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In The Supreme Court of Nigeria

On Friday, the 14th day of April 1989

 

S.C. 229/1986

 

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

 

 

Between

 

Chief Gani Fawehinmi

 .......

Appellant

 

And

 

Nigerian Bar Association

 

 

Chief F.R.A. Williams. S.A.N.

 

 

Chief E.A. Molajo. S.A.N.

.......

Respondents

Kehinde Sofola. S.A.N.

 

 

General Council of the Bar

 

 

 

No 1

 

Judgement of the Court

Delivered by

Andrews Otutu 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. (and Mr. Kehinde Sofola, S.A.N.), who appeared as counsel for ChiefF. 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:

 

Appelant in person

 

 

 

Chief F. R. A. Williams, S.A.N.

(with him, Uche Nwokedi)

For the Nigerian Bar Association and Kehinde Sofola S.A.N.

 Sofola S.A.N.

(with him Miss O.A. Obaseki and M.A.O. Okupe)

For Chief F.R.A. Williams, S.a.N. and Chief E.A. Molajo. S.A.N.

Mr. O. Adio.

(Director of Civil Litigation,

Federal Ministry of Justice, Lagos)

For 5th Respondent (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:

 

Appelant in person

 

 

 

Chief F. R. A. Williams, S.A.N.

(with him, B.O. Ogundipe. Esq and O.M. Ayeni (Mrs))

For the Nigerian Bar Association and Kehinde Sofola S.A.N.

Sofola S.A.N.

(with him Miss O.A. Obaseki and M.A.O. Okupe)

For Chief F.R.A. Williams, S.a.N. and Chief E.A. Molajo. S.A.N.

Mr. O. Adio.

(Director of Civil Litigation,

Federal Ministry of Justice, Lagos)

For 5th Respondent (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;

 

2.         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;

 

3.         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 plaintiff's 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 co­Defendant 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. 0. 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 holden at Lagos. The appellant claimed for determination the following questions:

 

(1)        whether (within the context 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 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 context 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:

 

“(l)       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 regularise 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. 0. 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. deliverd 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 plaintiff7 days within which to file his statement of claim and the Defendants 30 days from service of ihe 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. Molaio, 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 Honourable Court will be moved on Monday the 3th 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. Kehinda 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 Honourable 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 50 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. 0. 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, Candido 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 recognising, 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, mis-conceived and is accordingly dismissed."

 

(2)        "I now proceed to the motion by the applicant to restrain three learned Senior Advocates representing the 1st Defendnt 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 inspite of the mis-conceived 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 simpliciter. 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 present 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. Nnaemeka­Agu, 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 t..~ be 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 ~ade no claim against the 3 learned Senior Advocates. It was only their rep­i~sentation 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 emphasise 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 emphasised 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, JJ. 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. 907.1 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)1 All 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.S.C. 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. Wiliams, 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 S.C. 71 at 76; (1972)1 All N.L.R. (Pt.1) 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 Haisbury'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 plaintiff's 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 emphasised 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 the plaintiff 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 represent 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 practitoner 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 plaintiffi 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 Eq. 127 43 L.J. Ch.409, 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. Rickerts 9 H.L. Cas. 262 11 E.R. 731 and New Brunswick & Anor. V. Conybeare (1962) H.L.C. 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. Con ybeare as reported in II 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 Inter-national Bank for WestAfrica 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 is in­corporated 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 Exparte 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 & Anor. V. Ubani & 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 Win fred 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 context 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. Siricto sensu, 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) 17() 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 1979.1 agree with Lord Westbury, L.C. when in the case of New Brunswick & Anor. V. Con ybeare (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 utilised 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 7(1) of the Legal Practitoners Act 1975

Section 2(1) of the Legal Practitioners Act 1975

Section 6(1) of the Legal Practitioners Act 1975

 

The word “represent" in the context 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 practise 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 Practioners 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 section lO(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 ofcon-duct 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 l7(2)(a & b); 33(1) of the 1979 Constitution of the Federal Republic of Nigeria. See R. ~. 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.C. 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 emphasised in the case of New Brunswick and Canada Railway Co. ~. Conybeare (1862) 9 H.L.C. 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 ~. 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 (184~1846) 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)(1) 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.

 

 

Judgement

Delivered by

Adolphus Godwin Karibi-Whyte. J.S.C

 

 

On the 8th November, 1988 when this appeal came up for hearing, Chief Gani Fawehinmi raised an objection against Chief F. R. A. Williams, S.A.N., E. A. Molajo, S.A.N., and Kehinde Sofola, S.A.N., who are Respondents to this appeal, appearing as counsel for themselves and for the Nigerian Bar Association and doing so robed as counsel and sitting at the Bar of the Court reserved for senior counsel. After some argument about the propriety of the objection having been made without notice, and because of the relative novelty of the objection in our Courts, and in this case in par­ticular, all counsel concerned were asked to file briefs of their arguments on the issue. The objection was adjourned to the 17th January, 1989 for argu­ment. On the 17th January, 1989 when the case was called all parties had already filed and served their briefs of argument. They adopted their briefs of argument and relied on them in their oral expatiation of their respective con­tentions.

 

Chief Fawehinmi has in his brief formalised his objection which he formu­lated as follows:

 

“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;

 

"2.        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;

 

“3        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."

 

Chief Gani Fawehinmi appears to have recognised that E. A. Molajo, S.A.N., did not announce his appearance, hence in his brief of argument he stated his objection as follows:

 

the appearances of the 2nd, 3rd and 4th Respondents 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.

 

He relied on Ajide v. Kelani (1985) 3 N.W.L.R. (Pt.12) 248, 257-8 for this objection. My brother, Obaseki, J.S.C. has in his ruling stated in detail the facts which have given rise to this objection. I will not repeat them. I will only here rely on the salient aspects which I consider necessary for my ruling.

 

For my purpose it is pertinent to state that the originating summons dated 19th November, 1984 which initiated the action which is still on appeal had only the Nigerian Bar Association and the General Council of the Bar as 1st and 2nd Defendants. 2nd4th Respondents are not Defendants - Chairman, L.E.D.8. v. Onimole & Ors. (1946) 6 W.A.C.A. 96.98. The reliefs in the originating summons were for

 

(1)        A declaration that the decision of the Nigerian Bar Association taken at 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 Provisions) 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, and void and of no effect whatsoever;"

 

It is clear also from the reliefs sought that the 2nd, 3rd and 4th Respondents were not concerned with the reliefs claimed and now the decision being chal­lenged. They cannot therefore be made parties to the action - Aromire & Ors. v.Awoyemi(1972) 1 All N.L.R. (Pt.1) 101.

 

On Thursday, the 19th February, 1985, when the matter came up for hearing in the High Court of Lagos, Chief B. 0. Benson, S.A.N. with Mr. Aloghe, Segun Onakoya, Dan Kukoyi and A. Adeyinka appeared for the Nigerian Bar Association. Chief Benson unable to carry on with the case having been instructed only the previous weekend applied for an adjournment of the matter. Chief Fawehinmi opposed the application, but the learned Chief Judge nevertheless granted it and fixed 19th and 29th March, 1985 for hearing.

 

The record of proceedings in the High Court states that on the 19th March, 1985 ChiefF. R. A. Williams, S.A.N.,leading Messrs. E. A. Molajo, S.A.N., Kehinde Sofola, SAN., Chief B. 0. Benson, SAN., Segun Onakoya, and S. A. Adewolu, appeared for the Nigerian Bar Association, the 1st Respond­ent in this Court, Chief Gani Fawehinmi, the plaintiff was present. He was not represented by counsel. Chief Williams, S.A.N. applied that the matter com­menced by originating summons be continued as if it were by writ of summons and urged the Court to order pleadings. Chief Fawehinmi opposed the appli­cation, but the learned Chief Judge granted the application and accordingly made an order for pleadings to be filed and served. Following this ruling, Chief Fawehinmi filed his statement of claim dated 22nd April, 1985. On the 29th April, 1985 he brought an application seeking an interlocutory injunction restraining Chief F. R. A. Williams, S.A.N., E. A. Molajo S.A.N., Kehinde Sofola, S.A.N. from acting or continuing to act for the Nigerian Bar Asso­ciation.

 

It is clear that up to this point the three senior counsel have not been regarded and cannot correctly be regarded as parties to the action. The application for interlocutory injunction was only directed at restraining them from acting as counsel to the Nigerian Bar Association. However, the Nigerian Bar Association and the General Council of the Bar were put on notice.

