AJONYE & ORS v. APC & ANOR (2021)

AJONYE & ORS v. APC & ANOR

(2021)LCN/15174(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, June 03, 2021

CA/MK/202/2019

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. O.M. AJONYE, ESQ 2. SAM ADAMA, ESQ 3. S.O. OKPALE, ESQ APPELANT(S)

And

ALL PROGRESSIVE CONGRESS (APC) 2. HON. JOHNSON BABA ODEH RESPONDENT(S)

RATIO

WHETHER OR NOT WHERE A SUIT IS BEING RETURNED TO THE TRIAL COURT FOR CONTINUATION OF HEARING, THE COURT SHOULD AVOID RESOLVING SUBSTANTIAL ISSUES THAT MIGHT COME UP FOR DETERMINATION

It is in the light of above and in obeisance to the Apex Court’s admonition that when a suit is being returned to the trial Court for continuation of hearing or trial denovo, the Court should avoid resolving substantial issues that might still come up for determination in the interest of justice and to allow the Court below express its opinion on such issues, see the cases of DIOKPA FRANCIS ONOCHIE V. FERGUSON ODOGWU (2006) 2 SCNJ 96; EAGLE SUPER PACK NIG. LTD. V. AFRICAN CONTINENTAL BANK PLC. (2006) 12 SCNJ 159 AND SANI V. NIGERIAN ARMY (2019) LPELR-47692 (CA) where the Court held thus: “Now, having ordered a re-trial, it will be unnecessary to determine the merits of this appeal as this will be prejudicial do the determination of the re-trial of the case. “Per AKOMOLAFE-WILSON, J.C.A. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering The Leading Judgment): This Appeal is against the decision of the High Court of Benue State sitting in Makurdi delivered by HON. JUSTICE S. O. ITODO on the 31st July, 2019 wherein the lower Court dismissed the claim of the Appellants. The Appellants dissatisfied with the decision, filed a Notice of Appeal dated 9th September, 2019 setting out 8 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. The Appellants brought an action via a Writ of Summons against the Respondents claiming that the Respondents engaged their services to challenge the result of the election at the Election Petition Tribunal and to also retain their services to file an appeal. The Appellants accepted the briefs, filed processes and prosecuted the matters to its logical conclusion and even went on appeal against the decision of the Election Petition Tribunal. The Appellant delivered a demand notice to the Respondents in the total sum of N49,000,000.00 (Forty Nine Million Naira) as their professional fees vide two bills of charges. The Respondents only paid the sum of

N300,000.00 (Three Hundred Thousand Naira) leaving out the sum of N48,700,000.00 (Forty Eight Million, Seven Hundred Thousand Naira) outstanding. It was the failure and refusal to pay the balance that resulted in the suit to recover same. The 1st Respondents filed its Statement of Defence and contended that it informed all the candidates that anyone desirous of challenging the outcome of the election should engage a Counsel of his choice and at his cost and not at the cost of the 1st Respondent. The 2nd Respondent also filed his defence and in it, he admitted in its entirety the claims of the Appellant and states that he had been the candidate of the 1st Respondent at the election and was sponsored by the 1st Respondent as his principal who is the one responsible to pay the professional fees of the Appellants, out of which the 1st Respondent paid the sum of N300,000.00. The matter went to full trial. The Appellants called the following witnesses: PW1: OMALE MIKE AND PW2: ATUBU AUSTIN and the Appellants tendered the following Exhibits:
1. EXHIBIT 1: Letter dated 02/12/15 demanding for payment of balance of Professional Charges
2. EXHIBIT 2: Letter

dated 02/12/15 Bill of Professional Charges
3. EXHIBIT 3: Letter dated 19/08/15 Re: Bill of Professional Charges
4. EXHIBIT 4: Letter dated 9/12/15 Re: demanding for payment of balance of Professional Charges
5. EXHIBIT 5: Letter dated 31/12/15 Re: Bill of Professional Charges
6. EXHIBIT 6: Certified True Copy of Judgment with Petition No.: EPT/BEN/HR/14/2015
7. EXHIBIT 7: The receipt issued by Sauma Suites Hotels of Mararaba, Nasarawa State

After due consideration, the Court below dismissed the claims of the Appellants, thus the appeal.

Pursuant to the Rules of the Court, parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellants’ brief settled by OKPALE, SUNDAY OJIKPA ESQ., dated 16th day of January, 2020 and filed on the 11th February, 2020 but deemed on the 17th November, 2020. It distilled 3 issues for determination as follows:
1. Whether in view of the nature of the claim of the Appellants, the pleading, the unchallenged evidence adduced in support and based upon which the Court below held that “Upon the facts set out above, and guided by the now established

principle that facts admitted need no further proof, since admission is the strongest proof in a suit between parties … The Court ordinarily should encounter no obstacle or difficulty in finding in favour of the claim” the Court below was right in dismissing the claim of the Appellants. (Distilled from grounds 1, 2, 5 and 6 of the Notice and grounds of Appeal).
2. Whether in the circumstance of this case the Court below properly considered and relied on the case of AZUASONOGO V. BENUE STATE GOVERNMENT (2019) LPELR-47270(CA) (Distilled from grounds 3, 4 and 7 of the Notice and grounds of Appeal)
3. Whether by the pleading, the unchallenged evidence adduced in support, upon which the Court below held that “upon the fact set out above and guided by the now established principle that facts admitted need no further, proof, since admission is the strongest proof in a suit between”, the Appellants proved their case and are entitled to judgment. (Distilled from grounds 8 of the Notice and grounds of Appeal)
OR ALTERNATIVELY
Whether based on the decided authorities on the professional charges of Legal Practitioners based on

the presentation of bills of charges, the pleading, and the unchallenged evidence adduced at the trial in support, the Appellants have made out a case to be entitled to judgment in terms of their claims. (Distilled from grounds 8 of the Notice and grounds of Appeal)

