GUARANTY TRUST BANK PLC. & ANOR V. UDOKA ANYANWU, ESQ.
(2011)LCN/4694(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of July, 2011
CA/E/82/2006
RATIO
CONTRACT: WHAT IS A CONTRACT; INGREDIENTS OF A VALID CONTRACT
A contract is an agreement which the law will enforce or recognize as affecting the legal rights and duties of the parties. A contract is also a promise or set of promises the law will enforce – see Sagay, Nigerian law of Contract. There are five ingredients that must be present in a valid contract: offer, acceptance, consideration, intention to create legal relationship and capacity contract. All the five are autonomous and equal in the sense that a contract cannot be formed if any of them is absent. In other words, for a contract to exist in law, all the five ingredients must be present – see Orient Bank (Nig) Ltd. v. Bilante International Ltd. (1997) 8 NWLR (Pt.515) 37, B.F.I.G. V. B.P.E (2008) ALL FWLR (Pt.416) 1915 and Metibaiye V. Narelli International Ltd. (2009) 16 NWLR (Pt. 467) 326. PER AMINA ADAMU AUGIE, J.C.A
CONTRACT: POSITION OF THE LAW FOR A CONTRACT TO EXIST
For a contract to exist there must be a mutuality of purpose and an intention; the two contracting parties must agree. One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof for the contract to be regarded as legally binding and enforceable – see Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt.1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt 1055) 478. The two or more minds must meet at the same point, event or incident. Where they say different things at different times they are not ad idem and therefore no valid contract is formed. So, the meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract see Dodo v. Solanke (2007) ALL FWLR (Pt. 346) 576. Since every contract derives its effect from the intention of the parties, the intention must be the ground of every decision as to its operation and extent, and “the grand object of consideration in every question with regard to its construction” – see Coop. Dev. Bank Plc. V. Ekanem (2009) 16 NWLR (Pt. 1168) 585. PER AMINA ADAMU AUGIE, J.C.A
OFFER: WHAT A VALID OFFER ENTAILS
It is settled that an offer is a proposal that emanates from the offeror to the offeree to enter into an agreement to do or not to do a particular thing see Metibaiye V. Narelli Int. Ltd. (supra), where Aboki, JCA, explained – “A valid offer must be precise and unequivocal giving no room for speculation or conjecture as to its real content in the mind of the offeree. An offer capable of being converted into an agreement by acceptance must consist of a definite promise to be bound provided certain specific terms are accepted”. PER AMINA ADAMU AUGIE, J.C.A
ACCEPTANCE: WHAT AN ACCEPTANCE ENTAILS; HOW ACCEPTANCE MAY BE DEMONSTRATED
An acceptance is the reciprocal act or action of the offeree to an offer in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. An acceptance of an offer may be demonstrated – (a) By conduct of the parties; or (b) By their words; or (c) By documents that have passed between them. As Aboki, JCA, further explained in Metibaiye V. Narelli Int. Ltd. (supra) – “The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of law will not be prepared to hold that a valid contract exits between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer”. PER AMINA ADAMU AUGIE, J.C.A
REMUNERATION FOR SERVICE: POSITION OF THE LAW ON HOW A LEGAL PRACTITIONER MAY BE REMUNERATED FOR HIS SERVICES
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 V. Mercantile Bank (Nig.) Ltd. (1989) 3 NWLR (Pt. 108) 213. All the relevant authorities say that reasonable remuneration must be given for the actual work or service rendered by a claimant on quantum meruit, which is Latin for ” as much as he deserved’ – see SBN Ltd. V. Opanubi (2004) 15 NWLR (Pt. 896) 437 SC. In effect, when the bill of charges or fees (as they are called) are properly brought by the legal practitioner in compliance with the provision of the LPA, the Court will normally give Judgment for the amount of fees so claimed unless there are other factors preventing it from doing so, such as the absence or non-existence of any agreement for the payment of the fees by the client or an attempt by the legal practitioner to illegally enrich himself at the expense of his client (by way of champarty) – see Oyo V. Mercantile Bank (Nig.) Ltd. (supra) and Akingbehin V. Thompson (2008) 6 NWLR (Pt. 1083) 270, where Adamu, JCA added as follows – “In some cases, even where the charges or fees were not agreed upon or fixed by a contract between the parties – – the Court can award a reasonable fees or remuneration to the legal practitioner for his services actually rendered or admitted to have been rendered by him at the request or instruction of his client on the basis of quantum meruit or quasi-contract. See also SBN Ltd. V. Opanubi (supra), where Uwaifo, JSC held – “- – The Respondent – – was expected to provide parameters and necessary evidence upon which the Court would assess what is reasonable compensation on quantum meruit for the services rendered by him – – He ought to have indicated in the bill of charges the nature of the various aspects of the services he rendered; his experience at the bar which matched the skill the particular legal matters demanded; and in evidence justified the reasonableness of the charges for the services. – – A legal practitioner should be able to present a bill of charges which, among other facts, should particularize his fees and charges, e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of counsel at the bar in terms of years of experience and/or the rank with which he is invested in the profession. It is necessary to indicate amount of fees against each of these items. – – In compensating a legal practitioner upon a quantum meruit for services he has actually rendered, it will be more realistic to make assessment on the basis of the particulars of the nature of work done by him to arrive at what can be considered a reasonable compensation. It is then a sum which “the Judge appears to have arrived at on consideration of all necessary factors would be a reasonable remuneration in all the circumstances” as observed by Lord Atkinson in Way v. Latilla”. PER AMINA ADAMU AUGIE, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