 

On the 10th May, 1985, Kehinde Sofola, S.A.N., counsel to Chief F. R. A. Williams filed a preliminary objection to the motion served on Chief Williams. On the 13th May, 1985, Chief Williams as counsel for the Nigerian Bar Association brought a motion for an order to strike out the name of the Nigerian Bar Association and also to dismiss the whole action. The motions came up for argument on the 30th May, 1985 and argument continued on the 31st May, 1985 and was adjourned to 6/6/85. Ruling on this motion was delivered on the 19th July, 1985. The learned Chief Judge dismissed the application to strike out the name of the Nigerian Bar Association from the action and to dismiss the action as a whole. He granted the application for interlocutory injunction restraining Chief Williams, E. A. Molajo and K. Sofola from appearing for the Nigerian Bar Association. It is important to observe that the motion was not argued. The learned Chief Judge suo motu and in the exercise of the inherent jurisdiction of the court as he said made the order for injunction restraining the 3 senior counsel appearing for the Nigerian Bar Association.

 

It is important to observe that it is no where suggested that Chief Williams, E. A. Molajo and Kehinde Sofola are parties to the action in respect of which plaintiff was seeking an order of interlocutory injunction to restrain them from appearing for the Nigerian Bar Association, the 1st Defendant in the action. They obviously could not have been since they were to appear as counsel. Thus the order of the learned Chief Judge restraining them was not made pursuant to an application argued before him. When the learned senior coun­sel gave notice of appeal, learned Chief Judge suspended the order for in­junction to enable them prosecute their appeal against the ruling.

 

The Nigerian Bar Association and the General Council of the Bar appealed against the ruling of the learned Chief Judge dismissing their application to strike out the name of the 1st Defendant and to dismiss the action as a whole. Chief F. R. A. Williams, E. A. Molajo and Kehinde Sofola, also appealed to the Court of Appeal against the ruling restraining them from appearing for the 1st Defendant, the Nigerian Bar Association. The Court of Appeal allowed the appeal of the Nigerian Bar Association and struck Out its name from the action, and also dismissed the action in their entirety against the two Defendants. Again, the interlocutory injunction restraining Chief Williams, E. A. Molajo and Kehinde Sofola from appearing for the 1st Defendant was also discharged. Thus at the point of time when Chief Fawehinmi raised his objec­tion in this court, the three senior counsel can only be regarded as parties to the appeal against the judgment of the Court of Appeal setting aside the ruling and discharging the order of injunction restraining them from appear­ing as counsel to the Nigerian Bar Association. There was no injunction extant.

 

I have already set out the formulation by Chief Fawehinmi of his objection to the appearance of the three senior advocates. It seems to me obvious from the issues to be determined that tile impression given is that the three senior advocates sought to be restrained from appearing as counsel for the Nigerian Bar Association are also parties to the action against the Nigerian Bar Association and the General Council of the Bar. Again each of them sought to appear for himself and another in the action. There is no such application before us. The announcement of their appearance which will be stated later clearly explains the situation. They are neither parties to the original claim nor did they announce themselves as appearing in their personal capacities.

 

There is some confusion resulting from the different formulation of the issues by Chief Fawehinmi for the appellant, and by Chief F. R. A. Williams and Kehinde Sofola. Mr. Adio for the General Council of the Bar adopted Kehinde Sofola's formulation of the issues.

 

Chief Fawehinmi formulated the issues as follows:

 

"(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 party's 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 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."

 

The issue No.4 clearly does not arise from the facts of the appeal before us. I therefore will not consider it. Chief Williams's formulation which is both prolix and not directed at the matter arising from the objection is formulated in negative terms as follows”

 

“(i)       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."

 

 

Chief Williams paraphrasing this issue brought out the essential element by making it to read as follows:­

 

(i)         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 the hearing of an appeal by the plaintiff from decision of the Court of Appeal.

 

(ii)        Where Court of Appeal in its judgment, decided that the High Court ought not to have barred the 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:­

 

(i)         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?

 

(ii)        Must the counsel concerned cease to function as such for the purpose of replying to the plaintiff's appeal to have the bar imposed on counsel restored?"

 

My understanding of the objection of Chief Fawehinmi, which is based on misconception of the facts of the case is that the two senior counsel who are parties to the action are litigants, who are not entitled to enjoy the privileges of members of the Bar. Thus, they can only appear for themselves as litigants in the appeal. They cannot as litigants represent another party in the action. Even in the exercise of their right to appeal for themselves they should not be accorded the privileges of members of the Bar. There is no doubt if the con­tention is successful the result is that the two senior counsel being parties to the action will be prohibited from representing the Nigerian Bar Association or any other party in the appeal. They will also be denied the enjoyment of the rights and privileges of members of the legal profession to which they are respectable and worthy eminent members.

 

The terse formulation of the issues for determination by Kehinde Sofola, although different from that of Chief Williams, more accurately brings out the issues involved in the objection of Chief Fawehinmi. They are 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.

 

I have already set out the relevant facts of this case. It is also pertinent to compliment them by setting out the order of appearance of counsel in this appeal as it appears in the record of this Court. This will assist in elucidating the three issues for determination formulated by Chief Fawehinmi and Kehinde Sofola, S.A.N.

 

On the 8th November, 1988 when Chief Gani Fawehinmi raised his objec­tion to Chief F. R. A. Williams, S.A.N. and Kehinde Sofola, S.A.N., my record reads:-

 

Appellant, Chief Gani Fawehinmi in person

 

1.         Chief F.R.A. Williams, S.A.N. (with him, B. O. Ogundipe, Esqr. and Mrs. O. M. Ayeni) for the Nigerian Bar Association and Mr. Kehinde Sofola, S.A.N., 1st and 3rd Respondents.

 

2.         Mr. Kehinde Sofola, S.A.N. (with him, Miss. O. A. Obaseki and M. A. O. Okojie) for Chief F. R. A. Williams, S.A.N. and Mr. E. A. Molajo, S.A.N.  2nd and 4th Respondents.

 

3.         Mr. M. O. Adio, Director of Civil Litigation, Federal Ministry of Justice, Lagos, for the 5th Respondent, i.e. General Council of the Bar.

 

It is clear from the above that neither Chief F. R. A. Williams, S.A.N., nor Mr. Kehinde Sofola, S.A.N. appeared in person as a party to the case. Thus, although Respondents, each appeared as counsel for other Respondents in the appeal. Each of them appeared fully robed as senior members of the Bar and sat in the place reserved for senior counsel. Hence, stricto se~su, the second question formulated by Kehinde Sofola is the only relevant issue in the formu­lation of the issues before us. This is because the second question formulated by Chief Fawehinmi included the issue of a legal practitioner appearing for himself in a litigation and appearing also for another party in the case. The issue whether in the circumstances, being parties to the appeal they are not entitled to be robed as counsel and occupy seats reserved for litigants will not arise.

 

I have endeavoured to show that from the facts and history of this appeal, it cannot be said with any acceptable degree of exactitude that the three senior counsel were parties to the case brought by Chief Fawehinmi against the Nigerian Bar Association and the General Council of the Bar. However, it is correct to say that they are parties to the ruling on the application to restrain them from appearing as counsel for the Nigerian Bar Association in the action instituted against the Association and the General Council of the Bar. They were in the Court below, as the appellants, and therefore parties and fall within the definition of the word in Order 1 r.2 of the Court of Appeal Rules 1981 as persons who have appealed from a decision of the court below; the decision here being the ruling restraining them from appearing for the Niger­ian Bar Association -Johnson v. Aderemi (1951)13 W.A.C.A. 297; Maja & Ors. V Johnson (1951)13 W.A.C.A. 194.

 

Before this Court, they are "Respondents" and therefore parties and fall within the definition of "Respondent" in Order 1 r.2 Rules of the Supreme Court 1985. Although parties, they appeared only for themselves as Respond­ents, to the ruling affecting them but appeared as counsel to other Respond­ents, in a matter in which they were never Defendants and cannot also be Respondents.

