Nigerian National Petroleum Corporation & Anor V.trinity Mills Ins. Brokers & Ors (2002)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
By the application, dated 10/2/2000, brought on behalf of the defendants/applicants, the following prayers are sought;
(1) An Order striking out the appeal initiated by the notice of appeal, dated the 6th of October, 1999, in so far as it related to the 8th and 10th defendants/applicants.
2) An Order to strike out the appeal initiated by the notice of appeal, dated the 11th day of January, 1999, in so far as it relates to the 8th and 10th defendants/applicants.
The application was supported by a 9 – paragraph affidavit, a 5 paragraph further and better affidavit filed on the 3rd of April, 2000, and a 5 -paragragh reply to counter-affidavit filed on 4th October, 2000. In opposing the application a 22 – paragraph counter-affidavit was filed on 19/9/2000.
The thrust of the application is that the firm of Messrs Kehinde Sofola & Co. having been debrief all processes – particularly, the two notices of appeal dated 6th October, 1999 and 11th January, 1999, on behalf of the defendant applicants by the said firm were so filed without instructions of the affected parties. Moving the application, Mr. Okpoko of counsel for the applicants placed reliance on the affidavit, further and better affidavit and the reply to the counter-affidavit. He referred to the exhibits attached to the printed evidence and submitted that the debriefing of the firm of Messrs Kehinde Sofola & Co. was proper in that exercise was carried out by the head of the NNPC who was Permanent Secretary. He further argued that it is the constitutional right of a client to determine who represents him adding that it is not for the court or anybody to impose a counsel on a party and while relying on the decisions in Abiola v. Federal Republic of Nigeria (1997) 2 NWLR (Pt. 488) 439 at 442 and Tukur v. Gongola State Government (1988) 1 NWLR (Pt. 68) 39, (1988) All NLR 42 and 53, he urged that the application be granted. Mr. G. B. A. Coker learned Counsel for the 1st and 2nd plaintiffs/respondents aligned himself with the submissions of Mr. Okpoko. He referred to abd relied on exhibit MPS1 and MPS2 attached to the affidavit and argued that the validity of representation by a counsel is premised on his being given instructions; not having received such needed instructions, the firm of Kehinde Sofola & Co. solicitors was without authority to file any process on behalf of the applicants. He finally urged that the application be granted. Mr. Idike, learned Counsel for the 9th respondent while associating himself with the submissions of Messrs Okpoko and Coker urged the court to grant the application. Mr. Kehinde Sofola, SAN learned Counsel for the defendants/applicants in opposing the application referred to and relied on the 22 – paragraph counter-affidavit filed on 19/9/2000 and the 2nd further counter-affidavit filed on 22/11/2001 submitted that in the absence of a letter written by the Federal Minister in charge of the 1st defendant/applicant debriefing his law firm, the only letter that can properly and validly debrief his firm must be one written by the Presidency itself. He further argued that the latter dated 30th June, 1999, exhibit MPS2 signed on behalf of the Permanent Secretary by Mrs. Dimude addressed to the firm of Kehinde Sofola & Co. is devoid of any efficacy to debrief his firm.
He urged the court to have a resort to exhibit MPS1 attached to the applicants’ affidavit and exhibits DD and FF attached to the counter affidavit in the determination of this application which he urged should be dismissed.
Mr. Okpoko, on points of law urged the court to strike out paragraph 18 of the counter-affidavit, as according to him, it contains legal argument contending further that the learned SAN cannot now rely on fraud. Mr. Coker, on the issue of representation, referred the court to the decision in Carribean Trading and Fidelity Corp. v. NNPC (1992) 7 NWLR (Pt. 252) 161 at 181. Mr. Idike, for his part on points of law, submitted that objection as to representation should be taken at the initial stage of the case and not at the appeal stage while relying on the decision in Russian Commercial and Industrial Bank v. Comptoir D’ Escompte De MulHouse & Ors. (1925) AC 112 at 130.
