Denniss Ogbonna Okatta V. The Registered Trustees of the Onitsha Sports Club (2007)

LawGlobal-Hub Lead Judgment Report

M. LADAN TSAMIYA, J.C.A.

This is an appeal against the Ruling of the High Court of Anambra Stale, sitting in Onitsha Judicial Division, delivered on the 10th of March 2006 in suit NO.0/344/2005. In the High Court (here in this appeal referred to as the trial Court), the plaintiff sued the defendant claiming as follows:

1. A Declaration that the nullification of the election of the plaintiff and others as members of the Management Committee by the Trustees of the defendant with out giving them a hearing and/or fair hearing is contrary to the rules of natural justice, ultra-vires and consequently null and void.
2. Injunction restraining the said Trustees by themselves, their servants, agents or privies from further nullifying the election and/or interfering with the functions of the plaintiff and members of the Management Committee till they (the Management Committee) complete their term of office under the constitution of defendant club.

The suit was filed by the plaintiff for himself and on behalf of the members of the Management Committee of the Onitsha Sports Club.

Thereafter the plaintiff filed his statement of claim on 12th July 2005 and on 27th July 2005 the defendant entered appearance. Before filing her statement of defence, the defendant, on 12th October 2005 filed a motion on Notice praying the trial court to strike out the whole suit against her for being incompetent.

On 31st October 2005, and before the above motion was agued, the plaintiff on the other hand filed his own motion praying the trial court “for an order restraining Mr. G.R.I. Egonu Esq. (SAN) or any counsel from his chambers including Mr. D.I. Umeji Esq. from appearing or continue to appear or to represent or continue to represent the defendant in this suit upon the following grounds:

1. G.R.I. Egonu (SAN) is a member of the Board of Trustees of the defendant.
2. G.R.I. Egonu (SAN), B. Anie Egbuna and Akunne D.C. Nwosu purporting to act as Trustees of the defendant, purportedly nullified the election of the plaintiff and other members of Management Committee of the Onitsha Sports Club (the defendant), which said nullification is the subject matter of this suit.
3. G.R.I. Egonu (SAN) cannot appear as member of the Board of Trustees of the defendant and at the same time appear as a Legal practitioner for the defendant in which he is a trustee member.
4. The chambers of G.R.I. Egonu (SAN) where D.I. Umeji Esq. is a Barrister and Solicitor are disqualified from appearing in the circumstances of this case for the defendant.

The above plaintiff’s Motion on Notice was supported by an 11 paragraphs affidavit. The relevant paragraphs are:

(3) That I and members of the management Committee of the Onitsha Sports Club brought this suit against the Registered Trustee of Onitsha Sports Club for inter alia purportedly nullifying the election of myself and others as members of the management committee of Onitsha Sports Club. I and members of the management committee are also members of Onitsha Sports Club incorporated.

(4) That the Trustees of the defendant who purportedly nullified the election into the management committee of Onitsha Sports Club include;

(a) G.R.I. EGONU SAN.

(b) ANIE EGBUNA

(c) AKUNNE D.C. NWOSU.

(5) That apart from purportedly nullifying the election of the management committee of Onitsha Sports Club, the above trustees purportedly appointed a Caretaker Committee to take over the functions of the management Committee of Onitsha Sports Club from myself and the other members of the management committee on whose behalf I filed this suit.

(8) That it was in consequence of lack of fair hearing of the members of the management committee by the Trustees of the defendant that this suit was brought. Hereto attached and marked exhibit “A” A1, A2 and A3 are the motion on Notice, affidavit in support sworn to by Tony Madueke, affidavit of Urgency sworn to by Odi Chukwuma and Affidavit of the Trustees sworn to by B. Anie Egbuna Esq.

(9) That EZEJIAKU DR. EJIKE UME SAN informed me and I verily Believed him that G.R.I. EGONU is not only party and a witness in this case, it is ethically wrong for him or any person from his Chambers to appear for the defendant in this suit as Counselor to represent the defendant in this case as Counsel.

