Akin Akande, Abuja
The legal tussle between Governor Emmanuel Uduaghan of Delta State and the gubernatorial candidate of the Democratic Peoples Party (DPP), Chief Great Ogboru over the April 26, 2011 Delta state governorship election was on Friday settled by a 4-man panel of Supreme Court Justices, which upheld Uduaghan’s victory.
Justice Clara Ogunbiyi in the lead judgment read by Justice Suleiman Galadima, the apex court unanimously dismissed the motion filed by Ogboru’s counsel, Dickson Osuala, seeking an order of the Supreme Court to set aside its judgment in consolidated appeals nos. SC.18/2012 and SC.18A/2012, which held that there was no valid judgment in the appeal.
Justice Tanko Mohammed who delivered the Supreme Court judgment of March 2, 2012, said there was no valid judgment in the Delta State appeal and accordingly declared the judgment of the Court of Appeal including its reasons as null and void and consequently struck it out.
But ruling on the motion which had sought the Supreme Court to reverse itself, Justice Galadima held that the fact that Ogboru’s initial counsel, Mr Sebastine Hon (SAN) had earlier filed and withdrawn a similar application, admitting the new application by Dickson Osuala, who took up the matter on behalf of Ogboru amounted to an abuse of the process of the court.
The apex court held that from the motion filed by Osuala, the subject matter and reliefs sought were the same as the one earlier withdrawn by Chief Hon.
“From the motion filed by Osuala and the one withdrawn by Hon, the totality reveals that the two are very similar in nature.
The certainty of this fact is conceded to by the applicants themselves in paragraphs 19 and 20 of the affidavit in support of the motion, wherein the former counsel Mr Sebastine Hon was seriously indicted for allegedly acting without his client’s authority in the motion earlier struck out” the court held.
Justice Galadima stated that the argument and submission of Osuala that Hon was not authorised by Chief Ogboru to withdraw the motion was tantamount to setting a bad precedent in the legal profession.
“In a freehand concept, a counsel stands at the Bar as an authority; he is not a steward or a slave to his client.
He does not need the authority of his client to make concession or compromise. So, saying that Chief Hon’s withdrawal of the motion was unauthorised was demeaning and unacceptable” Justice Galadima posited.
However, the court observed that, “The only thing open to a client is to withdraw instructions from the counsel if the counsel is professionally negligent”
Osuala had told the court that Hon withdrew the application without the authority of his client and under suspicious circumstance.
But then, the apex court averred that Ogboru and Osuala had lost the appeal in view of the fact they tend to portray Chief Hon, a Senior Advocate of Nigeria in bad light, adding that “acceding to that motion pose a serious and bad precedent in the judicial process”.
More so, the eminent jurists said Ogboru’s counsel had failed to show enough reason and adduce convincing evidence to prove that Chief Hon exceeded the scope given to him.
“The applicants have not shown enough sufficient reason that Mr Hon did not act without their authority on the 15 October, 2012. In other words, there was no express evidence to adduce that the learned senior counsel exceeded the authority given him” Justice Galadima held.
“I have earlier stated that the applicants are introducing a very dangerous trend which no doubt will subject a counsel to his client intimidation.
This precedent will certainly not augur well in the legal profession, which from time immemorial had recognised the liberty of counsel in exercise of his qualification to act on behalf of his client” the court held adding that “Osuala should not glory in subjecting the honourable profession to ridicule at the altar of disrepute”.
“Osuala should not subject the Supreme Court of Nigeria to ridicule; he is to be blamed the more than the petitioners. Courts act on facts and not mere speculation.
Chief Hon evidently acted within the brief given to him by the applicants and the motion in the view of this panel was efficiently withdrawn” Justice Galadima declared just as he insisted that Hon had acted according to the power given him by the client (Ogboru).“The applicants in the case did not justify their right to institute a fresh action in place of earlier one withdrawn and struck out. There must be an end to litigation, and hence, the applicant had lost the opportunity to re-litigate the application filed on the 19 November 2012, which is hereby dismissed as an abuse of court process” the Justice maintained.
Therefore “I make an order that N50, 000 of cost be awarded to each set of the respondents against the applicant” Justice Galadima ruled. It would be recalled that Alex Izinyon (SAN) , one of Uduaghan’s counsel had said that Ogboru was bound by Hon’s withdrawal of his application.He cited cases to show that a lawyer had the authority to conduct his client’s case and that since Hon was briefed by Ogboru to represent him, Ogboru could not be heard to say that his application was withdrawn without authority.He said: “A lawyer is not a steward or servant of his client. He does not need the authority of his client to make concession or compromise.”He urged the court to hold that Hon acted with authority when he withdrew the application.Based on Iziyon’s submission, the Peoples Democratic Party’s counsel Mrs. J.O Adesina SAN and Chief Onyechi Ikpeazu SAN of INEC all objected to Ogboru’s application on the grounds that it was frivolous and amounted to mere academic exercise.
The court insisted that Ogboru was bound by Hon’s withdrawal of the earlier motion seeking reversal of the apex court’s decision.