FAWEHINMI V. NIGERIAN BAR ASSOCIATION & ORS

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FAWEHINMI V. NIGERIAN BAR ASSOCIATION & ORS.

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FAWEHINMI V. NIGERIAN BAR ASSOCIATION & ORS.

CHIEF GANI FAWEHINMI,

APPELLANT

V

10 1. NIGERIAN BAR ASSOCIATION

2.

CHIEF F.R.A. WILLIAMS

3.

E. A. MOLAJO



RESPONDENTS

4.

KEHINDE SOFOLA

5.

GENERAL COUNCIL OF THE BAR.

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SUIT NC). SC 229/1986

SUPREME COURT OF NIGERIA

OBASEKI,

J.S.C.

KARIBI-WHYTE,

J.S.C.

KAWU,

J.S.C.

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OPUTA,

J.S.C.

AGBAJE,

J.S.C.

14th April, 1989

Professional Ethics- Practice at the bar - Legal representation - Professional elliquete

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Litigant/Counsel arguing own case - Propriety of addressing cowl robed and from the

bar of the court - Representing co-defendant in the .ram c case - Competence - Right of

audience - Section 7( I) Legal Practitionea' Act, 1975, - Fitness to practice - Enrolment

- Section 6(1) L.P.A., curtailment of privileges as legal practitioner - Professional

misconduct - Sections 16 and 12, L.P.A.

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Interpretation and Construction- Words and Phrases -"Representation"- Self representation

- Whether possible at Law.

Practice and Procedure - Legal representation - right to counsel - Whether capable of being

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curtailed - Inherent powers of court - Abuse of - Depriving counsel of right to practice

own profession in the absence of professional misconduct - Joinder of parties - Joinder

of counsel for purpose of challenging competence to argue for party in case - Whether

counsel real "party" in the case.

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ISSUES:

1.

Whether the right of all prospective litigants to be represented by counsel in the

courts can be restricted otherwise than by clear legislation.

2.

Where the decision of a competent appellate court affirms a right, is the exercise

of such a right impeded by the mere fact that further appellate proceedings are

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in progress.

3.

Whether the right of a litigant to conduct his own case in court is impeded merely

because such a litigant also happens to be a legal practitioner.

4.

Whether it is possible at law for a barrister to represent himself.

5.

Where a person is joined in a suit for the purpose of challenging his right to appear

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as counsel for one of the original parties, does such a person become a real

"party" in the true sense of the term.

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NIGERIAN SUPREME COURT CASES

[19891 2 N.S.C.C.

6.

Where a barrister appearing in a case is joined as a party for the purpose of

challenging his right to appear, whether it becomes incompetent for such a

barrister to argue the motion challenging his appearance, fully robed and from

the bar of the court.

7.

Whether it can be said that every person in society who is a litigant is entitled to

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argue his case in person either at trial or on appeal.

8.

Whether a person can be both litigant and counsel at once in a case.

9.

Whether it is a proper exercise of inherent power for a court to obstruct the

legitimate exercise of the lawful duties of counsel in litigation.

10.

Whether as a general rule, a legal practitioner who is also a litigant is entitled to

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speak from the bar of the court fully robed.

11.

When may the right of audience of a legal practitioner be said to be in abeyance

for purposes of legal representation for another person.

12.

Whether a legal practitioner who is a litigant can represent a co-defendant in the

same case.

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FACTS:

The appellant by way of an originating summons dated 19th November 1984,

brought an action against the Nigerian Bar Association and the General Council of

the Bar for an order of court declaring as unconstitutional, illegal, null, void and of

no effect, a decision of the Bar Association restraining its members from appearing

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before special military tribunals established for the purpose of recovering public

property in certain hands on grounds that the tribunals were not fairly and properly

constituted. The Appellant also sought the same declaration against the decision of

the Bar Association in relation to its members (which included the appellant) taking

part in appearing before the tribunals. At the High Court, the 2nd, 3rd and 4th

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respondents announced their appearance for the 1st and 5th respondents.

Pleadings were ordered at the instance of 2nd respondent with the appellant

opposing but being overruled. Appellant then filed his statement of claim on the

22nd April, 1985, but on the 29th April, 1985, he brought an interlocutory application

for an injunction restraining the 2nd, 3rd and 4th respondents from appearing and

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representing the defendants in the case. The application was however, not argued,

and on the 10th of May, 1985, the 4th respondent by way of motion on notice, filed

an objection to the earlier motion which had been served on the 2nd respondent as

counsel for the Bar Association and brought a motion for an order of court striking

out the name of the Nigerian Bar Association and dismissing the whole case in that

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the Bar Association was not a juristic person. The trial court dismissed the applica-

tion to strike out the action and to dismiss the case as a whole. He also granted

suo

motu,

the application (which was never argued) for interlocutory injunction restrain-

ing the 2nd, 3rd and 4th respondents from appearing for the 1st respondent.