The 1st Respondent’s Brief settled by SHUAIBU ENEHOH ARUWA, ESQ., dated on the 18th March, 2020 and filed on the 19th March, 2020 but deemed on the 17th day of November, 2020. It formulated 1 issue for determination thus:
Whether in view of the evidence led at the trial Court by the Appellants, the trial Court was right to have held that there was no foundation to sustain the claim of the Appellant as contained in the Writ of summons.

The 2nd Respondent’s Brief settled by A. A. ONOJA, ESQ., dated on the 26th March, 2020 and filed on the 3rd April, 2020 but deemed on the 17th day of November, 2020. He condensed the three issues formulated by the Appellants into 1 issue for determination thus:
Whether in the light of the pleadings, the evidence adduced at the trial, with particular reference to Exhibit 1, 2 and 3 admitted without objection, and by which evidence, in

the light of the fact that the Respondents did not adduce evidence in support of their defence, the Court below held to the effect that the claims/case of the Appellants was admitted and need no further proof… the Court ordinarily should encounter no obstacle or difficulty in finding in favour of the claim of the Appellants, the trial Court was right in dismissing the case of the Appellants”.

Thereafter, the Appellants filed a Reply brief to the 1st Respondent’s Brief of Argument dated 30th March, 2020 and filed on the 3rd April, 2020. The Appellants also filed a Reply to the 2nd Respondent’s Brief of Argument dated 28th April, 2020 and filed on the 4th May, 2020.

APPELLANT’S BRIEF OF ARGUMENT
ISSUE ONE
The Appellants’ submission on this issue is that the trial Judge dismissed the claims of the Appellants on the grounds that the items which form the total sums of the bill of charges are not particularized and pleaded therefore, there is no foundation to sustain the claim as contained in the bills of charges even after holding that “Upon the facts set out above and guided by the now established principle

that, facts admitted need no further proof since admission is the strongest proof in suit between parties”. The Appellants argued that the trial Judge have invariably found that the total sum of N48,700,000.00 claimed by the Appellants as pleaded in paragraph 14 and 15 of the further amended statement of claim, upon which evidence was led in support, was proved by the Appellants which the natural consequence is to enter judgment for the Appellants on the claims pleaded and for the trial Court to make a finding and later hold contrary to the earlier finding amounts to sitting on appeal on her finding, which is not allowed, they relied on FRN V. IWEKA (2011) LPELR-9350(SC). The Appellants avers that assuming without conceding that the trial Judge did not find that the Appellants pleaded the total fees charge the Respondents in paragraph 14 and 15 of the Amended statement of claim, the evidence adduced by the Appellants in support of their case is enough to grant the Appellants their claims. It is the argument of the Appellants that Section 16(2) of the Legal Practitioners Act requires the legal practitioner to deliver their bills of charges to the client with

the particulars of the charges that make up the bill of charges and wait for one month to elapse before approaching the Court to recover the fee in the bill of charges, they placed reliance on GUINNESS (NIG) PLC V. ONEGBEDAN (2013) ALL FWLR (PT. 682) 1741. The Appellant posit that in paragraph 14, 15 and 16 of the further amended statement of claims they pleaded the bills of charges delivered to the Respondents which is in compliance with the provisions of Order 15 Rules 2 of the Benue State High Court (Civil Procedure) Rules, 2007 and the case of BRAWAL SHIPPING (NIG.) LTD. V. F.I. ONWADIKE CO. LTD & ANOR (2000) LPELR-802 (SC).

Continuing, the Appellants contended that they have not only complied Order 15 Rules 2 and 10 of the Benue State High Court (Civil Procedure) Rules, 2007 but also, Order 2 Rules 2(c) and (d) of the Benue State High Court (Civil Procedure) Rules, 2007, which provides that a writ of summon must be accompanied with a witness statement on oath and bills of charges (in matters of recovery of professional fees) which will form part of the pleadings and the evidence which the Appellants are to prove their case, they referred the Court to

OKALI & ANOR V. OKALI & ANOR (2017) LPELR-42838(CA) and INUWA V. BAYERO UNIVERSITY KANO & ANOR (2016) LPELR-41615 (CA). Accordingly, the Appellants avers that at trial PW1 testified pursuant to Order 32 Rules 3 of the Benue State High Court (Civil Procedure) Rules, 2007 where he tendered the bills of charges and was admitted as Exhibit 1, 2 and 3 in accordance to the Rules of the Court, they relied on MMA INC & ANOR V. NMA (2012) LPELR-20618 (SC); NWAEZE V. HON MINSTER OF EDUCATION & ORS (2018) LPELR (CA)-43921 and JFS INVESTMENT LTD. V. BRAWA LINE LTD & ORS (2010) LPELR-1610 (SC). The Appellants submitted that by the fact that the particularization of the items are contained in the bills of charges which was frontloaded with the Writ of summons and statement of claim making part of the pleadings, there is no need to specifically itemize and particularize same in the statement of claim. They cited SKYE BANK PLC V. TUNS FARMS (NIG) LTD (2015) LPELR-25817.