The defendant, on 16th November, 2005 filed a counter-affidavit opposing the said motion filed on 31st October 2005 by the plaintiff/applicant. The relevant paragraphs are:

2. The Trustees of Onitsha Sports Club are P.O. Balonwu, S.A.N., G.R.I. Egonu, S.A.N., Akunne D.C Nwosu and B. Anie Egbuna Esquire.
3. The Trustees of Onitsha Sports Club nullified the purported election of the applicant and three other members of Onitsha Sports Club as members of the Management Committee and appointed a three-man Joint Administrators of Onitsha Sports Club under the current constitution of the Club.
4. The members of the Management Committee of Onitsha Sports Club constitute the Executive Committee of the Club. The Trustees of Onitsha Sports Club are not members of the Executive Committee of the Club. The Constitution of Onitsha Sports Club 2002 is hereby specifically referred to as Exhibit.
5. G.R.I. Egonu is one of the four Trustees of Onitsha Sports Club sued in this case in the name of the defendant-respondent which is a corporate body, he is not a witness in this case and there is nothing unethical for him or for any Counsel from his Chambers to represent the corporate defendant-respondent in this case.

Both the plaintiff/applicant and the defendant/respondent submitted their respective written addresses before the trial court. The plaintiff/applicant filed his written address in support of his motion filed on 31st October 2005, while the defendants/respondent filed her own, on 18 November 2005. On 22 February 2006, the motion filed on 31st October 2005 was argued and both counsel to the parties adopted their respective written addresses and thereafter, the suit was adjourned for ruling. In a reserved ruling the learned trial Judge after considering their submissions on 10th March, 2006, refused to grant the said application. Being dis-satisfied, the plaintiff/applicant appealed to this court on two (2) Grounds of appeal as contained in his Notice and Grounds of Appeal filed on 23rd March 2006. The grounds of appeal with their particulars read as follows:

GROUND 1

The learned trial Judge erred in law and came to a wrong decision when the Court held that the body corporate so created as in the case of Registered Trustees of Onitsha Sports Club is totally detached from the individual Trustees, “therefore G.R.I. Egonu SAN is a different person from the defendant”

PARTICULARS OF ERROR:

(i) The individuals that constitute the incorporated Trustee are inseparable from the incorporated Trustees.

(ii) It is the individual that constitute the Registered Trustees and are sued as such individuals in the corporate name.

(iii) The individual that form the Registered Trustees of the association are the Trustees and are sued as Trustee in their natural names with the words “the Registered Trustees of the named incorporated Trustees”.

(iv) The Trustees including G.R.I. Egonu SAN e auld be sued as the Registered Trustees of Onitsha Sports Club in their natural names with the words “the Registered Trustees of Onitsha Spans Club”

(v) The Registered Trustees of Onitsha Sports Club in their personal capacities including G.R.I. Egonu SAN are not distinct from the Registered Trustees of Onitsha Sports Club.

(vi) It is the registration of the names of the Registered Trustees of Onitsha Sports Club including G.R.I. Egonu SAN that constitute the persons so registered as the Trustees of Onitsha Sports Club in their personal/individual names.

GROUND 2

The learned trial Judge erred in law and in the construction of Rules of professional conduct in the legal profession particularly, rules 10(b), 19 and 31 thereof, when the court held that a member of the executive committee of Onitsha Sports Club who is a legal practitioner is entitled to appear as counsel for the incorporated Trustees and thereby came to a wrong decision by allowing G.R.I Egonu SAN to continue to represent the Defendant in the above suit.

PARTICULARS OF ERROR

(i) There is no doubt that G.R.I. Egonu SAN, played active role as in the events and meetings leading to the purported dissolution of the Caretaker Committee of Onitsha Sports Club led by the Plaintiff as well as passed circulars which purportedly dissolution the Plaintiffs.

(ii) The Plaintiffs are members of Onitsha Sports Club. G.R.I Egonu SAN is also a member of Onitsha Sports Club.

