SAMTECH NIGERIA LTD & ANOR V SANNI  ANOR

SAMTECH NIGERIA LTD & ANOR V SANNI ANOR


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

ON FRIDAY, 9TH FEBRUARY, 2018


Suit No: CA/L/335M/2006(R)

CITATION:

Before Their Lordships:

UGOCHUKWU ANTHONY OGAKWU, JCA

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA

JAMILU YAMMAMA TUKUR, JCA


BETWEEN

SAMTECH NIGERIA LTD– 1ST INTERESTED PARTY/RESPONDENT
COMMERCE LORDS NIGERIA LTD– 2ND INTERESTED PARTY/RESPONDENT
(APPLICANTS)

AND

MR. TEMITOPE SANNI– 1ST APPLICANT/RESPONDENT
MR. ADEOYE AGBAGBEOLA– 2ND APPLICANT/RESPONDENT
(RESPONDENTS)


PRONOUNCEMENT


A. LEGAL PRACTITIONER
1. Appearance of Counsel – The provision of the law on a legal practitioner appearing for both parties of the same case
Whether a legal practitioner can appear for both parties in the litigation of the same case

It is indeed a trite position of the law that a Legal practitioner is not allowed to appear for both parties in litigation, in the same case at any stage of the matter. To allow a counsel appear for Party A at the trial stage and then represent Party B at the appeal stage would constitute conflict of interest of inordinately high proportions. Rule 17 of the Rules of Professional Conduct 2007 which provides the legal framework on what would constitute conflict of interest for a legal practitioner in Nigeria in Sub Rule 4 provides thus:

“(4) A lawyer shall not accept a proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it is likely to involve him in representing differing interests, unless it is obvious that the lawyer can adequately represent the interest of each, and each consents to the representation after full disclosure of the possible effect of such representing on the exercise of his independent professional judgment on behalf of each.”

The above finds support in the pronouncement of this Court in the case of Onyeke v. Harriclem (NIG.) LTD. (1998) 7 NWLR Part 556 page 64 at 72 per Akpabio J.C.A. thus:

“Before concluding, I must add by way of emphasis that what is being frowned upon by the Court is the idea of a counsel appearing for one party say the plaintiff at the early stages of a transaction and then turning round at a later stage of the same transaction to appear or act for his opponent. But where the transactions are different, the Court will not restrain a counsel from changing sides. For instance, in the case of Lagricom Co. Ltd. vs. U.B.N. Ltd, (1996) 4 NWLR part 441 at 185 C.A. Chief Rotimi Williams was the counsel for U.B.N. Ltd as Defendant, but in another case i.e. Union Bank Of Nigeria Plc Vs. Sparkling Breweries Ltd (1997) 3 NWLR Part 491 page 29 C. A. The Same Chief Rotimi Williams Chambers (ably represented by Ifeanyi Nweze) turned round to represent Sparkling Breweries against the Ughelli Branch of the same bank U.B.N. Plc. The Court could not restrain Chief Rotimi Williams or his chambers from acting against Union Bank in the later case simply because he had acted for the said Bank in the earlier case because the transactions were different and involved different sums of money at different branches of the bank in different towns.”

See: Ikpana v. Regs. Trustees Presbyterian Church of Nigeria (2006) ALL FWLR (Pt. 310) 1703 at 1722 (CA). Learned counsel for the interested Parties/Respondents is not attempting to dispute the veracity of the above stated Principe of law, but is arguing that same does not apply to the facts of this case, on the basis of the alleged fact that it was the same party who briefed him that he is representing. I have gone through the Affidavits and Exhibits attached to this application and what is clean is the fact that ‘Kunle Ogunba Esq., actually appeared for Mr. Adeoye Magbagbeola, the 2nd Applicant/Respondent in the suit that culminated in the consent judgment. His appearance for the interested parties, if permitted by this Court would indeed constitute a breach of the rules governing conflict of interest. The 2nd Interested Party, which is a company incorporated under the Companies and Allied Matters Act is distinct from Mr. Adeoye Magbagbeola, and the allegation that the consent judgment was fraudulently obtained is not enough to qualify the learned counsel to appear in the appeal. The arguments of learned counsel to the effect that he is distinct from his firm, would also not avail him as conflict of interest matters affect both the Lawyer, and his employees, which include every member of his firm. This principle of law finds statutory expression in Rule 17(6) of the Rules of Professional Conduct which provides thus:

(6) Where a lawyer is required to decline employment or to withdraw from employment under any of these rules, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.

