoyi and A. Adeyinka. The record then reads (p. 120):
Benson says ”I was instructed in this matter last Saturday. Counter-affidavit filed not yet officially served on the plaintiff. I intend to take further steps to regularize the matter before the court; asks for time to complete preparations for the case. Chief Gani Fawehinmi replies opposing the application for adjournment. ”
The learned trial Judge, Ademola Johnson, Ag. Chief Judge, Lagos State, after some adverse comments, granted the application for adjournment and fixed hearing for 19th and 20th March, 1985. On the 19th day of March, 1985, the parties appeared and appearances as recorded in the record of proceedings read:
“Parties present Chief Williams, S.A.N. with Messrs. E. A. Molajo, S.A.N. Kehinde Sofola, S.A.N., Chief B. O. Benson, S.A.N., Segun Onakoya and S. A. Adewolu for 1st Defendant. Chief Williams requests that this matter be continued as if it were commenced by a writ (of summons) and urges the court to order pleadings. “After addressing the court on the reasons for his application, Chief Gani Fawehinmi, the plaintiff, replied and maintained that the matter was properly begun by originating summons.
After hearing arguments of the plaintiff and counsel for the Defendants on the application, the learned trial Judge, Ademola Johnson, Ag. C.J. adjourned for Ruling to be delivered on 16th April, 1985. On the 16th day of April, 1985, the learned trial Judge, Ademola Johnson, J. delivered his Ruling the closing sentence of which reads:
“I therefore rule that this matter is better proceeded with by the order of pleadings and I now order that pleadings be filed within a period of time to be agreed upon by the parties with the court’s concurrence.”
He then gave the plaintiff 7 days within which to file his statement of claim and the Defendants 30 days from service of the statement of claim in which to file their statement of defence.
The plaintiff filed his statement of claim dated 22nd day of April, 1985 on that date and on 29th April, 1985, he filed a motion on notice for an order of interlocutory injunction restraining Chief F. R. A. Williams S.A.N., Mr. Kehinde Sofola and Mr. E. A. Molajo, S.A.N. from acting or from continuing to act for the Nigerian Bar Association. The terms of the motion paper reads as follows:
” Motion on Notice Brought under THE INHERENT JURISDICTION OF THE COURT TAKE NOTICE that this Honorable Court will be moved on Monday the 13th day of May, 1985 at the hour of 9 o’clock in the forenoon or so soon thereafter as the plaintiff/applicant can be heard for:
An order of interlocutory injunction restraining Chief F. R. A. Williams, S.A.N., Mr. Kehinde Sofola, S.A.N. and Mr. E. A. Molajo, S.A.N. from acting or from continuing to act or from representing or from continuing to represent the Nigerian Bar Association, the 1st Defendant in this suit on the ground that their appearance or representation for the Nigerian Bar Association is improper, unprofessional, dishonourable and dishonest.
And for such further order or orders as the Honorable Court may deem fit to make in the circumstances. ”
(1) The Nigerian Bar Association, (2) The General Council of the Bar, (3) Chief F. R. A. Williams, S.A.N., (4) Mr. Kehinde Sofola, S.A.N. and (5) Mr. E. A. Molajo, S.A.N. were put on Notice. The motion was supported by affidavit evidence and exhibits filed along with it. Notice of preliminary objection to the motion served on Chief F. R. A. Williams, S.A.N. was on 10th day of May, 1985 filed by Mr. Kehinde Sofola, S.A.N. counsel to Chief F. R. A. Williams S.A.N.
On the 13th day of May, 1985, notice of motion for an order striking out the name of the 1st Defendant from the suit and striking out the whole action was filed by Chief F. R. A. Williams, S.A.N. counsel for the 1st Defendant. On the 27th day of May, 1985, the motions came up for hearing but were adjourned to 30th May, 1985 for hearing. Parties appeared on the 30th day of May, 1985 and the appearances on record of proceedings read:
“Plaintiff present Chief Williams, S.A.N. for Nigerian Bar Association with Messrs. Molajo, S.A.N., K. Sofola, S.A.N., Bola Ajibola, Tunji Gomez, Segun Onakoya, Ladi Williams, Olajide Adeogun, Mustapha and C. F. Ogundere (Miss), K. Sofola, S.A.N. appears for Chief Williams with Ladi Williams, Mustapha and Miss. C. F. Ogundere also appear in person.
Molajo, S.A.N. appears as one of the persons named Sofola says, ‘I shall wait and reply to the submissions of Fawehinmi and rely on the issues raised in the preliminary point by way of reply. Molajo adopts same system as Sofola
Chief Gani Fawehinmi addresses ……….
Chief Williams replies ……..”
Hearing could not be concluded on the 30th day of May, 1985 so it continued on the 31st day of May, 1985. Appearances as recorded in the record of proceedings for that day read:
“Plaintiff present
Molajo, S.A.N., K. Sofola, S.A.N., Ladi Williams, Tunji Gomez, Miss Ogundere, Mustapha led by Chief F. R. A. Williams, S.A.N. for the
Nigerian Bar Association. Sofola, S.A.N. for Chief Williams with Ladi Williams, Mustapha, Miss. Ogundere, Debayo Doherty, A. O. Aniagolu
and in person for himself.
Molajo also appears for himself as a person cited.