The three respondents against whom the order of restraint had been made gave

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notice of appeal and the trial judge suspended the former injunction to enable them

prosecute their appeal against the ruling, while the 1st and 5th respondents also

appealed against the ruling refusing the application to strike out the name of 1st

respondent and dismiss the action as a whole. The Court of Appeal allowed the

appeals of 1st respondent and also dismissed the action in its entirety. It also allowed

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the appeal of 2nd, 3rd and 4th respondents and discharged the order restraining

them from appearing for the 1st respondent. The appellant, aggrieved by the

decision, appealed to the Supreme Court. When it came to the respondents to

elaborate on their oral briefs of argument in the Supreme Court, the appellant again,

raised an objection, in which he contended that the respondents, being parties in

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the case, could not argue their cases from the bar of the Court fully robed nor could

they appear for each other being co-respondents. The Supreme ordered that briefs

be filed in respect of the new objection and the questions which arose were (a)

whether a party to a civil suit who is also a legal practitioner can appear for himself

FAWEHINMI V. NIGERIAN BAR ASSOCIATION & ORS.

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and conduct his case from the Bar, (b) whether such a party can also appear for

another person who is a co-defendant with him and conduct the other parties case

from the bar and whether, at all events, he can do so at all even from the bar.

HELD:

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1. By virtue of section 7(1) of the Legal Practitioner's Act, 1975, it is crystal clear that

unless there is a law restricting the right of any person to be represented by a

legal practitioner, the Legal Practitioners' Act accords all persons the right to be

represented by a legal practitioner in all courts of law sitting in Nigeria. On the

state of the law, the 1st respondent has a right to be represented by the 2nd, 3rd

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and 4th respondents and the latter have a right of audience in court.

2.

That the right of the Nigerian Bar Association to chose 2nd, 3rd and 4th

respondents as leading counsel to represent it is unimpeded just as the right of

audience in courts of law granted to the 2nd, 3rd and 4th respondents by section

7(1) of the Legal Practitioners' Act 1975 remains extant and subsisting. This is

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because, the decision of the Court of Appeal against which the appellant has

appealed is a land mark in the history of the case. It is subsisting until the

appellant satisfies the court that it is not correct.

3.

That the right of a person whose name is on the roll of Barristers, to practise can

only be withdrawn for breach of professional conduct or for infamous conduct in

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any professional sense in accordance with the provisions of sections 16 and 12

of the Legal Practitioners Act, 1975. The conduct complained of against the 2nd,

3rd, and 4th respondents does not amount to infamous conduct in any

professional respect. There is therefore, no justification for depriving the

respondents of the privileges of their office as counsel.

25 4. That the word "represent" in the context of legal representation means to act or

stand for or be an agent for another. It is not co; rect to say that a barrister

represents himself. Such representation does not exist in law, although the legal

training he has acquired can be utilised for his own benefit and for the benefit of

others who retain his services, when he has been properly enrolled and paid his

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dues as a legal practitioner, see sections 7(1), 2(1) and 6(1) of the Legal

Practitioners' Act, 1975.

5.

That the joinder and appearance of the 2nd, 3rd and 4th respondents in this

appeal are directly linked to their role as counsel to the 1st respondent, the

Nigerian Bar Association.

Strict() sensu,

they are not parties to the cause and

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there is no controversy or dispute between the appellant and themselves, which

requires determination by the court. Moreover, and more importantly, no breach

of any of the rules of professional conduct in the legal profession or commission

of any infamous misconduct was alleged against any of them.

6.

That the respondents may, in a very limited sense, be regarded as "parties" for

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the purposes of considering the issue of whether a party who is also a legal

practitioner can appear for himself and conduct his case from the bar of the court

in a lawyer's robe. By virtue of rule 6 of the Rules of Professional conduct in the

legal profession made under the Legal Practitioners' Act of 1975, the wearing of

wig and gown in court by Legal practitioners is, if anything, compulsory and

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unless there is another rule expressly

forbiding

a lawyer who is also a party from

complying with the said rule, then a lawyer does not cease to be a lawyer simply

because he is appearing for himself nor does he cease to be bound by the said

rule for the same reason.

7.

That every appellant, be he a barrister or solicitor or ordinary member of the public

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has a right to argue his case either at first instance or on appeal in person. See

sections 17(2) (a) & (b) and 33(1) of the 1979 constitution. *1.

8.

That a party cannot appear both as a person and as counsel for himself. The two

characters can never be mixed. In the instant case however, the 2nd, 3rd and

4th respondents are not parties in the real sense of the word. They are counsel