Adewunmi v. Plastic Ltd (1986)

[1986] 3 .
Adewunmi v. Plastex Ltd.
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FESTUS L. ADEWUNMI

V.

PLASTEX NIGERIA LIMITED

SUPREME COURT OF NIGERIA

SC. 26/1985

KAYODE ESO, J.S.C, (Presided)

MUHAMMADU LAWAL UWAIS, J.S.C.

DAHUNSI OLUGBEM1 COKER, J.S.C. (Read the Lead Judgment)

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDU KAWU, J.S.C.

FRIDAY, 20TH JUNE, 1986

LEGAL PRACTITIONERS – Counsel/Client Relationship – Nature of – Applicable principles.

LEGAL PRACTITIONERS – Scope of authority of Counsel – Applicable principles.

LEGAL PRACTITIONERS – Withdrawal of an appeal – Whether consultation with client necessary – Scope of counsel’s authority.

WORDS AND PHRASES – “Collateral” “Incidental” – Meanings of.

Issues:

1.
What is the scope of the implied authority of counsel in the conduct of the client’s case in court?

2.
Whether the implied authority of counsel in prosecuting an appeal covered withdrawing his client’s appeal.

Facts:

The respondents were tenants of the appellant who was the plaintiff in the High Court. The plaintiff/appellant took out a writ of summons against the defendants/respondents for recovery of possession of the premises. The appellant filed his statement of claim, but the respondents did not file any statement of defence. At the trial, respondents’ counsel cross-examined the only witness for the appellant, and at the close of the case for the appellant, did not call any evidence, resting their case on the case of the appellant. The court was addressed and the trial Judge gave judgment for the plaintiff/ appellant. Respondents appealed to the Court of Appeal. In the Court of Appeal, respondents sought special leave to adduce additional evidence by tendering certain documents. The application was refused. Following the dismissal of this application, counsel for the respondents informed the court

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that he was withdrawing the appeal. Counsel to the present appellant who was the respondent in the Court of Appeal did not object. The court accordingly made an order, dismissing the appeal.

The present respondents who were the appellants in the Court of Appeal then brought an application through another counsel in the Court of Appeal seeking to set aside the judgment of the Court of Appeal dismissing the appeal, on the ground that counsel for the respondents (then appellants) had no instructions to withdraw the appeal. The affidavit in support of the application did not state that counsel was expressly instructed not to withdraw the appeal. The Court of Appeal granted the application, set aside its decision, and restored the appeal for hearing on its merits. Being dissatisfied with the decision of the Court of Appeal the plaintiff who was the respondent at the Court of Appeal appealed to the Supreme Court.

Held:

1.
It is within the general authority of counsel retained to conduct a case to consent to the withdrawal of the case and a compromise is within his apparent authority and binding on the client notwithstanding the client may have dissented, unless the dissent was brought to the notice of the opposite party at the time.

2.
The apparent authority with which a counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion, he may think best for the interests of his client in the conduct of the case and if within the limits of this apparent authority he enters into an agreement with the opposite counsel as to the case on every principle, this agreement should be held binding.

3.
Where a counsel has satisfied himself that he has no argument to offer in support of a case, it is his duty at once to say so, and to withdraw altogether.

4.
A 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.

5.
A counsel’s authority at the trial of a case extends to the action and all matters which are incidental to the action. However, the authority could be expressly limited by the client and where there is such limitation the counsel’s authority ceases to be pervasive.

6.
A counsel is duty bound to present his client’s case with utmost devotion. But such devotion must be coloured with professional discretion.

7.
A counsel must be the master in the conduct of his client’s case and should not be dictated to by his client as to how to conduct the case.

8.
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.

9.
While the relationship between counsel and his client is sometimes expressed as if it w ere that of agent and principal, analysis of the nature of the services rendered by counsel and

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the measure of control of the manner of its performance by the client discloses that such analogy is not quite apt.

10.
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.

11.
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 one of between principal and agent

12.
Where the client gives specific instruction to counsel, such specific instructions must be adhered to.

13.
Where there is conflict with the manner of discharging counsel’s duties the client or counsel may decide to terminate the relationship.

14.
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

15.
Counsel is clearly not a servant of his client

16.
The test distinguishing an independent contractor from a servant or agent is the degree of control which the employer is entitled to exercise.

17.
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.

18.
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.

19.
The client’s consent is not needed for a matter which is within the ordinary authority of counsel. Thus if, in a 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.

20.
Where there has been no express limitation of the authority of counsel, counsel is expected to conduct the case of his client in the manner he regards the best interests of such client. Counsel acting within the scope of his implied authority cad bind the client.

21.
The duty of a counsel is to advise his client out of court and to act for him in court, and until his authority is withdrawn, he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.

22.
Just as the prosecution of an appeal to the best of counsel’s ability

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is within the apparent scope of the authority of counsel arising from the instruction of his client to prosecute the appeal, so the withdrawing of the appeal and submitting to judgment is incidental to the authority to prosecute the appeal and consistent with the role of counsel as an independent contractor.

23.
Where counsel is confronted with an inescapable unsustainable legal position, the proper course for him to adopt in the discharge of his duty to his client and to uphold the dignity and integrity of his office as an officer of the court is to submit to judgment in accordance with the law.

24.
The general apparent authority of counsel as the master of the argument and of the case in court is one which cannot be limited by the client as long as the instruction to represent the client has not been withdrawn.

25.
It is a misuse of words to suggest that to withdraw an appeal being prosecuted is a matter collateral to its prosecution.

26.
In its ordinary usage, a matter is collateral to another if it exists side by side with that other and is not immediately in issue in the proceedings. The two must co-exist and of common descent but of different lines.

27.
A thing is incidental when it follows normally or naturally from the main.

28.
Withdrawal of an appeal by the counsel handling the appeal is incidental to its prosecution and not collateral thereto.

29.
There is no obligation on a counsel to consult the client before withdrawing an appeal he is prosecuting.

30.
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.

31.
It is not for the court to enquire into the authority of a counsel who announces, in court, his appearance for a client.

32.
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.

33.
Counsel has authority, except he is expressly limited, to withdraw the record; to call or refuse to call a witness; to determine the order, in civil proceedings, in which to call his witness; to decide to cross-examine a witness or not; to decide what particular question to ask a witness unless his client insists on the line of questioning in which case counsel will have a discretion to accept such instruction or withdraw from the case.

34.
Counsel can consent to:

聽(a)
a reference to arbitration;

聽(b)
a compromise;

聽(c)
a verdict;

聽(f) 聽聽聽聽聽聽聽 a reduction of damages; and

聽(e)
he can undertake to appear.

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35.
Once a matter is within the ordinary authority of counsel, he does not need the client’s consent.

36.
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.