Again, the Appellants argued that, since the bill of charges that was frontloaded, made reference to the total sum of the fees that the Appellants pleaded, the items and particulars that

made up the total sums in the bills of charges are thus, also pleaded, coupled with the evidence of same given at the trial vide Exhibit 1, 2 and 3, the trial Court was wrong to hold otherwise, citing GUINESS (NIG.) PLC V. ONEGBEDAN (SUPRA).

Concluding, the Appellant urge the Court resolve this issue in their favour and to set aside the judgment of the lower Court for dismissing the case of the Appellants.

ISSUE TWO
The Appellants on this issue argued that, the trial Court relied on AZUASONOGO V. BENUE STATE GOVERNMENT (2019) LPELR-47270 (CA) to hold that “evidence must be given to justify the reasonableness of each items on the bill of charges, therefore, the items which form the total sums of the bill of charges are not particularized and pleaded, the evidence adduced in support goes to no issue” thereafter dismissed the claims of the Appellants on the grounds there is no foundation to sustain the claim as contained in the bills of charges. The Appellants submits that the trial Court also held that the Appellants “are legal practitioners who instituted this action to recover their professional fee upon the bill of charges in the

sum of Forty-Eight Million, Seven Hundred Thousand Naira (N48,700,000.00)…with interest pegged at 50% until payment of same which was admitted and needs no further proof” which clearly show that had the trial Court properly evaluated the case of the Appellants, the issue of whether or not the items and their particulars which form the total sum of the fees (N48,7000,000.00) is pleaded in the statement of claim or, whether there were evidence adduced in support or not to entitle the trial Court to rely on the case of AZUASONOGO V. BENUE STATE GOVERNMENT (SUPRA) to dismiss the case of the Appellant would not have arose. Continuing, the Appellants posit that by the pleadings and evidence adduced at the trial Court, the trial Judge was bound to rely on them to determine the suit in favour of the Appellants rather dismissing same and the Appellants urge the Court to hold so, and also cited KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR-1703 (CA).

The Appellants submits that, assuming without conceding that the trial Judge had not held that the Appellants’ claims are for “recover their professional fee upon the bill of charges in the

sum of Forty-Eight Million, Seven Hundred Thousand Naira (N48,700,000.00)…with interest pegged at 50% until payment of same which was admitted and needs no further proof” the trial Court would still have been wrong to rely on the case of AZUASONOGO V. BENUE STATE GOVERNMENT (SUPRA) to dismiss the case of the Appellants because, in the above case, never that the items and their particulars which form the total sum of the fees in the bill of charges must be pleaded in the statement of claim before the Legal Practitioner shall be entitled to his fees, however, the Court held that the provisions of Section 16(2) of the Legal Practitioners Act must be complied with to avail the Legal Practitioner his fees, the Appellants also relied on REBOLD INDUSTRIES LTD V. MAGREOLA & ORS (2015) LPELR-24612(SC) and OYEKANMI V. NEPA (2000) LPELR-2873 (SC) to also submit that it is the bill of charges that requires particularization and the statement of claim. Again, the Appellants argued that, assuming without conceding that the case of AZUASONOGO V. BENUE STATE GOVERNMENT (SUPRA) states that there is need to plead and their particulars provided in the statement of

claim, PW1’s witness on oath has sufficiently covered that as paragraphs 14, 15 and 16 states that the bill of charges were admitted in evidence without objection and same was served on the Respondents (See Page 316 of the Record) and same facts was also repeated in paragraph 14 and 15 of the statement of claim. The Appellants urge the Court to hold that the trial Court was wrong to rely on the case to dismiss the Appellants’ case.

It is the submission of the Appellants that the case of AZUASONOGO V. BENUE STATE GOVERNMENT (SUPRA) relied on by the trial Court is not on all fours with the instant case. In the case of AZUASONOGO V. BENUE STATE GOVERNMENT (SUPRA) the parties joined issues on the pleadings and in the evidence adduced at the trial, the parties disagreed on the services rendered by the Legal Practitioner for which charges were included in the bill of charges, thereafter, the Court of Appeal granted the claims of the legal practitioners (Respondents) and dismissed the claims of the Appellants while in the instant case, all the evidence adduced by the Appellants in support of their claims against the Respondents are not challenged and as held by

the trial Court, the case of the Appellants were admitted which need no further proof, yet the trial Court dismissed their claims, therefore, the Appellants avers that the trial Court’s reliance on AZUASONOGO V. BENUE STATE GOVERNMENT (SUPRA) to dismiss their case was wrong. The Appellant urge the Court to resolve this issue in their favour and to set aside the judgment of the trial Court.

