SHIOR v. LOWER BENUE RIVER BASIN DEV. AUTHORITY
(2021)LCN/15584(CA)
In The Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, November 19, 2021
CA/MK/203/2019
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
TERHEMBA SAMUEL SHIOR, ESQ. (Practicing Under the Name And Style Of J. I. Abaagu & Co.) APPELANT(S)
And
LOWER BENUE RIVER BASIN DEV. AUTHORITY RESPONDENT(S)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): The appeal metamorphosed from the judgment of the High Court of Benue State, sitting in Makurdi (hereinafter the lower/trial Court) in Suit No. MHC/141/2018, presided over by Hon. Justice E. N. Kpojime, J. and delivered 30th April, 2019.
At the lower Court, the plaintiff who before us is the appellant had by a writ of summons issued 15th June, 2017 claimed as follows against the defendant (respondent before us):
i. The total bills of charges for all the cases handled for the defendant as per paragraphs 3 and 4 herein in the sum of N16,200,000.00.
ii. The sum of N32,400,000.00 as damages been (sic) the amount that shall make up for the declining and depreciation of the Naira since 2014, when the bills are due OR ALTERNATIVE to i and ii.
iii. The sum of N48,600,000.00 been (sic) the commensurate and comparable value of N16,200,000.00 presently.
iv. Interest on the total judgment debt at the rate of 50% until same is fully paid. (See page 124 of the record of appeal).
The defendant filed and served its statement of defence wherein it prayed the Court as follows: WHEREOF: The defendant prays this Honourable Court to dismiss the claim of the plaintiff as he is not entitled to any of the reliefs sought in his amended statement of claim. The suit is premature and without merit. (See pages 92 – 100 of the record of appeal).
The pleadings in the matter having been exchanged, the parties agreed to waive the pre-trial conference. In consequence thereof, the matter proceeded to trial. The plaintiff testified for himself and tendered a total of 15 documents that were admitted in evidence and marked as Exhibits 1 – 14A respectively. The defendant on her part fielded one witness and tendered documents marked as Exhibits 15 – 18 respectively.
At the end of trial and with the filing and exchange of written addresses by the parties on either side, the learned trial Judge in his considered judgment held that the plaintiff failed to prove his claim hence a dismissal of the claim in its entirety.
Disturbed by the judgment the plaintiff appealed against same vide his Notice of Appeal dated 26th July, 2019. The parties in line with the rules and practice of this Court filed and exchanged briefs of argument. The appellant’s brief of argument dated 12th February, 2020, filed 14th February, 2020 but deemed properly filed 19th January, 2021 was settled by Okpale, S. Ojikpa, Esq., while the appellant’s reply brief of argument dated and filed 18th January, 2021 and deemed properly filed also on 19th January, 2021 was settled by M. A. Owuna, Esq. The respondent’s brief of argument dated 27th April, 2020, filed 28th April, 2020 and deemed properly filed 19th January, 2020, was settled by Dominic I. Nyam, Esq.
From the 7 (seven) grounds of appeal, the appellant distilled the following 4 (four) issues for determination:
i. Whether in view of the pleadings and the totality of evidence presented before the Court below, lower Court was right to dismiss the case of the appellant on the ground that there was no negotiation on the bills contained in the bills of charges. (Grounds 1, 2, 3 and 6).
ii. Whether the learned trial Judge was right to hold that the respondent paid to the appellant the sum of N2,000,000.00 on two different occasions for which the appellant is supposed to issue receipts. (Ground 7).
iii. Whether the learned trial Judge was right to have dismissed the claims of the appellant, which claims are predicated on the provisions of Section 16 (2) of the Legal Practitioners Act, when the conditions for the success of the claims were satisfied by the appellant. (Ground 4).
iv. Whether the learned trial Judge was right to dismiss the consequential claims of the appellant for damages and interest. (Ground 5).
The respondent on its part donated the following 2 (two) issues for determination of the appeal:
1. Whether or not the lower Court considered and resolved all the evidences adduced by both parties before arriving at its judgment/decision. Covers grounds 1, 2, 3, 4 and 6.
2. Whether the judgment of the lower Court is not consistent with the evidence adduced. Covers grounds 5 and 7.
Save for issue 3 as formulated above, I wish to adopt the rest of the issues of the appellant which I deem enough to determine the justice of this appeal. The said issue 3 as well as the issues donated by the respondent can conveniently be subsumed under the appellant’s issues 1, 2 and 4. However, issue 4 is now to read issue 3.
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ISSUE I (ONE)
Whether in view of the pleadings and the totality of evidence presented before the Court below, lower Court was right to dismiss the case of the appellant on the ground that there was no negotiation on the bills contained in the bills of charges.
The appellant submits that by the nature of the claims and the entirety of the evidence led by both parties, it was wrong of the lower Court to dismiss his claims. Appellant contended that by Exhibits 1 – 4 the parties were not agreeable on what was to be paid to him for his services to the respondent. Appellant argued that it was pursuant to his being retained by and as per paragraph 2 of Exhibits 1 – 4 by the respondent, that he forwarded his bills of charges (Exhibits 5 – 12) for the cases he was briefed to handle. That it was because of failure of the respondent to take the necessary action of settling his bills that prompted him to make a demand for payment on the respondent vide Exhibit 13. Appellant canvassed that he also informed the respondent in Exhibit 13 of his desire to take action to recover the debt should the said respondent refuse and or neglected to settle the same. That it was consequent upon the respondent’s refusal and or failure to heed the demand for settlement of the bills of charges that prompted the appellant to institute the action to recover the amounts in the charges, as per the notice in Exhibit 13. Appellant argued that the requirement of the appellant to, “forward your bill for necessary action” did not stipulate that when such bills are forwarded, same shall be subjected to negotiation before being paid. Submits that there was no pleading and oral evidence that the appellant was called for any negotiation before he instituted the action and/or that any such negotiations took place. Appellant submitted that he wrote several reminders to the respondent to which there were no response whatsoever, most especially with reference to any existing practice/custom of negotiation.