Molajo addresses………………. Sofola now addresses associates himself with Chief Williams, S.A.N. and Molajo, S.A.N. and all they have said.
Chief Gani Fawehinmi replies.”
As hearing could not be concluded that day, the case was adjourned to 6th June, 1985 for further hearing. On that day, Chief Gani Fawehinmi continued and concluded his reply. He then submitted copies of his address to the court. Then Chief Williams asked for leave and was granted leave to comment on the three authorities cited by Chief Gani Fawehinmi.
It is clear from the record that objection was not taken to the three counsel arguing against the motion to restrain them from the Bar. Even with this motion for interlocutory injunction before the Court, the three counsel argued the motion to “strike out the name of the 1st Defendant and strike out the action” from the Bar without objection.
After hearing arguments in the two applications, the learned trial Judge, Ademola Johnson, Chief Judge, adjourned the case to 19th July, 1985 for Ruling. On the 19th day of July, 1985, the learned Chief Judge, Can dido Ademola Johnson delivered his ruling. He dismissed the 1st Defendant’s application to strike out the name of the 1st Defendant from the suit and to strike out the action and granted the application of the plaintiff for injunction restraining Chief F. R. A. Williams, Mr. Kehinde Sofola and Mr. Molajo from further appearance for any of the parties.In his ruling, the learned Chief Judge observed, commented and held, inter alia:
(1) “It is my considered view, having taken account of the implications of the different legislations recognizing, imposing duties and granting privileges to the Association as a Body, that it is meant to give the Association even though unincorporated, a legal personality and I so hold. I therefore rule on that issue that the 1st Defendant is a juristic person and properly sued by the applicant as a Defendant in this suit.
The motion of the learned Counsel for the 1st Defendant praying the court to strike out the entire action is, in my considered view, misconceived and is accordingly dismissed.”
(2) “I now proceed to the motion by the applicant to restrain three learned Senior Advocates representing the 1st Defendant to wit:
Chief F. R. A. Williams, S.A.N.
Mr. Kehinde Sofola, S.A.N.
Mr. Molajo, S.A.N.
from further representing the 1st Defendant by way of an interlocutory injunction ………….
On the prevailing facts of the present situation and in the exercise therefore of the court’s inherent jurisdiction and in spite of the misconceived basis upon which the applicant founded his motion the court is able and thus therefore modify the order prayed for from an interlocutory injunction to an order for an injunction simplifier. The three learned Senior Advocates of Nigeria, Chief Williams, Mr. Kehinde Sofola and Mr. Molajo are therefore hereby restrained from further appearance for any of the parties in this case as at present constituted.”
After the order of injunction was made, Chief Williams applied for the suspension of the operation of the order of injunction to enable counsel concerned to initiate and prosecute appeal against the Ruling of the court. The learned Chief Judge gave sympathetic consideration to the application and granted it saying:
“It is conceded that the three learned Counsel are aggrieved persons in respect of the court’s ruling restraining them from further appearance in this case for the 1st Defendant. I am of the consideration now that in the peculiar situation here, it would be put without derogation (sic) for the order of this court already made to grant permission to the aggrieved persons to take steps as required by law to initiate and pursue an appeal against the said ruling and no more. Permission is accordingly granted for appropriate steps to be taken in the proposed appeals. “The three learned Senior Advocates then took the necessary steps to initiate and prosecute appeals against the Ruling to the Court of Appeal.
Each of them filed a notice of appeal against the Ruling and the three of them, acting as legal practitioners representing the 1st Defendant, filed a notice of appeal on behalf of the 1st Defendant against the Ruling.
The appeals came up for hearing before the Court of Appeal (Coram Nnaemeka-Agu, J.C.A. (as he then was), Kutigi and Kolawole, JJ.C.A.) and after hearing submission of all the parties to the appeal, the Court adjourned for considered judgment. On the 13th day of March, 1986, the Court of Appeal delivered a well considered judgment allowing the appeal of the 4 appellants. The order of injunction was set aside. The Court held that the Nigerian Bar Association is not a juristic person and as such, cannot be sued legally in its name. It then struck out the action.The plaintiff was not satisfied and hence he brought this appeal to the Supreme Court.
Before the appeal to the Court of Appeal was heard, the appearance of the three learned Senior Advocates as counsel for the Nigerian Bar Association was the subject of an objection. At page 378 of the record, Chief Gani Fawehinmi in his argument in support of his objection said:
“There are two sets of appellants, namely (1) Nigerian Bar Association & Anor.
(2) Chief Williams, Mr. Sofola and Mr. Molajo. This 2nd set according to the drawn up order of 1985 contained at pp. 200 and 201 were restrained by the Chief Judge of Lagos State on the 19th of July, 1985 from “further appearing for any of the parties in this case as at presently constituted”. They lodged an appeal against that order. The order subsists. There is no order staying the execution or effect of that order or in any manner restraining the effectuation of that order. I concede that they can appear for themselves. But they cannot appear for the Bar Association.”Chief Williams then replied and stated that on his application, the injunction was suspended to enable them initiate and prosecute the appeal against the ruling. He submitted further that even if the High Court did not make the order for a stay of the order of injunction, the Court of Appeal had power to make the order in the circumstances of the case. Chief Fawehinmi then made a categorical statement that “there was no suspension of the order” and that “suspension of the order was applied for but refused”.