ISSUE THREE
The Appellants on this issue argued that, the trial Judge having found the case of Appellants was not challenged nor controverted and the claims of the Appellants was admitted and needs no further proof ought to have entered judgment because, it is well settled that where evidence given by a party in proceedings is not challenged by the adverse party who had the opportunity to do so, the Court ought to act positively on the unchallenged evidence before it as held in OKEREKE & ANOR V. ABA NORTH LGA (2014) LPELR-23770 (CA) and KOPEK CONSTRUCTION LTD V. EKISOLA (2010) LPELR-1703(SC). The Appellants submits that the holding of the trial Court is perverse and liable to set aside because, the decision is contrary to the findings of the Court. They

referred the Court to KUBURI INTL TRADING CO. LTD & ANOR V. MUSTI & ANOR (2018) LPELR-44004(CA). The Appellant urge the Court to set aside the judgment of the lower Court and to exercise its powers under Section 15 of the Court of Appeal Act by entering judgment for the Appellants as per their claims before the lower Court. The Appellants relied on OWNERS OF M/V GONGOLA HOPE & ANOR V. SMURFIT CASES (NIG.) LTD. & ANOR (2007) LPELR-2849(SC).

The Appellants argued that, assuming without conceding that the case of the Appellants was not held to be admitted by the lower Court, the pleadings and evidence adduced by the Appellants was sufficient to grant their claim and the trial Judge erred in law to have dismiss the case of the Appellants. The Appellants restated the facts of the case from their engagement by the Respondents, the delivery of the bill of charges to the Respondent and their receipt of N300,000.00 from the Respondents. According to the Appellant, it is law for a legal practitioner who desire to recover his charges must comply with the provision of Section 16(1) of Legal Practitioners Act. Relying on REBOLD INDUSTRIES LTD V. MAGREOLA & ORS

(2015) LPLER-24612 (SC). It is the argument of the Appellants that the evidence on records clearly shows that the Appellants satisfied the Trinitarian conditions mentioned above to be entitled to institute this action to recover their fees upon bill of charges and the principal items that made up the bills are particularized and fees assigned to each as required. And also, the Appellants posit that Exhibit 1, 2 and 3 having been tendered and admitted in evidence without any objection from the Respondents and there being no evidence from the Respondents in any respect, adversely affecting the efficacy of the Exhibits, the content must be deemed admitted by the Respondents and the basis upon which the trial Judge ought to have accepted and act upon same to enter judgment for the Appellant as claimed, per the bills of charges, the Appellants referred to G.T.B. PLC & ANOR V. ANYANWU, ESQ (2011) LPELR-4220(CA) and GUINNESS (NIG) PLC V. ONEGBEDAN (SUPRA). The Appellants contends that the 1st Respondent did not give evidence in support of its defence, which was thus deemed abandoned and the 2nd Respondent rested his case on that of the Appellants, this led

the lower Court to hold that the case of the Appellants was admitted and need no further proof. The Appellants further contends that, there are thus, no factors presented before the Court by the Respondents for the Court not to enter judgment for the Appellants for the amount of the fees claimed in the bill of charges plus the interest claimed.

The Appellants avers that their claim is for the total sum N48,700,000.00 (Forty Eight Million, Seven Hundred Thousand Naira) with interest at the rate of 50% per annum from the date of judgment until same is paid however, the trial Court dismissed the claims of the Appellants on the ground that the claims are not ordinary but regulated by statute, requiring the satisfaction of certain conditions for its success and that since the items that made up the bills of charge are not particularized and pleaded the evidence adduced in support goes to no issue. This finding of the trial Court, according to the Appellants was proved to be wrong as the items need not to be specifically particularized and pleaded. The Appellants submits that the Court is empowered by the provisions of Order 34 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 2006

to award interest at the rate not less than 10%, that is, the rule states the minimum below which the Court cannot go and the upper limit was left at the discretion of the Court, they relied on BOLANLE V. ACCESS BANK PLC (2015) LPELR-40994 (CA) and GWARZO V. FUNTUA (2018) LPELR-44793 (CA).

The Appellants urge the Court to set aside the judgment of the lower Court and enter judgment for the Appellants as per their admitted claims.

1ST RESPONDENT’S BRIEF OF ARGUMENT
ISSUE ONE
The 1st Respondent in arguing its sole issue avers that he who asserts must prove and the burden of proof as provided by Section 133 of the Evidence Act, 2011 is on the party who will fail if no evidence is given on either side, citing OYOVBIARE V. OMAMURHOMU (1999) 10 NWLR (PT. 621) 23. Continuing, the 1st Respondent restated extensively the principle of proving civil cases before the trial Court and the principle of law that a party must not rely on the weakness of his opponent in order to succeed as encapsulated in AGBI V. OGBEH (2006) 11 NWLR (PT. 990) 65 (SC); ALH. OTARU & SONS LTD. V. IDRIS (1999) 6 NWLR (PT. 606) 330;