CHUKWUDUMEBI SAMUEL OSEJI Justice of The Court of Appeal of Nigeria
Between
1. Guaranty Trust Bank Plc.
2. Emeka Eze Appellant(s)
AND
Udoka Anyanwu, Esq. Respondent(s)
AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): The Respondent is a legal practitioner, and this appeal has to do with the action he filed at the High Court, Enugu, wherein he claimed the sum of N12.5 Million Naira representing his professional fees and consultancy fees for securing the financing of a proposed Enugu International Market Project for the 1st Appellant. Pleadings were filed, and later amended.
In his Amended Statement of Claim, the Respondent averred that he was approached by Mr. Nduka Ikeyi, a Consultant in the Economic Affairs Unit, Office of the Secretary to the Government of Enugu State, who asked him to explore the possibility of securing a Bank to finance the said proposed Market the Government was interested in developing. He requested the Economic Consultant to write three letters to – Citizens International Bank, Hallmark Bank Plc and Guaranty Trust Bank Plc. (the 1st Appellant) to enable him approach, and discuss the project with them. The letters (Exhibits A, B, and C) were then written by Mr. Nduka Ikeyi. Armed with these letters, he set out to find a reputable bank to finance the project, and was referred to the 2nd Appellant who works for the 1st Appellant by Dr. K.E. Wokemba, who said the bank might be interested.
Consequently, he met with the 2nd Appellant, who took him to the Manager of the 1st Appellant; Mr. Ikenna Ezechukwu (now deceased), who was the original 2nd Defendant in the suit, and expressing interest in the project, the said Manager (now deceased) asked him to arrange a meeting with the Economic Consultant, and also assured him of his fees.
He then arranged several meetings with the 1st Appellant’s Officials, and Mr. Nduka Ikeyi at the Government House Enugu, and Mr. Nduka Ikeyi’s Residence at Savage Crescent, GRA Enugu, the outcome of which was the acceptance of the 1st Appellant Bank to finance the Market project. However, when he demanded his fees from them, having discharged his own part of the transaction, they flatly ignored his demands, and the one made through his counsel, so he filed the action that led to this appeal.
The Respondent, who was the Plaintiff, testified at the trial, and called three other witnesses. The Appellants’ case is that the parties did not agree on the professional and consultancy fees at the inception; that that no fees were agreed upon; and that the financing project between the Enugu State Government and the 1st Appellant Bank did not materialize since the State Government could not meet the conditions. To make their case, the Appellants testified through the 2nd Appellant.
After the adoption of written addresses, the learned trial Judge, Udeh, J., delivered his Judgment on 25th October 2004, wherein he held-
I have carefully gone through the Act, Cap 207 and I am unable to find where to fit the charge for the finder’s fees in the Act. I therefore decline to make an order on that head. The Plaintiff claims N8 Million for legal advice, opinion, strategy and meetings. It is common knowledge that the said Enugu International Market eventually did not take-off the ground – the fact remains that the Plaintiff secured the project for the 1st Defendant. As such he is entitled to – a reasonable sum for his legal services, which included advice, opinion, strategy and meetings which necessarily included finding the project for the 1st Defendant. It is my considered view that the Plaintiff has proved his case on the balance of probabilities and is entitled to Judgment. In the result this case succeeds. The following orders are hereby made –
(1) The Plaintiff shall recover from the Defendants jointly and severally the sum of N3.5 Million Naira representing his professional fees for services rendered to the Defendant in legal advice, opinion, strategy, meetings”.