37.
What is a collateral matter is a question of both law and fact.

38.
A lawyer can settle his client’s case out of court and he can compromise it in or out of court.

39.
If an express limitation to counsel’s authority is communicated to the other side, the counsel’s action in breach of the limitation is of no effect.

40.
Per ESO, J.SC.:

“A Lawyer is not a trademan. He is not like a cobbler who deals with the awl and who can be jettissoned 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.”

41.
Per ESO, J.S.C.:

“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.”

42.
In the instant case, since the affidavit in support of the application to set aside the Court of Appeal’s order did not suggest that counsel was expressly instructed not to withdraw the appeal, the Court of Appeal was in error in setting aside its order dismissing the appeal.

Nigerian Cases Referred to in the Judgment:

Asaboro v. Aruwaji (1974) 6 S.C. 31 (1974) 1 All N.L.R. Pt. 1

Babajide v. Aisa (1968) 1 All N.L.R. 254

Foreign Cases Referred to in the Judgment:

Earl Beauchamp v. Madresfield (1872-73) 3 L.R.C.P. 245

Little v. Spreadbury (1910) 2 KB. 658

Marsden v. Marsden (1972) 2 All E.R 1162

Matthews v. Munster (1888) 20 Q.B.D. 141

Neale v. Lennox (1902) A.C. 465

Performing Right Society Ltd. v. Mitchell & Booker (Palais de Danse)聽Ltd. (1924) 1 K.B. 762

Shepherd v. Robinson (1919) 1 K.B. 474

Strauss v. Francis (1866) L.R. Q.B. 379

Swinfen v. Chelmsford 157 E.R. 1436

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Swinfen v. Swinfen 26 L.J. Co. p.97

Nigerian Statute Referred to in the Judgment:

Rules of Professional Conduct in the Legal Profession, Government Notice No. 69 in Federal Gazette No.5 of 18th January 1980, Rules 14(c) and 18(a)

Book Referred to in the Judgment:

Halsbury’s Laws of England, 4th Ed., Volume 3, Paras. 1180, 1181

Appeal:

This was an appeal against the decision of the Court of Appeal (Lagos Division). The Court of Appeal had dismissed the present respondents’ appeal consequent upon counsel’s application to withdraw the appeal. The Court of Appeal however, later set aside the order of dismissal upon the present respondents’ application on the ground that counsel was not authorised to withdraw the appeal. The Supreme Court allowed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Dahunsi Olugbemi Coker, J.S.C. (Read the Lead Judgment), Kayode Eso, J.S.C. (Presided); Muhammadu Lawal Uwais, J.S.C.; Adolphus Godwin Karibi-Whyte, J.S.C.; Saidu Kawu, J.S.C.

Appeal No.: SC. 26/1985

Date of Judgment: Friday 20th June 1986

Names of Counsel: G.O.K. Ajayi, SAN (with him, Chief Oye Iyanda) -聽for the Appellant

Tanimola A. Molajo – for the Respondent

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Lagos Division.

Names of Justices that sat on the appeal: Mamman Nasir, PJ. (Presided and Read the Lead Judgment);聽Adenekan Ademola, J.C.A.; Uthman Mohammed, J.C.A.

Appeal No.: FCA/L/178/83

Date of Judgment: Tuesday, 31st July 1984.

Names of Counsel: E.A. Molajo. SAN (with him, T.A. Molajo and D.O. Fajumi) – for Applicant Oye Iyanda – for Respondent

High Court:

Name of the High Court: High Court of Lagos State, Ikeja Judicial Division

Name of the Judge: G. A. Oguntade J.

Suit No.: ID/308/32

Date of Decision: Friday, 29th July, 1983

[1986] 3 .
Adewunmi v. Plastex Ltd.
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Names of Counsel: Mr. Iyanda – for the Plaintiff

Mr. Abifarin – for the Defendant

Counsel:

G. O.K. Ajayi SAN (with him, Chief Oye Iyanda) – for the Appellant

Tanimola A. Molajo – for the Respondent

COKER, J.S.C. (Delivering the Lead Judgment): 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.”

The facts of the case are as follows:-

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 N9,000.00 arrears of rent and in addition, pay mesne profits at the rate of N4,500.00 per annum with effect from 1st September. 1982 until possession was given to the plaintiff.

The defendants then appealed to the Court of Appeal against the decision. However, before the hearing of the appeal, the defendants filed an application on notice seeking “special leave to admit additional evidence before the court,” and according to the application, the grounds for the application were as follows:-

“(i) 聽聽聽聽The nature of the evidence which the appellant now seeks leave to adduce is such that had it been before the court at the trial of the action the respondent action would have been dismissed.

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“(ii) 聽聽聽聽The evidence which the appellant now seeks to adduce will enable the Court of Appeal to discover the truth and to avoid any miscarriage of justice.

(iii)
The documents which the appellant now seeks to tender were not available to the appellant during trial.”

The application was filed by an eminent and experienced counsel. Professor A. B. Kasunmu, S.A.N., and was supported by an affidavit sworn to by one Lawal Obelawo, described as the Chairman of the defendants’ company. And the plaintiff himself swore to a counter-affidavit. The plaintiff/respondent then gave notice of a preliminary objection before the hearing of the application to the effect that the notice of appeal was filed out of time.

On the 10th November, 1983, when the application came before the court for hearing, Professor Kasunmu applied for an adjournment; meanwhile, the respondent had levied execution by recovering possession of the premises and that was on the 3rd November, 1983. The appellants’ application for a stay of execution was consequently struck out by the court below on 8th December, 1983 although on the 9th January, 1984 the application of the appellant for extension of time to appeal was granted. Afresh application for leave to admit additional evidence on the same grounds as the earlier application was then filed by the appellants on the 12th day of January, 1984. Professor Kasunmu moved the application on 14th March, 1984 and on the 8th day of May, 1984, the application was dismissed in a reserved ruling.

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 N50 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.

Then came an application before the lower court filed by Mr. Molajo, S.A.N., on behalf of the appellants, praying for an order

“That No order or orders be drawn up or entered in this appeal until further order of the Court of Appeal” and that the defendant/ applicant do have leave to proceed with its appeal herein set down for 22nd May, 1984 and for such further order or orders as this honourable court may deem fit to make in this (sic) circumstances.”

The application was purportedly made under “Order 59/5/3 Rules of the Supreme Court 1965 and Order 3 rule 3(1) and (2) Court of Appeal Order 3 rule 18 Rules 1981”. When the application came before the court below, Mr. Molajo urged the court to set aside the judgment dismissing the appeal consequent upon the withdrawal of the appeal. In the lead judgment, the president of the court below stated:-

“I am of the firm view that where counsel appeared and acted against his instructions to the detriment of his client the court has power to intervene in the interest of justice. Justice is defeated where a party is not allowed to have the dispute between him and

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his adversary determined on the merits. In my opinion, all the authorities cited above lead to the conclusion that a court has a duty as far as possible to see that cases are decided on their merits. Any rules of court empowering the court to strike out or dismiss an appeal not on the merits but because of some procedural errors or blunders shall be construed in such a way that where a prompt action is taken by the party affected the court has power to restore the appeal to be heard on the merits except where the order of the court has been drawn up and entered. That is before the order has been so perfected as to make it outside the control of the court.”

