ALL PURPOSE SHELTERS LTD. V. DENNIS: On Right of Litigant to Engage Counsel of His Choice and to Change Counsel. An Insight into the Decision of the Supreme Court Therein.

Citation: (2022) 6 NWLR PT. 1825 AT 181.

Courtesy: Moruff O. Balogun Esq.

Summary of Facts:

The 1st – 707th respondents instituted a representative action against the appellant. At the trial Court and the Court of Appeal, one counsel acted for the respondents.

But at the Supreme Court, the 1st and 276 of the respondents instructed one counsel to act for them, while the 3rd and the other respondents instructed another counsel. Consequently, two briefs of argument were filed on behalf of the respondents.

Aggrieved that two briefs of argument were filed on behalf of the respondents, the appellant applied to the Supreme Court for an order striking out the briefs of argument on ground of abuse of court process or in the alternative, an order directing the respondents to retain one counsel in the appeal.

The appellant argued that the respondents, who initiated a representative action at the trial court and instructed one counsel to prosecute the action, cannot subsequently break up in two groups and engage different counsel to handle the same action on appeal.

The appellant argued that the respondents must continue to act through a single counsel. On the other hand, the respondents contended that as representatives, they were entitled to split and engage counsel of their choice when the need arose.

In determining the appeal, the Supreme Court considered the provision of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, which reads:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

On Right of litigant to engage counsel of his choice and to change counsel:

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) states that in the determination of a citizen’s civil rights and obligations, he has the fundamental right to a counsel of his own choice.

So, a litigant has the right and freedom to engage counsel of his choice and is at liberty to change his counsel without interference or hindrance at any stage of the matter.

In effect, neither the court nor any other party in the litigation has the authority to interfere with the exercise of a litigant’s right to and over his counsel under any guise whatsoever.

In this case, the appellant has no right to question and or interfere with the choice of counsel to represent the respondents.

In other words, since the respondents chose to engage and brief a single counsel to initiate the action for all of them, there is no valid legal principle or rule of law which prevents any one or more of them from subsequently engaging and briefing another or other counsel of their choice to represent them.

Therefore, the applicants lacked the legal competence and standing to interfere with the choice or option exercised by the respondents by seeking to disqualify the counsel the respondents chose to represent them.

On Right of litigant to engage counsel of his choice and to change counsel:

Where several parties agree to engage one counsel and along the line some irreconcilable or other differences occur, any party that is not satisfied is at liberty to withdraw from the agreement and to engage counsel of his choice.

Also, a party may decide to change counsel at any time for any reason or without reason at all, and the court cannot participate in the choice of counsel for a litigant.

A party desirous of changing counsel can do so personally in court by announcing it or through any counsel of his choice. The court cannot intervene in any form under the guise of exercising its discretion; the entire decision is that of the party.

The court has no discretion to grant or refuse leave to a litigant to change his counsel. If such discretion were to exist, it would also imply that the court could refuse such leave and that would be odious in the extreme, both to the litigant and the legal profession.

On nature and scope of right of fair hearing under section 36 of the 1999 constitution:

The right to fair hearing provided for and guaranteed under section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 is personal to a person in the determination of his civil rights and obligations by “court or other tribunal established by law”.

One of the basic requirements of the principle and the right to fair hearing is that a party whose rights and obligations are to be determined in the judicial proceedings of all courts of law, shall be afforded or given reasonable opportunity to present all the material and relevant side of his case.

In other words, in keeping with the requirement of the right to fair hearing, a party to a legal action before a court of law shall and must be afforded and given the opportunity to be heard by the court before his civil rights and/or obligations are determined by the court.

A party is also constitutionally entitled as part of the right to fair hearing, to conduct his case personally or through/by a legal practitioner/counsel of his choice, engaged and briefed to represent him in the conduct of the judicial proceedings in courts in Nigeria.

It is a right that cannot be denied or interfered with by any other party or even the court.

On nature of right to fair hearing:

The right to fair hearing is both a natural right and a constitutional right.

On whether court can curtail citizens right to fair hearing:

Court cannot validly exercise any discretion to curtail a citizen’s fundamental right as provided under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended).

In this case, the applicant’s application seeking an order compelling some respondents to retain a particular counsel is in clear contravention of the constitution and the right of the parties to engage counsel of their choice.

On whether rules of court can derogate from right of fair hearing vested by the Constitution:

Rules of a court cannot derogate from the individual and personal right to fair hearing guaranteed by the grundnorm, which is the fountain of all laws in Nigeria; supreme and binding on all persons and individual authorities and so prevails over them.

In this case, all the respondents were each specifically named as a party to the case initiated at the trial court, so each of them has equal right to be heard on the claims made in the case.

Although the claims may be common or similar to be more conveniently tried by way of representative action under the rules of court.

On duty on litigant to be consistent in case at both trial and appellate courts:

No matter the counsel representing a litigant, he must be consistent with the case he presents through the hierarchy of the courts.

About the author

Moruff O. Balogun Esq., is a legal practitioner and a prolific legal researcher. He can be reached via 08052871414, 09121207712 [WHATSAPP]

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