The crucial issue for determination here is whether Mr. Kehinde Sofola, SAN received the instructions of the 1st and 2nd defendants/applicants to file the two notices of appeal dated 6th October, 1999 and 11th of January, 1999 respectively, on their behalf. I should start by saying that the nature of the advocate’s office makes it clear that in the performance of his duty, he must not suffer any inhibition; he must be independent such that he can act according to his own discretion and judgment in the conduct of the cause of his client. His legal right is to conduct the cause without any regard to the wishes of the client, provided that his mandate has not been recalled. What he does in the circumstances I have just described, if it is done bona fide will bind his client and will not expose him (advocate or legal practitioner) to any action for what he has done even if his client’s interests are thereby prejudiced. This was how enormous the duty and power of a advocate were conceived by the law as expressed in the old Scottish case of Batchelor v. Pattison & An (1876) 3 cases in the court session (4th series) 918 referred to with approval by the House of Lords in Rondel v. Worsley (1969) 1 AC 191. The enormity of the power which an advocate or legal practitioner wilds seems to be recognised by the courts in our country.
But here, in this country, though an advocate may seem to enjoy such seemingly wide powers, our courts have always emphasised that in the exercise of that apparent authority in the conduct of his client’s cases, what is best in the interest of such a client is of importance in the use of that power see (1) Gomwalk v. Mil. Adm. of Plateau State (1998) 7 NWLR (Pt. 558) 413 and (2) Enigbokan v. Baruwa (1998) 8 NWLR (Pt. 560) 96. This principle was given approval by the Court of Appeal of New Zealand in the case of R. v. Mcloughlin (1985) 1NZLR 106 (though a criminal case) where the conviction for rape handed down on the appellant was set-aside and an order for retrial was substituted because counsel for the defendant had, contrary to the instructions from the client, ignored an alibi defence and argued that the complainant had consented to sexual intercourse. Though the advocate is the master of the law, the client, at the point he engages the services of a counsel, is only a master of the facts; no matter his station in life. However, for an advocate to be seen to be lawfully and properly performing his duties to his client, the mandate of his client to him must always remain intact and in exercise his apparent authority, he must demonstrate that the best interest of his client is always uppermost in his mind. Perhaps, I should add that the defence of advocacy as an Honourable and respectable profession for an honest and liberal individual is based on identifying its central principles; that the advocate is not expressing his personal opinions but is speaking on behalf of his client in accordance with the laid down ethical rules of legal profession and that the performance of this function is necessary to assist the court properly to determine the legal rights and duties of the parties in the case. An advocate is said to be a minister in the temple of justice. The dispensation of justice is central to all cases brought before the court for adjudication. Justice, as was said in Metropolitan Properties Co. (FGC) Ltd. v. Lannon (1969) 1 QB 577 which judgment was given approval by the Supreme Court in Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 308, (1985) 7 SC 178, is rooted in confidence.
In the client/advocate relationship that is devoid of mutual confidence between the two dispensation of justice will be an impossible task to accomplish in the estimation of right minded people.
I have carefully gone through the submissions of all the counsel in this case and I have read the printed evidence presented. It seems to me that none of the counsel was submitting that the 1st and 2nd defendant/applicants – the clients of Mr. Kehinde Sofola, SAN could not debrief an advocate or a solicitor or a legal practitioner earlier instructed by them. By a letter dated August 16th, 1996, signed personally by the then Minister of Petroleum, Chief Dan L. Etete and addressed to Mr. Kehinde Sofola, SAN the firm of the learned SAN was instructed to institute legal action on behalf of the Federal Ministry of Petroleum Resources and NNPC against Trinity Mills Insurance Brokers Ltd., and Fidelity Bond of Nigeria Insurance and Re-Insurance Brokers. Acting on the written instruction, the said firm of Kehinde Sofola & Co. initiated the suit. As I have said, Mr. Kehinde Sofola, SAN is not saying that a client cannot debrief a legal practitioner. The debriefing, according to him, must be seen to be proper and valid. In the case at hand, it is the contention of the learned SAN that a valid and proper letter debriefing him must be one signed by the Presidency and not by the letter dated 30th June, 1999, signed by one Mrs. Rhona N. Dimude on behalf of the Permanent Secretary addressed to him (Mr. Kehinde Sofola, SAN) debriefing him. The photocopy of a letter dated 30th June, 1999 debriefing the learned SAN was attached to application as exhibit MPS2 while the photocopy of reminder dated 18th October, 1999, signed by the same person was attached to the further and better affidavit as exhibit MPS1. My understanding of the submission of Mr. Kehinde Sofola, SAN is that he is challenging the validity of the letter dispensing with his professional services – exhibit MPS2 dated 30th June, 1999, signed by Mrs. Dimude on behalf of the Permanent Secretary Federal Ministry of Petroleum Resources and the remainder exhibit MPS1 dated 18th October, 1999, signed by the same Mrs. Dimude.