I express no opinion on the validity of the above statement as it is irrelevant to the point in issue. However, the learned president proceeded to say:-

“In the present appeal, I am of the opinion that the applicant company has taken necessary and prompt action to justify our intervention. I shall restore this appeal for hearing on the merits. I have not been shown sufficient reasons to justify any conclusion that the respondent would be prejudiced or embarrassed by hearing the appeal on the merits.

The appeal is hereby restored.”

It is from this decision that the plaintiffs have appealed to this court on three grounds. I have earlier in this judgment set out the issues which have been submitted for decision. The arguments have been copiously elaborated in the written briefs of counsel for both parties who have rested their arguments on them. It becomes necessary therefore to set out their contending submissions. For the appellant, the argument is that the scope of the authority of counsel conducting a case or an appeal on behalf of his client must be defined within the general framework of his duties as agent and representative as set out by the learned authors of Halsbury’s Laws of England 4th edition Vol. 3, paragraph 1180 as follows :-

“When counsel is instructed, then, subject to his duties to the court,聽and subject to his right to advise another course of action, he must聽accept and adhere to the instructions given by or on behalf of his,聽client, but counsel is entitled to insist, and as a general rule, ought to聽have complete control over how those instructions are carried out and聽over the actual conduct of the case. If he is not given this control he is 聽entitled to refuse or return the brief.” (Italics added)

The brief continues:-

“Within this framework is the general authority of counsel which entails the exercise of a wide and ample discretion and authority which, unless it is expressly limited, is (sic) some way entitles counsel to make far reaching decisions which become binding on the client. The scope and amplitude of this authority is thus expressed at paragraph 1181 of the same volume of Halsbury’s referred to above:-

“At the trial of an action, counsel’s authority extends, when it is not expressly limited, 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

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compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consenting to a reduction of damages.聽

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.” (Italics added).

“The Court of Appeal’s Views on the Scope of The Authority The main complaint of the appellant in this appeal is that the Court of Appeal completely misunderstood the scope of the authority of counsel. The passage in which the Court of Appeal expressed its views is at Page 156 lines 5-31:-

“It is trite law that any counsel instructed to conduct a case must聽be given free hand to control the case. The free hand, subject to聽counsel’s duty to the court and the right of counsel to advise his聽clients to another course of action, must be exercised within the聽specific instructions given to counsel by his clients. It is not聽within the competence of counsel to conduct the case outside聽his specific instructions. In all cases, where counsel is shown to聽have exceeded his instructions in material particular and聽detrimental to the interests of the clients, the courts have聽exercised their discretion to put the matter right. In addition to聽the cases cited above such cases as Masden v. Masden (1972) 2聽All ER. 1162 at 1165 and Neale v Gordon Lennox (1902) A.C.聽470 at 471 support the view that the Courts will reverse orders聽made in excess of authority of counsel. The basis of the聽authority of counsel in conducting any case is the instruction聽given to him by his clients. Where counsel has been instructed聽to file and prosecute an appeal his duty, without further聽reference to the clients, is the prosecution of the appeal. The聽duty does not include the power to withdraw the appeal without聽further consultation. Learned counsel may have very little to聽offer in the prosecution of the appeal but he must prosecute the聽appeal to the best of his ability. ” (Italics mine)

聽聽聽聽3.03.The appellant submits that there was no evidence of any such specific limitation in the present case. The only evidence before the Court of Appeal was the affidavit sworn to by the chairman of the respondent company as follows:-

聽聽聽聽
1.
That I am the chairman of the board of directors of the defendant company.

聽聽聽聽
2.
That the board of directors was not consulted before the counsel announced to the court that he was withdrawing the appeal.

聽聽聽聽
3.
That I am dissatisfied with the withdrawal of the appeal.

聽聽聽聽
4.
That the defendant company has machines worth over two million naira on the premises.

聽聽聽聽
5.
That I hare on the instructions of the board of directors

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instructed Messrs. E. A. Molajo & Co., Solicitors of 2 Catholic Mission Street. Lagos to apply to this honourable court for leave to proceed with the appeal.

6.
That I am advised that there are very important and substantial points of law to be argued for decision by this honourable court.

7.
A copy of the resolution of the board of directors is hereto attached and marked exhibit A.”

The resolution of the meeting of the board of directors of the respondent company, which was apparently held the very next morning after the withdrawal of the appeal, resolved :-

“That the board of directors being dissatisfied with the withdrawal of聽appeal number FCA/L/178/1983 between Plastex Nigeria Limited聽and Festus L. Adewunmi which was done without the appellant’s聽consent and instruction, another legal practitioner be instructed by the聽board to restore and prosecute the said appeal.”

Mr. Ajayi finally submitted that the court below was in error in taking the view that counsel’s general authority does not include the discretion and authority to withdraw or compromise a case and that specific authority was required for that purpose.

The reply of the respondents in their brief reads inter alia:-

“That counsel has no authority to take any step collateral to his instructions or general authority as counsel without specific instruction. It is submitted that a client may in certain circumstances be bound by the unauthorised act of counsel instructed to prosecute an appeal if such unauthorised act is incidental to the prosecution of the appeal.

It is also submitted that even in such a case where there is definite instruction by the client to counsel against the taking of such a step the client will not as a general rule be bound. Although it appears from a number of English authorities that the general authority of counsel to COMPROMISE his client’s claim is incidental to his instructions, as counsel, (See Little v. Spreadbury (1910) 2 KB. 658 at pp.663, per Bray, J and 665 per Lord Coleridge J.) and therefore counsel in the absence of specific instructions to the contrary may enter into a compromise of the claim; such general authority does not extend to acts that are collateral. In Patience Swinfen v. Lord Chelmsford 157 E.R. 1436 at page 1448 the following passage appears

“We are of the opinion, that although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdrawing a juror calling no witness, or selecting such as in his discretion, he thinks ought to be called and other matters which properly belong to the suit and the management and conduct of the trial

WE THINK HE HAS NOT, BY VIRTUE OF HIS RETAINER IN THE SUIT, ANY POWER OVER MATTERS THAT ARE COLLATERAL TO IT …”

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“It is therefore submitted that the withdrawal of an appeal cannot be an act of counsel incident to his client’s instructions to argue the appeal. It is further submitted that before such a withdrawal can bind the client, it must have been with the prior consent or authority of the client”

It is submitted that although that was so, the learned justices of appeal are right in their decision in this case for two reasons which they adverted to namely

(1)
the learned counsel who withdrew the appeal had no authority to withdraw the appeal; he had authority only to employ his learning and ability to argue the appeal.