Consequently, issue one is resolved in favour of the Applicants. Per TUKUR, JCA.read in context


LEAD JUDGMENT DELIVERED BY TUKUR, JCA


This is a motion on notice dated 2nd May, 2007 and filed on 3rd May, 2007, brought pursuant to Section 36(6) (c) of the 1999 Constitution of the Federal Republic of Nigeria; Order 3 Rule 15(1) Court of Appeal Rules 2002, Rules 10, 22 and 26 of the Rules of Professional Conduct, and under the inherent jurisdiction of this Honourable Court, filed by the 2nd Respondent/Applicant and seeks the following reliefs:

1. An order of injunction restraining Kunle Ogunba Esq., of Kunle Ogunba & Associate of Great Nigeria House (17th Floor) 47/51, Martins Street Lagos and/or his law Chambers from appearing for the 2nd Interested Party Appellant/Respondent “commerce lords Nigeria Limited”/or any other party in this matter and any other matter over the subject matter in issue.

2. An order dismissing in limine the Interested Parties Appellants/Respondents motion on notice date 8th day of August, 2006 as the 2nd Interested party Appellant/Respondent in this case is not appealing against the terms of settlement and consent judgment of the trial Court dated 15th of September, 2005.

3. AND FOR such further orders as the Honourable Court may deem fit to make in the circumstance.
The Grounds for the Reliefs sought were stated thus:

i. That Kunle Ogunba Esq., was the former counsel to the Respondent/Applicont who is the Managing Director and Chief Executive Officer of 2nd Interested party Appellant/Respondent in this case.

ii. The Respondent/Applicant and 2nd Interested Party Appellant/Respondent had since disengaged the legal services of Kunle Ogunba & Associate as their counsel and as such Kunle Ogunba Esq., of counsel had no authority or instruction to file this appeal on behalf of the 2nd Interested Party Appellant/Respondent.

iii. That Kunle Ogunba Esq., is using some classified information given to him by the Respondent/Applicant as Managing Director and Chief Executive Officer of the 2nd Interested Party Appellant/Respondent on whose behalf he claimed to have filed this appeal and this is against the Respondent/Applicant’s interest.

iv. The Motion on Notice dated 8th day of August, 2006 filed by Kunle Ogunba Esq., of Kunle Ogunba & Associate was filed malafide as it is predicated to frustrate the consent judgment of the trial Court and the counsel who filed this appeal has failed to state categorically the interest sought to be protected.

The application is supported by an affidavit deposed to by Mustapha Kehinde, date and filed on 3rd May, 2007,with Exhibits MK1-MK8. In reply to counter affidavits filed in opposition, a Reply to Counter Affidavit date 15th June 2007,with exhibits MK1 to MK3, and a Reply to Further Counter Affidavit date 11th April, 2008, with Exhibits AM1-AM3, a written address prepared by Godwin Etim of E & O partners, date and filed on 16th March, 2017 and a reply on points of law date and filed on 10th April, 2017.

In opposition to the aforementioned application, the Respondents filed a counter Affidavit deposed to by Adebayo Akala, dated and filed on 9th May, 2007, with Exhibits C.O.1 to C.O.5: a Further counter Affidavit deposed to by Muktairu Sikiru, date and filed 3rd July, 2008 with Exhibits MUKTATRU 1 and 2, and Exhibit K.O. A1 attached; 2nd Further Counter Affidavit deposed to by Adedamola Solesi date and filed on 5th July, 2007 with Exhibits MUTAIRU 1 to 3 attached; Counter Affidavit to Reply to Further Counter Affidavit deposed to by Muktairu Sikiru date and filed on 16th April, 2008 with Exhibit M.S.1 attached, and a written address date and filed on 28th March, 2017.

A calm look of all the processes before this Court reveals that there are two salient issues which the parties are calling for determination to wit:

1. Whether Kenny Ogunba Esq., or any Lawyer in his Firm can legally participate in the proposed appeal;
2. Whether the interested parties can validly bring an appeal.

Learned counsel for the Interested Parties/Respondents raised a preliminary point by arguing that the prayer in the Applicants, present application, which is date 2nd May, 2007, seeking the dismissal of this suit as constituted by the Interested parties’ application for leave is highly speculative as it contemplates the presentation of yet to be filed applications that is the Interested Parties/Respondents, application for leave to appeal dated 8th November, 2008.

Counsel further argued that the said application and prayer is built on nothing, as there was no application seeking leave by the time the instant application was filed on 3rd May, 2007, and ought to be dismissed. He cited the case of Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587.