The respondent wrote Exhibit 18 calling for out of Court settlement while the case was already pending at the National Industrial Court. Respondent never alluded to any custom/practice of negotiation of the bills of charges submitted by the appellant. The appellant further submitted that the oral evidence of the DW1 should not be used to vary the content of documentary evidence. See Mohammed vs. Umoru (2019) LPELR-47499 (CA) at 16-17, paras. B-F.
Exhibits 1 – 4, 15 and 18 all have nothing in them to bear reference to any custom/practice of negotiation, whether ongoing or anticipatory of payment of the bills. Appellant further submitted that in the absence of any contrary stipulation in Exhibits 1 – 4, the “necessary action” meant is the payment of the amounts presented in the bills of charges as per Exhibits 5 – 12, of which the demand for payment was made vide Exhibit 13 and which failure to make the payment led to the institution of the suit to enforce the payment. Appellant canvassed that the part payment must be deemed to be made with reference to the amounts in the bill of charges. He submitted that the averment of the respondent with respect to negotiation of the appellant’s bills of charges and the evidence relative thereto are contradictory such that same could not have been relied upon by the Court below to accept the defence of negotiation as put forward by the respondent. See paragraphs 2 and 18 of the statement on oath of the DW1. He argued that while paragraph 2 thereof presupposes that the charges for each case are mutually negotiated and agreed upon without the presentation of the bill of charges, the latter statement (paragraph 12) is to the effect that negotiation is only done after the bill of charges are presented. Appellant urged that the lower Court was wrong to rely on the contradictory evidence of the respondent to hold that the bills of charges presented by the appellant are subject to negotiation without which the appellant is not entitled to his claims. With regards to Exhibits 10 and 16, there was no pleadings and/or evidence from the respondent that when the bill of charges in the exhibit was presented the parties negotiated same before the sum of N1,000,000.00 was agreed upon and paid. See the cases of Makaan vs. Hangem (2018) LPELR-44401(CA) at 42-43, paras. B-A., and Etim vs. Akpan (2018) LPELR- 44094(SC) at 34-37, paras. C-B; Stanbic IBTC Bank vs. Longterm Global Capital Ltd.(2018) LPELR-44053(CA) at 49-50, paras. F-D. It was also appellant’s contention that the documentary evidence presented by the parties did not prove or show that negotiation of the bills of charges, was ever contemplated by the parties and/or a requirement of the law.
It was the further submission of the appellant’s counsel that the suit is one for the recovery of the charges of a Legal Practitioner. That a Legal Practitioner shall be entitled to the payment of his professional fees in either or of three ways, namely either by entering into an agreement with his client for the fees to be paid, or a claim predicated on quantum meruit basis or he presents his bills of charges in accordance with the provisions of Section 16(2) of the Legal Practitioners Act, before approaching the Court to recover his fees. See Oyo vs. Mercantile Bank (Nig.) Ltd. (1989) 3 NWLR Pt. 108, pg. 213; and GTB Plc. vs. Anyanwu, Esq. (2011) LPELR-4220(CA) at pg. 24, paras. A-C. Appellant submits that his entitlement to the reliefs sought by him is predicated on the provisions of Section 16(2) of the Legal Practitioners Act, wherein all that is required of him is to submit his bills of charges to his client and wait for month to elapse before approaching the Court to recover his fees. That the Act (supra) never stipulated that the bill of charges will be negotiated before and/or after presentation before payment.
The appellant canvassed that in the instant case, that in presenting his bills of charges (Exhibits 5 – 12) to the respondent, he has complied with the demands of the respondent in their letters of instruction (Exhibits 1 – 4), that he should forward his bill of charges for necessary action and most fundamentally he complied with the provisions of Section 16(2) of the Legal Practitioners Act by delivering his bills of charges to the respondent upon their instruction. Appellant forged further that neither the letter of instruction nor the Legal Practitioners Act made provision for the subjection to negotiation before the bills of charges shall be paid by the respondent.
Appellant contended that upon service of the bills of charges on the respondent in accordance with the provisions of Section 16 (2) of the Legal Practitioners Act, the “necessary action” open to the respondent to take in the matter is either to pay the amounts reflected in the bills or where she objects to any items in the bills, she must apply for the taxation of the bill of charges pursuant to Section 17 (1) of the Law (supra). This must be within one month of the delivery of the bill and Section 17 (3) of the Law (supra) forbids the respondent from applying for taxation of the bill of charges and/or for the Court to grant the order for taxation after the duration of twelve months of the delivery of the bill of charges to the respondent. See Chuka Okoli & Associates vs. Crusader Insurance Co. (Nig.) Ltd. (1994) LPELR-852 (SC) at 16-19, paras. D-A; and Oyekanmi vs. NEPA (2000) LPELR-2873(SC) at 20 – 22, paras. F-E, 42, paras. A-C., pursuant to which the appellant contended that having filed the suit to recover the amounts on the bills of charges well after twelve months of the delivery of the bills to the respondent, the respondent was precluded under Section 17(3) of the Law (supra) from applying for the taxation and the Court from granting the order for taxation. Predicated on the case of Offa Local Government vs. Oladipo (2012) LPELR-15339(CA) at pg. 23, para. D., the appellant urged that the respondent “is bound in law, justice and equity to pay …. for services rendered …. (as) a laborer of any statues (sic), deserves his wages, afortiori …. a skilled Lawyer”. Furthermore, that with “… the old and tested Biblical saying – the laborer is worthy of his hire”, this issue is to be resolved in favour of the appellant and set aside the judgment of the lower Court for being perverse. See Abegunde vs. Ondo State House of Assembly (2015) 8 NWLR Pt. 1461, pg. 314 at 343-344, paras. H-D; James vs. INEC (2015) 12 NWLR Pt. 1474, pg. 538 at 602, paras. C-D and Isaac vs. Imasuen (2016) 7 NWLR Pt. 1511, pg. 250 at 256, paras. C-D.
