Requirements of the law regarding procedure for change or withdrawal of counsel

PA. AKANDE ATOYEBI & ORS. v. CHIEF EZEKIEL AYO OYINLOYE & ANOR
CITATION: (2021) LPELR-53990 (CA)

In the Court of Appeal
In the Ilorin Judicial Division
Holden at Ilorin

ON MONDAY, 29TH MARCH, 2021
Suit No: CA/IL/113/2019

Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU
JUSTICE, COURT OF
APPEAL
IBRAHIM SHATA BDLIYA
JUSTICE, COURT OF
APPEAL
MISITURA OMODERE BOLAJI-YUSUFF J
USTICE, COURT OF
APPEAL

Between
PA. AKANDE ATOYEBI
CHIEF MICHAEL ALABI ARANSIOLA,
AGBAJA OF IJARA-ISIN – Appellant(s)
MR. JOEL BAMIDELE AWOTAYO
ARCHITECT DELE OYEYIPO

AND
CHIEF EZEKIEL AYO OYINLOYE
H. R. H GABRIEL O. ADEWOYE – Respondent(s)

LEADING JUDGMENT DELIVERED BY MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
FACTS
The appellants commenced this case at the Kwara State High Court by a writ of summons. Upon the conclusion of pleadings, the case proceeded to trial. The defendants (now respondents) were represented by Bisi Atolagbe of Bisi Atolagbe & Company until the conclusion of the evidence. The case was adjourned for 29/10/2018 for the adoption of written addresses. Bisi Atolagbe filed a notice of withdrawal of his representation for the respondents “due to irreconcilable difference” between him and the 1st defendant and “suspected lack of trust”. Thereafter, an application for change of counsel was filed by H.G. Ibn Mahmud of Abdulwahab Bamidele & company on behalf of the respondents. Respondents’ new counsel then filed a notice of preliminary objection against the suit on the ground that the writ of summons was not properly signed as required by Law.

The High Court upheld the objection and struck out the suit. The Appellants thus appealed.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the following issues;
Whether the “preliminary objection” against the competence of the suit before the trial Court by H.G. Ibn Mahmud Esq., of Law firm of Abdulwahab Bamidele & Co., a completely different Law firm from Bisi Atolagbe & Co., counsel to the Respondents is competent when Bisi Atolagbe & Co., neither applied for leave nor was granted leave to withdraw.

Whether on a holistic reading, construction and interpretation of the entire content of the writ of summons, spanning three pages, it was issued and signed by Joseph S. Bamigboye & Co., or by Joseph S. Bamigboye Esq., who on the writ of summons is counsel to the Appellants (Claimants).

APPELLANTS’ SUBMISSIONS
Appellants’ counsel submitted on issue one that the under the Rules of the Kwara State High Court and the Rules of Professional Conduct, it is mandatory for a counsel engaged by a party in any cause or matter to conduct same until final judgment unless there is a special reason to withdraw, and such withdrawal can only be made by an application either by the party or that counsel. He argued that since Bisi Atolagbe and Bisi Atolagbe & Company have not withdrawn their representation for the respondents, H. G. Ibn Mahmud of Abdulwahab Bamidele & Company had no locus to file the preliminary objection against the suit. He further argued that Rules of Court are meant to be obeyed, and so failure to seek and obtain leave of Court in order for counsel to withdraw from a matter as provided for by the Rules of the High Court is not a mere irregularity, which can be waived but a substantial omission which makes the appearance of a different counsel incompetent. He referred to ELIAS V. ECO BANK NIG. PLC (2019) ALL FWLR (PT.1006) 530 AT 563-564.

Appellants’ counsel also submitted that the power of the Court to treat non-compliance with its rules as an irregularity is to be exercised judicially and judiciously based on facts and guided by Law. He referred to U.B.N PLC V. FAYANJU (2019) ALL FWLR (PT.1017) 602 AT 652.

Appellants’ counsel submitted on issue two that documents including the writ of summons are read, interpreted and construed holistically and not in isolation and disjunctively. He referred to EDEH V. ADAH (2016) ALL FWLR (PT. 864) 1848 AT 1861. He submitted that the High Court has found that Joseph S. Bamigboye & Co., is inanimate and incapable of a signature, then page 3 of the writ of summons which states that the writ of summons was issued by Joseph S. Bamigboye Esq., renders Joseph S. Bamigboye & Co., on page 2 a typographical error and the signature is duly ascribed to Joseph S. Bamigboye Esq., who is a Legal Practitioner. He also submitted that once a writ is attributable to an identifiable legal practitioner, it is valid and its competence must be upheld. He referred to OYAMA V. AIGBE (2016) ALL FWLR (PT.840) 1274 AT 1284.

RESPONDENTS’ SUBMISSIONS
On issue one, respondents’ counsel submitted that the complaint of the appellants is at best a procedural irregularity. The fact that a party approached the Court by a wrong procedure or under a wrong Law will not deny him the relief he is legitimately entitled to. He referred to F.R.I.N V. GOLD (2007) LPELR-1287 (SC) AT 28 (B-C). He submitted that there was substantial compliance with the Rules of the High Court, Bisi Atolagbe having filed a notice of withdrawal of his representation for the Respondents and Abdulwahab Bamidele & Co., has filed an application for change of counsel. He argued that even if there is a defect in the appearance of counsel, the preliminary objection remains valid since jurisdiction is not conferred or removed from the Court by the appearance or non-appearance of counsel. He referred to NIG. NAVY V. GARRICK (2006) 4 NWLR (PT. 969) 69 AT 109 (E-F).