(iii) G.R.I. Egonu SAN is one of the Trustees whose action is being challenged by the Plaintiff.

(iv) G.R.I. Egonu SAN knew all that happened at the meetings of the Club as well as the meeting of the trustees of the club in respect of the dispute the subject matter of this suit.

(v) G.R.I. Egonu SAN, in the circumstances will use his personal knowledge as a member of the Registered Trustee, who also attended the same meeting with the Plaintiff, G.R.I. Egonu SAN will not be an independent Counsel nor represent himself and other trustees of Onitsha Sports Club sued as defendant.

(vi) By being Counsel for all the Registered Trustees, G.R.I. Egonu SAN who is a member of Onitsha sports Club is also acting as Counsel for the Plaintiff and the persons represented by the plaintiff, who manage the affairs of Onitsha Sports Club.

(vii) The facts of the case are such that G.R.I. Egonu SAN is likely to be a witness in the above suit.

(viii) It is not good nor ethical for Counsel to appear in a matter in which he took active part in the events leading to the suit as in the above suit.

(ix) It is not only when a person is an executive in paid employment that he is prevented from representing the company or association as held by the court.

Above is the back grounds facts that gave rise to this appeal. It is therefore needless repeating them again.

However, I have observed that the plaintiff/applicant (herein referred to as the appellant) being unable to file his brief of argument within time as provided by the Rules of this Court, had sought and obtained leave of this Court, on 23rd April, 2007 to file his brief of argument out of time and the appellant’s brief of argument already filed was deemed as properly filed with effect from 23rd April, 2007. In the appellant’s brief of argument two (2) issues for consideration of this Court were formulated, and they read as follows:

1. Whether the trial Court was right when it held that the Registered Trustees of Onitsha Sports Club, (the defendant) are totally detached from the individual trustees thereby making Mr. G.R.I. Egonu Esq, (SAN) a different person from the defendant for all purposes including appearing as Counsel in the above suit.
2. Whether the trial Court was right when it held that a member of the Executive or of Trustees of the defendant, who is a legal Practitioner is entitled to appear as Counsel for the incorporated Trustees not with standing the objection raised by the appellant.

After being served with the appellant’s brief of the argument, the defendant (herein referred to as the respondent), in response filed her own respondent’s brief of argument in which two (2) issues were formulated for consideration of this Court, The issues read as follows:

1. Whether the Registered Trustees of Onitsha Sports Club are not totally detached from the individual trustees?

2, Whether Mr, G.R.I. Egonu (SAN) as one of the four (4) Trustees of the respondent cannot give a gratuitous Legal service to the respondent in this suit.

Taking into consideration, the circumstances of this case including the grounds of appeal filed, the issues as formulated by the parties to this appeal, I am of the opinion that the issues formulated in this appeal are in substance the same even though differently worded. I shall therefore treat this appeal in the light of the two (2) issues formulated by the respondent.

First issue. The question under this issue is whether the Registered Trustees of the respondent are not totally detached from the individual trustee.

It was submitted on behalf of the appellant in his brief of argument, that the trial court was wrong to have decided that the trustees of the respondent are completely detached from Onitsha Sports Club. It was further submitted that section 679(1-3) of the Companies and Allied Matter Act (CAMA) 2004, Laws of Federation of Nigeria (L.F.N.) cannot be used to hold that Mr. G.R.I. Egonu (SAN), as one of the four Trustees of Onitsha Sports Club, is completely detached for all purposes from Onitsha Sports Club in respect of his appearance in Court for the respondent in the suit, challenging the decision of the said Trustees of Onitsha Sports Club (the defendant) which he participated and took part, as a member, in the decision which is the subject matter of dispute in this suit. It was also submitted that, the doctrine of detachment or incorporation or registration and its legal effect under section 679 (1-3) of the CAMA (supra) cannot be used to allow the said Counsel to appear before a Court as Counsel for the respondent, when indeed he was instrumental in taking the decision which becomes the subject matter in this suit. Also submitted is the fact that, the said Mr. G.RJ. Egonu (SAN) is likely to be a witness in the suit. In support of this submission, reliance was made on the following:

I. Oloffia v. Gorau (2002) 15 NWLR (Pt.690) 221 at 229 para. H,

2. Adesanya Idown v. M.A. Adekoye (1960) WRNLR P.210 AT 211.
3. Horn v. Richard (1960) NWLR 67.

The appellant finally on this issue submitted that the said Counsel is not detached at all from the respondent.

