➥ CASE SUMMARY OF:
Festus L. Adewunmi V. Plastex Nigeria Limited (SC.26/1985 • 20 June 1986)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Withdrawal of Appeal;
Authority of counsel.
➥ CASE FACT/HISTORY
The appellants, Plastex Nigeria Ltd., were the defendants in the High Court of Lagos State. They were tenants of the Plaintiff, Festus L. Adewunmi, in respect of a business premises described as Bournville House Iju Waterworks Road, Ifako, Agege in the Lagos State. The landlord took out a writ of summons for recovery of possession of the premises on grounds of arrears of rent and breach of covenant of tenancy agreement. The Plaintiff filed a Statement of claim, but the defendants failed to file any statement of defence throughout the hearing, although their counsel appeared at the trial and cross-examined the plaintiff who was the only witness at the hearing. At the close of plaintiff’s case, Mr. Abifarin, learned Counsel for the defendants, intimated the court that he was “resting the defendant case on the plaintiff’s.”
After Mr. Iyanda, learned Counsel for the plaintiff had concluded his closing address, Mr. Abifarin on behalf of the defendants in reply, addressed the Court. Judgment was then reserved. On the 29th day of July 1983 as would be expected the learned trial judge entered judgment in favour of the plaintiff in the absence of any challenging evidence and proof of service of apparently good statutory notices. He ordered the defendants to give up possession of the premises on 31st day of August 1983 and in addition ordered that they should pay ₦9,000.00 arrears of rent and in addition, pay mesne profits at the rate of ₦4,500.00 per annum with effect from 1st September 1982 until possession was given to the plaintiff.
Faced with the dismissal of the application, it was not surprising that when the appeal came before the court on the 22nd May, 1984, one Mr. Lawson who appeared for the appellants, informed the Court that he was withdrawing the appeal and Mr. Iyanda for the Respondents not objecting, the Court made an order dismissing the appeal with ₦50 costs to the Respondent. It is obvious that learned Counsel for the appellants considered that without the fresh evidence sought to be adduced at the hearing of the appeal it will be an uphill task to secure a reversal of the decision of the trial court, based on the uncontradicted evidence of the Plaintiff/Respondent.
The point in this appeal is short and direct and has aptly been stated in the Appellant’s brief in the following words:- “The Court of Appeal had held that counsel’s duty was to prosecute the appeal, and not to withdraw it without express authority from the Defendant (hereinafter called “the Respondent”). The Appellant contended that it fell within the scope of counsel’s implied authority, and that the withdrawal was therefore binding on the Respondent.”
➥ ISSUE(S)
I. Whether in the absence of any specific instruction to the counsel and in the circumstance in which learned counsel was faced in court, it was within the general scope of his powers to withdraw the appeal particularly when his client was not present in court?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[WITHDRAWAL OF THE APPEAL WAS WITHIN THE AUTHORITY OF THE COUNSEL
‘I have carefully considered the submissions of both counsel and have no doubt that the contention of the appellants is to be preferred. It is clear from the affidavit of the chairman of the Respondent’s Company, Mr. Obelawo, that they did not specifically limit the general including the implied authority of Counsel- in which to conduct the appeal. The withdrawal of the appeal in the circumstance of the appeal was not collateral, but an act within his implied authority, as counsel conducting the appeal. The sum total of what he deposed to is that Counsel did not consult him or other director before he decided to withdraw the appeal and that the company did not approve of his decision. Faced with the situation, after the Ruling of the Court, learned Counsel found himself against a brickwall, had no reasonable alternative but honourably to withdraw the appeal.’
‘The principle and facts are similar to those in Straus v. Francis (1866) L.R. Q.B.D. 379, where counsel for the plaintiff withdrew the case and declined to tender the book subject -matter of the scurrilous attack by the defendant in his review, even though the client requested him to do so. The court held that it is within the general authority of counsel retained to conduct a cause to consent to the withdrawal of the case and that a compromise is within his apparent authority and binding on the client notwithstanding he (the client) may have dissented, unless the dissent was brought to the notice of the opposite party at the time.’