(2)
Withdrawal of the appeal is not incident to his instruction to argue the appeal but an act collateral to it.”

The question therefore is 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. Put in other words, was the withdrawal of the appeal an act directly involving the exercise of his skill, discretion of judgment in conducting the appeal or was it an act which was not directly connected with but by the side or parallel with his professional discretion as a counsel in the appeal?

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, particularly when the court below rightly held in its ruling that:-

“Although the applicant had opportunity to put any question to the plaintiff/respondent during cross-examination, nothing was said about the documents titled “Receipt” and “Letter of Undertaking” both dated 27/3/78 now sought to be put in evidence. Nothing was also mentioned about any N100,000.00 being paid to the defendant or anybody at all. If the applicants really had any defence during the trial, it was the duty of Counsel to put it across either in their own Statement of Defence or during cross-examination of plaintiff’s witness. They did neither. If the defence had been filed and the “Receipt and “Letter”, pleaded or if they had been raised in cross- examination of the plaintiff one would be in a position to say easily that the Receipt and the Letter were probably not available at the trial. But that is not all. Under normal circumstance if a matter is not pleaded, it is always necessary

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to apply first to the court for leave to amend the pleadings before being allowed to lead evidence thereon. Here there is no pleadings to be amended as no defence was filed. So the situation in this application is a hopeless one because the new or further evidence has no foundation on which to stand.

Furthermore the applicant in paragraph 16 of the further and better affidavit states :-

‘”16. The documents were discovered among the documents littered over our premises when the resident broke into our office to levy execution after obtaining judgment at the High Court.”

This clearly shows too that the applicant did not exercise reasonable diligence to obtain the documents for use at the trial. It shows that neither Mr. Awosika the accountant (who died in 1979) nor the Chairman, Mr. Obelawo, who was said to be outside the country during the trial, had any of the documents privately with him. The documents remained in the defendant/ company offices throughout. It is to me therefore a sham defence to say that only Mr. Awosika and Mr. Obelawo knew about the existence of the documents.

I am therefore clearly of the view that there is no merit in the application; and as was candidly stated by Coker, J.S.C. in the case of Asaboro v. Aruwaji (Supra)

“We are not unmindful of the fact that it would be a dangerous precedent to聽allow a person who did not call evidence in the lower court, or who, for one聽reason or another, had called insufficient evidence at the trial with comparative聽ease, to bring forward for the first time before the court the evidence which聽could and should have been adduced before the trial Judge. Such an attitude聽would be disastrous to the principle of seeing an end to litigation …”

So it is in this case. The defendant/appellant filed no statement of defence nor called any evidence at the trial it would certainly be a dangerous precedent to reopen the case again.”

Faced with the situation, counsel had to take a decision whether he could in honour continue with the appeal with any reasonable hope of success. Was there any point which he could urge in favour of his clients, in the absence of any evidence to support the points which could be raised in 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.

The client had deposed that his counsel Mr. Sergeant Ballantine who acted throughout entirely upon his own personal responsibility. He testified that:

“I never authorised him to propose that a juror should be withdrawn. My instructions to him were to let the case go to the jury, no matter

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30 June 1986
(Coker, J.S.C)

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what the issue might be. I was not consulted in the matter, and I never gave my counsel or attorney, or any other person, any authority whatever to propose or consent to the withdrawing a juror and no consideration would have induced me to consent to such proposal.”

On those facts, Blackburn, J., at p.381 stated:

“The plaintiff by no means makes out that there was any express dissent on his part to withdrawing a juror; there is nothing on the affidavits to show that the client absolutely withdrew all authority, nor is there anything to show that counsel had done so unprofessional a thing as to undertake the conduct of a cause giving up all discretion as to how he should conduct it; still less is there anything to show that there was the slightest knowledge on the part of the other side that the apparent general authority of counsel had been in fact limited. Mr. Kenealy has ventured to suggest that the retainer of counsel in a cause simply implies the exercise of his power of argument and eloquence. But counsel have far higher attributes; namely: the exercise of judgment and discretion on emergencies arising in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill, and discretion. Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client. Counsel, therefore, being ordinarily retained to conduct a cause without any limitation, the apparent authority with which he is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause: and if within the limits of this apparent authority he enters into an agreement with the opposite counsel as to the cause, on every principle this agreement should be held binding. The case of Swinfen v. Swinfen was peculiar.”

聽聽聽聽聽聽聽聽I entirely agree with his view. And after stating the facts distinguishing that聽case the learned Judge went on:-

“In Swinfen v. Lord Chelmsford (3), the Chief Baron makes a distinction between authority which a counsel has as to all matters connected with the conduct of a cause, in which he expressly include withdrawing a juror, and his authority in matters collateral to the suit. In Preatwich v. Poles (4) the question was as to the authority an attorney to settle an action, and the compromise was held binding, there being no express prohibition communicated to the other side; and Erie. C.J. and the other members of the court, treat Swinfen v. Swinfen as an anomalous case.

I am therefore clearly of opinion that the withdrawal of a juror in the present case is binding. In so deciding, I do not mean to say that counsel can compel a client to enter into a compromise by consenting to the withdrawal of a juror against his will. If the counsel cannot induce his client to act on his advice in such a case, the proper course is to return his brief. Nor do we decide that, if the client’s dissent were known to the other side, such a compromise

[1986] 3 .
Adewunmi v. Plastex Ltd.
(Coker, J.S.C)
781

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would be binding. All we decide is. that when a counsel, acting within his apparent authority, consents to withdraw a juror, the other side, acting fairly, may safely rely on the compromise being binding; and that, in order to invalidate the arrangement, not only must it be shown that the counsel’s authority was limited, but that the limitation was known to the other side at the time.” (Italics mine)

Shee, J., stated the same principle at p. 384 :-

“The question in the present case is whether the plaintiff is bound by what his counsel did; and as to this it appears to me that we are concluded by authority, and cannot say otherwise than that the client, having retained a counsel to conduct his cause, is bound by that counsel’s agreement to withdraw a juror, however, much he may disapprove of that course. Withdrawing a juror is clearly within the authority given to a counsel to conduct a cause; and it is obviously for the interest of the client that it should be so; otherwise no compromise could ever be come to during the progress of a cause unless the client himself were there to assent. In Swinfen v. Lord Chelmsford (1), the question was whether an action would lie against the defendant for having, as counsel, consented to a compromise, and the decision was that no action would lie; but the Lord Chief Baron’s judgment went much further, for after stating that counsel has no authority over matters collateral to the suit, he adds, “although he has complete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdrawing a juror, calling no witnesses, and other matters which properly belong to the suit and the management and conduct of the trial.” The Court of Exchequer, therefore, expressly includes the withdrawing a juror within the apparent authority given to a counsel to conduct a cause; so that the opposite party, having agreed to the withdrawal, can insist upon the arrangement being carried out.”