In response, it was submitted by the respondent’s counsel on behalf of the respondent that, from the date of registration of the Registered Trustees of Onitsha Sports Club, she became totally detached from the individual Trustees including the said Mr. G.R.I. Egonu (SAN). He relied on section 679 (1-3) of CAMA (supra) to support her submission. It was submitted that, it was the respondent who was sued, and by virtue of CAMA (supra) the respondent is a corporate body, separate and distinct legal entity from her members of the management as well as Mr. G.R.I. Egonu (SAN) who is one of the four (4) trustees of the respondent. In support, the following were cited:

1. Union Bank of Nigeria Ltd & Anor. V. Penny-Mart Ltd (1992) 5 NWLR) (Pt.240) 22 8 at 237, letters E – F of the report;
2. Brig. G.T. Knrubo & Auor. V. Zach-Motison Nig Ltd (1992) 5 NWLR (Pt.239) 102 at 115, letters A-B.

It was further submitted that there was no any evidence to show that the respondent’s Counsel, Mr. Egonu (SAN) was personally instrumental in taking the decision alleged to be the subject matter of the suit or that his act was enough to make her counsel personally liable for the act of the respondent. That the decision of the trial court, to wit: Mr. G.R.I. Egonu (SAN) was a different person from the respondent, was right.

Having stated the submissions of both parties to this appeal on issue one, it is necessary at this stage to take the issue of the status of the respondent in this matter vis-a-vis the learned senior Advocate of Nigeria, Mr. Egonu. It was common ground that the respondent was an association, (social for that purpose) registered under the Companies And Allied Matters Act, Cap, 37 of 1990 and that Mr. Egonu (SAN) was only, one of the Registered Trustees of the respondent. The Law is trite that an incorporated association such as the respondent, is different legal entity from its directors or management. It has a separate and distinct life and existence. The law in recognizing its separate and distinct entity vests in it a legal personality which can sue or be sued in that name. The case law is in great proliferation see Alhaji Mai lanya Trading and Transport Co. Ltd. V. Veritas Insurance Co. Ltd. (1986) 4 NWLR (Pt.38) 802; Fawhinmi v. N.B.A. & Ors (NO.2) (supra).

In view of the fact that an artificial person, like the respondent, vested with legal or juristic personality, lacks the natural or physical capacity to function as a human being, those who work in it do all things for and on behalf of it. The respondent in this case, cannot hear, and it cannot talk. Therefore, it cannot physically react to a situation or perform a physical act outside the goading force of a human being. It is therefore the law and the tradition for the human being or human beings authorised, to take decisions for and on behalf of the incorporated association such as the respondent. Where a certain act is done, by a person or persons in authority (e.g. the decision taken in this case), the association is liable or deemed to be liable for the act or acts of the person or persons.

In the instant case, Mr. Egonu (SAN) was one of the trustees of the respondent. Even if the learned SAN held the position of the sole chairmen or sole trustee of the respondent, the respondent was a separate and distinct legal entity different from the learned SAN. See section 679 (1-3) of C.A.M.A. Cap.37 L.F.N: 1990, and Solomon v. Solomon & Co. Ltd. (1897) A.C.22. The confusions that arose in this case were as result of the failure of the appellant to bear in mind that the decision in question in this suit was the respondent’s decision and not the individual trustee or that of Mr. Egonu in his personal capacity. The decision of the trustees nullifying the election of the appellant and others was taken on behalf of the respondent by the trustees who were authorised so to do. Thus, the appellant sued the respondent for the act of nullifying the appellant’s election. See para.3 of the affidavit in support of the motion 31st October, 2005 as well as para. 8 of the counter-affidavit sworn to by one Hyacinth Nwango and filed on 16th November, 2005.