Learned counsel for the appellant went further to canvass that Exhibits 1 – 5, 15 and 18 in so far as they do not contain any stipulation that the bills of charges shall be subject to negotiation, constitute an estoppel on the respondent to raise the issue of negotiation as a defence and/or for the lower Court to accept same to dismiss the case of the appellant. See NNPC vs. Aminu (2013) LPELR-21396(CA), pg. 50, para. C.
Appellant contended that the defence of negotiation as raised by the respondent is a fraudulent afterthought that ought not to be accepted by the lower Court. That failure of the respondent not to respond to the bills of charges and/or the letter of demand is tantamount to an admission of their content. See Amber Resources (Nig.) Ltd. vs. Century Energy Services Ltd. (2018) LPELR-43671(CA), pg. 15 – 16, paras. F-B., and Onuigbo vs. Azubuike (2013) LPELR-22796 (CA) at 29 – 30, paras. G-E. Appellant urged on us to hold that the respondent having received Exhibits 5-13, business correspondence, and failed and/or refused to make any “express reaction” to same but was rather silent for several years after the receipt of the exhibits, must be “deemed to have admitted the contents, demand or message” in the exhibits. He urged that the judgment be set aside in that respect for being perverse.
Learned counsel went on to submit on the other hand that, where assuming but not conceding, that the issue of negotiation was a precondition for the appellant to be paid his professional fees and therefore to initiate this suit for the recovery of his legal fees, the order of dismissal of the suit was rather harsh on the appellant. This is because an order of dismissal is conclusive of the matters and issues it has decided, unless permitted by the rules such matters or issues can never be re-opened until the order is set aside on appeal. See Nigeria Airways Ltd. vs. Lapite (1990) 7 NWLR Pt. 163, pg. 410, para. G.
Appellant prayed that with the findings of the lower Court, rather than dismiss the suit thereby shutting out the appellant entirely from the temple of justice, it ought to have considered an order of non-suit instead. See Ejiofor vs. Onyekwe (1972) 7 NSCC 724 at 730, lines 35 – 52. Appellant finally called on us to resolve the issue in the appellant’s favour.
ISSUE 2 (TWO)
Whether the learned trial Judge was right to hold that the respondent paid to the appellant the sum of N2,000,000.00 on two different occasions for which the appellant is supposed to issue receipts.
The learned counsel for the appellant submitted that as per the pleadings and evidence adduced by the parties in support, the fact of the part payment of the sum of N2,000,000.00 (Two Million Naira) was not made an issue as to the quantum. What was made an issue, though irrelevant, is the date the part payment was made – whether the 31st of January, 2018 as claimed by the respondent or 23rd January, 2018 as claimed by the appellant. See Exhibits 14A and 15. While Exhibit 14A is a receipt reflecting the said payment made January, 2018, Exhibit 15 reflects the part payment. Appellant urged that we determine only the issues joined by the parties on the pleadings and canvassed by them before the trial Court as to do otherwise would amount to the Court descending into the arena, a stance that would be a breach of the parties’ right to fair hearing. See Adelaja vs. Alade (1999) LPELR-109(SC), pg. 19, paras. B-C and Kode vs. Yusuf (2001) LPELR-1695(SC), pg. 40, paras. A, upon which the appellant placed reliance in urging that we set aside the finding of the lower trial Court as contained at page 193 of the record of appeal to wit: “if the Plaintiff is insisting that the 2m Million was paid on 23/1/2018 for which he issued Exhibit 14A then it mean (sic) that the defendant paid N2 million on 23/1/18 and another N2m vide Exhibit 15 on 3/1/18 for which the plaintiff is yet to issue a receipt.”
Appellant finally urged a resolution of this issue in favour of the appellant.
ISSUE 3 (THREE)
Whether the learned trial Judge was right to dismiss the consequential claims of the appellant for damages and interest.
The contention of the appellant herein is that having completed his professional services to the respondent, and in consonance with the demands of the respondent in Exhibit 1 – 4, he the appellant delivered his bills of charges as per Exhibits 5 – 12 between 2012 and 2016. The appellant again delivered a demand notice vide Exhibit 13, when the respondent neglected and/or refused to take the “necessary action”. Appellant argued that the respondent having admitted that the appellant’s fees were due since Exhibits 5 – 13 were delivered to her, did not tender any correspondent joining issues with the appellant on the bills and/or to refute the appellant’s entitlement to the charges as per Exhibits 5 – 13. Appellant submits that the failure, refusal and/or neglect by the respondent to settle the fees of the appellant as per Exhibits 5 – 13 constitute a breach of the contract of payment on the part of the respondent. Appellant submitted that pursuant to Section 16(2) of the Legal Practitioners Act, he was entitled to approach the Court and recover payment one month after the delivery and twelve months thereafter the respondent shall be foreclosed from applying for taxation of the bills of charges pursuant to Section 17 of the Act (supra). That the default on the part of the respondent entitles the appellant to compensation in damages.
Appellant submits that since the delivery of Exhibits 5 – 13, the value of the Naira has depreciated by 300% that is from N120.00 per dollar then to N390.00 per dollar at the time of the institution of the suit. Appellant urged on us to take judicial notice of the fact since 2014, the value of the naira has been depreciating steadily. See the cases of Mrs. Ganiat Amope Dilly vs. Insp. Gen., of Police (2016) LPELR-41452(CA), pgs. 37 – 39, paras. F-A and Jide Arulogun vs. Comm. of Police, Lagos State (2016) LPELR-40190(CA), pg. 16 – 17, para. B-C.
Relying on the provisions of Order 35 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 2017, the appellant has prayed for the payment of interest on the judgment debt from the date of the judgment at the rate of 50% or not less than 10% per annum. See Bolanle vs. Access Bank (2016) All FWLR Pt. 831, pg. 1405, 1423-1424; Olatunji vs. Owena Bank Plc. (2008) All FWLR Pt. 435, pg. 1783, 1791-1792, paras. F-A and Sections 20(1) and 21(1) of the Sheriff and Civil Process Act. Appellant capped his argument by submitting that there is no evidence whatsoever from the respondent by which the appellant might be dis-entitled to the 50% post-judgment interest claimed. Thus, the post-judgment interest as claimed must be deemed to be admitted and awardable. Appellant prayed that this issue be resolved in favour of the appellant.