In Marsden v. Marsden (1972) 3 WLR at p. 139, it is clear from the finding of the trial Judge that counsel was given clear instructions by the solicitor not to enter into any agreement and that those instructions were not thereafter countermanded by the wife personally. Watkins, J. at p.139 expressed the view that

“Counsel has an implied authority to enter into a compromise subject to any express limitation imposed upon that authority by the? client. He requires an express authority to give an undertaking on behalf of his client. Instructions of limitation must, it is said, be clear and unequivocal. I find that clear and unequivocal instructions of limitation were given in this case and that no authority, express or otherwise, was given for the undertakings which formed part of the agreement.

With regard to the circumstances in which the court should interfere to set aside an order based upon a compromise I have been referred to a number of authorities. They all show that the court should view such applications as this with extreme caution and that a court will not grant such an application except in a case which calls clearly for interference with the offer made. It is a discretionary remedy to

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30 June 1986
(Coker, J.S.C)

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be exercised with care and with regard to the injustice or otherwise of allowing an order to stand.”

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.

“23.
…Every lawyer upon his own responsibility must decide what causes 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.”

聽聽聽聽(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.

I am satisfied that the court below erred and misdirected itself in coming to the decision that the learned counsel in withdrawing the appeal committed an act outside the ordinary or implied scope of his authority. It was for the respondent not only to allege but to prove that his counsel’s general authority in conducting the appeal was expressly and specifically limited and could therefore not withdraw the appeal. They made no such allegation and equally failed to prove any other circumstances which justified the court below in reversing its earlier order dismissing the appeal. I am in complete agreement with 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.”

(Italics mine)

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

[1986] 3 .
Adewunmi v. Plastex Ltd.
(Coker, J.S.C)
783

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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 where 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 (1968) 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.

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 N300.00.

ESO, J.S.C.: I agree with the lead judgment just delivered by my learned brother, Coker, J.S.C., and I will allow the appeal. I am only adding few words having regard to the considerable importance of the issues involved in the appeal. The question which is to be asked by a lawyer is the authority he has in the conduct of his client’s case.

I do not intend to set out the facts of this case, except as they affect the point which I now deal with. Plastex Nigeria Ltd, were the tenants of Festus Adewunmi and Adewunmi sued for recovery of the premises. He also sued for arrears of rent as the rent had not been paid by Plastex. The court found for Adewunmi, more especially as Plastex called no evidence relied on the evidence called by the plaintiffs but only cross-examined plaintiff’s witness. Plastex was ordered to give up possession by the 31 st August, 1983 and to pay N9,000.00 arrears of rent.

Plastex appealed to the Court of Appeal and in the court learned counsel for the company sought leave to adduce additional evidence. The court refused the prayer and learned counsel then applied to withdraw the appeal. Adewunmi’s counsel understandably not objecting, the Court of Appeal granted leave, and the appeal was dismissed.

What followed became interesting. Plastex briefed another lawyer who applied to the Court of Appeal for reinstatement of the appeal claiming the former lawyer had no instructions of Plastex to withdraw the appeal. The Court of Appeal granted that application precisely on the ground contained in the prayer. It was against this order this appeal has been filed by Adewunmi relying on three grounds of appeal which I do not intend to. set out having been adequately covered by the judgment of my learned brother, Coker, J.S.C.

The point I intend to discuss in this concurring judgment is the scope of authority of counsel in a case. In England, where there is a division in the profession, solicitors and counsel each has separate responsibilities. The authority of counsel in England is akin to the authority of counsel in this country. The same counsel in this country also having the same authorities and responsibilities of a solicitor in England. It is his authority as counsel that calls for examination herein and I will limit my discussion.

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30 June 1986
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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) IILT.566 (referred to in Halsbury’s ibid).

Now to counsel’s authority. In Swifen v Lord Chelmsford (1860) 5 H & N 890 it was held that counsel’s authority extends, when it is not expressly limited, to the action and all matters incidental to it, and to the conduct of the trial. Counsel has authority, except he is expressly limited to withdraw the record, to call or refuse to call a witness (see Chambers v. Massen (1858) 5 CBNS 59, to determine the order, in civil proceedings, in which to call his witness (see Briscoe v. Briscoe (1968) P 501), to decide to cross-examine a witness or not, to decide what particular question to ask a witness unless his client insists on the line of questioning in which case counsel will have a discretion to accept such instruction or withdraw from the case. In R v turner (1970)2 All E.R. 21 when counsel was given specific instructions to attack opposing witnesses, the Court of Appeal in England (as per Lord Parker, C.J. held –

“Counsel must be completely free to do what is his duty, namely to give the accused the best advice he can and if need be, advise in strong terms.”

Counsel can consent to a reference to arbitration, he can consent to a compromise, he can consent to a verdict, he can undertake to appear, he can consent to reduction of damages.

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.

[1986] 3 .
Adewunmi v. Plastex Ltd.
(Eso, J.S.C)
785

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Of course, the picture I have painted of the authority of the lawyer in this country is not meant to be one of an ombudsman vis-a-vis his client. He is not meant to be a lawyer at large.

There are limitations to his authority.

(1)
There could be an express limitation to his authority. If this limitation is communicated to the other side, the counsel’s action in breach of the limitation is of no effect.

In 4th Edn Halsbury’s Laws of England Vol. 3 para. 1182 the following note appears and I will respectfully adopt it:-

“(1) 聽 聽”The position is more uncertain where the authority of counsel is limited, but the limitation is unknown to the other side, who enters into compromise believing that the opponent counsel has the ordinary unlimited authority of counsel, the courts have refused to enquire whether there was any such limitation, when it was not communicated to the other side, and have refused to set aside a compromise entered into by counsel. But the true rule seems to be that in such a case the court has power to interfere; that it is not prevented by the agreement of counsel from setting aside or refusing to enforce a compromise; that it is a matter for the discretion of the court; and that when, in the particular circumstances of the case, grave injustice would be done by allowing the compromise to stand, the compromise may be set aside, even although the limitation of counsel’s authority was unknown to the other side, or where clear and unequivocal instructions of limitations have been given. It may be, however, that the court will not interfere on this ground if the settlement or compromise has been embodied in an order of the court which has been perfected.

聽”(2) 聽A compromise entered into by counsel which will invalidate an agreement between client and counsel.

It is clear therefore that the general authority of counsel apart from express limitation and terms of agreement is only limited where its authority goes beyond matters incidental to matters collateral.