A minister is the political head of the Ministry in the executive arm of the government while a Permanent Secretary is the administrative head of the ministry. Generally, where power is delegated to a person, it is exercisable by that person himself directly and personally and he lacks the legal power to re-delegate such power on the principle of delegatus non potest delegare see (1) Okoro v. Delta Steel Co. Ltd. (1990) 2 NWLR (Pt. 130) 87 and (2) Hely-Hutchinson v. Brayhead Ltd & AN (1967) 3AER 98. Generally, a delegated power cannot be delegated the Latin Maxim is DELEGATA POTESTAS NON POTEST DELEGARI. This principle or rule applies wherever the authority involves a trust or discretion in the agent for the exercise of which he is selected. But it does not apply where it involves no matter of exercise of discretion; and it is immaterial whether the act is to be done by one person or another. The fact is that the original agent remains responsible to the principal. But I must say that workings of any government will come to a halt if there is no delegation of the exercise of power. The head of a government ministry can never remain in charge of implementation of decision taken at the ministerial level. The implementation of ministry or government decisions must be delegated for the smooth working of government. However, a power or authority so given cannot be greater than that from which it is derived. A derived power can never be greater than that available at its source – the maxim DERIVATIVA POTESTAS NON POTEST ESSE MAJOR PRIMITIVA.
Some functions of a permanent secretary who is the administrative head of the ministry must be capable of being performed by certain category of his subordinates. If it were not so, his task will often become impossible of accomplishment. It is however important that the delegatee remains responsible to his principal, the donor of the power. This finds expression in the law of agency. I pause to give a classical example of it. If a servant or subordinate does what his master ought to do. It is the same as though the master did it himself and if he does any such thing without the consent of the master, yet if the master subsequently ratifies the act of the servant, it is sufficient. The latter part of what I have just said very rarely occurs in civil service. The principle, I again say, applies to everything done by the subordinate or the agent in the ostensible scope of his authority so donated to him by his master. The letter dated 30th June, 1999, exhibit MPS2 and the letter dated 18th October, 1999, captioned “REMINDER” both signed by Mrs. Rhona N. Dimude and addressed to Mr. Kehinde Sofola, SAN the subject matter of which is the debriefing of the solicitor are no doubt a result of the exercise of authority given to Mrs. Dimide by the permanent secretary in which she did not have to exercise her own discretion.
She signed the two letters on behalf of the permanent secretary and caused same to be served on Mr. Kehinde Sofola, SAN. From what I have said above, I find no difficulty in holding that she did not exceed the authority given to her. It will be over-stretching the principle to say that unless the permanent secretary or the presidency personally signed the letter, it will be lacking in legal efficacy. It is for all of the above that I respectfully disagree with the submissions of the learned SAN. By the two letters afore-mentioned I am clear in my mind that the defendants/applicants have lawfully put to an end the client/solicitor or advocate relationship that existed between them and the firm of the Senior Advocate of Nigeria. As I have said above, the original letter debriefing the law firm was written on the 30th of June, 1999, and that is exhibit MPS2. The second letter dated 18th October, 1999, exhibit MPS1 is just a reminder. The two notices of appeal which the defendants/applicants are urging this court to strike out are (1) the notice of appeal dated 11th of January, 1999 and (2) the notice of appeal dated 6th October, 1999. Clearly, going by the letter dated 30th June, 1999, debriefing the law firm, I do not hesitate in holding that the notice of appeal dated 6th October, 1999, was filed without the instructions of the applicants. Having regard to what I have been saying that notice of appeal as it relates to the two defendants/applicants ought to be struck-out. However, the same cannot be said of the notice of appeal dated 11th January, 1999, that notice was filed while the instructions of the applicants to act for them and since it is the prayer of the applicants to the law firm were still subsisting. But, since from what I have said above the law firm no longer has the authority of the applicants that the said notice of appeal dated 11th January, 1999, in so far as it relates to them should be struck-out; that prayer must also be granted.
In consequence, this application succeeds and it is hereby ordered as follows:
(1) the notice of appeal dated 6th October, 1999, in so far as it relates to the defendants/applicants is hereby, struck-out.
(2) the notice of appeal dated 11th January, 1999, in so far as it relates to the defendants/applicants is hereby, struck-out. There shall be no order as to cost.
Other Citations: (2002)LCN/1077(CA)