In response to the submissions of the appellant, the respondent submitted in the converse that the lower Court was right in dismissing the claim of the appellant after evaluating evidence of both parties in the matter. The respondent canvassed that in line with paragraph 6 of their statement of defence copied at page 93 of the record of appeal, the sum of N1,000,000.00 was paid to the appellant on 25/10/13 instead of the bill of N1,500,000.00 the appellant demanded for handling suit No. MHC/1175/2011. Respondent submitted that as is the custom or practice between the parties, they negotiated and agreed on the sum of N1,000,000.00. See Exhibits 10 and 16, as well as the case of Daggash vs. Bulama (2004) 14 NWLR Pt. 892, pg. 144. Respondent contended that in so far as there was no negotiation yet in the bills covered in Exhibits 5-9, 11 and 12, the appellant was not entitled to be paid the amounts specified in the Exhibits.
The respondent contended that it has been their practice since 1992 when the respondent engaged the services of Messrs. J. I. Abaagu and Company i.e. the appellant that for every case assigned to the law firm, the bill of charges when presented is negotiated and agreed upon before payment is made. The respondent submitted that Suit No. NICN/MKD/64/2013: John Abughul vs. LBRBDA was withdrawn and the parties settled out of Court without the involvement of the appellant as counsel. Respondent canvassed that the appellant would not have been paid N2,000,000.00 since she was yet to negotiate the bill of charges with him. Also that in Suit No. MHC/215/2012: Elder Achi De Nor vs. Engr. (Mrs.) Roseline Ada Chenge, the appellant filed a Memorandum of Appearance and made only one appearance in it before the suit was withdrawn. The bill of charges thereon was yet to be discussed with the appellant contrary to the claim of the appellant that they had settled for the sum of N500,000.00. See paragraph 12 at page 113 of the printed record. Exhibits 1 – 4 are mere letters of engagement and will not contain the amount to be paid. Respondent contended that any bill submitted by the appellant is subject to negotiation between the parties. Such factors as the complexity of the case, the amount of work put into it and how the case ended among other considerations determine the amount payable to the appellant.
With regards to the submission of the appellant that there is no evidence or pleading that the appellant was invited for negotiation before he instituted the action, the respondent submits that both parties never agreed on any time frame in commencing negotiations on any bill of charges presented for each case. Respondent submitted that the parties were still bargaining and were yet to agree on the fees to be paid by the respondent. The respondent also canvassed that there is nothing on the face of Exhibit 15 indicating that the N2,000,000.00 paid to the appellant on 31st January, 2018 was part payment of what the appellant presented as his charges and that this Court cannot presume so. Respondent contended that since she engaged the services of the appellant in 1992, there has been the agreement by both parties that for each bill of charges for each case, it must be negotiated and agreed upon before payment is made. Therefore, the submission of bill of charges is one thing and negotiation is another thing.
Respondent further argued that Exhibit 13 purportedly submitted to her was without detailed information as required by Section 16(2) of the LPA. Respondent listed the following: Suit Nos. MHC/137/11: Hectaves Konsors Ltd. vs. LBRBDA; CA/MKD/192/99: Stephen Agera vs. LBRBDA; FHC/MKD/CS/13/13: Mr. James Ejembi Okefe vs. LBRBDA; and Masung Security Service Ltd. vs. LBRBDA, as matters wherein the bills of charges were yet to be agreed upon before the appellant went to Court. Relying on the evidence of the appellant wherein he stated thus: “bills presented are negotiated but not always”, the respondent submitted that it amounts to admission of fact and therefore requires no further proof. Section 16(2) of the LPA will apply if it is issued properly and there is absence of an existing agreement between the parties. Respondent contended that in the instant case, there is an existing agreement between the parties that for every bill of charges submitted, it must be negotiated before payment is made just like it was the case in Exhibits 10 and 16.
Furthermore, and placing reliance on the authority of GTB Plc. & Anor vs. Anyanwu, Esq. (2011) LPELR-4220(CA), pg. 24, paras. A-C, cited by the appellant, the respondent submitted that when bills of charges or fees are properly brought by the Legal Practitioner in compliance with the provisions of the Legal Practitioners Act, the Court will normally give judgment for the amount of fees so claimed, unless there are other facts preventing it from doing so. Respondent described the appellant as a champertor, hence the judgment of the lower Court dismissing the claims of the appellant is not perverse. Not being in compliance with the provisions of Section 16(2) of the Legal Practitioners Act, (supra), Exhibit 13 purportedly issued by the appellant has no probative value and cannot be relied upon.
The authority ofAbubakar vs. Att-Gen. of the Federation (2008) All FWLR Pt. 441, pg. 870, 980, paras. B-C and other authorities cited by the appellant are inapplicable in the circumstances of this case. Respondent concluded that the appellant failed to submit a valid bill of charges as required by Section 16(2) of the LPA and he failed to exhaust the condition precedent which would have qualified him to institute an action.
On whether the judgment of the lower Court is not consistent with the evidence adduced, the respondent insists that Exhibit 13 was not only fraudulently procured but that same was not properly submitted as required by the LPA and thus falls short of probative value. Respondent argued that detailed information as to how Exhibits 1-9 were conducted and at what stage the matters were concluded is not contained in Exhibit 13 as required by the Act and cannot be relied on by the Court. The respondent cannot then be said not to have responded to the said Exhibit 13 which in itself is nulled in its entirety.
It was the further contention of the respondent that the submission of the appellant that damages be quantified in dollar, should be viewed as the personal opinion of the appellant and which opinion is not backed by the terms and conditions of agreement of both parties and therefore should be discountenanced. Respondent contends that the appellant is not entitled to any damages and or 50% post-judgment interest as there are no circumstances warranting such grant. Respondent reiterated that the appellant failed to observe the tradition between both parties before rushing to Court with his action.
