ADEWUNMI V. PLASTEX (NIG.) LTD.
| Pages | 852-873 |
852
NIGERIAN SUPREME COURT CASES
[1986] 2 N.S.C.C.
ADEWUNMI V. PLASTEX (NIG.) LTD.
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FESTUS L ADEWUNMI
APPELLANT
V
PLASTEX NIG. LTD.
RESPONDENT
10
SUIT NO. SC 26/1985
SUPREME COURT OF NIGERIA
ESO,
J.S.C.
UWAIS,
J.S.C.
COKER,
J.S.C.
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KARIBI-WHYTE,
J.S.C.
KAWU,
J.S.C.
20th June, 1986
Legal Practitioners - Counsel - Scope of general authority in litigation - Includes,
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in absence of express limitation, right to complete control over client's case
and all matters incedental thereto
Appeals - Practice and Procedure - Appeal solely on omnibus ground - Application
by appellant to tender certain letters and receipts as additional evidence refused
25
by Cowl of Appeal as without merit in view of appellant's failure to file
defence or call evidence or cross-examine in regard to those documents -
Appeal thereupon withdrawn by counsel without consulting appellant - Absence
of specific instructions to contra!)
,
by appellant - withdrawal within counsel's
implied authority and consequently binding on appellant.
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ISSUES:
1.
Whether a counsel can, of his own volition, withdraw his clients case from
appeal without the express authority of his client.
2.
Whether parties in a case are bound by the. actions of their counsel.
35
3.
Whether there is a limitation in the general authority of a counsel to conduct a
case.
4.
What kind of relationship exists between a counsel and his client?
5.
What is the test distinguishing an independent contractor from a servant or
agent?
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FACTS:
The appellants were the defendants in the High Court, and tenants of the plain-
tiffs. The plaintiff instituted an action for recovery of premises on grounds of ar-
rears of rent and breach of covenant under the tenancy agreement. The defendants
did not file a statement of defence throughout the hearing. At the close of the plain-
45
tiffs case, the learned trial judge held in favour of the plaintiffs, and the defendants
appealed to the Court of Appeal against the decision. Before the hearing of the
appeal the defendants filed on application seeking leave to admit additional evi-
dence before the court, contending that the nature of the evidence was such that
if it had been adduced at the trial, the judge would have held in favour of the de-
5C
fendants. The plaintiff filed a counter affidavit, in a notice of preliminary objection
to the hearing to the application, to the effect that the notice of appeal was filed
out of time. The appellant's application was dismissed. The appellant thus ap-
ADEWUNMI V. PLASTEX (NIG.) LTD.
853
pealed to the Supreme Court. The learned counsel for the appellant, on the hear-
ing date informed the court that he was withdrawing the appeal.
An application was then filed in the lower court by Mr. Molajo, S.A.N. who on
behalf of the appellant applied for an order to set aside the judgment dismissing
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the appeal consequent upon the withdrawal of the appeal. The Court of Appeal
complied and restored the appeal.
The plaintiffs thus appealed to the Supreme Court, contending that a counsel
has complete control over how his case is carried out, and that the Court of Ap-
peal misunderstood the scope of the authority of counsel.
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HELD:
1.
The Rules of Professional Conduct in the Legal Profession made by the General
Council of the Bar, provide that every lawyer upon his own responsibility must
decide what causes he will bring into court for plaintiffs and what he will contest
in court for defendant. His is the responsibility for advising as to questionable
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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 instruction. A counsel has authority to present his clients case in the
best way he deems fit, without taking express authority from his client.
2. When the counsel withdraw the appeal, it was after full consideration of the
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circumstances of the case. The decision was an exercise of judgment and
discretion on emergency arising in the conduct of the appeal. The counsel was
right in the circumstance of the case and justified in the decision. The
respondents are bound by their counsel's action. The Court of Appeal
misdirected itself in coming to the decision that the learned counsel in
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withdrawing the appeal committed an act outside the scope of his authority.
3. The general authority of counsel apart from express limitation, and terms of
agreement is only limited where his authority goes beyond matters incidental
to matters collateral.
4. The dominant instruction of the client in all cases where litigation in court is
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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.
5. The test distinguishing an independent contractor from a servant or an agent
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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.
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CASES REFERRED TO IN JUDGMENT:
1.
Swifen v. Land Chelmshord
(1860) 5 H & N 390.
2.
Chambers v. Massen
(1858) 5 C.B.N.S. 59.
3.
Briscoe v. Briscoe
(1968) P. 501.
4.
R. v. Turner
(1970) 2 All N.L.R. 21.
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5.
Marsden v. Marsden
(1972) 2 All E.R. 1162.
6.
Neale v. Gorden Lennox
(1902) A.C. 470.
7. Little v. Spreadbufy
(1910) 2 K.B. 658.
8.
Patience Swinfen v. Lord Chelmsford
157 E.R. 1436.
9.
Strauss v. Francis
(1866) L.R. Q B.D. 379.
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10.Sheppard v. Robinson
(1919) 1 K.B. 474
11.Earl of Beavchamp v. Madresfield VIII
(1872-73) L.R.C.P. 243.
12.Babajide v. Aisa
(1966) 1 All N.L.R. 254.
13.Performing Rights Society Ltd v. Mitchell & Ors
(1924) 1 K.B. 702.
14.Swinfen v. Swinfen
26 L.J.C.P. 97.
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