 

I have endeavoured to separate the two appeals before us. Chief Fawehinmi is not saying and cannot be understood as saying that Respondents ordinarily as legal practitioners cannot appear for the Nigerian Bar Association. This is one of the subject-matters of his appeal to this Court. He is only saying, and I understood him as saying and predicating his contention on the erroneous view that they are parties to the action against the Nigerian Bar Association, accordingly that the Respondents cannot appear for the Association who is a co-Respondent in the appeal, or indeed cannot even do so in their capacity as legal practioners.

 

Chief Fawehinmi arguing this objection which is similar but different from the objection against Senior Counsel appearing to represent the Nigerian Bar Association which arose in the court of first instance. The objection before us is founded on the capacity in which Senior Counsel were appearing in the appeal and conducting the appeal against the decision in their favour and against their co-Defendants. Although the objection against Respondents at the Court of first instance arose from the action against the Nigerian Bar Association and the General Council of the Bar, the two issues did not con­stitute the same case for the purposes of regarding the senior counsel as Defendants in the originating summons. It is therefore not accurate to say that the senior counsel are also Respondents to the appeal against the Association. They are only Respondents to the appeal against them. The confusion stem­med from the single judgment dealing with the two separate and separate rulings.

 

Chief Fawehinmi has in his brief of argument relied extensively on the case of Ajide V. Kelani (1985)3 N.W.L.R. (Pt.12) 248, and dictum at pp.257-258 by Bello, J.S.C. (as he then was) now C.J.N. in this Court. The dictum relied upon dealt with the interpretation of Order 2 r.9( 1) of the Rules of this Court and the need to give proper notice of and grounds of objection in writing, to avoid surprise and embarrassment to opponents.

 

Appellant has in his brief of argument submitted that the 2nd, 3rd and 4th Respondents are parties in this appeal and accordingly ought not to be heard as counsel for themselves or any other party in the appeal. He conceded that they are entitled as parties to present their case themselves, but that they cannot do so robed as counsel and not from the Bar. They are entitled to retain the ser­vices of counsel who should be a person other than one of their number. Appel­lant cited and relied on the statement in Haisbury's Laws of England, 3rd Edition, Vol.3 paragraph 72. He submitted, relying on Queen V. Phillips 1 Cox C.C.17; Newton V. Chaplin (1850) 19 L.J.C.P. 374 at p.376; Neate v. Denman 43 L.J. Ch. 409 at p.414 and a Practice Note by Parker, C.J. in [1961] 1 All E.R. 319. Appellant referred also to New Bnunswick and Canada Railway Co.V. Conybeare (1962) IXH.L.C. 711; 11 E.R. at p.907. In the New Brunswick and Canada Railway Co. V. Conybeare, (sup ra), Lord Westbury is reported as having stated, where a party appeared as counsel at the bar of the House of Lords, and having been told that on the previous day, Mr. Russell appeared with Conybeare that, '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." This was interpreted to mean that a litigant barrister cannot appear as counsel in the case and can only appear by another counsel. A litigant is entitled to appear in person even without counsel. Chief Fawehinmi sub­mitted that it is illegal for a party who is a legal practitioner having elected to conduct his own case by himself, it is not proper to represent another in the same case. The reason being to avoid 'a mixture of two characters," namely in his character as legal practitioner and litigant in the same case. I do not see what is illegal in it. But I think the concept of legal representation makes it impossible to do so in practice. A litigant legal practitioner appearing in his robesand from the Bar is only himself as a legal practitioner who happens to be a litigant. He is not representing himself. Appellant also referred to R. v. Staff of L. C. C. Education Committee (1956)1 All E.R. 753 where Romer L.J. said,

 

Having regard to the established practice of the court, it is quite plain that Dr. Schonfeld could not appear on behalf of the other governors as well as on behalf of himself; but he was entitled to address us on his own behalf, and he did so. The substance of his argument and submissions was adopted in effect by his fellow governors.

 

There is nothing in this very short report of the case to give the impression that Dr. Schonfeld, a foundation governor was a legal practitioner appearing in person, was also appearing for all or any of the other eight governors who also appeared in person. The concluding sentence of Lord Denning suggests that he is not. He said, at p.753

 

Much as we value the help of the bar, we must never go so far as to refuse an applicant simply because he is in person

 

This is capable of meaning that a litigant can be heard even in applications for prerogative orders even if he is not a barrister. It should not be taken to mean more than that. This was an appeal from refusal of an application for certiorari, where the court had always acted on a settled practice for a hundred years of hearing applications in respect of prerogative orders only by counsel. I do not think this case is of real assistance. Appellant referred to Boulton's "Conduct and Etiquette at the Bar" 6th Ed. at p.83 in support of his submission and Ojiegbe V. Ubani (1961)1 All N.L.R. 277 where the Supreme Court advised counsel in that case who had lost an election and was counsel to the petitioner, to have been the petitioner himself.

 

He also referred to Egbe V. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 where the Supreme Court advised counsel not to be too personally involved with the case they are briefed to prosecute in order to maintain their detachment and objectivity. Appellant therefore submitted that Chief Williams cannot appear for the Nigerian Bar Association and Kehinde Sofola, S.A.N. cannot appear for Chief Williams and Mr. E. A. Molajo, S.A.N. Chief Fawehinmi referred to the constitutional right of counsel of one's choice which applied only to criminal cases, because there is no fundamental right to legal represen­tation in civil cases. He relied on Ajani V. Giwa (1986) 3 N.W.L.R. (Pt.32) 796 at p.809 and Awolowo V. Sarki (1966)1 All N.L.R. 193 for this sub­mission.

 

Finally appellant distinguished the position of the Attorney-General who is appearing in an official capacity and therefore should conduct his case fully robed. He concluded his submissions with the following summary.

 

1.         Chief F. R. A. Williams, S.A.N., Mr. Kehinde Sofola, S.A.N. and Mr. E. A. Molajo, S.A.N., can appear in person, but can only conduct their case from the well of the Court and not from the Bar; which in effect means they cannot be robed.

 

2.         Chief F. R. A. Williams, SAN., Mr. Kehinde Sofola, SAN. and Mr. E. A. Molajo, S.A.N., cannot act as legal practitioners for any other party in this appeal and they therefore cannot lead any other legal practitioner;

 

3.         That the Nigerian Bar Association, the first Respondent must there­fore brief another legal practitioner to argue its case in this appeal.

 

Chief F. R. A. Williams, S.A.N., for the 1st and 3rd Respondents, and Kehinde Sofola, S.A.N., for the 2nd and 4th Respondents replied. I shall state first, the submission of Chief Williams. The learned senior counsel opened his argument with a careful summary of the facts and the judgments of the courts below and submitted that the presumption of the correctness of the judgment of the Court below still remains undisputed. An appeal per se does not operate to reverse the judgment appealed from. I entirely agree with this submission, which needs no citation of judicial authorities.

 

Chief Williams referred to the issues formulated by the appellant which he described as academic. He pointed out that the legal profession in this country is rooted in the English common law foundation, but operates within the framework of the Nigerian Constitution, the Legal Practitioners Act and other relevant Statutes. He pointed out that the relevant rules of practice, conduct and etiquette of members of the legal profession are to be found in the Rules made by the General Council of the Bar pursuant to powers vested in it by law. The rules of practice and etiquette of the Bar as expounded in Haisbury's Laws of England or Boulton 's Conduct and Etiquette at the Bar which deal with the profession of Barristers in England are guides and not conclusive directives.

 

Chief Williams referred to the interim injunction and submitted that the appeal against the judgment of the Court below discharging the order for Injunction is a revival of appellant's objection to the appearance of the three senior counsel on behalf of the Nigerian Bar Association. It was submitted that the application made to the High Court by the appellant to restrain the three senior leading counsel was not pursued. The injunction relied upon here was that made by the learned Chief Judge in the course of reading his final judgment in the ruling on the preliminary objection by the Nigerian Bar Asso­ciation that it is not a juristic person. The learned Chief Judge made it clear that he was exercising his inherent jurisdiction in making the order suo motu. The order was not the result of any application by the plaintiff. He pointed out that the moment the learned Chief Judge suspended his order, which he did for the limited purpose of pursuing the appeal, the role of the three senior counsel as counsel to the Nigerian Bar Association was restored. Chief Wil­liams then raised the most pertinent and crucial issue, whether the three senior counsel were strictly speaking parties to the action and the submission that they were misconceived. It was also submitted that the injunction having been made in the exercise of his inherent jurisdiction, the three senior counsel could not be said to have had a fair hearing, Chief Williams referred to the judgment of the Court of Appeal which had discharged the injunction granted ex gratia and suo motu by the learned Chief Judge in exercise of the inherent jurisdiction of the Court and submitted that the three senior counsel were still being treated as if the injunction of the High Court was still binding on them. He urged the Court to entertain address from the three leading counsel, in their capacity as legal practitioners, appellant having concluded his argument.

