Abstract:
The doctrine of mixture of characters prohibits a legal practitioner who is a party to a proceeding from simultaneously acting as counsel for another party in the same proceeding. The doctrine is founded on the need to preserve the objectivity, independence and professional detachment expected of an advocate. This article examines the application of the doctrine where a lawyer-litigant appears alongside a Senior Advocate of Nigeria (SAN) or another advocate independently representing a co-defendant. Drawing from relevant judicial authorities and Rule 17(5) of the Rules of Professional Conduct for Legal Practitioners, the article considers whether the mere appearance of a lawyer-litigant alongside independent counsel necessarily constitutes a breach of the rule. It argues that the actual capacity in which the lawyer-litigant appears and the extent of his participation in the proceedings are material considerations in determining the propriety of such appearance.
Introduction:
The legal profession requires practitioners to maintain the highest standards of professional independence, objectivity and integrity. One of the principles developed to safeguard these standards is the prohibition against a legal practitioner appearing as counsel for a co-defendant in a proceeding in which the practitioner is personally a party. This principle, commonly referred to as the doctrine of mixture of characters, seeks to prevent a legal practitioner from simultaneously assuming the conflicting capacities of an interested litigant and an independent advocate.
In Chief Gani Fawehinmi v. Nigerian Bar Association (No. 1), the Supreme Court affirmed that a legal practitioner who is a defendant in an action may appear personally but cannot simultaneously represent a co-defendant.[1]
However, a different consideration arises where the lawyer-litigant appears alongside an independently instructed Senior Advocate of Nigeria or another counsel who assumes responsibility for representing the co-defendant. The central question is whether such an appearance automatically violates the doctrine or whether the circumstances and actual conduct of the proceedings must first be examined.
The Jurisprudential Foundation of the Doctrine of Mixture of Characters:
The doctrine is founded on the principle that a legal practitioner who is personally involved in litigation may find it difficult to maintain the objectivity and professional detachment expected of an advocate. In Egbe v. Adefarasin, Oputa, JSC, emphasized the importance of professional detachment, observing that:
“He who descends into the arena of conflict cannot avoid the dust of the encounter. With the best will in the world he will not have that detachment expected of an advocate who merely argues the case as distinct from vouching the case.”[2]
This observation underscores the importance of separating personal interests from professional advocacy. A lawyer who is personally interested in the outcome of a proceeding may unconsciously allow that interest to influence the manner in which another party’s case is conducted. The Supreme Court gave further expression to this principle in Fawehinmi v. Nigerian Bar Association (No. 1), holding that:
“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.”[3]
Similarly, in Ukweni v. Governor of Cross River State, the Court of Appeal recognized that a legal practitioner cannot combine personal participation in a proceeding with the simultaneous representation of a co-litigant.[4] These authorities establish that the mischief prohibited by the doctrine is the assumption of conflicting personal and professional capacities by the same legal practitioner.
The Scope of Rule 17(5) of the Rules of Professional Conduct:
Rule 17(5) of the Rules of Professional Conduct for Legal Practitioners provides:
“A lawyer shall not appear as a counsel for a client in a legal proceeding in which the lawyer himself is a party.”
The provision expressly prohibits a lawyer from appearing as counsel for a client in a proceeding in which the lawyer is personally a party. The operative consideration is therefore whether the lawyer-litigant has assumed the professional responsibility of representing another party in the same proceeding.
The prohibition should not be considered merely by reference to the physical presence of a lawyer-litigant in court. Rather, the capacity in which the lawyer appears and the role actually performed by him are relevant to determining whether the provision has been violated. It is in this context that the appearance of a lawyer-litigant alongside an independently instructed Senior Advocate of Nigeria/another counsel deserves consideration.
Appearance Alongside an Independently Instructed Senior Advocate of Nigeria/Another Advocate:
There is a material distinction between a lawyer-litigant who independently appears as counsel for a co-defendant and one who appears alongside an independently instructed counsel who assumes responsibility for conducting that co-defendant’s case. The principle of dominus litis recognizes the authority of counsel in managing and conducting the case of the party represented.
In Nwafor Elike v. Ihemereme Nwankwoala, the Supreme Court observed that counsel conducting a civil case exercises control over its conduct and management.[5] Similarly, in Famakinwa v. University of Ibadan, the Court recognized the right of counsel to conduct the case of the person represented to the best of his ability and in the manner he considers appropriate.[6]
Accordingly, where a Senior Advocate of Nigeria or counsel is independently retained by a co-defendant and assumes responsibility for the conduct of that party’s defence, the circumstances may be distinguishable from those in which a lawyer-litigant independently represents a co-defendant. The presence of independent counsel demonstrates that the lawyer-litigant has not assumed the professional responsibility contemplated by Rule 17(5).
However, the mere presence of a Senior Advocate or another counsel does not automatically cure a breach of the rule. If the lawyer-litigant actually participates in conducting the co-defendant’s case as counsel, the prohibition may still apply. The determining consideration should therefore be the substance of the appearance and the actual role performed by the lawyer-litigant.
The Significance of Court Processes and Actual Participation:
The identity of counsel who prepares and signs court processes is another relevant consideration in determining the professional responsibility undertaken by the respective legal practitioners.
