Can a Litigant Challenge the Authority of Counsel Representing his Adversary

CASE TITLE:                       THE DAILY TIMES OF NIGERIA PLC v. THE INSPECTOR GENERAL OF POLICE & ORS (2021) LPELR 54633 (CA)

JUDGMENT DATE:           15TH JANUARY, 2021

JUSTICES:                          JOSEPH SHAGBAOR IKYEGH, JCA

                                         OBANDE FESTUS OGBUINYA, JCA

                                        EBIOWEI TOBI, JCA

COURT DIVISION:            LAGOS

PRACTICE AREA:             Legal Practitioner- Appearance of Counsel

FACTS

The ruling of the trial Court leading to the filing of this instant appeal was to effect that a certain Mr. L. A. Idu did not have the instruction of Daily Times Nigeria Plc, which was the Claimant in the trial Court and now the Appellant, to file the initial suit in the trial Court, having not been the counsel with the requisite instruction of the Appellant company to act as counsel on their behalf.

The said Mr. L. A. Idu subsequently filed an appeal against the decision of the trial Court on behalf of the Appellant.

In response, the Respondent filed a Notice of Preliminary Objection, wherein the Respondent as Applicant, prayed the Court of Appeal for orders dismissing/striking out the appeal on the ground that same was filed by a counsel who did not have the instruction of the Appellant to do so and was therefore incompetent and an abuse of Court process.

ISSUES

The appeal was determined upon consideration of the following issues:

I. Whether this appeal as filed is competent having been filed by counsel with no authorization given by the Appellant to represent it in Court let alone file the present appeal.

ii. Whether in this circumstance, the jurisdiction of this Appellate Court has been properly activated for the Court to consider and determine this appeal, more so when the purported Appellant has joined an entity that was not a party to the suit before the trial Court without the leave of this Appellate Court having been first sought and obtained.

iii. Whether this appeal is incompetent and an abuse of the processes of this Honorable Court, in the circumstances, and ought to be dismissed/struck out by my lords.

COUNSEL SUBMISSION

Learned Counsel for the Respondent/Applicant contended that the learned counsel, Mr. L. A. Idu did not have the requisite instruction and authority of the Appellant to institute the action at the trial Court because he was purportedly appointed by a party who does not have control of the affairs of the Appellant company and that the law firm of Messrs. Jireh & Greys Attorney is the duly appointed solicitors for the Appellant.

That the joinder of the 3rd party Interloper/Respondent in the appeal when same was not a party to the suit before the trial Court which was done without the leave of Court renders the joinder incompetent and the appeal liable to be struck out.

Learned Counsel also contended that since the ruling of the trial Court was that Mr. L. A. Idu did not have the authority of the Appellant to file the suit, it remains the law with regard to the issues put before the trial Court until set aside and that parties are bound to abide by the ruling of the trial Court until that happens. He concluded that the issue of representation goes to the root of any suit therefore where a Counsel is found to not have the requisite authority to file a suit, the suit is bound to be thrown out just like the trial Court did.

On the other hand, Learned Counsel for the Appellant/Respondent contended that the issue of appointment or authorization of counsel to commence an action in the name of a company is an issue of law and that in the present case the Appellant satisfied both the provisions of the statute and case law and acted in a general meeting that produced its two resolutions authorizing the action in the High Court.

That the Appellant/Respondent did not authorize the filing of the notice of preliminary objection, therefore the notice of preliminary objection should be treated as incompetent and ought to be dismissed in its entirety.

DECISION/HELD: In the final analysis, the Court of Appeal dismissed the Preliminary Objection.

RATIOS

1. LEGAL PRACTITIONER- APPEARANCE OF COUNSEL: Whether a litigant can challenge authority of counsel representing his adversary

“The Supreme Court further stressed by way of emphasis in page 543 of the same law report (Martins and Ors. v. F.R.N. (supra) that “it does not lie in the mouth of a litigant” to question the authority of the legal practitioner representing his adversary in the proceedings and that when counsel announces appearance in Court as representing a party to the proceedings, it is presumed that he had been briefed by that party and had his authority to conduct the proceedings on his behalf and that it is not for the Court to embark on an enquiry as to whether he has such instructions or not, as it lies within the absolute discretion of the litigant to engage a counsel of his own choice to conduct his case for him, therefore no power resides in any Court to grant permission to any litigant as to which counsel to employ to conduct his case. Furthermore, the Supreme Court maintained for the umpteenth time in the case of P.D.P. and Ors. v. Ezeonwuka (2018) 3 NWLR (pt. 1606) 187 at 225 that no person other than the client, not even the Court, can enquire into counsel’s authority once he has announced appearance for the party. See similiter the case of Ekpemupolo v. F.R.N. (2019) 11 NWLR (pt. 1684) 462.” Per IKYEGH, J.C.A.”

2. CONSTITUTIONAL LAW- RIGHT TO DEFENCE/LEGAL REPRESENTATION: Who has the right/authority to challenge a representation in a matter

“In the light of the fact that the sponsor of the notice of preliminary objection is not the Appellant, DTN Plc, it lacked the competence and capacity to challenge the filing of the appeal by Mr. L. A. Idu of learned counsel on behalf of the Appellant vide the case of Nnakwe v. State (2013) 18 NWLR (pt. 1385) 1 at 26 – 27 to the effect that where counsel announces appearance on behalf of a party in any matter, the authority to challenge such representation only lies with the same party.” Per IKYEGH, J.C.A.

3. LEGAL PRACTITIONER- AUTHORITY OF COUNSEL: Presumption of authority of counsel to represent client and file Court processes

“There is also the Supreme Court case of Martins and Ors. v. The Federal Republic of Nigeria (2018) 13 NWLR (pt. 1637) 523 at 535 – 536 to the effect that when counsel signs an initiating process (such as a notice of appeal, for example,) as representing a party there is a presumption he is authorized to act for that party unless there is a contrary indication by the party, that once a counsel appears in a case ex-facie, the process filed or announces his appearance in open Court, the Court assumes that he has the authority of his client for the conduct of the case and being a question of fact the burden of proving otherwise is on the person asserting the contrary vide Section 131(1) of the Evidence Act, 2011 which was not discharged in this case by the sponsor of the notice of preliminary objection.” Per IKYEGH, J.C.A.”

4. LEGAL PRACTITIONER- APPEARANCE OF COUNSEL: Whether where Counsel appears in Court and states that he is instructed, the Court can question his authority to appear

“The general practice is that when counsel appears in Court and states that he is instructed, the Court will not inquire into his authority to appear vide Tukur v. Government of Gongola State (1988) 1 N.S.C.C. 30 following the English case of Allen v. Francis 3 K. B. 1065 read with the cases of F.R.N. v. Adewunmi (2007) 10 NWLR (pt. 1042) 339 at 424, Nigerian Union of Railway men v. Nigerian Railway Corporation (1996) 9 NWLR (pt.473) 490 at 503 following Bob-Manuel v. Briggs (1995) 7 NWLR (pt.409) 537, Adewunmi v. Plastex Ltd. (1986) 3 NWLR (pt.32) 767.” Per IKYEGH, J.C.A.”