The Court of Appeal was obliged to Rule on the objection. Nnaemeka Agu, J.C.A. (as he then was) (with whom Kutigi and Kolawole, JJ.C.A. concurred) in his Ruling said:
“So much water has gone under the bridge since the order was made. The 3 learned Senior Advocates of Nigeria have filed a notice of appeal for the appellants including the Nigerian Bar Association. They appeared on their behalf in a subsequent application before the Chief Judge. They have settled and signed their brief of argument. In the circumstances to now stop them from further appearance will unnecessarily delay the proceedings.
It is my view that the ends of Justice will be met if then we make an order for stay of the 3 orders barring Chief Williams and Messrs. Molajo and Sofola from further appearing for the Nigerian Bar Association until the final determination of this appeal be stayed if an order to like effect was not made by the learned Chief Judge. I therefore order accordingly.”
It is therefore crystal clear that during the course of proceedings in the two Courts below, that is the Court of Appeal and the High Court, the exercise of the right of each of the 3 learned Senior Advocates as counsel to the Nigerian Bar Association was never restrained by the Court. The courts made full allowance for the exercise of that right.
From the analysis of the facts so far, the appellant instituted no action and made no claim against the 3 learned Senior Advocates. It was only their representation as counsel for the Nigerian Bar Association that was objected to. There was therefore no concrete or real dispute known to law between the appellant and the 3 learned Senior Advocates. Moreover, the Court of Appeal in the lead judgment delivered by Nnaemeka-Agu, J.C.A. (as he then was) (concurred in by Kutigi and Kolawole, JJ.C.A.) said:
“Chief Fawehinmi has strenuously urged on us that the role played by the three Senior Advocates is against the spirit of the Rules of Professional Conduct in the legal profession. But I am unable to find anything in these Rules that expressly prohibits a lawyer who appeared at the settlement of a case from appearing subsequently as counsel for one of the parties. On the contrary, section 24 of the High Court Law of Lagos State provides:
‘In any action in the High Court, the court may promote reconciliation among the parties thereto and encourage and facilitate amicable settlement thereof.’”
The learned Justice continued further and said:
“Above all, as I have pointed out their action is consistent: they have always opposed the boycott of the tribunals by lawyers but do not believe the issue should be settled by litigation. Having failed to get the case withdrawn from court, they now appear for the 1st appellant to move that the suit be struck out on a preliminary objection. I do not see anything inconsistent, dishonourable, or disgraceful or that falls below what is expected of the elders of the legal profession in their conduct…
It does appear to me that all cases of professional misconduct have been decided either in the interest of justice such as where the court has been deceived or misled, or that of a party when he needs the protection of the court. In the former case, the court can invoke its inherent jurisdiction and act to stop or remedy the misconduct. In the latter case, it can act to restrain the act of misconduct at the instance of the party affected. In the instant case, the injunction as framed did not appear to have clearly distinguished between the two types of remedies ………. In my view, if there were proper grounds for the invocation of the inherent power of the court, I do not see anything wrong with the Respondent filing a motion if only to bring the circumstances for the exercise of the jurisdiction to the notice of the court, but there were none ……
In the meantime, for all I have said before, the appeal succeeds and is allowed. As the real party is not a juristic person, I strike out the action.
Further, and/or alternatively, I set aside the order of injunction against the 2nd, 3rd and 4th appellants.”
The above narration concludes the facts relevant to the Reasons for the Ruling on the objection. The facts are heavily weighted against the appellant in his objection and led Chief F. R. A. Williams to formulate the questions or issues for determination the way he did in the brief filed on behalf of the Nigerian Bar Association and Mr. Kehinde Sofola. If when the High Court made an order of injunction, it suspended it to enable the 3 learned Senior Advocates provide legal representation and perform their professional duties on behalf of the Nigerian Bar Association, it seems incomprehensible that when the order of injunction has been discharged, the appellant should object to their representation and performance of their professional duties from the Bar.
I shall now proceed to examine the submissions in search of answers to the issues raised.
As stated in the appellant’s brief, the only ground of objection is that:
“The appearances of Chief F. R. A. Williams, S.A.N. and Mr. Kehinde Sofola, S.A.N. if allowed as announced on 8th November, 1988 will not be in accord with their professional role and duty to the court as “counsel” arguing a case before the highest court of the land and furthermore, the appearances will not be in the tradition or standard of the legal profession.”
Reliance for the formal objection was placed on the case of Ajide v. Kelani (1985) 3 N. W .L.R. (Part 12) 248 at 257-258. This is to emphasize that although the objection was at first taken orally the objection and the ground of objection has been reduced in writing and notice thereof given in compliance with the Rules of Court Order 2 Rule 9 of the Supreme Court Rules, 1985.
The appellant in his brief submitted that the 2nd, 3rd and 4th Respondents are parties in this appeal and that they cannot act as counsel to themselves or to any other party in the appeal. Being parties, they are entitled to present their cases from the well of the court and not from the Bar fully robed. They are, however, entitled to retain “counsel” outside their number to whom each of them will have to surrender the conduct of his case. He referred to paragraph 72 page 49 Vol. 3 of Halsbury’s Laws of England, 3rd edition.