ATANE V. AMU (1970) 10 SC; IMAM V. SHERIFF (2005) 5 NWLR (PT. 914) 80. The 1st Respondent reproduced the claim of the Appellants at the lower Court which is contained at page 6 of the Record of Appeal to submit that the law regulating an action for recovery of professional fees such as the one instituted by the Appellants before the trial Court is the Legal Practitioners Act, especially Section 16(2) of the Act which provides for the Trinitarian precondition which must be satisfied by the party seeking to recover his professional fees and they are: (i) Preparing a Bill of Charges; (ii) Serving his client with the said bill of charges; and (iii) Allowing a period of one month from the date of such service before instituting a case in Court as held in OYEKANMI V. NEPA (2000) NWLR (PT. 690) 414 and REBOLD INDUSTRIES LTD V. MAGREOLA & ORS (2015) LPELR-24612 (SC). Continuing, the 1st Respondent submits that in satisfying the first condition, the party preparing the Bill of Charges must ensure that he particularized each item on the bill which form the total sum of the fees as held by the Supreme Court in S.B.N V. OPANUBI (2004) LPELR-3023; OYEKANMI V. NEPA (SUPRA)

and the Court of Appeal in AKINGBEHIN V. THOMPSON (2008) 6 NWLR (PT. 1083) 270. The 1st Respondent avers that the Appellant tendered Exhibit P1-P3 which is the purported Bill of Charges in proving of the amount the Respondents are allegedly indebted to them, however, Exhibit P1-P3 was revealed to have fallen short of the requirements enunciated by the Supreme Court in S.B.N V. OPANUBI (SUPRA) and the Court of Appeal in AZUASONOGO V. BENUE STATE GOVERNMENT (2019) LPELR-47270(CA).

The 1st Respondent submits that, assuming without conceding that the Bill of Charges prepared by the Appellants is proper before the Court, can the Appellant validly demand for professional fees from the 1st Respondent even where it is evident that the 1st Respondent did not briefed the Appellants? The answer is in the negative. The 1st Respondent avers that in its statement of Defence contained at pages 86 of the Record of proceedings, the 1st Respondent by a letter dated 21st August, 2015, had informed the Appellants that they were not briefed by the 1st Respondent, therefore not responsible for their professional fees, despite the letter, the Appellants went ahead to appeal the

decision of the Election Tribunal and turn around to claim their professional fees from the 1st Respondent. The 1st Respondent submits that the said letter was not tendered as a result of being foreclosed, however, it was attached to the Statement of Defence and the trial Court can rely on it even as it was tendered and admitted as an Exhibit at trial, relied on AKINOLA V. VC, UNI-ILORIN (2004) 11 NWLR (PT. 885) 616; AGBAISI V. EBIKOREFE (1997) 4 NWLR (PT. 502) 630 and AGBAHOMOVO V. EDUYEGBE (1999) 3NWLR (PT.594) 170.

The 1st Respondent argued that there was no contract between the Appellant and the 1st Respondent, as all the ingredients needed to make a contract valid are absent, referred to DODO V. SALANKE (2006) NWLR (PT. 986) 447; OMEGA BANK (NIG.) PLC V. O.B.C. LTD (2005) 8 NWLR (PT. 928); AMANA SUITS HOTEL LTD V. P.D.P (2007) 6 NWLR (PT. 1031) 453; AKINYEMI V. ODU’A INVESTMENT CO. LTD. (2012) LPELR-8270(SC) and DAME PAULINE K. TALLEN & ORS V. DAVID JONAH JANG & ORS (2011) LPELR-9231(CA) in support. The 1st Respondent submits that, in proving the Appellants’ case, they tendered the bill of charges as Exhibits P1-P3 without establishing

same either orally or in their statement on oath nor did they tie the alleged bill of charges to their claim, relying on OKEREKE V. UMAHI & ORS (2016) LPELR-40035 (SC). The 1st Respondent avers that, it is the duty of the Appellants to prove that the Exhibits P1-P3 were in strict compliance with the provision of Section 16(2) of the Legal Practitioners Act, which they failed to do so and the effect of failure to lead evidence to established their claim is that the action cannot succeed as the law is settled that where a party fails to lead evidence in proof of his claim, the implication of same is that such claim must fail, relied on OSHAFUNMI & ANOR V. ADEPEJU & ANOR (2016) LPELR-41165 (CA). The 1st Respondent further submits that the Appellant failed to prove their case at the trial Court and also urge the Court to dismiss the Appellant’s case.

The 1st Respondent submits that the Appellants argued extensively that the 1st Respondent failed to enter its defence at the trial Court and thus, had admitted the claim of the Appellant, however, it is trite law that where a Plaintiff failed to prove his case, a defendant is not obliged to enter

into the witness box to defend same, referred to FAIRLINE PHARMACEUTICAL INDUSTRIES LTD. & ANOR V. TRUST ADJUSTERS NIG. LTD. (2012) LPELR-20860(CA). The 1st Respondent aver that, the Appellant have woefully failed to establish their claim and by the state of the Appellants’ pleadings, their case was dead on arrival, relying on GABRIEL O. OKESHOLA V. THE MILITARY, GOVERNOR OF OYO STATE & ORS (2000) 13 NWLR (PT. 685) 494 and RENE ANTOUN & ANOR V. BENSON OGHENE (2012) LPELR-8502 (CA). Furthermore, the 1st Respondent submits that irrespective of whether or not the 1st Respondent entered a Defence, the initial burden of proving the Appellants’ case at the trial Court in accordance to Section 133 of the Evidence still rested heavily on the Appellants, failure of which was fatal to their case. The 1st Respondent urge the Court to resolve the sole issue in favour of the 1st Respondent, to discountenance the Appellants’ submission, to uphold the decision of the trial Court and dismiss this appeal.