I will now go back to the facts of the present appeal. The application which was granted by the Court of Appeal to restore the appeal to the list was supported by affidavit to wit:-

“2. 聽聽聽聽That the Board of Directors was not consulted before the counsel announced to 聽聽聽聽the court that he was withdrawing the appeal.

聽 聽3.
That I am dissatisfied with the withdrawal of the appeal.

聽 聽4.
That the defendant company has machines worth over two million naira in the premises.

聽 聽5.
That I have on the instructions of the Board of Directors instructed Messrs E.A. Molajo & Co. Solicitors of 2 Catholic Mission Street Lagos to apply to this honourable court of Law to proceed with the appeal.

聽 6.
That I am advised that there are very important and substantial points of law to be argued for decision by this honourable court.”

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There is nothing to show in the affidavit that counsel’s instructions were at any time limited.

The Court of Appeal said :-

“The basis of the authority of counsel conducting any case is the instruction given to him by his client.”

This of course is right. The court went on –

“Where counsel has been instructed to file and prosecute an appeal, his duty without further reference to the client is the prosecution of the appeal.”

This law is correct. But then in its wisdom the court went on –

“The duty does not include the power to withdraw the appeal without further consultation.”

This however is wrong. The Court of Appeal relied on Marsden v. Marsden (1972) 2 All E.R. 1162, 1165 and Neale v. Gordon Lennox (1902) A.C. 470 but with respect, the Court of Appeal has misconceived the rations in these cases and Mr. Ajayi SAN learned counsel for the appellant in this case is right when he submitted that in this case there was no limitation on counsel’s authority as contrasted with the authorities relied upon.

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.

I will also allow the appeal for these reasons and the reasons so ably given in the judgment of my learned brother, Coker, J.S.C., with which 1 am in complete agreement. I abide by all the orders made by my learned brother, Coker, J.S.C.

UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Coker, J.S.C. and I agree with it.

It is common ground in the appeal that a counsel’s authority at the trial of an action extends to the action and all matters which are incidental to the action. However the authority could be expressly limited by the client and where there is such limitation the counsel’s authority ceases to be pervasive.

There is no doubt that a counsel is duty bound to present his clients’ case with utmost devotion. But such devotion must be coloured with professional discretion. In other words, counsel must be the master in the conduct of his client’s

[1986] 3 .
Adewunmi v. Plastex Ltd.
(Uwais, J.S.C)
787

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case and should not be dictated to by his client as to how to conduct the case. It is in recognition of that authority of counsel that Rules 14(c) and 18(a) of the Rules of Professional Conduct in the Legal Profession, published as Government Notice No.69 in Federal Official Gazette No.5 of 18th January. 1980 which deal with how far a lawyer may go in supporting a client’s case and the right of the lawyer to control the incidents of the trial respectively provide as follows –

“14(c)
The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defence of the client’s rights and exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him, save by the rules of law legally applied. No fear of judicial disfavour or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to expect his lawyer to assert every such remedy or defence. It must, however, be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of a lawyer does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.”

“18(a)
The lawyer is to be judge of incidental matters not affecting the merits or operating to prejudice substantially the rights of his client; and client has no right to demand that his lawyer do or refrain from doing anything repugnant to his lawyers sense of honour or propriety. In matter not directly affecting the merits or operating to prejudice the right of the client his lawyer may, to the exclusion of his client determine the accommodation to be granted to opposing counsel.”

Learned counsel for the appellant contends that the general authority of counsel extends to the withdrawal of appeal. But learned counsel for the respondent argued that the withdrawal is collateral as opposed to incidental; and therefore goes beyond the general authority of counsel. This he said is so, because it is established that in the exercise of authority by counsel in collateral matters, the express authorisation of client is necessary.

From the facts of this case, it is clear that counsel’s general authority had not been limited. Effort had been made on appeal to prosecute the appellant’s case, but as the case became hopeless in the absence of additional evidence counsel had to give in by withdrawing it. It seems to me that in the circumstances of this case, the withdrawal of the appeal was incidental. It was therefore within the general authority of the counsel to have acted in that manner.

For these .and the reasons given in the judgment of my learned brother. Coker, J.S.C. I too will allow the appeal and set-aside the decision of the Court of Appeal. I endorse the order as to costs.

KARIBI-WHYTE, J.S.C.: I have had a preview of the judgment of my learned brother. Coker. J.S.C. in this appeal. I agree entirely with his reasoning. I agree also that the appeal be allowed.

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30 June 1986
(Karibi-Whyte, J.S.C)

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The short point which falls for determination is one of considerable importance to all practising barristers. The issue is as to the scope of the implied authority of counsel in the conduct of the client’s case in court. More specifically stated, it is whether the implied authority of counsel in prosecuting an appeal covered withdrawing his client’s appeal. The facts of this case have been very fully stated in the judgment of my brother, Coker, J.S.C. I need only make a very brief summary of them for the purpose of this judgment.

Respondents who were tenants of the appellants who were the plaintiffs; were the defendants in the court of first instance, appellants had taken out a writ of summons against the respondents for recovery of possession of the premises on grounds of arrears of rent and breach of covenant of the tenancy agreement. The appellants filed their statement of claim, but the respondents did not file any statement of defence. At the trial, however, counsel to the respondents cross-examined the only witness for the appellants, and at the close of the case for the appellants, did not call any evidence, resting their case on the case of the appellants. Counsel to the respondents addressed the court on behalf of his clients. Judgment was entered in favour of the appellants in the absence of any evidence challenging the evidence of the appellants and upon proof of service of the statutory notices. Respondents were ordered to give up possession of the premises on the 31st August, 1983 and to pay N9,000 as arrears of rent and in addition mesne profits at the rate of N4,500 per annum with effect from 1st September, 1982 until possession was given to appellants. Respondents appealed to the Court of Appeal.

In the Court of Appeal, respondents now sought special leave to admit additional evidence, by tendering certain documents. The application was refused. Following the dismissal of this application, counsel for the respondent informed the court that he was withdrawing the appeal. Counsel to the appellants, who was the respondent in that court did not object. The Court accordingly made an order, dismissing the appeal with N50 costs to the appellants. Then came an application by the respondents through another counsel in the Court of Appeal seeking to set aside the judgment of the Court of Appeal dismissing the appeal, on the ground that counsel for the respondents had no instructions to withdraw the appeal. The application sought leave to set aside the judgment and to proceed with the appeal as set down for hearing. The Court of Appeal, granted the application set aside its decision and restored the appeal for hearing on its merits. This decision is the subject matter of the appeal before us. Three grounds of appeal have been filed:

Grounds of appeal

1.
The learned Justices of appeal erred in law when they stated in their judgment that, where counsel has been instructed to file and prosecute an appeal, his duty without further reference to the clients, is the prosecution of the appeal and that the duty does not include the power to withdraw the appeal without further consultation.