Respondent concludes that the appeal is unmeritorious, that same should be dismissed to allow the parties continue with their discussions and agree on a sum in line with the relationship.
RESOLUTION OF ISSUE 1 (ONE)
Whether in view of the pleadings and the totality of evidence presented before the Court below, lower Court was right to dismiss the case of the appellant on the ground that there was no negotiation on the bills contained in the bills of charges.
It is common ground that the Law Firm of Messrs. J. I. Abaagu & Company wherein the appellant is the Managing Partner, has since 1992 been handling legal matters for the respondent. In line with the relationship, the appellant was assigned to handle some cases after which he sent in his bills of charges totaling N16,200,000.00 and the interest accruable thereon. The respondent is contesting the bills of charges, arguing that they were not due for payment as the precondition to payment was yet to be met with.
Now, Exhibits 1 – 4 as they are before the Court are mere letters of engagement detailing the appellant to handle the following matters:
i. CA/J/192/99 – STEPHEN AGERA vs. LBRBDA & ORS, dated 4th May, 2011;
ii. FHC/MKD/CS/83/2011– LYAMKONDO DOOKAAN vs. ANALEX NIG. LTD. & LOWER BENUE RIVER BASIN DEV. AUTHORITY, MAKURDI, dated 7th FEBRUARY, 2012;
iii. FHC/MKD/73/2012 – MASUG SECURITY SERVICES LTD vs. LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY, MAKURDI, dated 7th February, 2013; and
iv. FHC/MKD/CS/13/2013 – MR. JAMES EJEMBI OKEFE vs. LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY, dated 15th February, 2013.
The appellant subsequently sent Exhibits 5 – 12 respectively to the respondent, being his bills of charges for the aforestated matters. Appellant followed up with Exhibit 13 which is a DEMAND NOTICE, dated 16th December, 2014, wherein he summarized the respondent’s purported indebtedness to him as follows:
S/NO. PARTIES BILL
1. MASUG SECURITY SERVICES LIMITED VS. LBRBDA N2M
2. JOHN ABUGHUL& 38 ORS. VS.LBRBDA & 2 ORS. N2.2M
3. CASTLEGATEINT. (NIG) LTD.VS. LBRBDA & 2 ORS. N4.1M
4. MR. JAMESEJEMBI EKEFE VS. LBRBDA & ORS. N2M
5. STEPHEN AGERA VS. LBRBDA & ORS. N1M
6. ELDER ACHI DE NOR VS.ENGR. MRS. ROSELINE A. CHANGE & ORS. N500,000
7. LYAMKONDO DOOKAAN & ORS VS. ANALEX NIG. LTD & LBRBDA. N1,850,000
TOTAL N14,650,000.
The Demand Notice (Exhibit 13) was with a condition that if the respondent failed to pay up the total sum of N14,650,000.00 (Fourteen Million, Six Hundred and Fifty Thousand Naira) within one week from the date of the letter, the appellant will initiate legal action to recover the debt.
The appellant thereafter issued three official receipts marked Exhibits 14, 14A and 16 respectively to the respondent. Exhibit 14 which is dated 15/12/2017 is in acknowledgment of receipt of the sum of Two Hundred Thousand Naira, being part payment of legal fees, leaving an outstanding fees of N16,000,000.00 and Exhibit 14A dated 23/01/2018 is also an acknowledgement of receipt of the sum of Two Million Naira, being part payment for legal fees, leaving the outstanding fees of N14,000,000.00. Exhibit 15 is a Petty Cash Payment Voucher dated 31/01/2018 wherein the respondent made payment of N2,000,000.00 (Two Million Naira) out of the appellant’s bill of charges. There is also Exhibit 16 dated 25/10/2013 wherein the appellant acknowledged receipt of the sum of One Million Naira being payment of professional fees in suit No. MHC/1175/2016. Exhibit 17 is a certified true copy of circular from the office of the Solicitor General with ref. No. SGF/PS/CIR/625/1/? and dated 16th July, 2003, while Exhibit 18 dated 7th July, 2017 is a letter from the respondent to the appellant.
The case of the appellant in the face of the foregoing exhibits is that notwithstanding receipt of the bills of charges and his demand for payment of the bills reflected thereon, the respondent has failed and or neglected to settle the bills. The respondent while not denying engaging the services of the appellant to represent her in the cases enumerated above and for which those bills of charges were presented, is however, saying that there has been the practice of negotiating the charges before payment to the appellant. It was purportedly in line with the practice and custom of negotiating charges, that the respondent in paragraph 2 of particularly Exhibits 2, 3 and 4 had sought of the appellant to “….forward your bill for necessary action”. At paragraph 6 of her statement of defence, the respondent had pleaded thus:
The practice between Messrs. J. I. Abaagu or the Plaintiff and the Defendant since 1992, when the Defendant engaged the services of Messrs. J. I. Abaagu & Company in handling her matters in which the Plaintiff is a Managing Partner in the said Law Firm has been that, charges for each case handled by the Law Firm, the bill of charges were/are usually negotiated and mutually agreed upon by both parties before fees were/are paid to the Plaintiff per case taking into account the complexity of the case, the amount of work put in by the Plaintiff and how the case ended, among other considerations. (See page 93 of the record of appeal).
See also paragraph 2(ii) of the evidence in chief of Sylvester Nomji, Esq., who testified as DW1 for the respondent. The said evidence contained at pages 110 – 117 of the record of appeal is in line with respondent’s pleadings as set out above. The DW1 in the course of his cross-examination restated their position thus:
“…. Apart from the N1 million paid to the plaintiff (appellant), the defendant (respondent) has not made further payments in respect of the cases listed by the plaintiff before he came to Court. This is because negotiations were still on going. We had agreed on N1m on that particular case after negotiating his initial demand of N1,500,000.00 and we paid him the agreed fees. As for the other cases we’re still negotiating. There is no written agreement that bills sent by the plaintiff must be negotiated before payment is made but is a custom between the parties as no bill has ever been paid without negotiation. Although there was no written document calling the plaintiff to come for negotiations when Exhibits 5-12 were submitted we called him verbally to come for negotiations. He came and this is when Exhibit 10 was negotiated, an agreement reached and he was paid.” [Emphasis mine. (See page 140 of the record of appeal)].
