Client/Counsel Relationship: Agency or Independent Contractor?


By Olumide Babalola

I have procrastinated on this article for so long but it keeps staring me in the face at different fora and intervals, hence this hurriedly-strung piece on the issue.

Superficially, the relationship between a lawyer and his client ordinarily looks simple, since it is contractual in nature, however, in certain circumstances, there may be far-reaching consequences where the lawyer’s authority is put to test. Perhaps, this explains to the divergent positions of our apex court, as would be considered below.

In the late eighties, on the nature of Client/Counsel relationship, the court held in Adewunmi v Plastex (Nig.) Ltd. (1987) 1 NWLR (Pt. 32) 767; (LPELR) 164 (SC) that:

“Hence the actual legal relationship between counsel and his client is akin to that of an employer and an independent contractor. It is not between one of principal and agent. It is conceded that where the client gives specific instruction to counsel, such specific instructions must be adhered to. Where there is conflict with the manner of discharging his duties the client or counsel may decide to terminate the relationship. Where counsel is in control of the conduct of a case, his authority extends, when not expressly limited, to the action and all matters incidental to it and to the conduct of the trial to its finality, in what in his opinion is in the best interests of his client.” (Emphasis mine)

Later in 1993, following the same path, the court again held in Edozien v Edozien (1993) LPELR – 1020 (SC) that:

“There is the usual dominant and general instruction to Counsel to conduct the litigation in court to finality. In carrying out this instruction, counsel functions as an independent contractor who exercises his skill and judgment and is free to act as he considers fit within the instruction in the interest of his client, -See Performing Right Society Ltd. v. Mitchell & Booker Palais de danse Ltd. (1924) 1 KB.762 Counsel acting within the scope of his authority express or implied can bind the client . This was the position in Mathews v. Munster (1888) 20 QB.D.141.” (Emphasis mine)

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While maintaining same stance in the year 2001, the court held in Afegbai v AG Edo State (2001) LPELR – 193(SC) that:

“The nature of the legal relationship between counsel and his client, which exists in this case between plaintiff and PW1, his counsel, is one of an Independent Contractor and not one of principal and agent – See Performing Right Society Ltd. v. Mitchell & Booker Palais de Danse Ltd. (1924) 1KB 762 at p. 765 per Mc Cardie J. It is not that of Master and Servant. Counsel is clearly not a servant of his client.”

Against the run of its earlier decisions, especially in Afegbai’s case above where it was expressly held that the relationship is not that of principal and agent, the court took a sharp turn in the more recent case of Ogboru v Uduaghan (2013) LPELR -20805(SC) where Chukwumah-Eneh, JSC (as he then was) did not mince words when his lordship, while ruling on how a counsel binds his client, held that:

“It is settled that the relationship that arises from a litigant instructing a solicitor to act on his behalf in a Court proceeding (as the instant one) gives rise to a solicitor and client relationship otherwise founded on agency and in strict confidence…

It cannot be otherwise as counsel is supposed to operate within his instructions and thus stave off the unnecessary embarrassment in Court of counsel constantly having to be seeking further instructions as issues keep cropping up in Court in the course of the proceedings.” “It is settled that the relationship that arises from a litigant instructing a solicitor to act on his behalf in a Court proceeding (as the instant one) gives rise to a solicitor and client relationship otherwise founded on agency and in strict confidence. By this relationship, counsel rightly takes over completely the control and conduct of his client’s case in Court and this situation underscores the proposition of the presumption though rebuttal that once counsel has announced his appearance in Court as counsel representing acting on behalf of a litigant in any proceedings before the Court, counsel is presumed not only to be legally qualified qua counsel to act in that capacity but also in doing so he is taken as having been fully instructed to act in the matter in the proceedings.”
I must observe that based on decided authorities, it is settled that counsel as the ostensible agent of his client binds his client where he makes a compromise or settlement during the course of a trial; in that case the client is bound even though he has given his counsel no authority to do so. This view is solidly founded on the case of Strauss v. Frances (1866) L.R. 1 Q.B. 379.” (Emphasis mine)

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Conclusively, as the writer could not lay his hands on a more recent decision that Ogboru’s case on this issue, it is safe to assume that same represents the current position of our laws until the contrary is established. See Kanu v Asuzu (2015) LPELR – 24376 (CA). Although, as tricky as it may appear, if the Supreme Court’s decision in Ogboru’s case remains the most recent on the issue, then a Counsel is an agent of his Client and of course, with far-flung consequences for both parties in terms of their actions and inactions.


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