 

In his own submission on behalf of Chief F. R. A. Williams, S.A.N. and E. A. Molajo, S.A.N., Kehinde Sofola, S.A.N., stated that the contention of appellant that a legal practitioner who is a party to an action must not defend himself in his capacity as a legal practitioner, and can only conduct his defence or prosecute his claim from the well of the court and not from the Bar stems from an initial misconception of the scope of the rights and privileges of a legal practitioner. He submitted that the general rule is that any litigant who wishes and feels able to conduct his case on his own is at liberty to do so. A legal practitioner who is a party to a case is no exception. He reiterated the first of the issues in appellant's objection in this case which is:-

 

“whether a legal practitioner has to conduct his defence outside the Bar in the circumstances of this case."

 

Kehinde Sofola referred to Newton  v. Chaplin (1850)19 L.J.C.P. 374, Queen V. Phillips (1876)1 Cox C.C.1. The Practice Note (1966)1 All E.R. 319 relied upon by the appellant are all criminal cases, which the appeal before us is not. The New Brunswick & Canada Railway v. Conybeare he submitted is irrelevant. The West Hopetown Co. Ltd. (1887) Indian L.R. (All) 180 though relevant being the universal practice is more than 100 years old and can hardly be regarded as applicable now. He conceded the embarrassment to the pro­fession of counsel defending himself of the commission of a criminal offence whilst robed, and at the Bar. He could see no embarrassment where counsel who is a party to a civil case conducts his defence or acts as plaintiff robed and sitting at the Bar. Counsel conceded that a legal practitioner who is a party in a criminal or civil matter is not different from any other party.

 

Mr. Sofola then referred to the legal relationship between counsel and his litigant client and submitted that counsel is in complete control over the case and does not share his authority with his client whilst the authority lasts. The litigant who instructs counsel can only be heard after he had withdrawn his instruction. He referred to the English practice where counsel who is a party to a case does not appear robed or speak from the places reserved for counsel. He submitted that the three senior counsel are not litigants in the action. It was submitted that their submissions were on behalf of the Nigerian Bar Associa­tion. Since they are not parties, the writ of summons and statement of claim having not included them, there will be nothing wrong in their appearing at the bar in their Professional robes, Mr. Sofola referred to Neate v. Denman (1874) L.R. 18 Eq. 127, Newton v. Ricketts, 9 H.L. Cas.262, New Brunswick & Anor. V. Conybeare (1962) 9 H.L.C. 710 at p.719 in support of the submission that counsel who is a party to an action can be allowed to appear in his professional robes, at the Bar, and indeed appear with junior counsel.

 

It was finally submitted on this issue, that in the absence of any constitutional or statutory prohibition, and in the desire to do justice to a legal practitioner who is a litigant in an action, this court should reject the contention. The recent decision of this court in International Bank of West Africa Ltd. v. Imano (Nigeria) Ltd. (1988) 3 N.W.L.R. (Pt.85) 633 was cited as a guide.

 

On the second issue which is whether a litigant legal practitioner can appear for a co-Defendant in the case, and conduct his defence from the Bar, Mr. Sofola referred to the submission of Chief Fawehinmi, and the authorities relied upon and submitted that the English practice need not be the practice in this country since we have our own rules. In any event, it was submitted, the 2nd, 3rd and 4th Respondents are not parties to the dispute before the court. He referred to Ojiebe V. Ubani Ukoma & Anor. (1961)1 All N.L.R. 277 and submitted that the facts of that case are not applicable. Similarly the advice to counsel in Fred Egbe v. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 not to be personally involved in a matter they are prosecuting cannot be construed to mean any of the extensions contended for by the appellant. It was submitted that responsibility for the conduct of a case is entirely that of counsel. The Court ought not interfere except in ensuring observance of rules of practice and procedure. The Court cannot interfere in who should be counsel. Any interference which affects the exercise of the full rights of the litigant or counsel is likely to vitiate the trial - Barnes & Anor. v. B. P.C. (Business Forms) Ltd. (1975)1 W.L.R. 1565. The rule of practice which frowns at counsel giving evidence in the case in which they are employed as counsel is in the interest of counsel and his client to avoid conflict of his interest or personal feelings with his professional duty and to avoid possible embarrassment from cross-examination Horn v. Rickard (1963) N.N.L.R. 67.

 

On the third issue, i.e. whether a litigant who is a legal practitioner can represent a co-Defendant even from outside the Bar, Mr. Sofola submitted that there is no rule of ethics or etiquette which forbids it. It was submitted that nothing in the practice makes it dishonourable to do so.

 

Mr. Adio associated himself with the submissions of Mr. Sofola. This concludes the submissions of Counsel. This objection and the ruling are issues primae impressionis. Care therefore is necessary in determining the real scope of the privileges of a legal practitioner in the circumstances envisaged in the issues formulated.

 

I have already pointed out that the ruling on the objection is directed at determining whether the 3 senior counsel who are Respondents in this appeal should be permitted to appear for themselves and argue their appeal from the Bar and robed as counsel. Again, whether they can as Respondents appear as counsel for other co-Respondents.

 

There is the indisputable fact that the three senior counsel are legal practi­tioners who are entitled to practise their profession. Again, there is no evidence that they are suffering from any disability in their capacity to practise their pro­fession. Thus if they were not regarded by the appellant as parties to the case, the question whether they can represent any litigant in court would not have arisen. The determination of the status of the 3 senior counsel in the litigation which is now on appeal before us is therefore of crucial and critical relevance.

 

Hence a proper determination of the issues raised must separate the facts which gave rise to the motion before us, and the appeal. The facts which gave rise to the ruling, though having antecedents before now, can only be considered on the basis of the issue raised before us.

 

The issue raised before us is whether learned senior counsel should be allowed to appear on behalf of the Nigerian Bar Association, from the Bar, and robed, rather than from the well of the court and without their wigs and gowns, since they also are parties to the appeal.

 

It is important to separate the question of the action against the Nigerian Bar Association and the General Council of the Bar to which the three senior counsel are admittedly and obviously not parties, and the issue before us. I should point out at once that the grounds of objection to the appearance of the three senior counsel in the High Court, which was based on misconduct was granted, but reversed in the court below are clearly different from the grounds of objection before this court. The objection before us is not on any grounds of misconduct, but on the practice of the courts. Accordingly, the submissions stand alone and not founded on ground 3 of the grounds of appeal before us. It is therefore separable from the appeal before us.

 

Although separable and separate, it is fundamental to determine the crucial issue whether the three learned senior counsel concerned are parties to

 

(i)         The action against the Nigerian Bar Association and the General Council of the Bar.

 

(ii)        The objection against them restraining them from appearing for the Nigerian Bar Association.

 

Although the two matters were decided against the appellant in the Court below, and are the subject-matter of appeal before this Court, there is no finding in any of the courts below that the three senior counsel are parties to the action against the Nigerian Bar Association. Chief Williams, S.A.N. and Kehinde Sofola, S.A.N., have submitted and I agree with their submissions that since there was neither claim nor relief sought against them in the action, they cannot be parties to it.

 

On the issue of the right of counsel to appear, the issue is one to be argued by the counsel whose right is challenged. Since the contention is that counsel who is a party to a matter, can only participate in the proceedings from the well of the Court, as a litigant and not as counsel, the matter whether this should be the position can only be determined after counsel had argued the issue robed as counsel. This was the ruling of the Court.