‘In this connection it is pertinent to refer to the Rules of Professional Conduct in the Legal Profession, made by the General Council of the Bar on the 25th December 1967 as amended at its meeting held on the 15th January 1979. Every lawyer upon his own responsibility must decide what cases he will bring into Court for plaintiffs and what cases he will contest in Court for defendants. His is the responsibility for advising as to questionable transactions, for bringing questionable suits and for arguing questionable defences. He cannot escape it by arguing as an excuse that he is only following his client’s instructions. (emphasis mine) In this case there is no suggestion that counsel for the appellant acted under a misapprehension or against the specific prohibition by the appellant as in Sheppard v. Robinson (1919) 1 K.B. 474. or in Marsden case supra. The proceedings of the court below show clearly that the decision of learned Counsel to withdraw the appeal was taken after full consideration of the special circumstances of the case as disclosed in the Ruling and particularly the portion which I have earlier referred to. The decision to withdraw was the exercise of judgment and discretion on emergency arising in the conduct of the appeal. Learned Counsel in my view was right in the circumstance of the case and justified in the decision. Apparently, faced with the sensible observations of the justices of appeal on the evidence and the conduct of the defence case in the trial court, it was clear to learned counsel that the appeal was hopeless and stood no ghost or chance of success. It will be most uncharitable for any Court to impugn the wisdom of his decision in the circumstance.’
‘The Court below erred in finding that the Respondents gave specific instructions to their solicitor limiting his apparent authority. All the affidavit disclosed is that the Respondents were not consulted before their counsel withdrew the appeal and that they dissented from the exercise of his (counsel) discretion. The issue of prejudice or embarrassment to the Respondents is irrelevant, this is not a case were the decision to withdraw was not bona fide nor was it a decision made by him under misapprehension nor in excess of the express or ostensible authority of counsel conducting the appeal. The point is that the Respondents failed to make a case for setting aside the order of dismissal. In Babajide v. Aisa (1966) 1 All N.L.R. 254, there was clear evidence that the newly qualified solicitor who consented to judgment did so under a misapprehension of his instruction. There was no such evidence in this case.’]
.
.
.
✓ DECISION:
‘I will therefore allow the appeal and set aside the Ruling of the Court below made on the 31st day of July, 1984. The judgment of the High Court given on 22nd May 1984 is restored. The Appellant is awarded the costs of this appeal fixed at ₦300.00.’
➥ FURTHER DICTA:
⦿ COUNSEL ANNOUNCING APPEARANCE
Once a counsel appears in court in a case, and announces his appearance, the court assumes he has the authority of his client for the conduct of the case. It is not for a client to announce the appearance of his counsel. Indeed, happily that has never been the case. It is not for the court to start an enquiry into his authority and the court never does. Now, once he is so instructed, and his appearance and announcement in court, that he is so instructed, raises the presumption of his authority, he assumes full control of the conduct of his client’s case. He is to accept and he must adhere to his instructions but once he is within the scope of his instructions, counsel has responsibility as to the manner he would carry out these instructions. Apart from that, and this accords with common sense apart from the profession, he has full control over the conduct of the case. A client has every right to withdraw his instruction from counsel during the proceedings. This he can do before evidence is heard or before counsel starts to address the court – see 4th Edn. Halsbury’s Laws of England Vol.3 p.1180 see also, R. v. Maybury (1865) II LT.566 (referred to in Halsbury’s ibid). — Eso JSC.
⦿ MATTERS WITHIN THE ORDINARY AUTHORITY OF COUNSEL NEEDS NO CLIENT’S CONSENT
Once a matter is within the ordinary authority of counsel, he does not need the client’s consent. Such is the authority of counsel. Now, the authority of counsel to compromise his client’s case is limited to the issues in the action, a compromise, made by counsel, which apart from collateral matters, will not bind the client, except the client expressly assents. What is a collateral matter is however a question of both law and fact. How about a settlement by counsel of an action or a compromise by the counsel out of Court? In England doubt is expressed on the authority of counsel to reach a settlement or a compromise out of Court without the approval of his instructing solicitor or for such settlement or compromise both embodied in a court of law. I hold the view that such problem does not arise in this country where there is no dichotomy in the profession. A lawyer can settle his client’s case out of court, he can compromise it in court or out of court. — Eso JSC.