Learned counsel for the Applicants argued that the present application is not speculative as alleged, as Respondent Counsel’s appearance before this Court is a fact which the Court cannot close its eyes to, as Onyeka’s case is to the effect that the competence of counsel to appear must be ascertained or assured upon his announcement of appearance, hence the case of Madukolu v . Nkemdilim referred to by the Interested Parties is inapplicable.

RESOLUTION

I agree with the submissions of learned counsel to the extent that prayer two in the present application that seeks to forestall the application seeking leave to appeal as interested parties is premature and smocks of speculation on the part of the Applicants on the grounds that this application predates the interested Parties/Respondents application dated 8th November, 2008. The said prayer two is therefore on a shaky foundation as it was not based on any process before the Court as of the time it was sought.

In the circumstance prayer 2 is struck out.

In arguing the first issue, learned counsel for the Applicants/Respondents, submitted that flowing from the principle of conflict of interest, it is ethically improper for Mr. Kunle Ogunba Esq., or his law firm ‘Kunle Ogunba & Associates’ to act in these proceedings against the 2nd Applicant herein, on the grounds that it is the some counsel and members of the firm that represented the 2nd Applicant in the suit that gave rise to the application seeking leave to appeal, that is Suit No. M/213/2003 (“Exhibit MK2”).

Counsel also argued that if the above is true, this Court ought to restrain Mr. Kunle Ogunba Esq., and his entire law firm from participating in this suit, order that all processes filed herein be struck out and consequently dismiss the entire suit.

He relied on the following:

Mrs. Mary E. Onyeka & Anor v. Celestine Ogbonna & Ors (2013) LPELR-20718(CA); Onyeke v. Harriclem (Nig.) Ltd (1998) 7 NWLR (Pt. 556) 64; Anatogu v. Iweka II (1995) 8 NWLR (Pt.415) 547 .

On the other hand, learned counsel for the Respondents argued that only on instructing party has the authority to determine representation and that since it was the Interested Parties/Respondents who briefed ‘Kunle Ogunba Esq or ‘Kunle Ogunba & Associates’ from the outset of the case of the trial Court, there can be no issue of conflict of interest arising.

He relied on the case of Chief M.K.O Abiola v. Federal Republic of Nigeria (1996) LPELR-40 (SC).

Learned counsel then made on attempt to distinguish the facts herein from that of the case of Mary Onyeka & Anor v. Celestine Ogbonna & Ors (supra) by stating that in that case, the Court restrained the Respondent’s counsel from appearing based on the fact that the said counsel was briefed by the Appellant to handle the suit of the trial Court.

He relied on the following:

Clement v. Iwuanyanwu (1989) 3 NWLR (Pt.107) 39 at 53; and Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (pt. 109) 250 at 265.

Learned counsel further argued that if anyone would be barred from appearing herein, it ought to be ‘Kunle Ogunba Esq., and not the firm of ‘Kunle Ogunba & Associates’, as there is a distinction between ‘Kunle Ogunba Esq., and the firm of ‘Kunfe Ogunba & Associates’, as only Kunle Ogunba Esq., is the juristic personality registered as a legal practitioner and his firm, which is a business name cannot be regarded as one.

He relied on the following:

Section 1(1) of the egal Practitioners Act 2010; Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521; Buhari v. Yabo (2006) 17 NWLR (Pt.1007) CA 162 @ 180; N.N.B Plc v. Denclag Ltd (2005) 4 NWLR (Pt.916) P.549; Reg. Trustees of Apostolic Church v. Akindele (1967) 5 NSCC p.177; and Cole v. Mattins & Anor (1968) 5 NSCC P.120.

In the reply on points of law, learned counsel to the Applicants made the following submissions:

i. That on the authority of Anatogu v. Iweka (supra), the 2nd Applicant who was the client of Mr. Kunle Ogunba and his firm, can validly challenge the appearance of said counsel for the opposition.

ii. That the law firm of Kunle Ogunba and Associates cannot be distinguished from Kunle Ogunba Esq., as the firm is not a distinct personality and other members of the firm participated in the affected matter alongside said counsel.

RESOLUTION

It is indeed a trite position of the law that a Legal practitioner is not allowed to appear for both parties in litigation, in the same case at any stage of the matter. To allow a counsel appear for Party A at the trial stage and then represent Party B at the appeal stage would constitute conflict of interest of inordinately high proportions.

