WHETHER APPEARANCE OF ADDITIONAL COUNSEL FOR A PARTY AMOUNTS TO CHANGE OF COUNSEL

CASE TITLE:                         HON. GEORGE TIMINIMI v. RAMSOME AWILIKI & ORS (2021) LPELR-54637(CA)

JUDGMENT DATE:           31ST MAY, 2021

JUSTICES:                           MOHAMMED AMBI-USI DANJUMA, JCA

                                          JOSEPH EYO EKANEM, JCA

                                          ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA

COURT DIVISION:            ASABA

PRACTICE AREA:              Legal Practitioner- Appearance of Counsel

FACTS

The Appellant was a Judgment Debtor in a suit instituted by the 1st Respondent for the claim of a sum of money as an agreed commission for facilitating the purchase of a house for the Appellant. On the 3rd of March, 2015, the case came up at the High Court after a series of adjournments and an earlier order discharging some garnishees and making the Decree Nisi absolute against the 1st and 9th garnishee Banks.

The Judgment Debtor appeared in Court at the resumed hearing through Mr. E. Omare as lead Counsel. Mr. Orhiunu Esq., Counsel for the Judgment Creditor/1st Respondent objected to this appearance on the ground that Mr. Omare could not appear for the Appellant as he had not filed a Notice of Change of Counsel and that the other Counsel he purported to be leading was not even present in Court.

The Court agreed with the Counsel for the 1st Respondent. Accordingly, the Appellant’s motions for setting aside the Default Judgment and Decree Absolute previously made were not allowed to be argued but were rather struck out.

Being dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES:

The appeal was determined upon consideration of the following issues:

1. Whether it was not a violation of Appellant’s right to a fair hearing, for the lower Court to have made the garnishee order absolute on 3rd March 2015 without hearing the Appellant’s two pending motions of 10th December 2014 and 23rd December 2014 on the merit?

2. Whether having regard to the facts and circumstances of this case, the Appellant’s briefing of two additional legal practitioners (Messrs. E. A. Akpolaire and E. K. Omare) to act as co-counsel to lead E. C. Akpeme who was handling the matter amounted to change of counsel?

Learned Counsel for the Appellant contended that it was a breach of Appellant’s right of fair hearing not to first hear the pending motion to set aside the default Judgement of 25th June 2014 and the Decree Nisi/stay of further proceedings. That a Court is bound to decide on all pending applications before making its final decision in a matter, else a breach of fair hearing would have been occasioned.

Learned counsel submitted further that no matter the perceived weakness or strength of a pending application, it must be heard and determined one way or the other and that if it is left to the Judge to decide whether or not to hear and determine a pending motion, there may be a danger as tyranny and arbitrariness would begin. He submitted that the refusal of the Court to hear the Motions on the day fixed was clearly an invocation of the spirit of Arbitrariness and injustice.

It was finally submitted that the briefing of additional counsel or the appearance of a different counsel or an additional counsel for a party does not amount to a change of counsel, and also that a party is entitled to be represented by a counsel of his own choice.

On the other hand, Counsel to the Respondent commenced his argument by submitting that there was no proper change of counsel by the Appellant and that E. K. Omare Esq. who appeared had indicated a different office address from that shown in the Address of Appellant as Alex Egboro & Co. which indicated that he was from a different office.

​He further contended that the Appellant was not denied fair hearing as the trial High Court took cognizance of the applications and arguments on the competence of the applications as they relate to the Rules of Court were taken, and a decision was then made striking out both applications.

Counsel submitted that a scrutiny of the record of Appeal shows no breach of the right to a fair hearing and that even if it does, the Appellant had waived his right to a fair hearing. That the Appellant had waited till a garnishee order had been obtained 6 months thereafter before he came to Court and that the right of fair hearing does not mean that a person must be heard by all means but rather that a person is given the opportunity of being heard.

DECISION/HELD

In the final analysis, the Court of Appeal found the appeal meritorious and thereby ordered the setting aside of the garnishee order absolute against the 2nd and 9th Respondent, relisting of the two motions struck out, setting aside of the default judgment entered and reassignment of the suit at the trial High Court to be heard by a different Judge.