Chief Williams, S.A.N. and Mr. Kehinde Sofola, S.A.N. being parties, he claimed in his submission, could not claim the rights and privileges of a legal practitioner. They will be accorded fully those rights and privileges enjoyed by a member of the public. He then cited the case of Queen v. Phillips 1 Cox C. C. 17 and referred to paragraph 1117 at page 601 of Vol. of the Halsbury’s Laws of England, 4th edition. He submitted that a legal practitioner conducting his personal case in court must not be allowed to (a) sit at the Bar; (b) stand in the Bar; (c) speak from the Bar. He must go outside the Bar and remove his wig and gown before he can be heard by the court in the well of that court, he emphasized and contended.
He then cited the dictum of Edge, C.J. in the case of “In the Matter of the West Hopetown Tea Company Ltd. 1887 Indian Law Report (Allhabad) Vol.9 page 180 at page 181″. He also cited the dictum of Wilde, C.J. in Newton v. Chaplin (1850) 19 Law Journal Common Pleas 374 at 376 in support. He then referred to the Practice Note reported in (1961) 1 All E.R. – 319 made by Parker, C.J. – Salmon and Winn, 11. in a criminal matter on the 17th day of January, 1961. He also referred to the confession of Mr. Neate in Neate v. Denman 43 L.J. Ch. 409 at 414 made in open court in 1974 that”If this had been simply a private case of my own, I should not have appeared in person and in my robes. ”
He then referred to the case of New Brunswick and Canada Railway Co. v. Conybeare 11 E.R. 907. I have had a look at this case and find that at p. 911, the following note occurs:
“Mr. G. L. Russell, on the first day of the hearing, said that he appeared for Respondent and suggested that Mr. Conybere as his junior in the cause. He referred to Newton v. Ricketts (9 H.L. Cas 262), where a party appeared as counsel at the bar of this House.
The Lord Chancellor (Lord Westbury) – certainly But not both as party and counsel. The Respondent must elect to argue in person or not. There cannot be a mixture of the two characters.”
He then went on to submit on issues nos. 2 and 3 that it is not proper for a party who is a legal practitioner and who has elected to conduct his own case by himself to conduct another party’s case in the same case or matter as that other party’s counsel. This, he said, is to avoid “a mixture of two characters”a character (or status) as a legal practitioner in the same case.
He then cited the case of R. v. Staff Sub-Committee of London County Council’s Education Committee Ex Parte Schonfeld (1956) 1All E.R. 753.He also referred to the statement of Sir William Boulton, C.B.E. in his book on “Conduct and Etiquette at the Bar” Sixth Edition at p. 83 in support of the submission. He then cited the case of Ojiegbe v. Ubani (1961)1 All N .L. R. 277 particularly the observation of Ademola, C.J .F. at page 279 where he said:
“I think it is undesirable for a barrister to put himself into a situation in which he cannot be counsel in the true sense of the word because he is in substance the party – the petitioner. Mr. Ubani-Ukoma should have brought the election petition himself.”
The advice of this court to counsel in Egbe v. Adefarasin (1987)1 N. W. L. R. (Part 47) 1 at page 19 was then cited. In that case, the court advised:
(a) “that a counsel should not be too personally involved with the case he is briefed to prosecute;
(b) that counsel should endeavour to brief another counsel when cases concern them personally otherwise objectivity and detachment can hardly be maintained.”
He submitted that Chief Williams, S.A.N. cannot appear for the Nigerian Bar Association and Kehinde Sofola, S.A.N. cannot appear for Chief Williams, S.A.N. and Mr. Molajo, S.A.N. He further submitted that the right of a person to defend himself in person or by a legal practitioner of his choice though guaranteed by the Constitution, applies to criminal cases only and not to civil cases. He submitted that there is no fundamental right to legal representation in civil cases and cited in support the dictum of Oputa, J .SC. in Ajani v. Giwa (1986) 3 N. W. L. R. (Pt.32)796 at 809 and also the dictum of the Supreme Court in Awolowo v. Sarki (1966)1 All N.L.R. 178.
In I. B. W. A. Ltd. v. Imano (Nig.) Ltd. (1988) 3 N. W. L. R.(Pt.85) 633, the Supreme Court did allow counsel, Chief Kehinde, S.A.N. who was being alleged disqualified as counsel to appear for Respondent to argue the appeal from the Bar on behalf of the Respondent.
He then cited Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424 where Ademola, C.J.N. at 426 on fair trial and fair hearing said:
“We think a fair hearing involves a fair trial and a fair trial consists of the whole hearing. We therefore see no difference between the two.”He also referred to Atano v. A-G. Bendel State (1988) 2 N.W.L.R. (Pt.75), 201 and Adigun v. Attorney-General, Oyo State (1987) 1 N.W.L.R. (Part 53) 678.
The appellant then distinguished the position of the Attorney-General who can, as party, conduct his case from the Bar fully robed. This is because he is operating in his official capacity. He concluded his submissions with emphasis that:
(a) Chief F. R. A. Williams, Mr. Kehinde Sofola and Mr. E. A. Molajo can appear in person but they can only conduct their case from the well of the court and not from the Bar; which in effect means that they must not be robed;
(b) Chief F. R. A. Williams, Mr. Kehinde Sofola and Mr. E. A. Molajo cannot act as legal practitioners for any other party in this appeal and they therefore cannot lead any other legal practitioner;
(c) that the Nigerian Bar Association, the first Respondent must therefore brief another legal practitioner to argue its case in this appeal.