Dissatisfied, the Appellants filed an appeal in this Court with a Notice of Appeal containing six Grounds of Appeal. Brief of arguments were duly filed and exchanged, and in the Appellants’ Amended Brief of Argument settled by Chief Charles C. Ogbo, the following issues were formulated –
1. Was there a valid contract between the Plaintiff/Respondent and the Defendants/Appellants?
2. Is the Plaintiff/Respondent entitled to the N3.5 million awarded to him by the Court?
3. Is the Plaintiff/Respondent entitled to the N10, 000 costs awarded to him by the Court?
However, in the Respondent’s brief prepared by Nnamdi Otukwu, Esq., it was submitted that the Issues that call for determination are as follows –
1. Was there a contract between the Appellants and the Respondent?
2. Whether the Respondent discharged his obligation under the contract to entitle him to his fees.
3. Was the costs awarded to the Respondent excessive?
Any difference in the Issues formulated by both parties is like saying there is a difference between six and half a dozen; there is no difference, and from my perspective, Issues 1 and 2 should be considered together.
To this end, the Appellants submitted that the Respondent failed to prove that his services was engaged by Mr. Nduka Ikeyi; that they joined issues with him on the three letters generated by Mr. Nduka Ikeyi, and he ought to have called Mr. Nduka Ikeyi to prove the assertion; that in civil cases the burden of proving a particular fact lies on the party who asserts the affirmative of the issue, citing Aguda on Law of Evidence, 4th Ed., Odukwe V. Ogumbiyi (1995) 6 SCNJ 102, Jalgo Ltd. V. Owoniboys Tech. Ltd. (1995) 4 SCNJ 256, Alhaji Dawodu V. NNPC & Ors (1998) 1 SCNJ 95, Okonkwo V. Okonkwo (1998) 7 SC 246, Chindo World Wide Ltd. V. Total Nig. Plc. (2001) 16 NWLR (Pt. 739) 291, G. Chitex Ind. Ltd V. Oceanic Bank Int. (Nig.) Ltd. (2005) 14 NWLR (Pt. 945) 392 and that the Respondent failed to call Nduka Ikeyi to testify in respect of the said letters, and even though they raised the issue, the lower Court did not consider same, and used the letters to hold there was a valid contract.
It was further argued that he never pleaded that the parties agreed on a fee of N12.5 Million Naira and never said so in his evidence; that to constitute a binding contract, there must be an agreement, and there must be a complete and concluded bargain, which has settled all essential conditions that leaves no vital term or condition unsettled, citing Alfoterin Ltd. V. A.G. Fed. & Anor (1966) 12 SCNJ 236, S.A. Adebanjo V. A. A. Brown (1990) 3 NWLR (Pt 141) 661; that even if the Court believes that the Respondent secured the contract, there is still no contract between the parties since there was no agreement as to fees; that the lower Court erred in holding that he was entitled to N3.5 million on guantum meruit when there was no valid contract between them; that claims on quantum meruit presupposes the existence of a contractual obligation, and if there is no valid contract then the Court cannot make any award on guantum meruit, citing NNPC V. A.I.C. Ltd (2003) 2 NWLR (Pt. 805) 560, and in this case, since there was no contract between the parties the award of N3.5 million to him is baseless and invalid.
They also contend that the parties agreed at the lower Court that the financing contract allegedly secured by the Respondent did not take off and by implication, the lower Court held that an agent is entitled to commission or fees for a commodity that is not sold; that they have nothing to pay for as the Respondent did not secure the financing contract since it did not take off; that the lower Court erred in law when it awarded N3.5 million to the Respondent as professional and consultancy fees when the pleadings and evidence did not specify which part of the N12.5 million represented his professional fees and which part was his consultancy fees; that Exhibit D is an afterthought because the issues of fees was never discussed by the parties at the inception of the contract; and that the difference is important because a lawyer’s professional fees is regulated by the Legal Practitioners Act, and consultancy fees are not.
The Respondent, on his part, referred this Court to various aspects of the evidence he presented at the lower Court, and submitted that –
“It is a misconception- – that no specific amount was agreed upon.- – the kind of contract in question was the rendering of services by a legal practitioner. This type of service is distinguishable from the ordinary service wherein a legal practitioner is required to represent his client in court. This is a special type of service which involves series of meetings, legal advice and strategies for which exact fees are hardly known or determinable until completion of the contact. – the important point to consider is whether the parties during the time of entering into the contract discussed fees or expected that fees would be paid. The appellants knew that (he) was not rendering a gratuitous service. All through the transaction, (he) acted in his professional capacity. – – They assured and re-assured him of his fees. – – The contention that no specific amount was agreed upon could not – – vitiate the agreement. – – the appellant had every opportunity to disagree with the bill he sent to them and offer what they considered appropriate for the services rendered, rather than do that, they ignored both letters of demand Exhibits D and E for payment of fees sent to them – – having kept quiet without responding to such official letters demanding fees, they clothed themselves with liability in the wise of Gwani V. Ebule (1990) 5 NWLR (Pt. 149) 210”.