RATIOS:

1. CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING– Instance where refusal of Court to allow additional counsel appear for a party will amount to breach of right to fair hearing –

 “The denial of the right of legal representation as sought on the 3rd March 2015 under the guise of inappropriate change of counsel notice pursuant to Order 48 Rules 1 and 2 of the High Court of Delta State Civil Procedure Rules was wrong. The said Rule does not contemplate the prevention or denial of the right of Legal representation by a counsel of one’s choice as unwittingly or deliberately caused the Appellant herein. The said Order 48 simply binds every legal practitioner engaged by a person, whether as claimant or defendant as the case may be to be so bound to conduct the case for which he was engaged until final judgment unless allowed for any special reason to cease acting therein. Rule 1 of Order 48, therefore, is for the protection of the parties and the trial Court would in the circumstance of not being satisfied with any absence of counsel, be expected to adjourn or stand down the case or matter to ensure that the client is notified. This will be in the protection of the client’s right under that order of the Court not to be denied his right of representation at any stage, having engaged a particular counsel. In this matter, the Court interpreted the presence of a counsel with a different Address from the counsel earlier on record as appearing for the Appellant as a change of counsel and which according to the Court was not properly done. My Lords, the scenario at the trial Court was far from the position provided for in Order 48 Rule 2 of the High Court Civil Procedure Rules, Delta State, which provided for change of counsel. There was no application for change of counsel as wrongly thought by the trial Court. It was an application to have additional counsel appear with the counsel on record and his own address of service given. The fact that a different address of service is given does not ipso facto mean that there is a change of counsel, as where there is a change of counsel the application shall be served on the outgoing legal practitioner. There is nowhere in the record where the purported new counsel served the purported Notice of Change of counsel on the alleged previous counsel. There was clearly here, no change of counsel at all … E. K. Omare and E. A. Akpotaire, Esq. could not constitutionally have been denied legal appearance for the Appellant as that did not only infringe their rights but impugned the Appellant’s constitutional right to a fair hearing under the Section 36 of the 1999 Constitution…” Per DANJUMA, J.C.A.

2. LEGAL PRACTITIONER- APPEARANCE OF COUNSEL – Whether appearance of additional counsel for a party amounts to change of counsel –

 “I still need to conclude, even if briefly, that the appearance of E. K. Omare Esq. of counsel for the Appellant in no way amounted to change of counsel and therefore, the inapplicable provisions of Order 48 Rules 1-3 of the Delta State High Court Civil Procedure Rules did not arise at all. In NIGERIAN RAILWAY UNION V. NIGERIA RAILWAY CORPORATION (supra), the Court of appeal upturning the High Courts’ Ruling in the same manner as delivered in this matter on appeal, held thus: “There is no law and I have not been told of any nor did my research reveal one, demanding any requirement that an additional counsel engaged in a matter ought to formally write to the Court before he is allowed to conduct or be engaged in any matter. It is not the contention of Mr. Kehinde Sofola (SAN) that Chief G. O. K. Ajayi (SAN) had no instruction to appear for the Appellant and conduct the case on their behalf. It is trite law that once a legal practitioner announces his appearance for a party, it is not the duty of the Court to inquire into the validity of the representation. By Section 33(1) of the Constitution for the determination of civil rights and obligations, a citizen has the fundamental right to either represent himself in Court or be represented by a counsel of his own choice. The right to represent one’s case at a hearing before the Court of law involves the right to brief and instruct any counsel or a number of counsel a litigant may wish to engage. The Court cannot validly exercise any discretion to curtail the fundamental right of a litigant to a trial within the meaning of S. 33 of the Constitution. It is also trite that any law restricting the method or mode in which to exercise a fundamental right guaranteed by the Constitution will be inconsistent with the Constitution… Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the Court has no business in inquiring whether the counsel was regularly or improperly briefed. The Court must allow the counsel to represent the party without any restriction or any procedural requirement… There is no rule of law or practice that limits the number of counsel to be engaged by a party to any adjudication.” Per DANJUMA, J.C.A.