 

I listened patiently throughout the submission of Chief Fawenhinmi to hear the rules of professional etiquette and their duty as counsel to the court which the appearance of learned senior counsel from the Bar in this appeal will be in conflict with. Unfortunately Chief Fawehinmi did not point to any. I agree entirely with the submission of Kehinde Sofola, S.A.N., that the decisions relied upon by Chief Fawehinmi and already stated in this ruling do not support his contention. This is not a criminal case, accordingly the criminal cases are irrelevant. The civil case of New Brunswick & Canada Railway V.Conybeare (supra) is not against this case on the facts. This is because following the appearances announced, none of the senior counsel was appearing both as counsel and as party. There is no mixture of the two characters in appearances. On the facts there is no evidence of a disability constitutional or otherwise why they should not appear for the Nigerian Bar Association. Again, there is no reason why they should not appear for themselves in respect of the objections to their appearance. The two issues and circumstances are separate and separable. It is conceded that appearance for the Nigerian Bar Association is predicated upon the capacity to appear as counsel. That is not in issue. What is in issue is whether being a party appearance is proper. I do not think it is necessary to decide such an issue which is not relevant for the determination of the issue. What is relevant is whether not being a party to the appeal against the judgment in favour of the Nigerian Bar Association, the senior counsel cannot appear to represent the Association in an action against it. In my considered opinion there is a right to appear as counsel to defend an action against the Association. Nothing appears to have happened to affect the exercise of right of audience in our courts granted the said senior counsel under section 7(1) of the Legal Prac­titioners Act, 1975. On the facts of this case, I am satisfied learned senior counsel not being parties to the appeal against the Association are entitled to represent the Association in their capacity as legal practtioners, and to enjoy all the privileges of their status in court.

 

On the assumption that the senior counsel are parties, which I have held they are not, different considerations arise. Parties to an action in court are entitled to conduct their case in person or by counsel. When a party is represented by counsel, counsel's authority, though limited by the nature of his instruction, at the trial of an action extends to the action and all matters incidental to it and to the conduct of the trial. It includes entering into compromises, withdrawing the record, calling or not calling witnesses, cross-examining or not, consenting to reference, etc. That is everything necessary for the just prosecution or defence of the action - See Swinfen V. Lord Chelmsford (1860) 5 H. & No. 89D. Counsel is dominus littis. In the circumstances it is not possible to envisage where the litigant in person could be playing any other role. I am, however, not satisfied that a litigant who is a legal practitioner ought to cease to be so or be deprived the enjoyment of the privileges of his profession because he is a plaintiff or Defendant in an action. I do not think a legal practitioner arguing his case in person is the litigant for the purpose even though he may be a legal practitioner.

 

The question is whether he should as a litigant enjoy the privileges of his profession? In New Brunswick and Canada Railway Co. V. Conybeare (supra), Lord Westbury seems to suggest that the Respondent must elect to argue in person or not. Mr. Conybeare, the Respondent, had appeared as junior counsel to Mr. G. L. Russell. Thus inferring that Conybeare should appear in person as Respondent and not also as junior counsel. The issue is both one of capacity and the privileges attaching to the capacity. Counsel appears at the Bar of the Court and will be entitled to address the court on behalf of his client. This right is exercised by counsel for the client and can also be exercised by the client himself. I do not appreciate the problems that may arise where the counsel who is a litigant will be required to give evidence in his own behalf and will be cross-examined by the opponent. This is understandable since he is not merely counsel and ought to be able to give credible evidence in his action. It is not the case of counsel giving evidence in an action in which he is merely counsel - See Horn V. Rickard (1963) N.N.L.R. 67.

 

A litigant who is a legal practitioner conducts his case as a litigant, not as legal practitioner representing himself, the litigant. The personality here is not split. He merely draws on the fountain of his legal training. It is not the question of a mixture of two characters. The fact that he wears his robes as legal practitioner and speaks from the Barprimafacie suggests that he is a legal practitioner representing a litigant in an action. Such impression should not be given. The character in which he is conducting the case appears not to matter to the onlooker. However, where the litigant is a legal practitioner I do not consider it inequitable in a civil case for him to remain at the Bar with his robes on even when he is the litigant.

 

It cannot be denied that the litigant is still a legal practitioner even though he is not to be so regarded in respect of the case at Bar. The old cases of Newton V. Ricketts 9 H.L. Cas.262 and New Brunswick Railway Co. V. Conybeare (supra) referred to by Mr. Sofola demonstrate that a legal practitioner arguing his case in person could do so from the Bar of the Court wearing his robes. Neate V. Denman (supra), suggests the contrary. I therefore agree with the submission of Kehinde Sofola that there is authority for holding that a legal practitioner is entitled to speak from the Bar wearing his robes in civil actions by or against him in person. I do not think a legal practitioner should lose his status because he is a litigant in person. If the privilege arises as a result of litigation, it does not appear to make any difference whether the litigation is conducted in person or on behalf of another. The suggestion in Conduct and Etiquette for Legal Practitioner, p. 77, by Orojo, that a counsel litigant should not wear his robes or conduct his case from the bar has no support in our rules of practice or regulations of ethics. The situation is dif­ferent in criminal cases (not applicable here) where the accused person is answering an allegation of the commission of an offence by the country and must be in the dock to conduct his defence. A legal practitioner standing trial in such a circumstance is not entitled to any more privileges than any other person accused of an offence. - See Newton V. Chaplin (1850) 19 L.J. C.P. 374 at p. 376, Queen V. Phillips (184~1846) 1 Cox. C.C. 17.

 

The third issue for determination, that is whether a legal practitioner who is a party to an action can represent a co-Defendant, is solved by the holding that a litigant legal practitioner ceases to be a legal practitioner qua that matter, and is therefore not competent under the provisions of the Legal Practitioners Act, 1975 to represent a co-Defendant. He is appearing in the action not as legal practitioner, but in person as a litigant. The view that a litigant can only speak on his own behalf was stated in R. v. Staff Sub-Committee of London County Council's Education Committee and Anor., Exparte Schonfeld & Ors. (1956)1 All E.R. 753. In this case, Denning, L.J. stated as follows:-

 

"The only one of them who put forward sustained arguments was Dr. Schonfeld, who, of course, could speak only for himself and not for the others."

 

Eight of the twelve foundation governors appeared in person on their appeal from the dismissal by the Divisional Court of their application for an order of certiorari to quash the decision of the staff Sub-Committee of the London Country Council's Education Committee, by which the sub-committee refused their consent to the dismissal of Mr. J. D. Crystal, the headmaster.

 

Although by section 7(1) of the Legal Practitioners Act, 1975, a Legal Practitioner has the right to represent another and "shall have the right of audience in all courts of law sitting in Nigeria." This right can only be exercised whilst it is available and not when it is in abeyance. The right of audience as a legal practitioner before the court is in abeyance, whilst a legal practitioner is also a litigant before the court. In his role as a litigant he is not appearing in court as a legal practitioner. He therefore cannot exercise the right of audience and the right to represent a co-Defendant in the action.

 

I shall conclude the reasons for my ruling by stating the following prop­ositions:

 

(i)         The 2nd, 3rd and 4th Respondents not being parties to the action against the 1st and 5th Respondents cannot be restrained from appear­ing for the 1st Respondent, and arguing its case from the Bar and robed as counsel.

 

(ii)        A legal practitioner who is a party to a civil suit can appear in person, not as legal practitioner, but as a litigant conducting his case in person. He is entitled being a legal practitioner, even though a litigant, to con­duct his case from the Bar robed. Newton v. Ricketts 9 H.L.C. 710, New Brunswick & Anor. V. Conybeare (1862) 9 H.L.C. 710, 719.

 

(iii)       A legal practitioner who is a Defendant to an action can only appear on his own behalf as a Defendant and conduct his case from the Bar of the Court wearing his robes. He cannot represent and conduct the case of a co-Defendant. As a litigant he cannot appear in two capacities - i.e. first in his person, and secondly as a legal practitioner in the same case.

 

A mixture of the two characters is not permitted.

 

I emphasise again that the conclusions in ii, iii are not covered by the facts of this objection considered in the ruling.

It was for the above stated reasons that I overruled the objection and called on Chief F. R. A. Williams, S.A.N. and Kehinde Sofola, S.A.N., to reply to the arguments of Chief Fawehinmi in the appeal. I agree entirely with the reasons given in the ruling of my learned brother, Obaseki, J.S.C., which I have read.

 

 

Judgement

Delivered by

Saidu Kawu. J.S.C

 

 

When this matter came up on the 17th day of January, 1989, the Court overruled the appellant's objection 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., from the Bar and reasons for our Ruling were reserved to be given today. I have had the advantage of reading in draft the Lead Reasons for Ruling just delivered by my learned brother, Obaseki, J.S.C. I entirely agree with him and will respectfully adopt those reasons as mine.

