ODUTOLA V OGUNSEYE & ORS

ODUTOLA V OGUNSEYE & ORS


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 17TH MARCH, 2017


Appeal No: CA/I/314/2012(R)

CITATION:

Before Their Lordships:

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

MODUPE FASANMI, J.C.A.

NONYEREM OKORONKWO, J.C.A.


BETWEEN

ALHAJI M.O. ODUTOLA

(APPLICANT)

AND

ENGINEER S.O. OGUNSEYE
CHIEF JOSHUA AKANBI ODERINDE
KOLAJO AFUAPE OLAOMO

(Substituted for Zacchaeus Oderinde and others for themselves and on behalf of the Ijako Community)

(RESPONDENTS)


PRONOUNCEMENTS


A. APPEAL
1. Notice of Appeal: The position of the law on joint notice of appeal

The main issue here is whether, two independent counsels can represent a party in a proceeding. I do not think so. It is not the practice of Legal Practitioners to compete for a party. In cases where the Court orders a consolidation because of convenience or expediency in multifaceted suits, however the number of suits there may be, when consolidated, depending on the pleadings and the burdens of proof thereof, there will be one plaintiff or one set of plaintiffs and one defendant or one set of defendants. In such situation, problem of legal representations would necessarily arise because each unit of the consolidated cases may have its own independent Legal Practitioner.

In Olu of Warri vs. Chief Sam Warri Essi and Shell BP Petroleum Development Co. of Nigeria Ltd (1958) 3 F.S.C 94 a similar issue and complication arose in the cases as consolidated into one, it was there stated that where several plaintiffs sue jointly, they should appear by the same counsel. The one counsel represents all the plaintiffs in the suits consolidated. The Learned Author of Civil Procedure in Nigeria Fidelis Nwadialor SAN hinted at this problem and advised at page 612 that “where the plaintiffs had earlier retained different counsel, they may agree that one of these counsel should lead the others. This may be the counsel in the action that was commenced first or the most senior or experienced one among them. It may also be the counsel that may bear the cost or brunt of the consolidated action.”

The difficulty experienced above represents some of the challenges in consolidation and some of the factors to be taken into consideration before a Court make an order for consolidation. In the case of Iloabuchi v. Ebigbo (2000) FWLR (Pt. 17) 78(2000) 8 NWLR (Pt. 668) 197 Ogundare JSC gave an insight to these problems and said:

There are circumstances, however, that will militate against consolidation of two of more pending actions. One such circumstance is where the plaintiff in one action is the same person as the defendant in another action unless one action can be ordered to stand as a counterclaim in another action. Another is where different legal practitioners have been briefed as where there are several actions by different plaintiffs represented by different legal practitioners. As to the application of this latter exception see the case of Healey vs. Waddington & Sons Ltd, (1954) 1 WLR 688; (1954) All ER 861. Consolidation will also be refused where it would likely cause embarrassment at the trial such as where the actions are by different plaintiffs, based on the same libel, and the defences are different – See Daws vs. Daily Sketch (supra).

In no circumstance can two counsels represent a side. It does not happen and if it does, the result would be chaos and confusion which the law forbids. The law is all about order not confusion.

Back to the so called “joint Notice of Appeal”, signed by M. O. Abudu and B. F. Awonuga dated 20/1/2012 and filed 25/1/15. The situation is exactly what the law forbids and cannot be condoned or tolerated that two independent lawyers would contend on one side. The same rule applies to processes filed in Court for each side in the consolidated suit.

After judgment had been given, any side dissatisfied, will file Notice of Appeal by one Legal Practitioner for the side as discussed above. There is nothing like Joint Notice of Appeal. Any such attempt is incompetent and no lawful proceedings could be founded on it. Per OKORONKWO, J.C.A. (Para 12-16) read in context


LEAD JUDGEMENT DELIVERED BY OKORONKWO, J.C.A.