He, therefore, urged this Court to hold that the lower Court was right to hold that there was a valid contract between the parties, and to dismiss the argument of the Appellants on this issue, as being unmeritorious.
As to whether he discharged his obligation under the contract, he submitted that after handing over Exhibit C to the 2nd Appellant with the assurance to pay him his fees, the 2nd Appellant asked him to ensure that the 1st Appellant bank secured the project financing; that to do that, he arranged a meeting with Mr. Nduka Ikeyi after the yuletide; that he and an Official of the 1st Appellant attended the meeting held in the Consultant’s office situate within the Secretary to State Government Office Complex Government House Enugu; that at the request of the 2nd Appellant, he arranged yet another meeting at Mr. Ikeyi’s residence at Savage Crescent, GRA, Enugu; that the subject of discussion was the International market project financing, and the 2nd Appellant once again re-assured him of his fees; and that the result of these meeting was the eventual selection and acceptance of the 1st Appellant to finance the International market project by the Enugu State government.
He also argued that this evidence was buttressed and corroborated by PW2, Chukwunonso Uwaezuoke, who testified that he was present when officials of the 1st Appellant came to pick him for a meeting at the Government House, Enugu; that PW3, Ngozi Ikeyi, who is the Economic Consultant’s wife, corroborated his evidence about arranging a meeting with the Economic Consultant; that having arranged series of meetings between the Economic Consultant, on one hand, and the officials of the 1st Appellant bank, on the other, the outcome of which was the selection of the 1st Appellant bank to finance the International market project by the Enugu State Government, he had fully and completely discharged his obligation under the contract and, therefore, entitled to his fees; that the Appellants’ argument that he was not entitled to his fees since the financing contract did not take off because the Enugu State Government did not meet the conditions, failed to recognize the number of contracts involved in the transaction; and that the project had 3 types of contracts, mutually connected but each is strictly independent of the other namely –
1. The first type of contract is the contract between him and the Enugu State Government i.e. finding a reputable bank to finance the project. In this contract, the Appellants were not party or privy to.
2. The second contract is between him and the Appellant i.e. securing a reputable bank to finance the project. In this case, the Enugu State Government was not a party.
3. The third contract is between the Enugu State Government and the secured bank, i.e. the 1st appellant bank. In this case, he was not a party.
Furthermore, that if at the third stage of the transaction it failed, it did not concern him since he was neither a party nor a privy to that contract, citing ACB Ltd. v. Obmiami Brick & Stone (Nig.) Ltd. (1990) 5 NWLR (Pt. 149) 230; that the Appellants’ contention that there was no specific amount being claimed as professional fees is erroneous because he tendered Exhibit D dated 18/06/2011, which is the bill he sent to them; that an examination of Exhibit D, clearly shows which amount was being claimed as professional fees; and that the said Exhibit D fully complied with Section 16 of the Legal Practitioners Act [LPA] on recovery of fees.
To unravel the wool beclouding this case, we will have to look at what a contract is, and how the principles apply to this case. A contract is an agreement which the law will enforce or recognize as affecting the legal rights and duties of the parties. A contract is also a promise or set of promises the law will enforce – see Sagay, Nigerian law of Contract. There are five ingredients that must be present in a valid contract: offer, acceptance, consideration, intention to create legal relationship and capacity contract. All the five are autonomous and equal in the sense that a contract cannot be formed if any of them is absent. In other words, for a contract to exist in law, all the five ingredients must be present – see Orient Bank (Nig) Ltd. v. Bilante International Ltd. (1997) 8 NWLR (Pt.515) 37, B.F.I.G. V. B.P.E (2008) ALL FWLR (Pt.416) 1915 and Metibaiye V. Narelli International Ltd. (2009) 16 NWLR (Pt. 467) 326.
For a contract to exist there must be a mutuality of purpose and an intention; the two contracting parties must agree. One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof for the contract to be regarded as legally binding and enforceable – see Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt.1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt 1055) 478. The two or more minds must meet at the same point, event or incident. Where they say different things at different times they are not ad idem and therefore no valid contract is formed. So, the meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract see Dodo v. Solanke (2007) ALL FWLR (Pt. 346) 576. Since every contract derives its effect from the intention of the parties, the intention must be the ground of every decision as to its operation and extent, and “the grand object of consideration in every question with regard to its construction” – see Coop. Dev. Bank Plc. V. Ekanem (2009) 16 NWLR (Pt. 1168) 585.