 

 

 

Judgement

Delivered by

Chukwudifu Akunne Oputa. J.S.C

 

 

On the 4th day of October, 1988, this appeal was called up for heaing before the Supreme Court of Nigeria. The following appearances were announced and recorded::

 

 

 

Chief Gani Fawehinmi in person

 

 

 

Chief F. R. A. Williams, S.A.N.

(with him, Uche Nwokedi)

For the Nigerian Bar Association and Kehinde Sofola S.A.N.

Sofola S.A.N.

(with him Miss O.A. Obaseki and M.A.O. Okojie)

For Chief F.R.A. Williams, S.a.N. and Chief E.A. Molajo. S.A.N.

Mr. O. Adio. (Director of Civil Litigation,

Federal Ministry of Justice, Lagos

 

For 5th Respondent (General Council of the Bar)

 

On that day Chief Gani Fawehinmi did not object to the appearances recorded above. Rather he argued his appeal fully, which seems to imply either that there was nothing wrong with the appearances of Chief Williams, S.A.N. and Mr. Kehinde Sofola, S.A.N. as announced above or that if there was anything wrong and objectionable, he (Chief Fawehinmi) was quite prepared to waive those objections. The arguments of Chief Fawehinmi took the better part of two long hours. At about 3.20 p.m., when Chief Fawehinmi completed his arguments, the appeal was then adjourned to 8/11/88 for the Respondents to present their own arguments in elaboration of the main points canvassed in their respective Briefs of Argument.

 

On 8/11/88, the following appearances were again recorded:-

 

 

Chief Gani Fawehinmi in person

 

 

 

Chief F. R. A. Williams, S.A.N.

(with him,B.O. Ogundare, Mrs O..M..Ayeni, M.D. Belgore and Miss A. Anyaoku)

For the Nigerian Bar Association and Chief E.A Molajo  S.A.N.

Sofola S.A.N.

(with him Miss O.A. Obaseki and M.A.O. Okojie)

For Chief F.R.A. Williams, S.A.N.

Mr. O. Adio. (Director of Civil Litigation,

Federal Ministry of Justice, Lagos

 

For 5th Respondent (General Council of the Bar)

 

 

It was after announcing their appearances as above that Chief Gani Fawehinmi raised an oral objection to the appearances of Chief Williams and Mr. Sofola. After listening to counsel on both sides, there seemed to be a consensus that Briefs be filed to enable the Court have in a handy form all available arguments on the pros and cons of the objection of Chief Gani Fawehinmi. Parties were therefore ordered to file their respective Briefs of Argument each within 7 days and the hearing was then adjourned to 17th January, 1989. The Briefs ordered were duly filed.

 

On the resumed hearing of the appeal, on 17th January, 1989, I made the following note:-

 

"Court - There is no need to call on the parties. The Briefs filed are full and comprehensive. The objection to the appearances of Chief Williams and Mr. Sofola is hereby over-ruled. Reasons to be given in the judgement."

 

The main appeal was then heard and judgment therein was adjourned to the 14th April, 1989. The Court later decided that it will be neater to separate the Ruling from the judgment although both will be delivered on the 14th April,

1989.

 

 I have had in the meantime the privilege of a preview in draft of the Lead Reasons for Ruling just delivered by my learned brother, Obaseki, J S.C., and I am in complete and total agreement with his reasoning in his Reasons for

Ruling. I hereby adopt same as mine.

 

The objection of Chief Fawehinmi to the appearances of Chief Williams and Mr. Sofola is clearly set out at p.2 of his Brief as follows:

 

"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.

 

2.         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.

 

3.         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."

 

These objections were, as it were, amplified and brought out in sharper and bolder relief in the Issues for Determination as formulated by Chief Gani Fawehinmi as follows:-

 

“4. 1    Whether a party who is also a Legal Practitioner can appear for himself and conduct his case from the Bar (in a Lawyer's robe).

 

4.2.      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 party's case from the Bar.

 

4.3.      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).

 

4.4.      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?"

 

I will now consider the Issues one by one.

 

Issue No.4 above dealing with the appearance of a Legal Practitioner who is also a party vis-a'-vis Section 33(6)(c) of the 1979 Constitution does not seem to me to be an issue in this case. The case on appeal is a civil case and none of the legal practitioners whose appearances are now questioned have been accused of any criminal offence. There is no element of criminality either in the case itself or attaching to the parties or counsel. I have to emphasise that it is the facts of any given case that frame the Issues for Determination in that case. The facts of this case have nothing whatsoever to do with the right of '~every person charged with a criminal offence to defend himself in person or by a legal practitioner of his own choice". This Court does not speculate or render advisory opinions. It deals with Issues arising from the facts of any given case and no more.

 

On Issues Nos. 1, 2 and 3, 1 will like to make a general comment and that is, the failure of the appellant to object to the appearances of Chief Williams and Mr. Sofola not only on the 4th day of October, 1988, when he himself argued his appeal but also in the Court of Appeal and in the High Court. Now if an objection is not radical, and, as it were, does not go to the essence, like jurisdiction, as opposed to mere formal objections, then it is my humble view that such objections should be raised at the earliest possible opportunity otherwise the party objecting, as in this case, by failing to object in the High Court, the Court of Appeal and by proceeding to argue his own side of the appeal with the appearances as announced on the 4th of October, 1988, may be deemed to have accepted the appearances as regular and may otherwise be estopped by his conduct from raising the objection in a future sitting. On iah V. Onyja (1989)1 N.W.L.R. (Pt.99) 514 at p.547 paras. D & E. I used the word "may" because although this fact was mentioned in Mr. Sofola's Brief and was mentioned in the oral argument of Chief Williams, the point was not fully argued and pressed home. The Court was also not called upon to make a firm pronouncement on it one way or another by framing it as an issue.

 

The next important point to note is that objections in paragraphs 2.1, 2.2, 2.3 of the appellant's Brief and Issues 4.1, 4.2 and 4.3 as formulated in the self same Brief are all predicated on the assumption that Chief Williams, Mr. Sofola and Mr. Molajo - 2nd, 3rd and 4th Respondents respectively were parties to this dispute. It now becomes necessary to probe more critically the concept of parties in civil proceedings. Who is a party? That is the crucial question. Earl Jowitt in his "The Dictionary of English Law" 1959 edition at p.1302 defines the word party inter alia as follows:-

 

Party: Party - a person who takes part in a legal transaction or proceeding is said to be a party to it

 

This definition is very wide indeed and will include the Respondents in this appeal. It is also not very satisfactory without a further definition of what is meant by 'taking part" in a legal proceeding. In Black's Law Dictionary 5th edition p.1010:

 

A party to an action is a person whose name is designated on record as plaintiff or Defendant

 

None of the 3 Senior Advocates was anywhere in these proceedings designated as plaintiff or Defendant.

 

It continues - "Party is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or in equity". Black then draws the necessary distinction between a party and a person interested thus:-

 

"A party is either a plaintiff or Defendant whether composed of one or more individuals and whether natural or legal persons - all others who may be affected by the suit, indirectly or consequently are persons interested but not parties."

 

There is also another expression which has to be properly understood and that is "Party aggrieved". Some statutes permit a person or a party aggrieved to appeal. Any person having an interest recognised by law in the subject-matter of a judgment which interest is injuriously affected by the judgment can appeal if he is a party or apply for leave to be heard on appeal not as a party properly so-called but rather as a person interested:- See Section 117(6)(a) of the 1963 Constitution and the case of Sun Jnsurance Office Ltd. V. Victoria Olayibo Ojemuyiwa (1965) N.M.L.R. 451. This case highlighted the point that aparty to the original suit either as plaintiff or Defendant appeals against the ensuing judgment as of right while a person interested cannot launch an appeal in the name of the party but must obtain leave to appeal as a person interested:- see also Sections 213(5) and 22(a) of the 1979 Constitution and the case of Christopher Ede V. Ogenyi Nwidenyi & Ors. In Re Ogbuzuru Ugadu (1988) 5 N.W.L.R. (Pt.93) 189 at p.203 and at p.210.