If the foregoing facts had been borne in mind by the appellant, this appeal would have been otherwise.

The above explains the rational behind the finding of the trial court in favour of the respondent which I also, affirmed. Consequently this first issue is resolved in favour of the respondent and that the appellant’s first issue and its ground of appeal failed and dismissed.

Second issue. The question under consideration in this issue is whether Mr. G.R.I. Egonu (SAN), as one of the four Trustees of the respondent can give a gratuitous legal service to the respondent. In the appellant’s brief of argument, it was submitted that the Rules of Professional Conduct in the legal profession NO.5 volume 67 of 1980 and Legal Practitioners Act Cap.207 of 1975 contained in the Laws of Federation of Nigeria 1990 were made to define and limit appearance of Counsel in certain matters notwithstanding that the counsel is a different person and entity from the person he appears for. The case of Fawehinmi V. NBA (1989) 2 NWLR (Pt.105) 494 was relied on in support of this contention. It was also contended that since Mr. G.R.I. Egonu (SAN) is a member of the Board of Trustees of the defendant who took part in the decision nullifying the election of the appellant and other members of the Management Committee of the defendant, and which decision becomes the subject matter (If dispute in this case, he cannot appear as a legal practitioner for the respondent. The case of N.B.A. V. Koku (2006) 11 NWLR (Pt.991) 431 was referred to in support of the appellant’s contention. It was further submitted that the combined effect of Exhibits, A, A1 – A3 at pages 21 – 27 particularly paras. 1 and 2 at pages 26- 27 of the record of the appeal, the learned senior Advocate of Nigeria is likely to be a witness and indeed is a witness in the main case and as such he and any Counsel from his chambers is disqualified from appearing or continue to appear as counsel to the respondent. The Rules of professional conduct in the Legal Profession (supra) was relied in support of this contention. He finally argued that it was wrong for the trial court to hold that, Mr. Egonu (SAN) notwithstanding his membership in the executive or governing council and a Trustee of Onitsha Sports Club, is free to appear as Counsel for the respondent in the suit.

The respondent contended that since there was no evidence of breach of Rules of professional Conduct by the counsel .for the respondent, the Counsel cannot be restrained from appearance for his client. The case of Fawehinmi v. N.B.A. & ORS (No.20989) 2 NWLR (Pt.105) 558 at 619, letters “F” – “G” was relied on in support of this contention. It is also submitted that the appellant has not led any evidence to show that the respondent intended to call Mr. Egonu (SAN) as one of her witness in the case. The respondent further contended that the case of Olofin V. Daniel Garan (supra) relied on by the appellant is not applicable in circumstances of this case as the facts and circumstances are different. The following cases are relied on:

1. Adegoke Motors Ltd. V. Babatunde Adesonya (1989) 3 NWLR (Pt.109) 250 at 265 letter G-A and at 275 letter B-E.
2. C.D.N. V. Mr. Olasupo Adedeji & Ors. (2004) 13 NWLR (Pt.890) 226 at 42 – 243 letter H-B.

It was contended that it was the respondent that was sued and the counsel opted to offer a gratuitous legal services to the respondent and as such he is free to do so. In support of this, the case of I.B.W.A. Ltd v. Imano Nig Ltd. & Anor (1988) 3 NWLR (Pt.85) 633 at 652 – 653 letters C-H and E-F was referred to us. It was further contended that a Legal Practitioner who is also a trustee can accept to work qua Legal Practitioner but without receiving payment for it. The case of N.B.A. V. Koku Esq. (supra) was also relied on. That Rules of Professional Conduct in the Legal Profession of England which are contained in Halsbury’s laws of England, relied upon by the appellant in his brief are not applicable to Nigeria. In support of this contention, the case of Fawehinmi V. N.B.A. & Ors (No.2) (supra) was cited. The respondent finally contended that there is no evidence led before the trial court to show that there is a conflict of interest whatsoever in this case and that the gratuitous legal services of the said Counsel to the respondent cannot in any way under mine his duty to the court as well as his duties as a Legal Practitioner.