In his reply, Chief F. R. A. Williams, S.A.N. in his brief filed on behalf of the Nigerian Bar Association and Mr. Kehinde Sofola, S.A.N. submitted after detailed statement of the facts that until this court otherwise orders, the judgment of the Court of Appeal must be presumed to be right and the onus remains on the plaintiff to persuade the Supreme Court that it is wrong.
It is the law that the judgment against which an appeal is brought is presumed to be correct until the appellant otherwise satisfies the Appeal Court that it is wrong and ought to be set aside. There is a long line of authorities on this point to warrant any citation. See Irenuma Odiase & Anor. v. Vincent Agho & Ors. (1972) 3 SC. 71 at 76; (1972) 1 All N.L.R. (Pt.l) 170 at 176 If it were otherwise, the necessity for appeals will not arise and the right of appeal will not be a constitutional and statutory right.
Chief Williams, S.A.N. further submitted that the issues formulated by the appellant in his objection are academic questions and that the legal profession in Nigeria is rooted on the foundation of the common law and operates within the statutory framework of the Legal Practitioners Act,the Evidence Act, the Nigerian Constitution and other relevant Statutes. He contended that the practice and etiquette among legal practitioners are regulated by rules made by the General Council of the Bar pursuant to powers vested in it by law. He maintained that the practice and etiquette of the Bar as expounded in Halsbury’s Laws of England or Boulton’s Conduct and Etiquette at the Bar which deal with the profession of Barristers in England cannot be regarded as conclusive guide or authoritative in this country on the questions raised in the appellant brief.
He observed that at no time was any application for an order of interim injunction made to the High Court to restrain them, the 3 learned Senior Advocates from acting for the Nigerian Bar Association even when they brought a motion to strike out the action. He pointed out that the learned Chief Judge carefully worded the order of injunction he finally made so as not to cover the past when he said that “the counsel concerned were restrained from further appearances.” Even this order was suspended to enable counsel to initiate and prosecute appeals in the matter by both the learned Chief Judge and the Court of Appeal.
He then submitted that there were three parties to the plaintiffs action and that the three leading counsel were not strictly parties. He then raised the question whether the three leading counsel received any fair hearing in regard to the charge on which the learned trial Chief Judge made the order of injunction. He submitted that appellants’ submission that they were parties to the proceedings against the Nigerian Bar Association is misconceived. He emphasized that even if they were parties to the application for order of injunction, they were put on notice in their capacity as legal practitioners and were to be restrained from exercising their function as legal practitioners representing the 1st Defendant, i.e. Nigerian Bar Association.
I will say at this juncture that I can find nothing on the record to show that the plaintiff appealed against the content and area of operation of the order of injunction granted by the learned C.J. or the suspension of the order.
Chief Williams further submitted that it would be contrary to all principles of justice and fairness to rule that notwithstanding the judgment of the Court of Appeal, the three leading counsel are to be treated as if the High Court injunction were binding on them. He finally submitted that theplaintiff having advanced his argument on the entire appeal, the court should entertain address from leading counsel for the 1st Defendant and also hold that each of the three leading counsel is entitled to address the court in his capacity as a legal practitioner briefed to reresent the 1st Defendant and that it is convenient if Mr. Kehinde Sofola, S.A.N. addresses on behalf of Chief Williams, S.A.N. and Mr. E. A. Molajo, S.A.N.In reply, Mr. Kehinde Sofola, S.A.N. submitted in his brief that the appellants’ ground of objection was misconceived. He contended that generally any litigant can conduct his own case if he chooses to do so and a legal practitioner who is a litigant is no exception. He observed that the dispute here or the issue raised in this objection is whether a legal practitioner has to conduct his defence outside the Bar in the circumstances of this case.
He contended that the case of Newton v. Chaplin (1850) 19 L.J. C.P. 374 per Wilde, C.J. was not in point as it was concerned with a criminal matter. He agreed that a legal practitioner charged with the commission of a crime or offence cannot stay at the Bar in his wig and gown to defend himself. But he sees nothing embarrassing or contrary to all known canons of administering justice for a legal practitioner to address the court on behalf of himself from the Bar. He agrees that a party in a civil or criminal case who is a counsel or legal practitioner is not different from the other party.
He observed that in England, there is a strict division in the legal profession between barristers and solicitors whereas there is no division in Nigeria.
He also observed that the Practice Note in (1961) 1 All E.R. 319 dealt with a criminal matter and that the New Brunswick and Canada Railway Co. case is irrelevant. He agreed that the dictum of Edge, C.J. in the West Hopetown Co. Ltd. case is relevant as he expressed it as the universal practice in England and Ireland at the time in 1887 and wanted the practice followed in India, i.e. a litigant who is a barrister and appeared before the court must not address the court from the advocate’s table or in robes.
