MUSTAPHA v. C.A.C: Whether Counsel’s Interest can Override Client’s.

MUSTAPHA v. C.A.C (2019) 10 NWLR PT. 1680 AT 355.


Summary of Facts

The appellant as legal practitioner presented the names of three proposed companies to the respondent for registration/reservation.

The respondent refused reserve any of the names on the ground that there were in existence registered companies with identical or similar names.

The appellant, not satisfied with the decision of the respondent, filed a writ of certiorari at the Federal High Court on 10th October 2002, seeking an order quashing the decision of the respondent through the Register-General, Corporate Affairs Commission dated 30th May 2002.

He also sought an order compelling the respondent to accept and reserve the names for registration. In its judgment delivered on 25th May 2004, the trial court dismissed the claim of the appellant.

Dissatisfied, the appellant appealed to the Court of Appeal. In its judgment delivered on 18th December 2008, the Court of Appeal equally dismissed the appeal. Still dissatisfied, the appellant appealed to the Supreme Court on two grounds of appeal.

On its part, the respondent raised a preliminary objection to the competence of the suit as constituted at the High Court on the ground, inter alia, that the appellant being a legal practitioner to the promoters of the business sought to be registered lacked the required locus to institute the action without authorisation and in his personal name which consequently vitiated the court’s jurisdiction to adjudicate on same.

Held: The Supreme Court unanimously dismissing the appeal.

The following issues were raised and determined by the Supreme Court:


1. On whether counsel’s interest can override client’s.

Counsel is hired by his client to act for him in the subject matter which his client has interest. The interest of counsel is in and consists of the fee he is to collect from his client for representing him.

The personal interest of the counsel does not extend and/or override that of his client to the extent that counsel would become a party in the matter without more.

2. On whether donee of a power of attorney can institute an action on behalf of the donor in his personal name.

Where a party gives power of attorney to a person or counsel to sue on his behalf, the donee of the power of attorney has no locus standi to institute an action on behalf of the donor in his own name. He must sue in the name of the donor as he is merely an agent of the donor. I

In this case, even if the appellant was given a power of attorney to prosecute the suit on behalf of his clients, he could not have sued in his personal name.

3. On duty of counsel to client.

Counsel owes his client the duty of utmost devotion presenting his client’s case and to the best of his ability with professional skill.

It is the knowledge and professional expertise of the counsel that his client pays for and expects nothing but the best from the counsel within the tenets of the law and professionalism.

But counsel’s duty does not extend to taking over and initiating proceedings in his own personal name without reference to the client.

4. On who has the standing to sue.

No other person except the person on whom is vested the aggregate of the enforceable rights in a cause has the standing to sue.

Where a person has brought an action claiming a relief against a party which on the facts of the matter is referable to another, he cannot succeed for want of locus standi simply because there is no dispute between them.

In the instant case, the appellant did not have the requisite locus standi to institute the suit at the trial court.

5. On what concept of locus standi denotes.

The concept of locus standi denotes legal capacity to maintain an action in a court of law. It is a party’s standing to sue or competence of a party to sue. The term locus standi (a place of standing) denotes the right of a person to bring an action or to be heard in a given forum, especially a court or tribunal.

6. On how to determine whether a plaintiff has locus standi to sue.

In order to determine whether a plaintiff has the locus standi or standing/capacity to sue, his statement of claim or affidavit in support of an originating summons, which defines the extent of the plaintiff’s cause of action, will be perused.

Moruff O. Balogun Esq. Ijebu Ode, Ogun State. 08052871414, 09121207712 [WHATSAPP]

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