Rule 17 of the Rules of Professional Conduct 2007which provides the legal framework on what would constitute conflict of interest for a legal practitioner in Nigeria in Sub Rule 4 provides thus:

“(4) A lawyer shall not accept a proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it is likely to involve him in representing differing interests, unless it is obvious that the lawyer can adequately represent the interest of each, and each consents to the representation after full disclosure of the possible effect of such representing on the exercise of his independent professional judgment on behalf of each.”

The above finds support in the pronouncement of this Court in the case of Onyeke v. Harriclem (NIG.) LTD. (1998) 7 NWLR Part 556 page 64 at 72 per Akpabio J.C.A. thus:

“Before concluding, I must add by way of emphasis that what is being frowned upon by the Court is the idea of a counsel appearing for one party say the plaintiff at the early stages of a transaction and then turning round at a later stage of the same transaction to appear or act for his opponent.

But where the transactions are different, the Court will not restrain a counsel from changing sides. For instance, in the case of Lagricom Co. Ltd. vs. U.B.N. Ltd, (1996) 4 NWLR part 441 at 185 C.A. Chief Rotimi Williams was the counsel for U.B.N. Ltd as Defendant, but in another case i.e. Union Bank Of Nigeria Plc Vs. Sparkling Breweries Ltd (1997) 3 NWLR Part 491 page 29 C. A. The Same Chief Rotimi Williams Chambers (ably represented by Ifeanyi Nweze) turned round to represent SPARKLING BREWERIES against the Ughelli Branch of the same bank U.B.N. Plc. The Court could not restrain Chief Rotimi Williams or his chambers from acting against Union Bank in the later case simply because he had acted for the said Bank in the earlier case because the transactions were different and involved different sums of money at different branches of the bank in different towns.”

See: Ikpana v. Regs. Trustees Presbyterian Church of Nigeria (2006) ALL FWLR (Pt. 310) 1703 at 1722 (CA).

Learned counsel for the interested Parties/Respondents is not attempting to dispute the veracity of the above stated Principe of law, but is arguing that same does not apply to the facts of this case, on the basis of the alleged fact that it was the same party who briefed him that he is representing.

I have gone through the Affidavits and Exhibits attached to this application and what is clean is the fact that ‘Kunle Ogunba Esq., actually appeared for Mr. Adeoye Magbagbeola, the 2nd Applicant/Respondent in the suit that culminated in the consent judgment. His appearance for the interested parties, if permitted by this Court would indeed constitute a breach of the rules governing conflict of interest.

The 2nd Interested Party, which is a company incorporated under the Companies and Allied Matters Act is distinct from Mr. Adeoye Magbagbeola, and the allegation that the consent judgment was fraudulently obtained is not enough to qualify the learned counsel to appear in the appeal.

The arguments of learned counsel to the effect that he is distinct from his firm, would also not avail him as conflict of interest matters affect both the Lawyer, and his employees, which include every member of his firm. This principle of law finds statutory expression in Rule 17(6) of the Rules of Professional Conduct which provides thus:

(6) Where a lawyer is required to decline employment or to withdraw from employment under any of these rules, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.

Consequently, issue one is resolved in favour of the Applicants.

With the resolution of issue one in favour of the Applicants herein it follows therefore that the Application partly succeeds in terms of prayer one alone.

An order of injunction is hereby made restraining Kunle Ogunba Esq., Of Kunle Ogunba & Associates Of Great Nigeria House (17th Floor), 47/51, Martins Street Lagos and his law firm from appearing for the 2nd Interested Party Appellant/Respondents “commerce Lords Nigeria Limited”, or any other party in this matter and any other matter over the subject matter in issue. Parties to bear their respective costs.

OGAKWU, JCA

I read the draft of the Ruling of my learned brother, Jamilu Yammama Tukur, JCA, which has just been delivered.

I entirely agree with and do not desire to add to the reasoning and conclusion therein contained. I adopt them as mine and also grant the application in the terms set out in the leading Ruling. I abide by the consequential order as to costs.

OBASEKI-ADEJUMO, JCA

I have read the lead Ruling of my learned brother JAMILU YAMMAMA TUKUR, JCA just delivered.

I agree with the reasoning and conclusion therein and I therefore adopt his views as mine with nothing more to add.

I too find that the application partly succeeds only in terms of prayer one and I abide by the consequential orders therein.

Appearances:

A. O. Ajiboye with him, A. O. Balogun For Appellant(s)

Patianle Patrick Udoh, Esq. with him, I. Umeh, Esq. For Respondent(s)