In this case, the Respondent mentioned three different contracts involved in the transaction. The first one is between him and the Enugu State Government, and his testimony with regard to that contract is –
“I know one Nduka Ikeyi, who is a friend; classmate and a professional colleague who I had had cause to interact with professionally and socially. Mr. Ikeyi is a Consultant in Economic Affairs Unit, in the Office of the Secretary to the Government of Enugu State. Sometime in December 2000, Mr. Nduka Ikeyi came to my office – – and told me to enter his car, together with his wife who is also a colleague and we went for lunch. He then told me he would like to do me a favour and in this regard, the Enugu State Government was interested in developing an International Market at 9th Mile Corner, Ngwo. Enugu specifically targeted at Electronic Traders. He also told me that he had attended several meetings. In the course of the lunch, the said Nduka Ikeyi requested me to see whether I could get some reputable banks who would be interested in financing the proposed International market Project. I was happy on the offer and I gratefully accepted. He told me I should know that the Enugu State Government would not be responsible for my fees but that if any bank which I introduced eventually secured the project financing that the bank would pay me my finder’s fees – he is an Economist in addition to being a Lawyer – and any other professional fees due to me. In order to enable me carry out this task I requested Mr. Ikeyi to write some letters to some banks at my instance. – – Following from this my request, Mr. Ikeyi wrote and addressed three letters to the three banks which I told him to write to – The banks are – – Mr. Ikeyi after writing these letters handed them over to me”.
The letters dated 15 December 2000 and titled “Financing of Proposed International Market” are addressed to Managers of three Banks Citizens International Bank (Exhibit A), Hallmark bank Plc. (Exhibit B), and Guaranty Trust Bank (Exhibit C), and they all say the same thing i.e.
“The Enugu state government is proposing to establish an international market on the outskirt of Enugu, and we would be pleased to receive a proposal on the financing of the project from your bank.
2. Project cost is estimated at N500 Million, and we would prefer a financing option, which would make minimum or no demand on our Federation Account receipts
3. We look forward to hearing from you.
Yours faithfully
NDUKA IKEYI
For: Secretary to the State Government”.
What can we make of the Respondent’s testimony and these Exhibits? His “friend, classmate and professional colleague”, took him out to lunch, and told him that he would like do him a “favour”, and then asked him to find reputable banks that would be interested in financing the project.
He said he was happy to get the offer, and gratefully accepted. Yes, for there to be a contract, there must be an offer and acceptance. But who was making the offer, and what was he accepting? It is settled that an offer is a proposal that emanates from the offeror to the offeree to enter into an agreement to do or not to do a particular thing see Metibaiye V. Narelli Int. Ltd. (supra), where Aboki, JCA, explained –
“A valid offer must be precise and unequivocal giving no room for speculation or conjecture as to its real content in the mind of the offeree. An offer capable of being converted into an agreement by acceptance must consist of a definite promise to be bound provided certain specific terms are accepted”.
An acceptance is the reciprocal act or action of the offeree to an offer in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. An acceptance of an offer may be demonstrated –
(a) By conduct of the parties; or
(b) By their words; or
(c) By documents that have passed between them.
As Aboki, JCA, further explained in Metibaiye V. Narelli Int. Ltd. (supra) –
“The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of law will not be prepared to hold that a valid contract exits between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer”.
In this case, we don’t have to reach acceptance, the question now is – where is the offer from the Enugu State Government to the Respondent?
Mr. Nduka Ikeyi is just a Consultant in the Economic Affairs Unit, Office of the Secretary to the Government of Enugu State, and it is clear from the Respondent’s testimony that Mr. Ikeyi only wanted to do him a favour by opening up a business opportunity for him to make some money.
The Respondent himself admitted that Mr. Ikeyi told him upfront that the Enugu State Government would not be responsible for his fees. What is more, there is no mention of his name in Exhibits A, B, and C, and nothing to show that he had any connection with the project or any agreement with the Enugu State Government. There was no contract; Mr. Ikeyi was merely trying to do him a favour, and that is all there is to it.
