Onigbongbo Community V. Minister Of Lagos Affairs And Ors (1971)
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ADEMOLA, C.J.N.
This motion, of great importance to legal practitioners, is for an order to restrain a legal practitioner, Chief F.RA Williams, from appearing as counsel to the third to thirty-first respondents (Egba refugees) on the ground that Chief Williams as leading counsel had appeared with another for the present applicants, the Onigbongbo community, in Case No. SC/19/1965 in the Supreme Court.
The notice of motion was filed by Mr. Molajo for the Onigbongbo family. Mr. Molajo claimed that he appeared for the Onigbongbo family in the High Court at Ikeja in a case where the Onigbongbo family was sued by individual members of the Egba refugees claiming title to a piece of land situate at Onigbongbo near Ikeja. Judgment was entered in the High Court for the Onigbongbo family, and in the ensuing appeal to the Supreme Court, he (Mr. Molajo) engaged the services of Chief Williams to lead him in the appeal. Judgment was entered in the case for the Onigbongbo community as owners under native law and custom of the area of land in dispute; it was also held that the respondents are their customary tenants on the said land under native law and custom.
Mr. Molajo now says that the present dispute between the Onigbongbo community and the Egba refugees is as to who is entitled to compensation for a portion of the land acquired by the first respondent, the Minister of Lagos Affairs, and complains that Chief Williams has now appeared for the Egba refugees in this regard. He (Mr. Molajo) submitted before us that the fact that Chief Williams had acted for the Onigbongbo family in respect of the whole land was enough reason why he may not be employed by the Egba refugees as their counsel in the present cause or any other suit relating to the same land as that in Case No. SC/19/1965, the former appeal.
In reply to a question from the court, Mr. Molajo stated that he raised the point in the High Court but he was overruled by the Judge who later dealt extensively with the point in his judgment. He has, however, not appealed against the judgment on this point. In a further reply to a question by the court, Mr. Molajo said that Chief William’s opinion was never sought by him about entitlement to compensation for the land and to whom it was payable or in what ratio it was payable; that there was no discussion about compensation; that Chief Williams was briefed on the question of title simpliciter in the Supreme Court.
In support of his contention that counsel may not appear against a person who was his client in a former case, Mr. Molajo referred us to the case of Cholmondeley v. Clinton (1815) 19 Yes. 261; 34 E.R. 515. In that case two solicitors who were in partnership were acting for Lord Clinton in a certain cause. It was said that at one time or the other, the secrets as to the title of the property concerned had been communicated to the other side. Later, one of the solicitors quitted the partnership and thus voluntarily quitted the employment of Lord Clinton, so that by his own act he could not be employed any more in the matter by Lord Clinton. He then transferred himself to the other side in the same cause. It was clear that there was important information known by him which might be communicated. It was held that the solicitor would not be allowed to turn his back on his client and to go into the service of the person against whom he had been employed. We cannot on the facts say that the present case is the same as Cholmonde/ey v. Clinton. The latter, in our view, was a plain and straightforward case.
In the case of Bricheno v. Thorp (1821) Jac. 300; 37 E.R. 864 the court refused to restrain a clerk to a solicitor, who had commenced practice himself, from acting as solicitor for parties against whom his master was employed, on the ground based on general allegations that he had in his former service acquired information likely to be prejudicial to the clients of his master. To put it briefly, it is clear that the court would not act unless some particular information or fact relied upon was stated.
It is of course clear that every case must be considered on its own facts. There are, however, broader principles which the courts must observe in cases of this kind. On the one hand, the courts are not to prevent litigants from employing the services of counsel of their own choice; on the other hand, a person must not be allowed to employ the services of counsel, nor should counsel accept a brief, where it is clear that the services to be rendered flow out of or are closely connected with the previous services he had rendered to the opposing side: see Little v. Kingswood Collieries Co. (1882) 20 Ch.D. 733, 51 L.J. Ch. 498.
Clearly, the jurisdiction to restrain counsel from acting for the antagonist of his former client stems from the principle that a man ought to be restrained from doing any act contrary to the duty that he owes to another; and that the jurisdiction will be exercised at the instance of the former client. Admittedly, it is difficult sometimes to find a dividing line, but it is wrong to think or to suggest that counsel may not act against someone whom it had been his privilege to serve or act for at one time, in a matter bearing no semblance or unconnected with the new case. In the instant case, where counsel was employed as a senior to lead in an appeal, the subject-matter of which was purely one of title to land, we see nothing wrong in appearing on the other side on another occasion on a matter which was manifestly a matter for the court to determine which of the two sides is entitled to compensation in respect of the same land in an acquisition, or the extent of compensation payable to each side.
Cases of this kind are more complex in this country where the professions of barrister and solicitor are fused. Most of the cases in England, and certainly the cases to which we have referred, dealt with solicitors. Referring to what was the practice at the Bar, Eldon, L.C. said in Bricheno v. Thorp (1821) Jac. 300 at 304; 37 E.R. at 866):
“I know that formerly at the bar, if a counsel was employed, and a retainer was offered him on the other side, he first gave those for whom he had been employed, the option of retaining him, but if they would not, there was no difficulty in going over to the other side, notwithstanding all that he might know. If that be the rule at the bar, we must not lay it down differently for solicitors. I have no conception that we are to give ourselves liberties that we refuse to others.”
We refrain from stating categorically in this case whether a senior counsel employed to argue as a leader in the Supreme Court is acting only as a barrister or as a solicitor as well.
Finally, we must point out that the issue about the appearance of Chief Williams was raised in the High Court and the learned Judge adverted his mind to it in his judgment. This is what the learned Judge of the High Court said:
”There was at the commencement of the hearing an objection raised to the appearance of Chief F.R.A. Williams of counsel for the defendants. The objection was based on the fact that Chief Williams had appeared for the plaintiffs when declaration was sought by the plaintiffs against some of the Egba refugees. I have found out that Chief Williams did not appear for the plaintiffs in the High Court in Suit No. AB/21/1958, but only led when the action came before the Supreme Court in SC/19/1965. It was however left to Chief Williams to decide whether this action was one in which he could now appear on the opposite side. After listening to the case to the end, I do not see any moment when Chief Williams could have been said to have used his former position as counsel to the plaintiffs in an earlier action to the advantage of his present clients, i.e. the defendants…..”
After this, Mr. Molajo’s duty, in our opinion, was to have appealed to this court on the matter of Chief Williams’s appearance as well. But he has chosen not to appeal against the Judge’s finding. We refuse, on the submission before us, to restrain counsel from carrying out his lawful duties.
Application refused.
SC.271/1971