From the appellant’s submission, he sought, from the trial court, to restrain the Learned Senior Advocate of Nigeria, Mr. G.R.I. Egonu, and all Counsel/Solicitors in his Chambers, from appearing for the respondent. The Appellant’s ground for restraining them was that the Learned SAN was an Executive member of the registered trustee who takes the decision and so is a likely witness in the main suit pending before the trial court. The learned trial Judges has expressed his view in his ruling at page 62 – 63 of the record of appeal as follows:

“…I have carefully gone through the Rules of Professional Conduct in the legal profession, particularly rules 10b, 19 and 31, I did not see any provision therein which suggest that a member of the executive Committee of an incorporated trustee, who is also a legal practitioner, cannot appear as counsel for the incorporated trustee. This is particularly so when there is nothing to suggest that Mr. G.R.I. Egonu (SAN) is in the salaries employment of the defendant (respondent).

It is the humble opinion of this Court, therefore, that the eminent Senior Advocate of Nigeria, G.R.I Egonu Esq. is as free as the air to continue to represent the defendant (respondent) as counsel in this suit.”

It seems that from the nature of the appellant’s allegation, one may say that it is an allegation that may lead to a professional misconduct against the learned SAN by his appearance for the respondent in the circumstances I have stated above. And it appears from the passage re-produced from the ruling of the trial court, the trial court decided that such misconduct was not proved against him and accordingly, the learned SAN is freed to continue to appear for the respondent.

Now, was his appearance improper, unprofessional or dishonorable? This question arises because allegation contained therein constituted the main ground for the application for the order of injunction. I will regard the allegation as a complaint of breach of professional conduct in the Legal Profession. Beyond the mere allegation, were the facts adduced constituting and proving a breach of professional Conduct?

The relevant rules of Professional Conduct in the Legal Profession that requires examination in the list of the complaint is rule 19 of the Professional Conduct which provides that:-

(a) “When a legal practitioner knows, prior to trial, that he will be a necessary witness, except as merely formal matters, such as identification or custody of document or the like, neither he nor his Chambers should conduct the trial. (underline mine)

(b) If during the trial, he discovers that the end of justice requires his testimony, he should, from that point, or if feasible and not prejudicial to his client’s case, leave further conduct of the trial to the other Counsel.

(c) If circumstances do not permit withdrawal from the conduct of the trial, the legal practitioner should not argue the credibility of his own testimony.”

In order to appreciate the nature and subject matter of the suit alleged to be pending before the trial Court, and determine whether the learned SAN will be a necessary witness at the trial, it necessary at this state to refer to:

(1) The statement of claim in the pending suit and,

(2) The relevant paragraphs in the affidavit in support of the Motion to restrain the learned SAN.

In the statement of claim filed on 17/7/2005(see pages 5 – 7 of the record of this appeal) the relevant deposition are as follows