2ND RESPONDENT’S BRIEF OF ARGUMENT
ISSUE ONE
The 2nd Respondent recaptured the facts of

the case to submit that it is based on these facts that he rest his case on that of the Appellants. Reproducing the portion of the trial Judge holding on admitted facts, the 2nd Respondent submitted that it is trite that what is admitted needs no further proof and by this the Courts are bound to rely on it in deciding the dispute between the parties, he referred the Court to the case of ADUSEI V. ADEBAYO (2012) ALL FWLR (PT. 627) and NWANKWO V. JUBRIL (2012) ALL FWLR (PT. 646) 483. The 2nd Respondent placed reliance on OGBIRI V. N.A.O.C. LTD (2011) ALL FWLR (PT. 577) 810 to argue that, with respect to the case and claim of the Appellants, the trial Judge ought to have proceeded to enter judgment for the Appellants as per the facts and claim it held admitted, he also relied on VICTABIO VENTURES LIMITED V. W. VAN DER ZWAN & Z.N.B.V. (2009) ALL FWLR (PT. 470) 756. It was the submission of the 2nd Respondent that he is mindful of the traditional role of a Respondent in an appeal which is to support the judgment appealed against, however, pursuant to Order 19 Rule 4 (2) of the Court of Appeal Rules, 2016, a Respondent is allowed to concede to the points raised by

the Appellants, therefore, he totally supports the judgment of the lower Court where it held that the facts and evidence of the Appellants case were admitted and also conceded to the arguments of the Appellant that having held that facts and evidence of the Appellants case were admitted, the trial Court ought to have entered judgment for the Appellants as per their claims clearly identified by the Courts as admitted. He also referred the Court to OLADIPUPO V. FGN (2014) LPELR-23508(CA).

The 2nd Respondent submitted that, having exercised his right to concede, he must now support the judgment by giving reason why this appeal must be dismissed. The 2nd Respondent argued that the trial Court held that the Claim of the Appellants is not an ordinary claim, but one that is regulated by the provisions of the Legal Practitioners Act, which the Appellant did not comply with, he refer the Court to the authority in ALPHA PROPERTIES INT’L LTD V. NDIC & ORS and urge the Court to dismiss the claims of the Appellants having failed to comply with Rules of Legal Practitioners Act.

Concluding, the 2nd Respondent urged the Court to dismiss the appeal and to

uphold the judgment of the lower Court.

APPELLANTS’ REPLY BRIEF TO THE 1ST RESPONDENT
The Appellants submits that, it is the contention of the 1st Respondent that actions for recovery of professional fees is regulated by Section 16(2) of the Legal Practitioners Act and the authorities cited and relied on identified the Trinitarian preconditions that the Appellants must be satisfied in order to succeed in their claims. Also, the Appellants posit that the 1st Respondent argued that the period of one month from the day the 1st Respondent is served with the Exhibit P1-P3 must elapse before the Appellants can institute an action.

The Appellants argued that, it is trite law that a business letter such as Exhibits P1-P2 demands a response by the recipient if he does not agree with the content of the letter, they refer the Court to the case of DOYIN MOTORS LTD V. S.D.P.C (NIG) LTD. (2018) LPELR-44108(CA) and AMBER RESOURCES (NIG.) LTD V. CENTURY ENERGY SERVICES LTD (2018) LPELR-43671(CA) to support his submission and also urge the Court to hold that the 1st Respondent have admitted that the Appellants have satisfied the

Trinitarian preconditions to be entitled to judgment. having failed to respond to their letters. The Appellants placed reliance on KEYSTONE BANK LTD V. MR. PHILIP SHAGBA IGBADOO & ANOR Unreported decision of this Court in Appeal No.: CA/MK/54/2015 delivered on the 2nd day of July, 2018. The Appellants contends that Order 19 Rule 4(2) provides that a Respondent shall answer all material points raised in the Appellant’s Brief and where the Respondent did not raise issue(s) from the grounds of appeal or failed to respond to the issues raised in the Appellant’s Brief, the Respondent must in the circumstance be deemed to have conceded to and admits the arguments contained in the Appellant’s brief of argument. The Appellants relied on AJOMALE V. YADUAT & ANOR (1991) LPELR-306 (SC); INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR-1510 (SC); NWANKWO & ANOR V. YAR’ADUA & ORS (2010) LPELR-2109(SC); MOBIL OIL (NIG) PLC V. MOHAMMED & ANOR (2018) LPELR-43667(CA); ALHAJI M.K. GUJBA V. FIRST BANK OF NIGERIA PLC & ANOR (2011) LPELR-8971(CA) and AYODELE V. IGP & ORS (2016) LPELR-42937(CA). It is the submission of the