1. The application necessitating this ruling highlight some problems inherent with consolidation of suits before trial and the need to carefully avoid some confusion associated with such amalgamation of suit particularly at trial Courts. The judgment from which the appeal arose is of the Ogun State High Court coram Hon. Justice O.A. Onafowokan who in the course of proceedings in HCT/6/89 Engineer S.O. Ogunseye & Ors vs. Alhaji M.O. Odutola consolidated it with a latter suit HCT/133/2000 Sule Faluyi & Ors vs. Engineer S.O. Ogunseye & Ors. After hearing the respective cases of the multifarious parties, the claim in suit No. HCT/133/2000 was dismissed while judgment was given in favour of the plaintiffs in HCT/6/89.

2. Dissatisfied, the defendants in HCT/6/89 and plaintiffs in HCT/133/2000 filed a joint Notice of Appeal in which their respective counsel namely:

M.O. Abudu Esq.

Appellant’s Solicitors,

M.O. Abudu & Co.

29/31 Folashade Street,

Kollington Street,

Alagbado, Lagos State.

And

Mrs. B.F. Awonuga

Bisi Sadiq & Co.

Appellants Solicitors

28 Akinremi Street,

Anifowoshe Ikeja,

Lagos State.

3. Their respective counsel signed the “joint Notice of Appeal” dated 20th January, 2012 and filed 25/1/12. The appeal as it were embraced Alhaji M.O. Odutola as Appellant in HCT/6/89 and Sule Faluyi & Ors as Appellants in HCT/133/2000 against Engineer S.O. Ogunseye & Ors as Respondents. Record of Appeal was compiled on the basis of the “joint Notice of Appeal filed by two different lawyers for the amalgamation of Appellants. It was against this background that M.O. Abudu of counsel for Appellants who, it will be recalled jointly signed the aforesaid Notice of Appeal with Mrs. B.F. Awonuga of counsel for another connected party, filed a Motion dated 10th September, 2015 and filed 14/9/15 seeking as follows:

1) AN ORDER granting leave to the Appellant/Applicant to amend the defects in the existing Record of Appeal in this appeal.

2) AN ORDER substituting Exhibit ‘A’ attached with this Application being the corrected/Amended Record of Appeal for the existing Record of Appeal in this appeal.

3) AN ORDER deeming as properly filed and served the Amended Record of Appeal, same having been filed separately.

4) AN ORDER granting leave to the Appellant/Applicant to amend the Notice of Appeal in this appeal.

5) AN ORDER deeming as properly filed and served the Amended Notice of Appeal.

4. Exhibit ‘A’ attached to the Motion is “Amended Notice of Appeal” which if the motion is granted would substitute the joint Notice of Appeal signed by M.O. Abudu and Mrs. B.F. Awonuga. The motion of 10/9/15 filed 14/9/15 was yet to be heard when the Respondents/applicants brought this intervening motion dated and filed 12/7/16 seeking the following reliefs upon the grounds stated therein as follows:

1) Striking out the Appellant’s Motion dated 10th September, 2015 and filed 14th September, 2015 for constituting abuse of Court process and incompetent which incompetence robs the Honourable Court of jurisdiction to entertain the said application.

2) Striking out the Notice of Appeal dated 20th January, 2012 and filed 25th January, 2012 jointly signed by M.O. Abudu Esq. and Mrs. B.F. Awonuga as counsel to Alhaji M.O. Odutola and Faluyi family respectively as the said Notice of Appeal constitutes abuse of Court process and incompetent which incompetence robs this Honourable Court of jurisdiction to entertain the appeal.