He distinguished the instant appeal from the case where the legal practitioner is a litigant. He submitted that the 2nd, 3rd and 4th Respondents, i.e. Chief F. R. A. Williams, S.A.N., Mr. E. A. Molajo and Mr. Kehinde Sofola are not litigants. The litigants he maintained and contended were the plaintiff! appellant, the Nigerian Bar Association as the 1st Defendant/Respondent and the General Council of the Bar as the 2nd Defendant/Respondent. The 2nd, 3rd and 4th Respondents appeared as counsel to the 1st Defendant/Respondent and the injunction sought against them was to restrain them as counsel.
He observed that in Neate V. Denman (1874) L.R. 18 Esq. 12743 L.J. Ch. 09, the plaintiff was allowed to address from the Bar in his wig and gown as the question he intended to raise was on behalf of the profession. He cited Newton v. Ricketts 9 H.L. Cas. 262 11 E.R. 731 and New Brunswick & Anor. v. Conybeare (1962) H.L.e. 710 at 719 a case where a party was allowed to appear as counsel at the Bar of the House of Lords in England. The case of New Brunswick & Anor. v. Conybeare as reported in 11 E.R. (supra) does not bear this out. As already indicated above, Mr. Conybeare was dropped as junior counsel. He observed that the Supreme Court is in a unique position as the final court of appeal in Nigeria. Its predecessors in that role were the Privy Council and barristers, according to him, never wore wigs and gowns to appear and address the Privy Council.
As appellate matters before the Supreme Court do not involve the taking of fresh evidence, counsel addressing the court from the Bar in matters in which he is a party do not prejudice justice or breach rules of professional conduct in the legal profession. He then urged the court to follow its decision in International Bank for West Africa Ltd. v. Imano (Nigeria)Ltd. (1988) 3 N.W.L.R. (Pt.85) 633.
On appellant’s issue No.2, Mr. Kehinde Sofola, S.A.N. submitted that the practice in England cannot be invariably followed in Nigeria unless it isin corporated in our Constitution, Statutes and/or in our Rules of Professional Conduct in the legal profession.
The decision in R. v. Staff Sub-Committee of London County Council Education Committee Ex parte Schonfeld & Ors. (1956) 1 All E. R. 753 and the book titled “Boulton Conduct and Etiquette at the Bar” 6th Ed. p. 83, do not govern the practice in the Nigerian courts.
He observed that the appellant gave the dictum of Ademola C.J .F. in Ojiegbe and Anor. v. Ubani and Anor. (1961) 1 All N.L.R. 277 a slant it does not possess. He did not underline Boulton’s statement. The dictum of Oputa, J.S.C. in Egbe v. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 at 19 counsel contended, does not support appellant’s submission. It was good judicial advice to the barrister involved in the case.
He submitted that a trial court cannot prevent counsel from exercising his full rights over the proceedings otherwise any decision arrived at may be vitiated. In support, he cited the case of Barnes & Anor. v. B.P.C. (Business Forms) Ltd. (1975) 1 W.L.R. 1565. He urges that there is a rule of practice which debars a counsel from giving evidence in the case in which he is appearing. This, he contended, is for the protection of his clients not the opposite party and cited the case of Iris Winifred Horn v. Robert Rickard (1963) N.N.L.R. 67 (1963) 2 All N.L.R. 41.
On the 3rd issue raised by the appellant, counsel, Mr. Kehinde Sofola submitted that the obiter dictum of Eso, J.S.C. in Yahaya Adigun & Ors. v. Attorney-General of Oyo State & Ors. (1987) (Pt.53) 1 N.W.L.R. 678 at 720 on fair hearing has been overstretched. A legal practitioner Respondent appearing for a co-Respondent does not breach and his appearance has no relevance to the concept of fair hearing and does not amount to dishonourable conduct.
He submitted that all references by the appellant to criminal trials in his brief are irrelevant. Section 33(6)( c) of the Constitution relates to criminal cases only. In the con of this objection, they are irrelevant. But counsel submitted that a party to a civil case is entitled to choose which counsel represents him once he has the means to pay such counsel so long as the counsel is not under lawful detention or otherwise disqualified as pointed out by the Supreme Court in the case of Awolowo v. Sarki (1966) 1 All N.L.R. 178. The question of technical breach of natural justice does not arise. As Agbaje, J.S.C. said in Lazarus Atano & Anor. v. Attorney-General, Bendel State (1988) 2 N.W.L.R. (Pt.75) 201, 218 D-C there is no such thing since the concept of natural justice is concerned with matters of substance not technicalities. Mr. O. Adio, learned Counsel for the General Council of the Bar associated himself in the main with the submissions of Mr. Kehinde Sofola.
That concludes a review of the facts and submissions of the appellant and counsel for the Respondents in this matter.
The objection was ostensibly founded on the ground that the appearances of Chief F. R. A. Williams, S.A.N. 2nd Respondent and Mr. Kehinde Sofola, S.A.N. (4th Respondent) if allowed as announced on the 8th day of November, 1988 will not be in accord with their professional role and duty to the court as “counsel” arguing a case before the highest court of the land and furthermore, the appearance will not be in the tradition or standard of the legal profession.
Throughout the arguments before this court, and in his brief, the appellant has failed to show the professional role and duty to the Court as”counsel” which the appearances as announced on the 8th of November, 1988 have breached. Furthermore, the tradition and standard of the legal profession, which the appearances will be in conflict with, were not shown.