As to the second contract between him and the Appellants, he said –
“- – Armed with these letters, I approached Dr. K. E. Nwokemba, Managing Director of Blue Stone Nigeria Ltd., who I know to have very good contacts in financial circles. Dr. Nwokemba requested that we use his company as an engine to package the proposal. I declined the offer. In the alternative, he suggested that I should now approach the 3rd Defendant (2nd Appellant) who is a trusted friend and a staff of the 1st Defendant Bank. That same night I went to the 3rd Defendant’s house which is close by me. After intimating the 3rd Defendant with the proposals, he was very interested but he would need to get in touch with his Manager who will have more authority to determine whether the 1st Defendant would express interest in the proposal. He then suggested that we see the 2nd Defendant (now deceased). The following day, 3rd Defendant picked me up from my house in his own car, a Japanese model car – – he introduced me to the 2nd Defendant as the Pioneer Manager of the 1st Defendant for Enugu who I immediately recognized as my senior in college – He received me warmly and we introduced ourselves and recalled the past. At this point, the proposal was introduced to the 2nd Defendant and stated that 1st Defendant was interested in the proposal. He asked me to give him more details apart from what is written in my letter. The 3rd Defendant was the person who introduced the proposal to the 2nd Defendant in my presence. – – the 2nd Defendant now fascinated because of the huge money involved asked me to go ahead and arrange a meeting with the Consultant but that the meeting should be in the new year to enable him meet with the 1st Defendant, deliberate on the matter and come up with a concrete stand”.
His testimony raises more questions than answers – who was offering what to whom? Where is the evidence of the intention to create a legal relationship between the Respondents and the Appellants or vice versa? As I said, an offer has to be precise and unequivocal; there should be no room for speculation as to its real content in the mind of the offeree; and it must consist of a definite promise to be bound provided certain specific terms are accepted – what are the specific terms provided in this case? Where is the contract embodying the terms of contract between them? The answers to these questions cannot be in the Respondent’s favour because there was no offer or acceptance in the real sense envisaged by a legal contract nor even the semblance of agreement between them.
The Respondent was sent to the 2nd Appellant, who is a staff of the 1st Appellant, and he took him to meet the Manager of the Enugu Branch of the 1st Appellant, and any discussions between them centered on how he could help them with securing the project financing, and no more.
The Respondent in his testimony as PW1 made this clear when he said –
The 3rd Defendant went on to say that I should do anything within my power to ensure that they secure the project financing. That that would be of great personal benefit to him. The 2nd Defendant joined him in asking this request. Both of them assured me of all fees due to me in the entire transaction – -“.
The long and short of it all, is that there was also no contract between the Respondent and the Appellants to secure the said project financing. Evidently, the same conclusion applies to the third one he mentioned – the contract between the Enugu State Government and the Appellants. Both parties are agreed that the project did not materialize after all but it is the Respondent’s contention that he was still entitled to be paid fees, which brings us to the crux of the issue for determination in this appeal.
Was the lower Court right to award him the sum of N3.5 Million as his professional and consultancy fees in the circumstances of this case? Let us look at the law on the subject. Section 16 of the LPA deals with “Remuneration of Practitioners” and the Section provides as follows –
(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, has been served on the client personally or left by him at his last address as known to the 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.
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 V. Mercantile Bank (Nig.) Ltd. (1989) 3 NWLR (Pt. 108) 213. All the relevant authorities say that reasonable remuneration must be given for the actual work or service rendered by a claimant on quantum meruit, which is Latin for ” as much as he deserved’ – see SBN Ltd. V. Opanubi (2004) 15 NWLR (Pt. 896) 437 SC.
In effect, when the bill of charges or fees (as they are called) are properly brought by the legal practitioner in compliance with the provision of the LPA, the Court will normally give Judgment for the amount of fees so claimed unless there are other factors preventing it from doing so, such as the absence or non-existence of any agreement for the payment of the fees by the client or an attempt by the legal practitioner to illegally enrich himself at the expense of his client (by way of champarty) – see Oyo V. Mercantile Bank (Nig.) Ltd. (supra) and Akingbehin V. Thompson (2008) 6 NWLR (Pt. 1083) 270, where Adamu, JCA added as follows –
“In some cases, even where the charges or fees were not agreed upon or fixed by a contract between the parties – – the Court can award a reasonable fees or remuneration to the legal practitioner for his services actually rendered or admitted to have been rendered by him at the request or instruction of his client on the basis of quantum meruit or quasi-contract. See also SBN Ltd. V. Opanubi (supra), where Uwaifo, JSC held –
“- – The Respondent – – was expected to provide parameters and necessary evidence upon which the Court would assess what is reasonable compensation on quantum meruit for the services rendered by him – – He ought to have indicated in the bill of charges the nature of the various aspects of the services he rendered; his experience at the bar which matched the skill the particular legal matters demanded; and in evidence justified the reasonableness of the charges for the services. – – A legal practitioner should be able to present a bill of charges which, among other facts, should particularize his fees and charges, e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of counsel at the bar in terms of years of experience and/or the rank with which he is invested in the profession. It is necessary to indicate amount of fees against each of these items. – – In compensating a legal practitioner upon a quantum meruit for services he has actually rendered, it will be more realistic to make assessment on the basis of the particulars of the nature of work done by him to arrive at what can be considered a reasonable compensation. It is then a sum which “the Judge appears to have arrived at on consideration of all necessary factors would be a reasonable remuneration in all the circumstances” as observed by Lord Atkinson in Way v. Latilla”.