5. Such order of further orders as this Honourable Court may deem fit to make in the circumstances:

i. The Notice of Appeal dated 20th January, 2012 and filed 25th January, 2012 being sought to be amended vide Motion dated 10th September, 2015 and filed 14th September, 2015 is incurable defective and incompetent.

ii. The Joint Notice of Appeal which initiated the instant Appeal No. CA/314/2012 filed for M.O. Odutola and the Faluyi family constitutes abuse of Court process in view of earlier Notice of Appeal filed on behalf of the same Faluyi family which has been entered as appeal No . CA/I/149/2013.

iii. M.O. Abudu as counsel to only M.O. Odutola cannot singlehandedly amends the joint Notice of Appeal which initiated this appeal.

iv. The Record of Appeal having been founded upon the defective Notice of Appeal is also incompetent and cannot be amended.

v. The Appellant’s Motion dated 10th September, 2015 and filed 14th September, 2015 does not contain or give particulars of the area or portions of the Record of Appeal and the Notice of Appeal being sought to be amended.

vi. The joint Notice of Appeal constitutes duplicity of Appeals and abuse of Court process.

6. The issue, central in the two motions is whether the Notice of Appeal jointly signed by M.O. Abudu and Mrs. B.F. Awonuga dated 20/1/2012 and filed 25/1/15 is competent and can sustain an appeal.

7. In arguing this issue of representation of counsel and amendment of a joint Notice of Appeal by a single party, learned counsel for the Respondent raised for determination the following issues:

(1) Whether the Joint Notice of Appeal filed against the decision of the lower Court in consolidated suits HCT/6/89 and HCT/133/2000 can be singlehandedly amended by the Appellant to the exclusion of Faluyi family and in the absence of any order for deconsolidation of the suits.

(2) Whether the filing of application dated 10th September, 2015 and filed 14th September, 2015 as well as the Amended Notice of Appeal attached thereto do not constitute abuse of Court process, defective and incompetent which incompetence robs this Honourable Court of jurisdiction to entire the application.

8. In arguing the issues Learned Senior Advocate Lasun Sanusi SAN argued that it was improper for M.O. Abudu of counsel representing Appellants in respect of suit No.HCT/6/89 to jointly sign a Notice of Appeal with Mrs. B.F. Awonuga in respect of suit No.HCT/133/2000. Learned counsel further contends that even so, it was not permissible to amend such Notice of Appeal jointly signed by the two counsels representing different interest. The cases of Igwe vs. Kalu (1993) 4 NWLR (pt. 285) 1 at 9; State vs. Jammal (1996) 9 NWLR (pt. 473) 384 at 395-396 and concluded that the Notice of Appeal being defective cannot be amended.

9. For the Respondents herein their argument is encapsulated in the following submission:

The Original Notice of Appeal in this Appeal No.CA/314/12 was filed on the instruction of the both the FALUYIS and ALHAJI M.O. ODUTOLA, but it later turned out that another counsel was also briefed to file another Notice of Appeal for them.

10. My lords, it is not an abuse of Court process for the Appellant/Applicant to seek to severe (as it were) the Appeal of the FALUYIS (the Claimants in HCT/133/2000) from the Appeal of the Appellant/Applicant in HCT/6/89. My lords we submit that it will infact be an abuse of the Court of Process, if the Appellant/Applicant knew the FALUYIS have a separate appeal in CS/149/12 and still want to be prosecuting the two appeals. My lords, this is not the case. The main purpose of this Application is to amend the Notice of Appeal is to limit the appeal strictly to the Appeal of the Appellant/Applicant; and to add an additional ground of appeal.

11. And also in a subsequent submission thus:

My lords, we submit that where the interests of parties are similar as in this case, the parties may in a Civil Appeal file a joint Notice of Appeal. My lords, the Plaintiffs in HCT/133/2000 whose case was dismissed by the judgment of Honourable Justice Onafowokan are the vendors of Alhaji M.O. Odutola who is the defendant in HCT/6/89. My lords, it is the similarity, in the interest of both the FALUYIS and Alhaji M.O. Odutola that made both of them to file a Joint Notice of Appeal with the same set of Counsel.