⦿ A LAWYER IS A PROFESSIONAL
Counsel must prosecute a case to the best of his ability. This has been decided by the two cases relied upon by the Court of Appeal and consultation with a client when there is no such limitation, before compromising a case is certainly not conducting a case to a counsel’s ability but client’s ability! A lawyer is not a tradesman. He is not like a cobbler who deals with the awl and who can be jettisoned by a customer when the awl fails to perform. A lawyer is a professional and vis-a-vis a client he is on contract and his professional skill, hired by the client is to be employed at his discretion. After all, he is employed to deal with learned men in learned surroundings and he himself is learned, which the client, even if he is a lawyer himself is not learned for the purposes of the case. For a client to jettison one counsel for another, for the simple reason that the first counsel failed to win his case, and the other would be required to conduct the same case in that court, or to make such failure to win a case a ground of appeal in a higher court is a complete misconception of the authority of the lawyer. — Eso JSC.
⦿ THE RELATIONSHIP BETWEEN COUNSEL AND CLIENT IS AKIN TO THAT BETWEEN AN EMPLOYER AND AN INDEPENDENT CONTRACTOR
I do not think there is any doubt that the transaction between counsel and client arises from contract. The contract relates to the services or service which counsel has agreed to render in respect of and on behalf of the client. Thus the relationship between counsel and his client is sometimes expressed as if it were that of agent and principal. Analysis of the nature of the services rendered by counsel and the measure of control of the manner of its performance by the client discloses that such analogy is not quite apt. It is generally accepted that counsel acts on the general instruction of his client. He must adhere to the instructions given by or on behalf of his client. However, counsel is entitled to insist, and as a general rule, has complete control over how these instructions are to be carried out. The dominant instruction of the client in all cases where litigation in court is involved is that counsel should conduct the litigation in court to its finality. Hence the actual legal relationship between counsel and his client is akin to that of an employer and an independent contractor. It is not between one of principal and agent. It is conceded that where the client gives specific instruction to counsel, such specific instructions must be adhered to. Where there is conflict with the manner of discharging his duties the client or counsel may decide to terminate the relationship. Where counsel is in control of the conduct of a case, his authority extends, when not expressly limited, to the action and all matters incidental to it and to the conduct of the trial to its finality, in what in his opinion is in the best interests of his client. Counsel is clearly not a servant of his client. The test distinguishing an independent contractor from a servant or agent is the degree of control which the employer is entitled to exercise. An independent contractor is one who is not bound generally to obey such orders as his employer may from time to time give, but is free to act as he thinks fit within the terms of his contract. In Performing Right Society Ltd. v. Mitchell and Booker Palaisde Danse Ltd. (1924) 1 K.B. 702 at pp.765, McCardie J, referring to Pollock on Torts 12th Ed. pp.79, 80 expressed it clearly when he said, graphically and clearly when he said: “A servant is a person subject to the command of his master as to the manner in which he shall do his work…An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified before hand.” — Karibe-Whyte JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Coker, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ THE COUNSEL IS THE MASTER OF THE CASE
Brett J., when he stated in Earl of Beauchamp v. Madresfield VIII (1872-73) L.R.C.P.C.245 at p.253:- “When the counsel has satisfied himself that he has no argument to offer in support of his case, it is his duty at once to say so, and to withdraw altogether. The Counsel is master of the argument and of the case in court, and should at once retire if he finds it wholly unsustainable, unless indeed he has express instructions to the contrary.”
⦿ GENERAL SCOPE OF COUNSEL’S AUTHORITY
The general scope of authority of counsel acting within the instruction of his Counsel has been set out in Halsbury’s Laws of England 4th Ed. Vol.3 paragraph 1130 as follows- “When counsel is instructed, then subject to his duties to the court, and subject to his right to advise another course of action, he must accept and adhere to the instructions given by or on behalf of his client, but counsel is entitled to insist, and as a general rule, ought to have complete control over how those instructions are carried out and over the actual conduct of the case. If he is not given this control he is entitled to refuse or return the brief.”
⦿ LIMITED SCOPE OF COUNSEL’S AUTHORITY
The exercise of the authority of counsel to act for his client is however circumscribed by those cases where counsel’s authority is expressly limited by the instruction of his client. The scope and amplitude of this authority is spelt out, though not exhaustive, in paragraph 1181, Halsbury’s Laws of England 4th Ed. to include, “…the action and all matter incidental to it and to the conduct of the trial such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross-examining or not cross-examining (witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or on the hearing of a motion for a new trial, consenting to a reduction of damages. The client’s consent is not needed for a matter which is within the ordinary authority of Counsel: thus, if in court, in the absence of the client, a compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound.”
➥ REFERENCED (OTHERS)
