⦿ CASE SUMMARY OF:
Chief Gani Fawehinmi v. Nigerian Bar Association (NBA) & Ors. (1989) – SC
1. Chief Gani Fawehinmi
1. Nigerian Bar Association
2. Chief F.R.A. Williams, S.A.N
3. Chief E.A. Molajo, S.A.N
4. Kehinde Sofola, SAN.
5. General Council Of The Bar
No 1 (1989) 2 NWLR (Pt.105)494;
⦿LEAD JUDGEMENT DELIVERED BY:
Andrews Otutu Obaseki, JSC
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Chief Gani Fawehinmi, in person.
FOR THE RESPONDENT
– Chief F. R. A. Williams SAN (with him Uche Nwokedi) for the 1st an 4th Respondent.
– Kehinde Sofola SAN (with him Miss. O. A. Obaseki and M. A. O. Okupe) for the 2nd and 3rd Respondent.
– Mr. Adio M. O. (Director of Civil Litigation, Federal Ministry of Justice) for the 5th Respondent
This is an appeal against the overruling of an objection by the Court of Appeal whereby it set aside the decision of the High Court restraining the 2nd – 4th respondents from appearing for the 1st Respondent.
1. Whether a party to a civil suit who is also a legal practitioner can appear for himself and conduct his case from the Bar;
2. Whether such a party can also appear for another person, who is a co-Defendant with him and conduct the other party’s case from the Bar;
3. Whether in the latter case he can do so at all events from the Bar.
Due to the similarities of the issues, the following has been compounded as resolution for the issues, as held by the Supreme Court:
As parties, a barrister litigant is entitled to conduct his case personally or by counsel of his choice.;
The right of a person whose name is on the roll of barristers to practice can only be withdrawn for breach of professional conduct or for infamous conduct in any professional sense in accordance with the provisions of sections 10 and 12 of the Legal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 them of the privilege of their office as counsel.;
The appellant has not questioned and cannot question the right of each of the 3 counsel. Every appellant, be he a barrister or solicitor or ordinary member of the public, has a right to argue his case either at first instance or on appeal in person.;
The 2nd, 3rd and 4th Respondents not being parties to the action against the 1st and 5th Respondents cannot be restrained from appearing for the 1st Respondent, and arguing its case from the Bar and robed as counsel.;
A legal practitioner who is a party to a civil suit can appear in person, not as legal practitioner, but as a litigant conducting his case in person. He is entitled being a legal practitioner, even though a litigant, to conduct his case from the Bar robed. – Newton v. Ricketts 9 H.L. 710, New Brunswick & Anor. v. Conybeare (1862) 9 H.L. 710 at 719.;
A legal practitioner who is a Defendant to an action can only appear on his own behalf as a Defendant and conduct his case from the Bar of the Court wearing his robes. He cannot represent and conduct the case of a co-Defendant. As a litigant he cannot appear in two capacities – i.e. first in his person, and secondly as a legal practitioner in the same case. A mixture of the two characters is not permitted.;
Section 7(1) of the Legal Practitioners Act 1975;
New Brunswick and Canada Railway Co. v. Conybeare (1862) 9 H. L. e. 711;
⦿ SOME PROVISIONS
Section 7(1) of the Legal Practitioners Act reads:
“Subject to the provisions of the next following subsection and of any enactment in force in any part of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Sharia Court of Appeal or the Court of Resolution of Northern Nigeria or any native or customary court, a legal practitioner shall have the right of audience in all courts of law sitting in Nigeria.”
⦿ NOTABLE DICTA
It is the law that the judgment against which an appeal is brought is presumed to be correct until the appellant otherwise satisfies the Appeal Court that it is wrong and ought to be set aside. There is a long line of authorities on this point to warrant any citation. See Irenuma Odiase & Anor. v. Vincent Agho & Ors. (1972) 3 SC. 71 at 76; (1972) 1 All N.L.R. (Pt.l) 170 at 176 If it were otherwise, the necessity for appeals will not arise and the right of appeal will not be a constitutional and statutory right. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (1989)
The objection was ostensibly founded on the ground that the appearances of Chief F. R. A. Williams, S.A.N. 2nd Respondent and Mr. Kehinde Sofola, S.A.N. (4th Respondent) if allowed as announced on the 8th day of November, 1988 will not be in accord with their professional role and duty to the court as “counsel” arguing a case before the highest court of the land and furthermore, the appearance will not be in the tradition or standard of the legal profession. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (1989)
It is therefore crystal clear [by virtue of section 7(1) of the Legal Practitioners Act 1975] that unless there is a law restricting or prohibiting 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, it is my view that the 1st Respondent has a right to be represented by 2nd, 3rd and 4th Respondents and the 2nd, 3rd and 4th Respondents have a right of audience in this Court. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (1989)
In the instant appeal, the 2nd, 3rd and 4th Respondents are not parties in the real sense of the word. They were counsel to the 1st Respondent and the appellant knows this. He simply did not want them to represent the 1st Respondent and has been seeking the order of court to bar them. It is my opinion that until he satisfies the court of the necessity to deprive them of their representation as counsel for the 1st Respondent, they are entitled to exercise their right to represent the 1st Respondent from the Bar in this Court. – Andrews Otutu Obaseki, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (1989)
A litigant who is a legal practitioner conducts his case as a litigant, not as legal practitioner representing himself, the litigant. The personality here is not split. He merely draws on the fountain of his legal training. It is not the question of a mixture of two characters. The fact that he wears his robes as legal practitioner and speaks from the Bar prima facie suggests that he is a legal practitioner representing a litigant in an action. Such impression should not be given. The character in which he is conducting the case appears not to matter to the onlooker. However, where the litigant is a legal practitioner I do not consider it inequitable in a civil case for him to remain at the Bar with his robes on even when he is the litigant. – Adolphus Godwin Karibi-Whyte, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (1989)
I therefore agree with the submission of Kehinde Sofola that there is authority for holding that a legal practitioner is entitled to speak from the Bar wearing his robes in civil actions by or against him in person. I do not think a legal practitioner should lose his status because he is a litigant in person. If the privilege arises as a result of litigation, it does not appear to make any difference whether the litigation is conducted in person or on behalf of another. – Adolphus Godwin Karibi-Whyte, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (1989)
Now if an objection is not radical, and, as it were, does not go to the essence, like jurisdiction, as opposed to mere formal objections, then it is my humble view that such objections should be raised at the earliest possible opportunity otherwise the party objecting, as in this case, by failing to object in the High Court, the Court of Appeal and by proceeding to argue his own side of the appeal with the appearances as announced on the 4th of October, 1988, may be deemed to have accepted the appearances as regular and may otherwise be stopped by his conduct from raising the objection in a future sitting. – Chukwudifu Akunne Oputa, JSC. Chief Gani Fawehinmi v. Nigerian Bar Association & Ors (1989)