On this thorny issue of prior negotiation or no prior negotiation before bills of charges are settled, the appellant on his part had averred as follows at paragraph 3 of their reply to the Statement of Defence:
The Plaintiff avers ….. that upon the successful discharge of his duties to the Defendant as per her instructions, the bill of charges are submitted which she normally settles immediately without objection and any of the bills she desires should be reduced she immediately call for negotiation of same and pay without delay. At no time after the bills, the subject matter of this suit were delivered to the Defendant and before this suit was instituted, did the Defendant objected (sic) to the bills but was only pleading with the Plaintiff to be allowed her time to pay/settle the bills. This was after the institution of the suit. (See page 118 of the record of appeal).
Under cross-examination, the appellant stated that:
It is not always true that every bill presented must be negotiated…..There were no negotiations on any of the bills before I came to Court. I deny your suggestion that as at the time I came to Court we were still negotiating. (See pages 137 – 138 of the record of appeal).
In construing the foregoing, it does appear that though the bill of charges presented by the appellant may not always be subject of negotiation but at times they are subject of negotiation. The respondent may not have put a direct invitation to the appellant for them to negotiate the bills of charges as presented in Exhibits 5 – 12, all the same the exhibits expressly sought of the appellant to forward his bill for necessary action. “Forward your bill for necessary action” as expressed in the letter, could mean an invitation by the respondent for the parties to bargain and arrive at an agreeable bill, it could also mean for the respondent to make payment of the bills without any form of negotiation. Whatever is the case, the more reasonable construction to be given to the letter is that it is an invitation by the respondent to the appellant to come for negotiation. Negotiation is implied unless expressly excluded by the parties and there is no such express exclusion in the counsel/client relationship between the parties. As rightly submitted by the learned counsel for the respondent, negotiation is made by the parties to take into account the complexity of the case, the amount of work put into the case and how the case ended amongst other variables. I do not in my humble view envisage a situation where bills of charges are open-ended and as such not subject of negotiation or bargain in legal practice and as is being painted by the appellant. To buttress this stance, the respondent in amplification of her averment in her statement of defence, went on to testify as follows:
ii. …. That while the defendant admit that she is a Federal Agency to carry on the development of River Basin and other Agricultural related projects, all the cases she assigned to the Plaintiff to handle on her behalf, she had never negotiated with the Plaintiff that any proposed bills of charges demanded by the plaintiff, she would pay the plaintiff without bargaining the proposed bills of charges demanded by the plaintiff. [(Underlining mine for emphasis). See page 110 of the record of appeal].
The learned counsel for the appellant had latched on to Section 16 of the Legal Practitioners Act to suggest that payment of professional charges is dependent merely on presentation of the bills of charges by the legal practitioner and without the client’s input as to the amount payable by him/her. I do not seem to believe so. I deem it necessary and for purposes of clarity to reproduce the provisions of Section 16 of the Legal Practitioners Act (supra) and it reads:
16 (1) Subject to the provisions of this Act, a legal practitioner shall be entitled to recover his charges by action in any Court of competent jurisdiction.
(2) Subject as aforesaid, a legal practitioner shall not be entitled to begin an action to recover his charges unless-
(a) a bill for the charges containing particulars of the principal items included in the bill and signed by him, or in the case of a firm by one of the partners or in the name of the firm, has been served on the client personally or left for him at his last address as known to the legal practitioner or sent by post addressed to the client at that address; and
(b) the period of one month beginning with the date of delivery of the bill has expired.
(3) In any case in which a legal practitioner satisfies the Court, on an application made either ex parte or if the Court so directs after giving the prescribed notice –
(a) that he has delivered a bill of charges to a client; and
(b) that on the face of it the charges appear to be proper in the circumstances; and
(c) that there are circumstances indicating that the client is about to do some act which would probably prevent or delay the payment to the legal practitioner of the charges, then, notwithstanding that the period mentioned in paragraph (b) of Sub-section (2) of this section has not expired, the Court may direct that the legal practitioner be authorised to bring and prosecute an action to recover the charges unless before judgment in the action the client gives such security for the payment of the charges as may be specified in the direction.
The foregoing provisions have nothing in them to suggest that a legal practitioner such as the appellant herein, upon rendering legal services to his client (respondent herein), is thus imbued with such latitude as to demand bills of charges arbitrarily and without any chance for the client to discuss and agree with him on the amount payable by him. I have found no cause to read such intent into the Legal Practitioners Act (supra).
In any event, upon the receipt of Exhibit 13 (i.e. Demand Notice) of the appellant, it became incumbent on the respondent to, within a reasonable time invite the said appellant for a discussion/negotiation of her indebtedness to the appellant. Exhibit 13 is dated 16th December, 2014 and uptil 15th June, 2017 which is a period of about 30 months when the appellant instituted his action for recovery of the debts, the respondent never saw the need to invite the appellant over to negotiate the bills of charges or in the alternative settle the bills as demanded. In this regard, the meeting purportedly convened on 16th January, 2018 was initiated after the fact of the Court action and therefore belated. The respondent on the one hand failed to settle the bills as sent and on the other hand failed and or neglected to invite the appellant for a conference over the bills of charges and the other incidentals. Since the parties did not negotiate and agree on the amount payable by the respondent to the appellant, it follows that due process was not followed.
The learned trial Judge was thus right when he found and ruled that:
From the totality of the evidence placed before me, I accept the defence of the defendant (respondent) that bills submitted by the plaintiff (appellant) are negotiated before the agreed amount is paid. In so far as there is no negotiation yet in the bills contained in Exhibits 5 – 9, 11 and 12, the plaintiff is not entitled to be paid the amounts contained in these exhibits. The plaintiff has therefore failed to prove that the defendant is owing him the amount of N16,200,000.00 claimed in paragraph 8i of his amended claim. Having failed to prove this main relief, the other consequential reliefs cannot be granted. In conclusion, the plaintiff has failed to prove his claim.……(See page 193 of the record of appeal).