In Martins v. Federal Republic of Nigeria, the Court recognized that where counsel signs an initiating process as representing a party, there is a presumption that the counsel is authorized to act for that party. The Court also recognized the significance of counsel announcing appearance in open court.[7]
Consequently, where, for instance, the processes filed on behalf of the first defendant in a suit are signed by independent counsel, while the second defendant’s processes in the same suit are signed by a different legal practitioner, the separate arrangements for legal representation become relevant.
The fact that the second defendant in he said suit did not sign the first defendant’s processes may support the argument that he did not formally undertake the professional representation of the first defendant.
Nevertheless, the absence of a signature cannot, standing alone, conclusively determine the question. The announcement of appearance and the actual conduct of the proceedings must also be considered.
The Continued Validity of the Senior Advocate’s Appearance:
Even if the court finds that the appearance of the lawyer-litigant was irregular, a separate question arises as to whether such irregularity necessarily invalidates the appearance of the independently instructed Senior Advocate of Nigeria/Counsel. The two issues ought to be considered separately.
In a suit, where the Senior Advocate/counsel was independently retained by the first defendant and satisfied the applicable requirements governing his appearance, an objection against the participation of the second defendant does not automatically invalidate the Senior Advocate/counsel’s independent representation.
The validity of the Senior Advocate/counsel’s appearance should be determined by reference to the applicable professional and procedural requirements, rather than solely by the circumstances surrounding the appearance of the lawyer-litigant. This distinction preserves the separate professional responsibilities of counsel and avoids unnecessarily prejudicing a party’s right to independent legal representation.
Interpretation of Rule 17(5) and Its Application:
The interpretation of Rule 17(5) must follow established principles of statutory interpretation. Where the language of a provision is clear and unambiguous, the court is required to give it its ordinary and grammatical meaning.
In Action Congress v. Independent National Electoral Commission, the Court affirmed that clear statutory provisions must be interpreted according to their natural and grammatical meaning.[8] The Supreme Court reiterated this principle in Independent National Electoral Commission v. Yusuf, emphasizing that courts must interpret statutory provisions according to the language employed by the legislature.[9]
Applying this principle to Rule 17(5), the prohibition is against appearing as counsel for a client in a proceeding in which the lawyer is personally a party. It is therefore necessary to establish whether the lawyer-litigant actually assumed that professional capacity. As in the scenario painted above, where the processes filed by the 1st Defendant in a case was filed by an independent counsel different from the counsel who signed and filed the lawyer-litigant party’s processes – the 2nd Defendant, on that facts, it will be safe to conclude that the 2nd Defendant/lawyer-litigant did not undertake any substantial advocacy on the first defendant’s behalf.
These circumstances provide a basis for distinguishing the appearance from the prohibited dual representation contemplated in Fawehinmi v. Nigerian Bar Association (No. 1). The argument here is that the second defendant/lawyer-litigant remains a litigant, while the Senior Advocate independently assumed responsibility for representing the first defendant. Ultimately, however, the court must determine the issue from the totality of the circumstances, including the court record, the processes filed and the actual conduct of the proceedings.
Conclusion:
The doctrine of mixture of characters is an established principle of Nigerian legal practice intended to preserve the independence and objectivity of legal representation.
The decisions in Egbe v. Adefarasin, Fawehinmi v. Nigerian Bar Association (No. 1) and Ukweni v. Governor of Cross River State prohibit a legal practitioner from simultaneously appearing as a litigant and representing a co-defendant in the same proceeding.
However, the application of the doctrine requires consideration of the actual circumstances of each case. Where a lawyer-litigant appears alongside an independently instructed Senior Advocate of Nigeria/counsel, the court must determine whether the lawyer-litigant actually assumed the prohibited professional capacity.
Where the evidence establishes that the Senior Advocate/counsel independently represented the co-defendant and that the lawyer-litigant did not undertake the professional conduct of that party’s case, there is a substantial basis for distinguishing the circumstances from the prohibited mixture of characters.
The mere appearance of a lawyer-litigant alongside independent counsel should not, without examination of the surrounding facts, be treated as conclusive proof of a violation of Rule 17(5).
FOOTNOTES
- Chief Gani Fawehinmi v. Nigerian Bar Association (No. 1) (1989) 2 NWLR (Pt. 105) 494 at 547.
- Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 19, paras. E–F.
- Chief Gani Fawehinmi v. Nigerian Bar Association (No. 1) (1989) 2 NWLR (Pt. 105) 494 at 547.
- Ukweni v. Governor of Cross River State (2008) 3 NWLR (Pt. 1073) 33 at 47.
- Nwafor Elike v. Ihemereme Nwankwoala (1984) 12 S.C. 301 at 311.
- Famakinwa v. University of Ibadan (1992) 7 NWLR (Pt. 255) 608 at 630.
- Martins v. Federal Republic of Nigeria (2018) 13 NWLR (Pt. 1637) 523 at 535–536.
- Action Congress v. Independent National Electoral Commission (2007) 12 NWLR (Pt. 1048) 222 at 315.
- Independent National Electoral Commission v. Yusuf (2020) 4 NWLR (Pt. 1714) 374 at 410.