Respondents’ counsel contended that the Rules of Court cannot be interpreted in a way that will deny a party his constitutional right of engaging a counsel because the Constitution is superior and takes precedence over any rule of Court; A.C.B. PLC V. LOSADA NIG. LTD & ANOR (1995) LPELR-205 (SC) AT 35 (A-CO). He further contended that a party does not require leave of Court to change his counsel, all that is required is to give notice of change of counsel to Court since the Court does not choose counsel for parties; MKO ABIOLA V. FRN (1997) 1 NWLR (PT.488) 439 AT 442 (F-G). He finally submitted that the relevant provisions of the Rules of the High Court provide that non-compliance with the relevant Rules of Court may be treated as an irregularity, which does not go the root or foundation.

On issue two, respondents’ counsel submitted that the writ of summons, in this case, is incurably defective because if all the pages of the writ of summons are read together, it was signed by or in the name of Joseph S. Bamigboye & Co., and if on the other hand, the 3rd page of the writ is construed alone, then it is not signed at all by anybody and therefore null and void. He contended that the submission that the signing of the writ of summons by Joseph S. Bamigboye & Co., is a typographical error is an afterthought which cannot avail the appellants because the signature of Joseph S. Bamigboye & Co., on page 2 cannot be transferred or adopted by Joseph S. Bamigboye, Esq., on page 3 of the writ.

Respondent’s counsel submitted that under the Rules of the High Court, a writ of summons is deemed to be issued when it has been prepared by the applicant or his legal practitioner, sealed and filed in the registry of the Court. Therefore, the writ of summons, in this case, was prepared, sealed and filed by Joseph S. Bamigboye & Co., not “Joseph S. Bamigboye Esq. He finally submitted that signing of a document by a Law firm is not a technicality but a duty owed the Court in the adjudication process; F.B.N. PLC V. MAIWADA (2012) 5 SC (PT.3) 1 AT 28-29 (25-39).

RESOLUTION OF ISSUES
The Court in resolving issue one, considered the Rules of the High Court cited by both the appellants and respondents and held that the right of a counsel to withdraw his appearance or representation from a matter before the Court is not the same as the constitutional right of a party to engage a counsel of his choice. The Court held that the purpose of the particular Rules of Court is to ensure that a counsel who has been properly briefed to conduct a case on behalf of a litigant does not abandon the litigant midway by simply withdrawing his appearance from the case without any cogent reason. See OMALE V. FEDERAL MIN. OF LANDS, HOUSING AND URBAN DEVELOPMENT & ORS. (2015) LPELR-25906 (CA). 

The Court held that where a party decides to change counsel, leave of Court is not necessary. The Court further held that counsel who intends to withdraw his appearance must show a special reason for his withdrawal, but a party who voluntarily changes his counsel need not give any special reason or any reason at all. See MUSTAPHA V. GAWAMA & ORS (2011) LPELR-9226 (CA) AT 37 (A); OJONYE V ONU & ORS (2018) LPELR-44212 (CA).

The Court further construed the provisions of the Rules of Professional Conduct as cited by the appellants and held that the rule imposes a professional duty on new counsel to contact the former counsel on being briefed to take over the conduct of the case. Where there is a breach of that duty, the only person entitled to complain is the original counsel. The Court thus held that even though Bisi Atolagbe ought to be in Court to formally withdraw his appearance pursuant to his notice of withdrawal, his omission or decision not to do so can only amount to an irregularity and a breach of professional duty, for which the Respondents cannot be sanctioned or penalized.

The Court also held that a rule of Court cannot be interpreted in a manner that defeats the provision of the Constitution. See ACB PLC V. OLOSADA (NIG.) LTD. & ANOR. (1995) LPELR-205 (SC) AT 35 (A-C). The right to fair hearing includes not only the right of a party to engage a counsel of his choice but the right to engage another counsel where the one engaged by him withdraws his appearance or representation. See DANGOTE CEMENT PLC V. EKESON SALINS OIL & GAS LTD & ORS (2019) LPELR-47259 (CA). The Court thus held that failure to comply with the Rules of the High Court and the relevant Rules of Professional Conduct is an irregularity, which can be waived.

On issue two, the Court held that under Sections 2(1) and 24 of Legal Practitioners Act, only a person entitled to practice as a barrister and solicitor of the Supreme Court of Nigeria is entitled to sign a Court process as a legal practitioner. The Court held that a Law firm or partnership not being a human being called to the bar and enrolled to practice cannot legally sign or file a Court process. Any process signed in the name of a Law firm is incompetent and liable to be struck out. See DANIEL V. INEC & ORS. (2015) LPELR-24566 (SC) AT 42-43 (E-A); OKPE V. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC) AT 16-23 (D-A). The Court, holding that it is unclear who signed the writ, relied on the Supreme Court decision in SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 337 – 338 where it was held that once it cannot be said who signed a process, such process is incurably bad.

The Court further rejected the argument of Appellants’ counsel that the error in signing the writ of summons in the name of a firm is a technicality and held that signing of court processes, in this case, an originating process in the name of a firm is a fundamental defect which robs the Court of the jurisdiction to entertain the suit. See OKAFOR V. NWEKE & ORS (2007) LPELR-2412 (SC). The Court thus resolved issue two against the appellants.

HELD
The Court held that the appeal lacks merit and dismissed it.

APPEARANCES:
ALAMOYO SULAIMAN – For Appellant(s)
OLUKAYODE OLOYEDE – For Respondent(s)
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