12. The main issue here is whether, two independent counsels can represent a party in a proceeding. I do not think so. It is not the practice of Legal Practitioners to compete for a party. In cases where the Court orders a consolidation because of convenience or expediency in multifaceted suits, however the number of suits there may be, when consolidated, depending on the pleadings and the burdens of proof thereof, there will be one plaintiff or one set of plaintiffs and one defendant or one set of defendants. In such situation, problem of legal representations would necessarily arise because each unit of the consolidated cases may have its own independent Legal Practitioner. In Olu of Warri vs. Chief Sam Warri Essi and Shell BP Petroleum Development Co. of Nigeria Ltd (1958) 3 F.S.C 94 a similar issue and complication arose in the cases as consolidated into one, it was there stated that where several plaintiffs sue jointly, they should appear by the same counsel. The one counsel represents all the plaintiffs in the suits consolidated. The Learned Author of Civil Procedure in Nigeria Fidelis Nwadialor SAN hinted at this problem and advised at page 612 that “where the plaintiffs had earlier retained different counsel, they may agree that one of these counsel should lead the others. This may be the counsel in the action that was commenced first or the most senior or experienced one among them. It may also be the counsel that may bear the cost or brunt of the consolidated action.”

13. The difficulty experienced above represents some of the challenges in consolidation and some of the factors to be taken into consideration before a Court make an order for consolidation. In the case of Iloabuchi v. Ebigbo (2000) FWLR (Pt. 17) 78(2000) 8 NWLR (Pt. 668) 197 Ogundare JSC gave an insight to these problems and said: There are circumstances, however, that will militate against consolidation of two of more pending actions. One such circumstance is where the plaintiff in one action is the same person as the defendant in another action unless one action can be ordered to stand as a counterclaim in another action. Another is where different legal practitioners have been briefed as where there are several actions by different plaintiffs represented by different legal practitioners. As to the application of this latter exception see the case of Healey vs. Waddington & Sons Ltd, (1954) 1 WLR 688; (1954) 1 All ER 861. Consolidation will also be refused where it would likely cause embarrassment at the trial such as where the actions are by different plaintiffs, based on the same libel, and the defences are different – See Daws vs. Daily Sketch (supra).

14. In no circumstance can two counsels represent a side. It does not happen and if it does, the result would be chaos and confusion which the law forbids. The law is all about order not confusion.

15. Back to the so called “joint Notice of Appeal”, signed by M. O. Abudu and B. F. Awonuga dated 20/1/2012 and filed 25/1/15. The situation is exactly what the law forbids and cannot be condoned or tolerated that two independent lawyers would contend on one side. The same rule applies to processes filed in Court for each side in the consolidated suit.

16. After judgment had been given, any side dissatisfied, will filed Notice of Appeal by one Legal Practitioner for the side as discussed above. There is nothing like Joint Notice of Appeal. Any such attempt is incompetent and no lawful proceedings could be founded on it.

17. Accordingly the joint Notice of Appeal signed and filed by M. O. Abudu Appellants solicitor and Mrs. B. F. Awonuga Appellants solicitor filed 25/1/12 and contained at pages 398 – 406 of the Record being incompetent is hereby struck out. It is a nullity and cannot be amended as sought by the motion of the Appellants dated 10/9/2015 and filled 14/9/15. The motion sought the impossible and is accordingly struck out.

18. There being no Valid Notice of Appeal, there is yet no appeal and so Appeal No. CA/I/314/2012 not being founded on a competent Notice of Appeal is struck out. Cost of N50,000 is awarded to the Respondents.

DONGBAN-MENSEM, J.C.A.

I agree.

FASANMI, J.C.A.

1. I had the advantage of reading in advance the draft of the lead judgment of my learned brother, Nonyerem Okoronkwo, JCA just delivered.

2. The issues in the appeal have been exhaustively dealt with. The notice of appeal is incompetent and should be struck out. It is hereby struck out. I abide by the consequential orders therein.