 

Ballentine in his "Law Dictionary" 3rd edition at p.919 defined a party inter alia as "one of the opposing litigants in a judicial proceeding, a person seeking to establish a right or one upon whom it is sought to impose a corresponding duty or liability". A litigant of course is a person engaged in a litigation. He litigates by maintaining or defending an action as a party thereto either as plaintiff or Defendant. He sues or he is sued. The whole purpose of a law suit or litigation is either to declare or enforce a right, or else to seek a remedy. The word "party" in its legal connotation should therefore ordinarily be referable to someone seeking to enforce a right or seeking a remedy as well as those against whom such right or remedy may be enforced. There must be a dis­pute, - a lis, a Suit or an action at law between those who can properly be called parties. For the purposes of a right to appeal, the expression "parties" may include persons named as parties in the original pleadings as well as persons who subsequently came in or are brought into the action for the purpose of seeking relief but not of being subjected to relief. For the same reason, a person interested" may be loosely described as a "party" in the appeal. This was exactly the position of the 3 Senior Advocates in the Court of Appeal.

 

Now what is the position in this case? At p.2 of the record of proceedings appears the Originating Summons which started the present litigation. The plaintiff in that Originating Summons is the present appellant. The Defendants were:-

 

"1.              Nigerian Bar Association, and

 

2.                General Council of the Bar."

 

After posing 3 Questions for Determination, the plaintiff then claimed the following reliefs:

 

"1         A Declaration that the decision of the Nigerian Bar Association taken at its National Executive Meeting at an Emergency General Meeting on the 5th 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 that decision on the plaintiff is unconstitutional, illegal, null and void and of no effect whatsoever."

 

It is very clear from the above that the real parties to the Originating Summons are the plaintiffs claiming some reliefs and the Defendants against whom those reliefs were claimed. Viewed from the stand-point of the claim before the trial Court, the 2nd, 3rd and 4th Respondents to this appeal cannot really be des­cribed as parties as they have claimed nothing from the appellant and the appellant has claimed nothing from them.

 

The 2nd, 3rd and 4th Respondents first came into the picture in this case on the 19th March, 1985 (see p.122 of the record) when Chief Williams, S.A.N. announced his appearance as leading counsel "for the 1st Defendant". With him were E. A. Molajo, S.A.N. (3rd Respondent), Kehinde Sofola, S.A.N. (4th Respondent), Chief B. 0. Benson, S.A.N., Segun Onakoya and S. A. Adewolu. It will definitely require a radical metamorphosis to transubstantiate from counsel appearing for a party to a litigation into a party in the self same litigation.

 

At p.147 of the record appears a motion by Chief Fawehinmi seeking "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 continuing to act or from representing or from continuing t6 represent the Nigerian Bar Association, the 1st Defendant in this Suit….." The Suit under which this motion was brought was still the same old Suit No. M/268/84 with Chief Gani Fawehinmi as plaintiff, and the Nigerian Bar Association and the General Council of the Bar as Defendants. These were the same parties in the Originating Summons at p.2 of the record. In other words, the plaintiff appellant did not attempt at this stage to add 2nd, 3rd and 4th Respondents as parties. No. He still retained the original parties. The metamorphosis had not yet occurred.

 

Then at p.164 appeared a motion brought still under the existing Suit No. M/268/84 by the 1st Defendant for an order:

 

"(a)      striking out the name of the 1st Defendant on the ground that it is not a juristic person and so cannot be sued;

 

 (b)       striking out the entire action on the ground that even if all the facts pleaded in the Statement of Claim are admitted or established, the Court will not grant any of the reliefs claimed in the absence of all proper parties to the action."

 

Now Chief Williams, S .A N., brought this motion not as a party but as counsel for the 1st Defendant. Again at this stage, the metamorphosis had not yet occurred. It is pertinent to note that it is the central issue involved in this motion - that is, whether or not the Nigerian Bar Association is a juristic person - that went on appeal to the Court of Appeal and from thence to this Court. It is therefore my humble view that in that controversy Chief Williams, Mr. Molajo and Mr. Sofola cannot be parties. They were counsel for the 1st Defendant and no more.

 

At p.181 of the record, the learned Chief Judge of Lagos State High Court read is Ruling on Chief Fawehinmi's motion at p.147. The Suit was still No. M/268/84 and the parties were still the original parties to the originating summons. Having restrained the three learned Senior Advocates from appearing for the 1st Defendant, the Court itself granted them permission to appeal against its order of injunction. This again will not make the three learned Senior Advocates parties to the original Suit No. M/268/84 or parties in the subsequent appeals challenging the juristic personality of the 1st Defendant. Issues 4.1, 4.2 and 4.3 as formulated in the appellant's Brief will thus have to be considered with the necessary modification that the legal practitioner en­visaged was not also a party. If however the fact of being a party is discounted and removed, the 3 issues for determination would cease to be live issues or else will become meaningless. For if a legal practitioner is not a party his appearing for himself and conducting his case from the Bar (in Lawyer's robe) will not arise. By the same token, Issue No.4.2 - '~whether a legal practitioner can appear for another party in the same suit as a legal practitioner and con­duct the other party's case from the Bar" will be a non-issue for that exactly is the duty of any legal practitioner - to appear and plead his client's case from the Bar.

 

I have dwelt at some length over the question of who is a party because that 9uestion is at the very root of all the issues  or determination as formulated in the appellant's Brief. All the Issues are riveted and predicated upon the assumption that the 3 Senior Advocates are parties to the lis, the dispute, the controversy in Suit No. M1268/84 which is now before this Court on appeal. They may be classified as persons affected by the order for injunction but not parties to the dispute in Suit No. M/268/84. Incidentally the heading of the Suit never changed and I did not discover any application under Order 14 Rule 20 High Court of Lagos Civil Procedure Rules to add 2nd, 3rd and 4th Respond­ents as parties. People become parties by suing or being sued or by being added as parties to an already existing suit. The motion for an interim injunc­tion at p.147 of the record cannot take the place of an application of joinder to make the 3 Senior Advocates parties. Now, not having been properly added as parties to the already existing suit M/268184, the only Section that might give the learned Chief Judge jurisdiction to make the order of injunction apparently against non-parties will be Section 6(6)(a) of the 1979 Constitution. The Court will be acting under its inherent power to insist that proceedings conform with laid down principles and practice of professional conduct.

 

The 3 Senior Advocates against whom the order of injunction was made did appeal. It is interesting to note the heading of their Notices of appeal at pp.202,211 and 229 viz:-

 

Chief Gani Fawehinmi. . . Plaintiff/Respondent

 

And

1.             Nigerian Bar Association   )

 

2.             General Council of the Bar  ). . . Defendants

 

In Re E. A. Molajo or In Re F. R. A. Williams or

In Re Kehinde Sofola."

 

The above heading once more emphasises the fact that the three Senior Advocates were not parties properly so called, that is parties to the substantial dispute, but rather had to appeal as persons affected by an adverse order.

 

I will therefore regard them as "parties" in this rather limited sense for the purpose of considering Issue No. 4.1  "whether a party who is also a Legal Practitioner can appear for himself and conduct his case from the Bar (in a Lawyer's robe)". We have our own Rules of Professional Conduct in the Legal Profession made under the Legal Practitioners Decree No.15 of 1975. Rule 6 deals with "Court Room Decorum" and stipulates:

 

"(a)         A lawyer should rise when addressing or being addressed by the Judge.

 

(b)        While the Court is in session a lawyer should not assume an undignified posture and should not without the Judge's permission remove his wig and gown in the Court room. He should always be attired in a proper and dignified manner and abstain from any apparel or ornament calcu­lated to attract attention to himself" (the italics mine)

 

From the above Rule, the wearing of wig and gown in Court by legal practitioners is, if anything, compulsory. Unless there is another Rule expressly forbidding a lawyer who is also a party from complying with the provisions of Rule 6 above, then it is my view that a lawyer does not cease to be a lawyer simply because he is appearing for himself. And he does not cease to be bound by Rule 6 above again because he is appearing for himself. I have not seen any of our Rules of Professional Conduct prescribing that a lawyer appearing for himself should not wear his wig and gown in court as required by Rule 6. This may be an omission. This Court has decided in International Bank for West Africa Ltd. v. Imano (Nig.) Ltd. & Anor. (1988) 3 N.W.L.R. (Pt.85) 633 that for any omission in our Rules of Professional Conduct, the remedy lies in amending the Rules and not by the Court filling in the gaps.

 

The English Rules here are slightly different. In England a barrister who is a party in a case must elect to conduct his own case or to have it conducted by counsel. If he appears on his own account, he cannot claim the rights of coun­sel but will be accorded only those rights enjoyed by a member of the public. In Practice Note (1961)1 All E.R. 319, (1961)] W.L.R. 257, it was clearly stated that a barrister appearing on his own behalf should not appear robed or sit in counsel's row. It is, however, to be noted that Lord Parker's Direction in this case concerned counsel appearing in a criminal matter on his own behalf.