Appellants that, they formulated three issues from the nine grounds of appeal and argued same accordingly, however, the trial Court having held that the claims have been admitted and needs no further proof, it relied on the case of AZUASONOGO V. BENUE STATE GOVERNMENT (2019) LPELR-47270(CA) to hold that the items and particulars that make up the bills of charges are not pleaded, therefore, Exhibit P1-3 goes to no issue. On the other hand, the 1st Respondent rather than responding to or proffering counter argument to those of the Appellants, formulated a lone issue and argued same on point that are not related to the argument of the Appellants, therefore, the Appellants urge the Court to hold that the 1st Respondent conceded, accept and admits the Appellants’ argument and the appeal should on that basis be allowed. The Appellants referred the Court to OYEBODE & ANOR V. GABRIEL & ORS (2011) LPELR-8693(CA) and EJIKEME V. NWOSU (2001) LPELR-5494(CA).

The Appellants submits that the 1st Respondent reproduced the provisions of Section 16(2) of the Legal Practitioners Act to submit that mere tendering a bill of charges without particularizing same, falls

short of the precondition and that merely tendering of bill of charges without showing to the Court the particulars of such a bill either by oral evidence or statement on oath is not sufficient, by this, the Appellants have failed to discharge the burden of proof placed on them. In responding to the 1st Respondent’s argument, the Appellants submits that they have discharged the initial burden of proving their case with reliable and credible evidence which made the lower Court, after identifying the nature of the claims of the Appellants which is for recovery of the balance of their professional fees in the sum of N48,700,000.00 plus post judgment interest of 50% and in the light of the unchallenged evidence, adduced in support with no counter evidence from the Respondent, held that the case of the Appellants was admitted and need no further proof, since admission is the strongest proof in a suit between parties. The Appellants urge the Court to discountenance the argument of the Respondent that the Appellants did not discharge the initial burden placed on them by the Evidence Act because, based on the holding of the trial Court, the Respondent must be deemed to have

admitted and accepted that finding as unassailable, relied on MTN V. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPLER-47042 (SC).

According to the Appellant, the lower Court did not dismiss the case of the Appellants for want of fulfillment or satisfaction of the Trinitarian pre-conditions by the Appellants, therefore, it is not an issue before the Court to entitle the Respondents attack the bills of charges tendered before the lower Court as Exhibits P1-P3 in whatever respect. The Appellants avers that the Respondents at the trial did not cross examined the Appellants’ witnesses on the bill of charges tendered and admitted without objection in any respect whatsoever, so as to indicate or suggest that any of the Trinitarian preconditions was not met by the Appellants, in consequence of which it must be deemed on the authority of OFORLETE V. STATE (2000) LPELR that the Respondents has admitted the fact that the Appellants have satisfied the Trinitarian precondition to approach the Court below to recover their charges. They submitted that it was indeed, the evidence adduced at the trial that fortified the trial Court to hold that the case of the

Appellants was admitted and needs to further proof, since admission is the strongest prove of the suit between parties. the Appellants asserts that, it is not the absence of evidence of the items and the particulars that make up the total sum in the bills of charges based, upon which the Appellants approached the Court below to recover their fees that prompted the Court to dismiss their case but that the evidence of the items and the particulars that made the total sums in the bills of charges (Exhibits P1-P3) was available as held by the trial Court.

The Appellants’ further submission, assuming without conceding, that even if the Bill of Charges did not conform with any of the requirements of the provisions Section 16(2) of the Legal Practitioners Act, with particular reference to particularization/itemization, same cannot operate to nullify or render the bills of charges incompetent so as to deprive the Appellant from claiming their charges with respect thereof without an objection from the Respondents either before or at the trial, this is because, without any such objection the Respondents must be deemed to have waived her right to any defect in bills of

charges. They referred OYEKANMI V. N.E.P.A (2000) LPELR-2873; AKINGBEHIN V. THOMPSON (2007) LPELR-8168 (CA) and GUINNESS (NIG.) PLC V. ONEGBEDAN (2013) ALL FWLR (PT. 682) 1741. The Appellant avers that the 1st Respondent relied on paragraph 12 of her Statement of Defence and a letter dated 21st day of August, 2015, to argue that it never briefed the Appellants to handle any matter for them, however, the Appellants submits that they cannot validly demand for professional fees from the 1st Respondent where it is evident that the 1st Respondent did not brief the Appellants, they have pleaded these facts in paragraphs 5-13 of their further Amended Statement of Claims which was unchallenged and uncontradicted by the 1st Respondent, thereby, the trial Court held that, the case of the Appellants was admitted and needs no further proof. They referred the Court to FIRST BANK OF NIGERIA PLC V. NDOMA EGBA (2005) ALL FWLR (PT. 307) 1012. The Appellants further argued that the 1st Respondent contends that, by not briefing the Appellants to handle any matter for them, therefore, there was no contract between the parties to entitle the Appellants to claim their professional