Particulars of Error

(i)
The powers of counsel instructed to conduct litigation includes power whilst his authority subsists to compromise, settle or withdraw the suit.

[1986] 3 .
Adewunmi v. Plastex Ltd.
(Karibi-Whyte, J.S.C)
789

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(ii) 聽聽聽聽聽聽聽Learned counsel has exercised his authority in good聽faith on behalf of 聽聽聽聽聽聽聽聽聽聽聽聽the client in the circumstances viz:-

(a)
The defendant had not filed a defence in the court below.

聽聽聽聽聽聽聽聽聽聽聽聽聽聽It had also not called evidence nor even controverted the main issue upon which possession was sought, i.e. Arrears of Rent.

(c)
It had only appealed to the Court of Appeal on the ground only that the decision was against the weight of evidence.

(d)
The Court of Appeal had rejected its application to call “additional evidence” which had been filed and argued by a Senior Advocate of Nigeria and the court had then adjourned the appeal for hearing for about 2 weeks.

(e)
It was junior counsel from the Senior Advocates’s chambers who came to court and declared that in view of the refusal of the application for leave to call additional evidence, they could not pursue any appeal and therefore applied to withdraw the same.

2.
The Learned Justices of Appeal erred in law when they left the real issue in the matter of restoring the appeal, that is, the scope of the authority of a counsel who has been briefed to prosecute an appeal, and adverted themselves to the issue of a withdrawal by consent when the withdrawal in the matter before them does not require any such consent.

3.
The learned Justices of Appeal erred in law in holding that this was a case in which the express authority of the client to withdraw the appeal was required when:

聽 (i)
Such authority to withdraw was not as a matter of law聽required in the circumstances of this case.

As I have already stated the only issue in the grounds of appeal is as to whether counsel for the appellant acted within the general scope of his implied authority as counsel for the respondents in withdrawing the appeal in the circumstances. Whereas counsel for the appellant submitted that withdrawal of an appeal is within the scope of the implied authority of counsel conducting a case, counsel to the respondent’s contention is that it is not. He submitted that withdrawing an appeal is not within the implied authority of counsel, since as he argued, it is not incidental but merely collateral to the conduct of the appeal. Both counsel cited and relied on several decided cases – all the cases’ stating the principles governing the scope and limits of the authority of counsel in the conduct of a case in court.

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

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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 & Booker Palais de Danse Ltd. (1924) 1 K.B. 702 at pp.765′ McCardie, J, referring to Pollock on Torts 12th Ed. pp.79, 80 expressed it 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.”

The general scope of authority of counsel acting within the instruction of his counsel has been set out in Halsbury’s Laws of England 4thEd. 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.”

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

[1986] 3 .
Adewunmi v. Plastex Ltd.
(Karibi-Whyte, J.S.C)
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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.”

Thus where there has been no express limitation of the authority of counsel, counsel is expected to conduct the case of his client in the manner he regards, the best interests of such client. Counsel acting within the scope of his implied authority can bind the client. In Strauss v. Francis (1866) I.L.R.Q.B. 379,381 where counsel withdrew a juror, it was contended that counsel had only authority to conduct a cause in accordance with the instructions of his client and had no general authority to bind the client by withdrawing a juror without the express consent of the client. The case of Swinfen v. Swinfen 26 L.J. Co. P.) 97 was cited and relied upon. Blackburn J, rejecting the contention said that it cannot be seriously suggested that

“….The retainer of counsel in a cause simply implies the exercise of his power of argument and eloquence. But counsel have far higher attributes, namely, the exercise of judgment and discretion on emergencies arising in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill, and discretion. Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client. Counsel, therefore, being ordinarily retained to conduct a cause without any limitation, the apparent authority with which he is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interest of his client in the conduct of the cause; and if within the limits of this apparent authority he enters into an agreement with the opposite counsel as to the cause, on every principle this agreement should be binding.”

Similarly, in Matthews v. Munster (1887) 20 Q.B.D. 141, where in an action for malicious prosecution the defendant’s counsel, in the absence of the defendant and without his express authority assented to a verdict for the plaintiff for 拢350 with costs upon the understanding that all imputations against the plaintiff were withdrawn defendant objected to the understanding and applied to the Queen’s Bench Division to set aside the verdict on the ground that he gave no authority to consent to any terms of settlement. The Court of Appeal held that the settlement was with the apparent general authority of counsel and was binding. Lord Esher said, at p. 143

“But when the client has requested counsel to act as his advocate he has done something more, for he thereby represents to the other side that counsel is to act for him in the usual course and he must be bound by that representation so long as it continues, so that a secret withdrawal of authority unknown to the other side would not affect the apparent authority of counsel. The request does not mean that counsel is to act in any other character than that of advocate or to do

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any other act than such an advocate usually does. The duty of a counsel is to advise his client out of court and to act for him in court, and until his authority is withdrawn, he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.”

There is the distinction between matters in which a client can expressly limit the scope of exercise by counsel of his authority, and cases where the implied authority of counsel to do what he thinks is in the best interest of his client cannot be limited. There are also the collateral cases outside the scope of authority of the counsel. This distinction has been drawn in Swinfen v. Lord Chelmsford 5 H 2 N at p.922.

The facts on which the application to set aside the judgment of the Court of Appeal was founded clearly disclose that counsel’s general apparent authority to conduct the case was at no time limited by the client. This is clear from the averments in the affidavit of the chairman of the respondent company which are as follows –

“1. 聽聽聽聽聽聽聽That I am the chairman of the Board of Directors of the Defendant company;

2.
that the Board of Directors was not consulted before the counsel announced to the court that he was withdrawing the appeal;

3.
that I am dissatisfied with the withdrawal of the appeal;

4.
that the defendant company has machines worth over two million naira on the premises;

5.
that I have on the instructions of the Board of Directors instructed Messrs. E. A. Molajo & Co., Solicitors of 2 Catholic Mission Street, Lagos to apply to this Honourable Court for leave to proceed with the appeal;

6.
that I am advised that there are very important and substantial points of law to be argued for decision by this Honourable Court;

7.
A copy of the resolution of the Board of Directors is hereto attached and marked exhibit “A”.”

The averments in this affidavit are conspicuously lacking in the instruction to counsel at any time, and at any stage of the litigation in what circumstances to withdraw the appeal.

The resolution of the meeting of the Board of Directors of respondent company held the morning next to the withdrawal of the appeal resolved as follows –

“That the Board of Directors being dissatisfied with the withdrawal of Appeal Number FCA/L/178/1983 between PLASTEX NIGERIA LIMITED and Festus L. Adewunmi which was done without the appellant’s consent and instruction, another legal practitioner be instructed by the Board to restore and prosecute the appeal.”