In this case, notwithstanding anything the Respondent may have said to the contrary, there is no evidence whatsoever before the Court that his fees were agreed upon or fixed by any contract between the parties.
As the Appellants pointed out, he never pleaded that the parties agreed on any fees not to mention N12.5 Million Naira fees he demanded from them and he never gave any such evidence either. Nonetheless, a Court can award a reasonable fees or remuneration to a legal practitioner for his services actually rendered or admitted to have been rendered by him – see Akingbehin V. Thompson (supra), SBN Ltd. V. Opanubi (supra).
In this case, the Respondent said he asked the Appellants orally for his fees, and later sent them a letter – Exhibit D, which reads as follows-
With respect to the above subject matter, and our several discussions in this wise, may I humbly request for payment as per the understated detailed bill of charges:-
a) N 8 Million in respect of legal services, to wit: – Advice, opinion, strategy and meetings.
b) N 4.5 Million in respect of finder’s fees for introducing and facilitating the selection of your esteemed instruction.
Total: N12.5 Million (Twelve Million Five Hundred Thousand Naira only). Payment should be effected vide direct transfer to my Current Drawing Account No 5001052110 with your good selves, which was specifically opened for this purpose, as per your instruction. Thank you and God bless”.
When they failed to accede to his demand, he consulted a Solicitor, Nnamdi Otukwu, Esq., who wrote a letter to them – Exhibit E that reads –
“We act for Barrister U.C. Anyanwu on whose instruction this letter is written. Upon our instruction we make reference to letter No. ESN/ SSG/ ECA/ CON/ 160 of 15th December 2000, on the above subject wherein he played the role of initiating your participation in the project under reference. You will recall that Barrister Anyanwu after introducing you to this project initiated several meeting between the Economic Adviser and your bank both at the Government House Enugu and elsewhere. Your Bank was represented at the various meetings by Miss Joyce Nwariaku, Mr. Emeka Eze and Mr. Ikenna Ezechukwu. It is also our instruction that sequel to the series of meetings held, your bank received a positive response from the Enugu State Government to finance the project which we understand is on-going. Barrister Anyanwu informs us that contrary to the understanding and agreement reached between you and his good self concerning his remuneration you remained silent even when it was clear that you have not kept your obligation in the transaction. More so, when he approached the Bank for his fees, Mr. Ikenna Ezechukwu showed a complete attitude of indifference to his demands and in fact rebuffed him. We find your attitude rather bewildering and ungentlemanly as we believe that a labourer is entitled to his wages. We urge therefore that you inform us within 14 days from the date of this letter and in any case not later than 24th July, 2001, of steps which you desire to take towards an amiable resolution of this matter.
Yours faithfully, (signed) Nnamdi Otukwu Esq.”
There was no “amicable resolution” of the matter, and the Respondent brought the action against them that led to this appeal. The question is – what professional services did the Respondent render to earn his fees? He claimed for – advice, opinion, strategy and meetings. “Advice” is “guidance offered by one person, esp. a lawyer, to another” – see Black’s law Dictionary, 8th Ed. “Advice of counsel” is also defined therein as – “the guidance given by counsel to their clients”. What guidance did the Respondent give to the Appellants? He was asked to find a reputable bank and he went to Dr. Wokemba, who sent him to the 2nd Appellant, and the 2nd Appellant took him to the deceased 2nd Defendant, and it was in his presence that the 2nd Appellant introduced the proposal to him.
He also testified that the 2nd Appellant begged him to do anything within his power to ensure that they secure the project financing as it – “would be of great personal benefit to him”. What is the guidance there? The primary role of a legal practitioner is to offer legal advice to clients, and I cannot find anything resembling legal advice that he could have given the Appellants in the sequence of events narrated in his evidence.
He also claimed fees for “opinion”, which is simply defined as – “a view or judgment formed about a particular matter; a formal expression by an expert of his or her professional judgment or advice” – see Concise English Dictionary, Penguin Reference. “Legal opinion”, to be exact is – “a written document in which an attorney provides his understanding of the law as applied to assumed facts” – see Black’s law Dictionary, 8th Ed. Did the Appellants ask the Respondent for his legal opinion about the financing project? If they did, in what form was the legal advice given, and where is the evidence? It is not enough for the Respondent to just claim fees for legal advice or opinion, he had to go a step further and provide the Court with evidence of the advice he gave the Appellants, and what he gave his opinion on, since there was no agreement on fees.