The objection alleges that the 2nd, 3rd and 4th Respondents are barristers and parties to this appeal and in that capacity are incompetent (1) to conduct their cases from the Bar fully robed when addressing Court; (2) to appear both in person and as counsel to another party in the appeal which concerns the 2nd, 3rd and 4th Respondents in their personal capacity and (3) to appear as counsel to any other party in this appeal since they are parties in this appeal which concerns the 2nd, 3rd and 4th Respondents in their personal capacities.
It is therefore necessary to consider the capacity in which the 2nd, 3rd and 4th Respondents are made parties in this appeal. Is it in their personal capacity or as counsel
From the facts stated above in the earlier part of these Reasons for Ruling, the answer is clear. The appellant did not institute the action, which was struck out in the Court of Appeal against the 2nd, 3rd and 4th Respondents. The action was instituted against (1) the Nigerian Bar Association against whom the reliefs or remedies were claimed and (2) the General Council of the Bar against whom no cause of action was shown. The 2nd, 3rd and 4th Respondents were the leading counsel who appeared for the Nigerian Bar Association and it was to prevent or bar their further appearances as “counsel” to the Nigerian Bar Association that a motion for interlocutory injunction was filed by the appellant. The ground on which the motion was based was that they participated in the unsuccessful attempt to have the case between the appellant and the Nigerian Bar Association settled out of court and/or withdrawn from court for settlement. They were not joined as parties or Defendants to the suit and the title to the motion paper did not include their names as parties. It is only the body of the motion that mentioned their names as counsel. Therefore their joinder and appearance in this appeal is directly linked to their role as counsel to the 1st Respondent, the Nigerian Bar Association. Strict census, they are not parties to the cause and there is no controversy or dispute between the appellant and themselves which requires determination by this Court. Moreover, and more importantly, no breach of any of the Rules of Professional Conduct in the legal profession or commission of any infamous misconduct was alleged against any of them.
It appears that the appellant has overlooked the content of his application before the High Court and that in the High Court addresses in opposition to that application were given from the Bar by the 2nd, 3rd and 4th Respondents. By this objection, the appellant is asking this Court to presume that the injunction he seeks has already been granted and is subsisting and that the matter between him and the three leading counsel did not concern their role as counsel to the 1st Respondent. The decision of the Court of Appeal against which the appellant has appealed is a landmark in the history of this case. It is a subsisting judgment and presumed to be correct until the appellant satisfies this Court and obtains the declaration of this Court that it is not correct. See. Odiase & Anor. v. Agho & Anor. (1972) 1 All N.L.R. (Pt.1) 170 at 176 Johnson v. Williams 2 W.A.C.A. 248 at 252 and 257 Colonial Securities Trust Coy. v. Massey (1896) 1 Q.B. 38 per Lord Esher, M.R. That being so, the right of the Nigerian Bar Association to choose 2nd, 3rd and 4th Respondents as leading counsel to represent it remains unimpeded.
Similarly, the right of audience in courts of law granted to the 2nd, 3rd and 4th Respondents by section 7(1) of the Legal Practitioners Act 1975 remains extant and subsisting. Section 7(1) of the Legal Practitioners Act reads:
“Subject to the provisions of the next following subsection and of any enactment in force in any part of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Sharia Court of Appeal or the Court of Resolution of Northern Nigeria or any native or customary court, a legal practitioner shall have the right of audience in all courts of law sitting in Nigeria.”
It is therefore crystal clear that unless there is a law restricting or prohibiting the right of any person to be represented by a legal practitioner, the Legal Practitioners Act accords all persons the right to be represented by a legal practitioner in all courts of law sitting in Nigeria. On the state of the law, it is my view that the 1st Respondent has a right to be represented by 2nd, 3rd and 4th Respondents and the 2nd, 3rd and 4th Respondents have a right of audience in this Court.
If the 2nd, 3rd and 4th Respondents were parties in their private personal capacities, different considerations will arise. If there had been filed a claim against the 2nd, 3rd and 4th Respondents or if they had been added to the 1st and 2nd Defendants as Defendants, they would become parties to the suit in the real sense of the word. As parties, a barrister litigant is entitled to conduct his case personally or by counsel of his choice.
This right is not guaranteed in civil cases under our Constitution but it is in criminal cases. See section 33(6)( c) of the Constitution of the Federal Republic of Nigeria 1979. I agree with Lord Westbury, L.c. when in the case of New Brunswick & Anor. v. Conybeare (supra), he said the characters should not be mixed. A barrister litigant has a right to conduct his case in person as any other member of the public or be represented by counsel as any other member of the public. It is not right or correct to say that a barrister represents himself. Such a representation does not exist in law although the legal training he has acquired can be utilized for his own benefit and for the benefit of others who retain his services when he has properly enrolled and paid his fees as a legal practitioner. See Section of the Legal Practitioners Act 1975
Section 21 of the Legal Practitioners Act 1975
Section 61 of the Legal Practitioners Act 1975
The word “represent” in the con of legal representation means to act or stand for or be an agent for another.
The right of a person whose name is on the roll of barristers to practice can only be withdrawn for breach of professional conduct or for infamous conduct in any professional sense in accordance with the provisions of sections 10 and 12 of the Legal Practitioners Act, 1975. Section 9 of the Legal Practitioners Act has set up the Legal Parishioners Disciplinary Committee which is “charged with the duty of considering and determining the case where it is alleged that a person whose name is on the roll has misbehaved in his capacity as a legal practitioner or should for any other reason be subject to proceedings under the Act.