Like the averments in the affidavit the resolution did not suggest that counsel was expressly instructed not to withdraw the appeal. The complaint was that respondent’s consent was not sought, and counsel was not so instructed. It is in this respect that the respondent and indeed the Court of Appeal fell into error. In setting aside its judgment the Court of Appeal said.

“The basis of the authority of counsel conducting any case is the

[1986] 3 .
Adewunmi v. Plastex Ltd.
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instruction given to him by his clients. Where counsel has been instructed to file and prosecute an appeal, his duty without further reference to the clients is the prosecution of the appeal. The duty does not include the power to withdraw the appeal without further consultation. Learned counsel may have very little to offer in the prosecution of the appeal but he must prosecute the appeal to the best of his ability.”

Mr. Ajayi has criticised this statement of the law as erroneous and a misunderstanding of the two cases of Marsden v. Marsden (1972)2 All E.R. 1162, 1165 and Neale v. Gordon Lennox (1902) AC 470. 471 cited in support. Each of these cases (supra) was decided on specific instruction to counsel limiting the authority to settle, and the court held that this took the cases out of the general rule. There was no finding of any specific instruction limiting the authority of counsel in the instant case. The Court of Appeal assumed that there was at all times an implied instruction that counsel can only withdraw an appeal being prosecuted by him on the instruction of his client after consultation with his client. This is notwithstanding that the court accepted the settled principle that counsel must prosecute the appeal to the best of his ability.

I think Mr. Ajayi’s criticism is well founded. The learned justices of the Court of Appeal would appear to have misunderstood the fact that as to prosecute the appeal to the best of counsel’s ability is within the apparent scope of the authority of counsel arising from the instruction of his client to prosecute the appeal, so the withdrawing of the appeal and submitting to judgment is in my opinion clearly incidental to the authority to prosecute the appeal, and consistent with the role of counsel as an independent contractor.

I have already stated in this judgment that an independent contractor is one who is free to act as he thinks fit within the terms of his contract, and in the performance of such services he is not under orders or control of his employer. Counsel in the instant case having failed in his application for additional evidence saw his position as hopeless. This is because judgment was entered against his client in the court of first instance in the absence of any evidence on his part challenging the evidence of the plaintiffs. And as the ruling of the Court of Appeal disclosed:

“Although the applicant had opportunity to put any question to the plaintiff/respondent during cross-examination, nothing was said about the documents titled “Receipts” and “Letter of Undertaking” both dated 27/3/78 now sought to be put in evidence. Nothing was also mentioned about any N100,000 being paid to the defendant or anybody at all. If the applicants really had any defence during the trial it was the duty of counsel. to put it across either in their own statement of defence or during聽cross-examination of plaintiff’s witness. They did neither. If the defence had been filed and the “Receipt” and “Letter”, pleaded or if they had been raised in cross-examination of the plaintiff, one would be in a position to say easily that the receipt and Letter were probably not available at the trial. But that is not all. Under normal circumstance, if a matter is not pleaded, it is always necessary to apply first to the court for leave to amend the pleadings before being allowed to lead evidence

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thereon. Here there is no pleadings to be amended as no defence was filed. So the situation in this application is a hopeless one because the new or further evidence has no foundation on which to stand.”

This was the situation in which counsel for the defendant/appellant found himself after the ruling dismissing his application to adduce new or further evidence before the Court of Appeal. Counsel was faced with the dilemma of arguing an appeal in which he did not lead any evidence at the trial and his application to adduce evidence on appeal had been refused. The choice of counsel in such a situation was to decide whether he could continue to argue the appeal in the condition of hopelessness and helplessness in which he found himself, and in the absence of any reasonable argument he could urge on the court, or to withdraw the appeal and submit to the natural course of the litigation. Counsel preferred the latter which is the more honourable option. As was clearly stated by Brett, J in Earl Beauchamp v. Madresfield (1872-73) 8 L.R.C.P. at p.253.

“…but I thought it right to make some suggestions for the purpose of ventilating the propositions stated by the learned counsel in admitting that they had no case. I quite agree that it is the duty of counsel to assist the court by referring to authorities which he knows to be against him. But I cannot help thinking that, 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 the 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.”

I understand this passage to mean that where counsel is confronted with an inescapable unsustainable legal position, the proper course for him to adopt in the discharge of his duty to his client and to uphold the dignity and integrity of his office as an officer of the court is to submit to judgment in accordance with the law. This was the situation which confronted Sergeant Ballantyne in Straus v. Francis (supra), and his proposal to withdraw a juror without consulting his client was held to be proper and binding. In the appeal before us there is no doubt counsel had no express instructions to the contrary, and he was not in any position to urge any reasonable argument in support of the appeal before the court. The position of counsel was desperate in the face of the overwhelming case made by the ruling rejecting the application for new or further evidence on which counsel relied entirely for the appeal.

I am of the opinion that the general apparent authority of counsel as the master of the argument and of the case in court is one which cannot be limited by the client as long as the instruction to represent the client has not been withdrawn. This was the position in this case, respondent did not at any time withdraw their instruction to counsel to act for them in this appeal.

Counsel for the respondent has argued forcefully before us consistent with the position he took in his brief that withdrawal of appeal is a matter collateral to the scope of authority of counsel and not covered by the apparent authority arising from the relationship of counsel and client. He relied on Swinfen v. Lord Chelmsford 5 H 2 N. at p. 922 for this view. It seems to me a misuse of words to suggest that to withdraw an appeal being prosecuted is a

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Adewunmi v. Plastex Ltd.
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matter collateral to its prosecution. In its ordinary usage a matter is collateral to another if it exists side by side with that other and is not immediately in issue in the proceedings. The two must co-exist, and of common descent but of different lines. A thing is incidental when it follows normally or naturally from the main. Thus withdrawal of the appeal is incidental to its prosecution and not collateral thereto. It is therefore within the general scope of authority of counsel which cannot be limited by the client and can only be affected by the withdrawal of instruction.

Following my analysis of the legal position, the court below came to the wrong conclusion by holding that where there is a general authority to counsel to prosecute an appeal, there was an obligation, in the absence of specific instructions to the contrary, to consult the client before exercising his discretion to withdraw the appeal. There is on the authorities no such obligation.

Ruling of the court below made on the 31st July, 1984 is hereby set aside. Judgment of the Court of Appeal delivered on the 22nd May, 1984 dismissing the appeal is hereby restored. Appellant is awarded costs of this appeal fixed at N300.

KAWU, J.S.C.: I have had the advantage of reading in draft, the Judgment of my learned brother, Coker, J.S.C., which has just been read. I am in entire agreement with his reasons and his conclusions, and for the reasons stated in the said Judgment, I also will allow the appeal and set aside the ruling of the Court of Appeal, made on the 31st day of July, 1984. The Judgment of that court given on 22nd May, 1984 dismissing the appeal is restored with N300 costs awarded to the appellant.

Appeal Allowed.

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