fees from the 1st Respondent, however, the Appellants submitted that, it is trite that where a party to suit did not adduce evidence in support of his pleading and did not tender a particular document pleaded in evidence, the pleading is deemed abandoned and the untendered documents cannot be used by the Court in the determination of the dispute between the parties, consequently, the situation in the instance case is such as the Court cannot look at her records to utilize a process or document to determine the dispute between the parties. They relied on RAJCO INT’L LTD V. LE CAVALIER MOTELS & RESTUARANTS LTD & ORS (2016) LPELR-40082; ADDEH V. ONAKOMAIYA (2016) LPELR-41644 (CA); MATHEW V. STATE (2019) LPELR-46930 (SC); NITT & ORS V. SHITTU (2015) LPELR-25926 (CA) and OROGUN & ANOR V. FIDELITY BANK (2018) LPELR-46601(CA).The Appellants urge the Court to discountenance the arguments of the Respondent in her brief of argument, uphold the appeal and enter judgment for the Appellants in the terms of their claims before the lower Court, same having been held admitted and against which finding there is no appeal.

APPELLANTS’ REPLY BRIEF TO THE 2ND RESPONDENT
The Appellants submits that the 2nd Respondent in furtherance of his traditional as a Respondent relied on Order 19 Rules 4 (2) of the Court of Appeal Rules, 2016, to support and concede to the material points of substance raised by the Appellants. The Appellants admonished the Court not to be in a dilemma as to what prayers to urge the Court in this circumstance rather than to allow the appeal and set aside the judgment of the trial Court based on the concession of the 2nd Respondent, the Appellants relied on DINGYADI V. INEC (2011) ALL FWLR (PT. 581) 1426. The Appellants urge the Court to discountenance the prayers of 2nd Respondent urging the Court to dismiss this appeal because, he failed to give reasons why the appeal should be dismissed as he conceded to the argument of the Appellants, they placed reliance on DELTA STATE AGRICULTURAL DEVELOPMENT PROGRAMME, IBUSA & ORS V. OFONYE (2008) ALL FWLR (PT. 402) 1068; AKPAN V. UBN (2009) LPELR-4992(CA) 15-16; AJI V. ABBA & ORS (2014) LPELR-24362 (CA) and OLOGUN V. FATAYO (2012) LPELR-9298(CA). The Appellants asserts that, the concession of 2nd Respondent extended to 1st

Respondent because, the 1st Respondent being the sponsor of the 2nd Respondent have agreed to be responsible for the 2nd Respondent, they cited P.P.A V. SARAKI (2007) 17 NWLR (PT. 1064) 453. The Appellants urge the Court to uphold the appeal, set aside the judgment of the lower Court and enter judgment as per their admitted claims before the lower Court, even as supported and conceded to by the 2nd Respondent.

RESOLUTION
This is an appeal against the final judgment of the trial Court. There is a sister appeal in Appeal No: CA/MK/204/2020 Between ALL PROGRESSIVE CONGRESS (APC) V O. M. AJONYE ESQ & 3 ORS, the same parties over the same subject matter, which is an interlocutory appeal against a Ruling wherein the trial Court declined to set aside proceedings conducted over a number of days, some of which the 1st Respondent was not served with a Hearing Notice as required and in order to satisfy fair hearing requirements. The Court having considered the appeal, found it meritorious and set aside part of the proceedings leading to the final judgment, which is the subject of this appeal. The judgment in that sister appeal was just delivered. The Court

having found that proceedings from 25th February, 2019, up to when judgment was conducted without jurisdiction also means the judgment appealed herein must be struck out for want of jurisdiction. The merit of the appeal therefore, cannot be considered because, the proceedings leading to the judgment has been set aside. The judgment has no foundation to stand on and more so, the Court in the sister appeal has returned the suit to the Court below for continuation of hearing from where the Court below clothe with jurisdiction stopped and to continue to determine the suit on the merit upon serving the required hearing notices.

(2019) LPELR-47692 (CA) where the Court held thus:
“Now, having ordered a re-trial, it will be unnecessary to determine the merits of this appeal as this will be prejudicial do the determination of the re-trial of the case. “Per AKOMOLAFE-WILSON, J.C.A.

In the light of above and in view of the judgment in the sister appeal, this appeal is hereby struck out. Parties are returning to the trial Court therefore, each party to bear his cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Hon. Justice Y.B. Nimpar, JCA; and I am in complete agreement with his reasoning and conclusion that the appeal should be struck out for want of jurisdiction. This is because, there was a sister Appeal No. CA/MK/204/2020 before this Honourable Court, that had been succeeded and the Reliefs sought by the Appellant had been granted; setting aside the proceedings leading to the judgment appealed against herein.

On the whole, I also strike out the Appeal for want of jurisdiction and remit the substantive matter to the lower Court for the continuation of hearing and determination of the

subject-matter on the merit. I also abide by the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now, the lead judgment just delivered by my learned brother NIMPAR, JCA., and I agree with the reasoning and conclusions reached therein.
The appeal is struck out.

I abide by the consequential order as made in the leading judgment.

Appearances:

A.O. ATUBU For Appellant(s)

J.T. USMAN WITH HIM, O.M. OMALE, ISIAKA KADIRI and A.A. OSENI – FOR 1ST RESPONDENT
M.M. NGORNGOR – FOR 2ND RESPONDENT For Respondent(s)