 

Chief Fawehinmi's objection is thus grounded on the English practice. Local support for his objection can be found in Orojo - Conduct and Etiquette for Legal Practitioners p.77 sub-nomen “Restnction on the use of robes". There the learned author wrote:-

 

There are some restrictions on the use of robes. First as to use in Court, a legal practitioner who is conducting his own case should not do so in his robes nor sit at the Bar. He should appear like any other member of the public."

 

The learned author in his foot-note plainly and clearly admitted that his authority was '~English Annual Statement, 1960". The question now is - Are we going to follow the English Rules and English practice here or are we going to be guided by our own Rule 6? My answer is that we should follow and be guided by our available Rule on Court Room Decorum - Rule 6- until such a time the Rules are changed by the appropriate authority- the General Council fo the Bar.

 

Now coming home to the facts and all the surrounding circumstances of this case, where the 3 Senior Advocates appeared as counsel for the 1st Defendant the Nigerian Bar Association; where the actual controversy is between the plaintiff/appellant and the Nigerian Bar Association and the General Council of the Bar; where they merely appealed against the order of the High Court restraining them from appearing for the 1st Defendant and won in the Court of Appeal - in view of all these facts, I hold the view that whether we follow our own Rule 6 or the English practice, nothing prevents the 3 Senior Advocates appearing as counsel for the 1st Defendant and appearing robed and in the Senior Advocate's row. These 3 Senior Advocates are not pressing any claims of their own in the main appeal. Whether the Nigerian Bar Asso­ciation is a juristic person which can be sued eo nomine is not a "personal claim" of any of the 3 Senior Advocates and it confers no right or benefit on them personally. They therefore need no apology for appearing in their wig and gown and sitting in the front row as Senior Advocates of Nigeria to make their submissions destined to help the Court come to a proper resolution of the central issue. My answer to Question No.4.1 formulated in the Brief of the appellant is that the 3 Senior Advocates can definitely appear in this appeal robed and sitting in their Senior Advocates' row in front. They are not really conducting their own case for they are not and have not been made parties to Suit No. M/268184 and the order of injunction made against their appearance had been lifted by the Court of Appeal.

 

In the final result, it was for all the reasons in the Lead Reasons for Ruling of my learned brother, Obaseki, J.S.C. which I now adopt as mine that I, on the 4th of October, 1988 over-ruled the plaintiff/appellant's objections and decided his Issues for Determination 4.1, 4.2 and 4.3 all against him. I will abide by the consequential orders in the Lead Reasons for Ruling.

 

 

Judgement

Delivered by

Abdul Ganiyu Olatunji Agbaje. J.S.C

 

 

On 17th January, 1989 I overruled the objection, in the course of the hearing of this appeal, by the plaintifflappellant, to the hearing by us of addresses from Chief F. R. A. Williams, S.A.N., Mr. E. A. Molajo, S.A.N. and Mr. Kehinde Sofola, S.A.N. The objection is based on the ground that each of the Senior Advocates of Nigeria is a party to the proceedings leading up to this appeal, and is also now appearing for another party in the appeal. In short, the appellant is contending that each of the learned Senior Advocates of Nigeria is combining the roles of party and counsel in this appeal contrary to the ethics of the legal profession as established by decided cases.

 

The case law, both local and foreign, shows that a legal practitioner cannot be a party to a case and at the same time appear as counsel for another party in that case, since, as was said, in New Brunswick and Canada Railway Co. V. Conybeare II E.R. 907, there cannot be a mixture of the two characters. This Court in Ojiegbe V. Ubani (1961)1 All N.L.R. 227 at page 279 said per Ademola, C.J.F. as regards this same point:

 

“…it is undesirable for a barrister to put himself into a situation in which he cannot be a counsel in the true sense of the word because he is in sub­stance the party. . .”

 

It appears therefore to me that the right of audience in our courts given to legal practitioners by section 7(1) of the Legal Practitioners Act, 1975 must be read subject to this case law.

 

In the final analysis the decision on the objection of the plaintiff/appellant to the hearing of the addresses from the Senior Advocates of Nigeria boils down in my view to the consideration of the point whether or not they are in substance parties to the proceedings giving rise to this appeal before us.

 

The reliefs the plaintiff/appellant is claiming in the action giving rise to this appeal are against the 1st and 5th Respondents to this appeal that is the only two Defendants in the action. It was in an interlocutory proceeding in the action that the plaintiff by way of motion on notice sought an order of court to restrain the three Senior Advocates of Nigeria from appearing for the 1st Respondent, the 1st Defendant. Each of the three Senior Advocates of Nigeria was put on notice of the motion. Thereby they were made technically parties to that interlocutory proceeding, but in essence the parties to the proceeding were the 1st and 2nd Defendants, i.e. the 1st and 5th Respondents here. And the issue even in the interlocutory proceeding was essentially whether the 1st Defendant, the 1st Respondent, was entitled as of right to the services of the three Senior Advocates of Nigeria, given the facts alleged by the plain ­U tiff in support of his application. The right of the three Senior Advocates of Nigeria to appear for the 1st Defendant (the 1st Respondent) is of course, I incident to the claim of that Defendant to employ as of right the services of the learned gentlemen in the circumstances of this case. But it must be noted that their right to appear for the 1st Defendant was contingent upon the wish or desire of the latter to hire them as its counsel. So strictly speaking the three gentlemen had no business as counsel in this case unless they were brought in as such by the 1st Defendant. So, to my way of thinking, as regards the interlocutory proceeding to restrain the three Senior Advocates of Nigeria from appearing for the 1st Defendant (the 1st Respondent) all that they could properly do there was to espouse the contention of the 1st Defendant that it was entitled to employ their services in its resistance to the plaintiffs claims. Besides this, I cannot see what is their interest in the proceeding.

 

From what I have been saying above, the conclusion I reach is that the real parties to the whole of the proceedings now before us on appeal are the 1st and the 5th Respondents. The plaintiff in his statement of claim filed in this case on 22/4/85 put the address of the 1st Defendant, Nigerian Bar Association, as c/o F. R. A. Williams, 1 Shagamu Avenue, Ilupeju, Lagos State.

 

Those put on notice of the interlocutory proceedings to restrain the three Senior Advocates of Nigeria from appearing were as follows:-

 

On Notice to:

 

1.         Nigerian Bar Association,

c/o their Counsel,

             Chief B. O. Benson, S.A.N.,

             50, Ogunlana Drive, Surulere, Lagos State.

 

2.         General Council of the Bar,

c/o The Attorney-General of the Federation,

Federal Ministry of Justice, Marina, Lagos.

 

3.         ChiefF. R. A. Williams, S.A.N.,

1, Shagamu Avenue,

 Ilupeju,

Lagos State.

 

4.         Mr. Kehinde Sofola, S.A.N.,

2, Tinubu Square, Lagos.

 

5.         Mr. E. A. Molajo, S.A.N.,

1, Catholic Mission Street, Lagos.

 

None of the Senior Advocates of Nigeria was formally added as a party to the case.

 

The order for injunction made in the case is as follows:-

 

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.

 

This was binding on the three Senior Advocates of Nigeria until it was modified or discharged. But that order will not in my view alter the position as to who in substance were the parties to the proceedings now in appeal before us for the limited purpose of determining whether the three Senior Advocates of Nigeria were combining the roles of party and counsel in this appeal. The three Senior Advocates of Nigeria are not in my view in substance parties to these proceedings.

 

It is for the above reasons and the more detailed reasons given in the Lead Reasons for Ruling of my learned brother, Obaseki, J.S.C. which I have had the privilege of reading in draft that I dismissed the appellant's objection on 17th January, 1989.

 

 

 

Counsel

 

 

Chief Gani Fawehinmi in person

......

 

Chief F. R. A. Williams, S.A.N.

(with him, Uche Nwokedi)

......

For the 1st and 4th Respondents

Mr. Sofola S.A.N.

(with him Miss O.A. Obaseki and M.A.O. Okupe)

......

For the 2nd  and 3rd Repondents

Mr. O. Adio.

(Director of Civil Litigation,

Federal Ministry of Justice, Lagos)

......

For the 5th Respondent