Conflict of Interests in Litigation (Part III)

In the last publication of this Conflict of Interests in Litigation series, I examined the disqualification of Counsels from representing a party in a suit on the grounds of conflict of interests and reviewed the case of Samtech (Nig) Ltd & Anor v. Sanni & Anor. In this edition, I will be reviewing the case of Elias & Anor v. Ecobank (Nig) Ltd.

See Previous episode here

ELIAS & ANOR V ECOBANK (NIG) LTD (2021) LPELR-54876(CA)

In the case under review where the parties battled to enforce the terms of a sub-lease agreement, the Respondent had sought to challenge the representation of the Appellant’s Counsel who had previously acted as an executive director to the bank (Respondent). The Respondent claimed that the Appellant’s counsel was the Respondent’s executive director at the time the sub-lease agreement was executed between the parties, and therefore, the Appellant’s Counsel was in possession of confidential information which could hurt the bank.   

The Appellant’s Counsel argued that he never worked in the Respondent’s Legal Department, and also never received any information relating to the property in dispute during the tenure of his employment with the bank. The Court of Appeal therefore had to consider whether the Appellant’s Counsel previous fraternity with the Respondent was sufficient to bar him and other lawyers in his law firm from representing the Appellant in this matter.

The Court held that a legal practitioner’s ethical duty would only be called into question where his previous engagement was in the capacity of a legal practitioner. In the words of the Court:

“Rule 17(4) of the [Rules of Professional Conduct for Legal Practitioners] 2007 envisages a situation where the services to be provided by a legal practitioner is closely connected with the previous services rendered by the legal practitioner to the opposing side.”[1]

The Court further found that the Appellant’s Counsel did not work in the department that dealt with the disputed property – subject matter of this suit, and that the Counsel’s employment with the Respondent ceased long before the institution of this action at the trial Court. The Court stated the law that it is wrong to suggest that a counsel may not act against someone whom he acted for in a matter bearing no resemblance to the present case.[2] The Court therefore affirmed the Appellant’s Counsel’s representation as proper and ethical in this circumstance.

Therefore, care and caution must be taken to ensure a client is not deprived of representation by counsel of his choice, except it is sufficiently established that the counsel had previously acted for the former client against his antagonist in a closely interwoven dispute before an application at the instance of the former client to restrain counsel from appearing for the present client may be entertained. The application to restrain counsel from appearing in such circumstances is not open to the world at large but to the aggrieved previous client if the new matter is intertwined with the former brief. It has to be so because a client is entitled as of right to engage the services of a counsel of his choice, provided counsel is entitled to practice in Nigeria.[3]

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[1] See also Onigbongbo Community v. Minister of Lagos affairs and Ors (1971) LPELR-2683(SC).

[2] See also the case of Mbora v. Akiba Bassey Ekpenyong & Anor (2019) LPELR-48169(CA).

[3] Please see the case of Onyeka & Anor v. Ogbonna & Ors (2013) LPELR-20718(CA) Per Mshelia JCA @ Pg. 38