The penalties prescribed by the Act for infamous conduct in a professional respect committed by any legal practitioner are set out in section10(1)(c)(i), (ii) and (iii). (1) He may either have his name struck off the roll of barristers or (2) he may be suspended from practice for a period or (3) he may be admonished. Sub-section (4) of section 10 of the Act empowers the Bar Council:
“to prepare and from time to time to revise a statement as to the kind of conduct which the Council considers to be infamous conduct in a professional respect. ”
The Supreme Court is by section 12(1) of the Act empowered to give such direction as is mentioned in sub-section (1) of section 10 where it appears to the Supreme Court that a person whose name is on the roll has been guilty of infamous conduct in any professional respect with regard to any matter of which the court or any other court of record in Nigeria is seized.
The conduct complained of against the 2nd, 3rd and 4th Respondents does not amount to infamous conduct in any professional respect. There is therefore no justification for depriving them of the privilege of their office as counsel.
The appellant has not questioned and cannot question the right of each of the 3 counsel. Every appellant, be he a barrister or solicitor or ordinary member of the public, has a right to argue his case either at first instance or on appeal in person. See sections 17(2)(a & b); 33(1) of the 1979 Constitution of the Federal Republic of Nigeria. See R. v. Staff Sub-Committee of London County Council Education Committee & Another Ex parte Schonfeld and others (1956) 1 All E.R. 753. In this he has an uphill or herculean task.
In the case of Newton v. Ricketts (1862) 9 H.L.e. 262 11 E.R. 731, Lord Campbell, the Lord Chancellor at p. 732 observed and commented:
“My Lords, this case has been very ably argued by the appellant in person.”
He did not say the case was argued as counsel. This is because a party cannot appear both as a person and as counsel for himself. This point was emphasized in the case of New Brunswick and Canada Railway Co. v. Conybeare (1862) 9 H. L. e. 711, 11 ER 907) when Mr. G. L. Russell,on the first day of the hearing said that he appeared for the 1st Respondent and suggested that Mr Conybeare appeared as his junior in the same cause citing Newton v. Ricketts 9 H.L. Cas. 262 where a party appeared as counsel at the Bar of the House. Lord Westbury, the Lord Chancellor retorted:
“Certainly. But not both as party and counsel. The Respondent must elect to argue in person or not. There cannot be a mixture of the two characters. In that case, Mr. Conybeare was a party in the real sense of the word. In the instant appeal, the 2nd, 3rd and 4th Respondents are not parties in the real sense of the word. They were counsel to the 1st Respondent and the appellant knows this. He simply did not want them to represent the 1st Respondent and has been seeking the order of court to bar them. It is my opinion that until he satisfies the court of the necessity to deprive them of their representation as counsel for the 1st Respondent, they are entitled to exercise their right to represent the 1st Respondent from the Bar in this Court.
In the case of a barrister who is standing trial for an offence, he is a party in the comprehensive sense of the term and unless the Criminal Procedure Law, Code’ or Act in Nigeria otherwise provides his proper place during trial is in the dock and he cannot stay at the Bar fully robed to stand his trial and or address the court whether he is conducting his case in person or is represented by counsel. Similarly, a barrister who conducts criminal prosecution on his own behalf is entitled to no other privileges than as an ordinary person. This has been declared so since the case of Queen v. Phillips (1843-1846) 1 Cox Criminal Cases 17.
By virtue of the inherent powers and sanctions of a court of law which section 6(6)(a) of the 1979 Constitution granted to the High Court, it is entitled to protect the integrity of the court by its exercise and if the appearance of any legal practitioner is professionally undesirable in law in any matter to restrain him from appearing in that matter. It is an abuse of that power and an illegal exercise of it to use it to obstruct the exercise of the lawful duties of counsel as counsel in a court of law. A legal practitioner’s duty to the Court to promote and foster the course of justice is paramount.
It has not been shown that the conduct of 2nd, 3rd and 4th Respondents is or will be prejudicial to the interest of justice. A legal practitioner cannot be deprived of his rights and privileges by a mere allegation that he is a party when there is no claim or cause of action against him or a proved allegation of infamous conduct in a professional respect.
In the recent case of International Bank for West Africa Ltd. v. Imano (Nigeria) Ltd. (1988) 3 N.W.L.R. (Pt.85) 633, this Court dismissed an appeal against the decision of the Court of Appeal rejecting the objection of the counsel to the representation of the Respondent by Chief Kehinde Sofola, S.A.N. on the ground that he was disqualified by Rule 31(a)(I) of the Rules of Professional Conduct in the legal profession by reason of the fact that he was a director of the Respondent company. The appellant failed to establish the fact of disqualification in that case.
Chief Kehinde Sofola, S.A.N. argued the appeal on behalf of the Respondent from the Bar.It was for the reasons stated above that I overruled the objection and called on Chief F. R. A. Williams, S.A.N. and Kehinde Sofola, S.A.N. to address the Court as counsel in reply to the arguments of Chief Gani Fawehinmi in the appeal.
SC.229/1986(-R)