Much as the foregoing findings of facts are right, the learned trial Court’s order of dismissal of the claim in its entirety cannot be allowed to stand. The Court is satisfied that the parties failed to observe their standing tradition of talking to the bills of charges, consequent upon which there was no meeting of minds of both parties regarding the fees payable. It follows that there was a breach of condition precedent to the institution of the action. Being an incompetent action, the proper order to be made by the lower Court in the circumstance is either to strike out or non-suit the action as opposed to a dismissal of same. It is in the light of the reasons above that I shall resolve and answer the question – whether in view of the pleadings and the totality of evidence presented before the Court below, the lower Court was right to dismiss the case of the appellant on the ground that there was no negotiation on the bills contained in the bills of charges, in the negative. The lower Court’s order of dismissal which was rather harsh and wrong in the circumstances is hereby set aside. The issue 1 (one) is resolved in favour of the respondent and against the appellant.
I deem it pertinent to add that I lack the jurisdiction to proceed to determine the rest of the consequential issues raised in this appeal. They are now overtaken by event as they will abide the negotiation by the parties.
Having set aside the order of dismissal, I hereby enter an order striking out the appellant’s claim pursuant to the provisions of Section 14 of the Court of Appeal Act, 2004. Furthermore, the parties are ordered to go back to the drawing board and talk over the bills of charges and reach an amicable settlement as to the fees to be paid by the respondent to the appellant for the legal services covered in Exhibits 5 – 12 and 13. Outcome of the negotiation shall be reduced into writing and filed at the registry of this Court as same shall form the judgment of the Court.
This appeal succeeds in part only.
IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading the draft judgment delivered by my learned brother, HON. JUSTICE C.I. JOMBO-OFO, JCA and I am in complete agreement with his reasoning and conclusion in all the issues raised for determination.
The Plaintiff (now Appellant) claimed against the Defendant (now Respondent) in the lower Court the total Bill of Charges for all the cases he handled for the Defendant in the sum of N16,000,000.00 (Sixteen Million Naira) only. The learned trial Judge in his considered judgment held that the Plaintiff failed to prove that the Defendant was owing him the amount of N16,000,000.00 (Sixteen Million Naira) claimed in his Amended Statement of Claim and that as it is trite law that having failed to prove his main relief, the other consequential reliefs could not be granted.
It is trite law that the onus of proof in civil cases is on a Plaintiff who alleged/asserts the existence of legal right to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant. The Plaintiff must therefore satisfy the Court that upon the pleadings, cogent and Credible evidence adduced by him that he is entitled to the reliefs claimed in the lower Court. See C.P.C vs. INEC & Ors (2011) LPELR — 8257 (SC).
Sections 131-134 of the Evidence Act, 2011 stipulate thus:-
“131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to a any presumption that may arise on the pleadings.
(2) If the party referred to, in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.”
The law is trite and well established that actions in civil matters require proof on the balance of probabilities or on the preponderance of evidence. The Supreme Court has established this principle in a plethora of authorities. See Idu Godwin Emeka vs. Hon. Lynda Chuba- Ikpeazu & Ors (2017) LPELR-41920 (SC); Ehwrudje vs. Warri Local Government & Anor (2016) LPELR-40052 (SC); Onisaodu & Anor vs. Elewuju & Anor. (2006) 13 NWLR (Pt.998) 517 at 527-528. The law is also trite that the standard of proof in civil cases is generally placed on the preponderance of evidence adduced or balance of probabilities and the duty is on the Plaintiff who asserts to adduce evidence in support of his pleadings or assertions. See Ohochukwu vs. A-G Rivers State (2012) 6 NWLR (Pt.1295) 53 and Purification Technique (Nig.) Ltd. vs. Jubril (2012) 18 NWLR (Pt.1331) 109.
Civil matters are decided on the balance of probabilities, as the Plaintiff is not expected to prove his case beyond reasonable doubt but only on preponderance of evidence. See Nsirm vs. Onuma Construction Company Nig. Ltd. (2001) 5 NSCQR 759 at 760 and Peter Adeboye Odofin vs. Dr. B. Jimoh Oni (2001) FWLR (Pt.36) 807 at 817.
In an action for recovery of a Legal Practitioner’s professional fees where there was no written agreement on the fees, the service of a Bill of Charges on the Defendant before the institution of action in line with Section 16(2)(a) and (b) of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 constitutes a condition precedent to the exercise of jurisdiction by a Trial Court. See Evong vs. Messrs Obono, Obono & Associates (2012) 6 NWLR 389.
Usually, Legal Practitioner and his client would agree in advance on Professional Fees or rely on the terms of any agreement reached for payment of his fees at the conclusion of the matter and he would be paid upon the agreed fees. However, where he has not received his fees in accordance with Section 16(1) Of the Legal Practitioners Act (supra), he must first of all, prepare a Bill of Charges or a Bill for the Charges which should duly particularize the principal items of his claim, secondly, he must serve his client with the bill, and thirdly, he must allow a period of one month to elapse from the date the Bill was served. See Rebold Industries Ltd vs. Magreola & Ors (2015) LPELR-24612 (SC); Oyekanmi vs. National Electric Power Authority (2000) LPELR- 2873 (SC) and GTB Plc & Anor vs. Anyanwu, Esq. (2011) LPELR-4220(CA). It is trite law that a Legal Practitioner has a right to be remunerated for his services, he can either be paid in advance upon named fees or rely on the terms of any agreement reached for his fees. However, if he has not received his fees and no agreement was reached as to what they would be, he must submit his bill of charges. See Oyo vs. Mercantile Bank (Nig.) Ltd (1989) 3 NWLR (Pt.108) 213.