But that is not all; the lower Court ordered the Appellants to pay his professional fees for “strategy”, which inter alia is – “long-term planning in the pursuit of objectives, or the aft of this; a plan or method devised to meet a need” see Concise English Dictionary, Penguin Reference. What plan did the Respondent come up with to assist the Appellants? What strategy did he draw up for them that warrants his being paid fees?
He said he arranged meetings for them, but he also claimed fees for meetings as well. A meeting is “the gathering of people to discuss or act on matters in which they have a common interest” – see Black’s law Dictionary, 8th Ed. It is one thing to gather to discuss, it is another thing to gather to transact business that would be reflected in the minutes, which is “the memorandum or notes of a transaction or proceedings – see Black’s law Dictionary, 8th Ed.
The Respondent testified as follows –
“After the yuletide, I arranged a meeting with the Consultant, Mr. Ikeyi – – The 3rd Defendant and one Miss Joyce Nwariaku – – came to my office in a car to pick me up for the meeting with the Consultant which I had earlier arranged. The meeting was held in the Consultant’s office within the S.S.G.’s Office Complex. The parties did their introductions and proceeded to talk in financial and technical terms. I was present at the meeting”.
The Respondent is a legal practitioner, and he claimed professional and consultancy fees for arranging meetings for the Appellants with Mr. Nduka Ikeyi, a Consultant in the Economic Affairs Unit, Office of the Secretary to the Government of Enugu State. If this was an official meeting, where are the minutes of the meeting? If he could not lay hands on the minutes, why was Mr. Nduka Ikeyi not called to testify about it?
But that is not the only meeting he arranged. He further testified that – “After this meeting with the Consultant – – the 2nd Defendant asked me to arrange another meeting in more informal surrounding with the Consultant. I arranged this meeting and once again informed them. – – The meeting was scheduled in the Consultant’s private residence — It was this same 3rd Defendant who came to my house again, picked me up in his car for the meeting before then he had taken me to the 1st Defendant’s Guest House – – where we waited for the 2nd Defendant to join us. He later joined us and together we all drove to the house of Mr. Nduka Ikeyi – at about 10pm. We were received warmly by both the Consultant and his wife – – The Consultant, 2nd and 3rd Defendants now began the financial discussion – – -“.
To confirm this meeting, he called Mrs. Ngozi Ikeyi (PW3) who said –
“The Plaintiff, the 2nd and 3rd Defendants visited my house in January 2001. – – They came to see my husband. They saw my husband – – The name of my husband is Nduka Ikeyi. I was not present during their meeting with my husband. After the meeting with my husband – – the parties all left together – “.
Her testimony is of no relevance; it adds nothing to enhance his case. All that Mrs. Ikeyi did was confirm that they came to her house, and they actually saw her husband; nothing more. What the said meeting was all about, she did not know. Her husband, who should know, was not called as a witness to give an account of what transpired at the two meetings.
The Respondent was claiming remuneration for legal services he rendered to the Appellants, but there is nothing professional or lawyerlike about the services he rendered. Anyone from any profession can take a letter from a Consultant and use it to offer proposals to any bank officials. The lower Court certainly fell into serious error when it relied on such flimsy evidence to award him N3.5Million Naira as professional fees; there is nothing professional about what the Respondent said he did.
Besides, he did not particularize his bill of charges as the law requires him to do, hence, there was nothing before the lower Court on which to base its assessment, and I have to agree with the Appellants that the award of N3.5 Million Naira to him is “baseless and invalid”.
The end result is that the appeal succeeds and is hereby allowed. The decision of the lower Court and all the orders made in its Judgment delivered on 25th October 2004 are set aside. I make no order on costs.
ABDU ABOKI, J.C.A: I had the opportunity of reading before now the judgment just delivered by my learned brother Amina Adamu Augie, JCA. I agree absolutely with the reasons and conclusions arrived at in the lead judgment.
My learned brother had dealt with all the issues involved in the Appeal in a very scholarly fashion. I have nothing more useful to add.
This appeal succeeds and I also set aside the judgment of the lower court delivered on 25th October 2004. I abide by the consequential order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I have read before now the lead judgment written by my learned brother, AMINA ADAMU AUGIE JCA just delivered and I agree that this appeal has merit and ought to be allowed.
My learned brother has quite admirably set out the facts and resolved all the salient issues submitted for determination of this appeal in accordance with the law.
For the reasons and conclusions in the lead judgment which I hereby adopt as mine, I also allow the appeal. I abide by all the consequential orders made therein. I also make no order as to costs.
Appearances
Chief C. C. Ogbo, Esq.For Appellant
AND
Nnamdi Otukwu, Esq.For Respondent