1. The plaintiff is a Businessman and a member of the Onitsha Sports Club.
2. The defendant is a legal person registered under the Law of Nigeria
3. The current Trustees of the Club are Nnabuenyi P.O. Balonwu S.A.N., Akunwata G.R.I. Egonu S.A.N., Akunne D.C. Nwosu and Barrister B. Anie Egbuna.
4. Sometime on the 29th April, 2005 the Management Committee of the Onitsha Sport Club was duly elected.
5. The Plaintiff was duly elected the President of the Club; others include Gerald Ikemelu as the Secretary, Felix Nwosu, sports Secretary, Augustine Mbaebie Bar Secretary.
6. As the said members of the Management Committee were assiduously carrying on their functions, some disgruntled mischief makers, contrary to the provisions of the said Constitution of the Club purported to petition to the said trustees of the Club against the Members of the Management Committee with a view to taking over the management of the Club themselves.
7. Again, Contrary to the Rules of Natural Justice, the said trustees without giving the said members of Committee a hearing or opportunity to he heard, to he heard, sat and decided against the Plaintiff and his said Committee and in their absence.
8. The said Trustees under which the Club was registered, glaringly Acted contrary to the principle of andi alteram partern, hear the other side.
9. Consequently, by a document dated the 30th April, 2005 and titled “Nullification of Onitsha Sports Club Purported Election” and signed the aforesaid Trustees and addressed “To all Members of Onitsha Sports Club” the said Trustees wrongly purported to annul the election of the Plaintiff and Members of his said Management Committee.
10. The Plaintiff shall contend that the act of the Trustees is ultra vires, Wrongful and null and void and of no legal effect whatsoever.
11. The election was conducted orderly and results duly declared. The Trustees have no power to interfere as the did.
12. Worse, the said Trustees appointed the said petitioners members of the Management Committee to run the Club affairs.
13. The Plaintiff shall contend that the act of the Trustees is a traversity of justice and shall respectfully urge the Honourable Court to declare same null and void.

In the affidavit in support of the motion, the relevant paragraphs are paragraphs 1, 2, 3 ,4 ,8, 9 and 10 which have been reproduced in this judgment.

Examination of the above facts in the light of the above rule 19, I agree with the learned Counsel for the appellant that the learned Senior Advocate of Nigeria Mr. G.R.I. Egonu, is likely to be a necessary witness to be called during the trial at the trial Court. He also ought to know, perhaps in the process of his prosecution of the suit on behalf of the respondent at the trial Court, that justice of the case requires his testimony. The most honourable thing for him to do, therefore, in the surrounding circumstance is to disqualify himself and any counsel in his legal firm from appearing on behalf of the respondent at the trial. He infact needs not to wait until being told to do so by the Court, or applicant’s counsel or any counsel for that matter. The learned SAN knew all the facts of the case and at best, he should, as Minister in the temple of justice, reserve himself as a possible necessary witness who should be very much ready and willing to assist the trial court in adjudicatory efforts to dispense of the case before it.

In the matter in hand, it is common ground that the learned SAN as an executive member, participated in the decision making to nullify the election of the appellant. That decision is the subject matter of dispute between the appellant other members, and the respondent Mr. G.R.I. Egonu SAN, therefore, becomes the potential witness for both appellant and his purported client-the respondent in the disputed nullification of the appellant’s election. It is to be noted that the said rule 19 of the Professional Conduct does not contemplate express indication but rather the likelihood of the Counsel being a necessary witness as in the circumstances of this case. I need not to state here that a Counsel should always wear only hat in the Court. He should not act as a counsel and a witness in the same case. See Horn v. Rickard (1963) N.N.L.R. 67 at 69.

In answer to the question posed in this second issue, and from the nature of the cause of action in the suit, as well as the involvement of the learned SAN in the decision which is the subject matter in dispute in this case, there is strong likelihood that he is a necessary witness as the trial and that fact unwittingly disqualified him and any counsel in his legal firm from appearing or continue appearing on behalf of the respondent. His appearance is improper and will amount to the breach of professional conduct.

In the final result, I hold that there is merit in this appeal. I, accordingly allow the appeal and set aside the ruling of the trial Court dated 10/3/2006 allowing the learned SAN to appear or continue to appeal in this case on behalf of the respondent. In stead, it is hereby ordered that the learned SAN in the person of Mr. G.R.I. Egonu, or any counsel in his legal firm is restrained from appearing or continuing to appear in suit No.0/344/2005 pending before the trial Court, I asses the sum of N30,000 as costs in favour of the appellant.

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Other Citations: (2007)LCN/2531(CA)