The Appellant also claimed general damages against the Respondent in his Statement of Claim. In Haastrup Lines (WA.) Ltd vs. Wiche (2006) All FWLR (Pt.304) 483, the Court held at page 496 paragraphs “C” – “F” as follows:
“General damages are those damages implied in every breach of contract and where no real damage has been suffered, the amount to be awarded is always trifling. From the point of view of proof, general damages are classified into two categories: (1) That in which they (damages) may either be inferred (e.g. in cases of defamation or of personal injury to plaintiff when pain and suffering may be presumed); and (2) That in which they will not be inferred but must be proved (for instance, damages arising by way of general loss of business following an injury)… ” General damages had been held to be the natural consequences that flow from the wrongful act of the Defendant. Such damages do not need to be pleaded or strictly proved as the Court can suo motu at its discretion award same after calculating whatever sum of money will be reasonably justified to compensate the Plaintiff for the wrong he or she had suffered in the hands of the Defendant after taking into consideration the facts and circumstances of the case. See S.P.D.C (Nig.) Ltd. vs. Tiebo VII (2005) 9 NWLR (Pt. 931) 439; Mobile Oil Nig. Ltd. vs. Akinfosile (1969) 2 SCNLR 322; Beecham Group vs. Essdee Food Products (Nig.) Ltd. (1985) 3 NWLR (Pt.11) 112; A-G. Oyo State vs. Fairlakes Hotel Ltd. (No.2) (1989) 5 NWLR (Pt.121) 255 and O.M.T. CO. Ltd. vs. Imafidon (2012) 4 NWLR (Pt.1290) page 332.
On the general principles governing the award of general damages, it was variously held in Taylor vs. Ogheneovo (2012) 13 NWLR (Pt.1316) 46; Garba vs. Kur (2003) 11 NWLR (Pt.831) 280; Ijebu-Ode Local Government vs. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136, that in awarding general damages, the Court will be guided by the opinion and judgment of a reasonable man for as had earlier been stated above, general damages are losses which flow naturally from the Defendant’s act and that each quantum need not be pleaded or proved as same is generally a presumption of law.
Based on the foregoing, it is my humble opinion that the Plaintiff/Appellant herein had established that there was a substantial wrong or miscarriage of justice in the Court below which warrants this Court to interfere with the judgment of the learned trial Judge delivered by Hon. Justice E. N. Kpojime on the 30th April, 2019, dismissing the Appellant’s Claim in the lower Court. Therefore, the decision of the lower Court cannot stand as this appeal succeeds in part only. Consequently, I also set aside the order of dismissal made by the learned trial Judge and enter an order striking out the Appellant’s claim. I also abide by the consequential order that the negotiation of the Bill of Charges shall be reduced into writing and filed at the Registry of this Court for same to form the Judgment of this Court.
YARGATA BYENCHIT NIMPAR, J.C.A.: I have had the privilege of reading in draft the judgment of my brother C. IFEOMA JOMBO-OFO just delivered with which I am in total agreement with both the reasons marshaled and the conclusion reached therein in this appeal. Just for purpose of emphasis, I wish to state that it is trite law that once a condition precedent is incorporated into an agreement by practice, that condition precedent must be before the effect can flow. See the case of NIGERIAN BANK FOR COMMERCE AND INDUSTRY V. INTEGRATED GAS (NIG.) LTD. (1999) 8 NWLR (Pt.613) 119 AT 127 and TSOKWA OIL MARKETING CO. (NIG) LTD V. BANK OF THE NORTH LTD (2002) LPELR-3268(SC). In the instant case, the Appellant being the Managing Partner of Messrs. J. I. Abaagu & Company, handle cases for the Respondent since 1992 and in line with the relationship, the Appellant was assigned to handle some cases after which he sent his bills of charges totaling N16,200,000.00 and the interest accruable thereon. The Respondent is contesting the bills of charges, arguing that they were not due for payment as the precondition of negotiation before payment which is the custom between parties was not met.
From the record of appeal, there is no express agreement that parties must negotiate before payment, however, since parties are used to negotiating before payment, it has become a custom which has the force of law. See the case of EJIKE & ANOR V. ONUZULIKE & ORS (2013) LPELR- 21220(CA) where Custom was defined as:
“A practice that by its common adoption and long unvarying habit has come to have the force of law. Custom or Customary Law has also been defined as a set of rules of conduct applying to persons and things in a particular locality which must be in existence at the relevant time, recognized and adhered to by the inhabitants of the community to make it binding.” per AKEJU, J.C.A.
The essence of custom is in its uninterrupted practice and habit of compliance by the people and it appears that, while the Appellant’s bill of charges may not always be subject to negotiation, they were somewhat. Although the Respondent may not have directly invited the Appellant to negotiate the bills of charges presented in Exhibit 5-12, the Exhibits expressly requested that the Appellant forward his bill for necessary action, which could be interpreted as an invitation by the Respondent to the Appellant for the parties to bargain and reach an agreeable bill. As rightly argued by the Respondent, parties negotiation take into account the intricacy of the case, the amount of time put into the case, and how the case ended, among other variables.
What then is the effect of non-compliance with a condition precedent? The answer that readily comes to mind is that non-compliance by a person means not being legally empowered to institute an action before a Court of competent jurisdiction. Non-compliance will tantamount to not being legally empowered to institute an action. The law is settled that you cannot put something on nothing and expect it to stay there. It will collapse. See MACFOY VS U.A.C LTD (1962) 152, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341 and OKANGI & ANOR V. FATOBA & ORS (2011) LPELR-8786(CA).
However, the trial Judge’s order of dismissal of the claim in its entirety cannot be upheld, being an incompetent suit, the proper order to be made by the lower Court is to strike out the suit rather than dismiss it.
It in the light of the above that I adopt the said judgment as mine. Accordingly, I also hold that this appeal succeeds in parts and abide by all the consequential orders made therein.
Appearances:
S. O. Okpale, Esq., with him, O. M. Iyokpo, Esq. For Appellant(s)
D. I. Nyam, Esq. For Respondent(s)
