ADAMA & ANOR v. PDP
(2020)LCN/14391(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, June 09, 2020
CA/MK/50/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
1. SAM ADAMA 2. OMALE M. OJONYE ESQ. APPELANT(S)
And
PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENT(S)
RATIO
WHETHER OR NOT JUDGEMENT OF A COURT MUST BE BASED ON ISSUES RAISED BY THE PARTIES
It is the law that the judgment of a Court must be based on issues raised by the parties. It is not permitted for a Court to suo motu raise an issue and decide a matter based on it without affording the parties an opportunity to be heard on it. See Kuti V Balogun (1978) 1 SC 53, Mabamije V Otto supra and Sani V Kogi State of House of Assembly (2019) 4 NWLR (Pt. 1661) 172.
The current position of the law is that, if a Court raises an issue suo motu and proceeds to decide a case based on it without affording the parties an opportunity to address it on the issue, it will be fatal to the decision of the Court if it is shown that the decision was wrong or that it occasioned a miscarriage of justice to the party complaining. See Ibekwe V Imo State Education Management Board (2009) 5 NWLR (Pt. 1134) 234, 256, Effiom V Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt. 1213) 106, 133 and Alims Nigeria Limited V UBA Plc (2013) 6 NWLR (Pt. 1351) 613, 626 where Fabiyi, JSC, opined that:
“However, failure of the Court to so invite the address of counsel, does not, ipso facto, render such a decision a nullity unless it is shown that the decision is incorrect or occasioned miscarriage of justice.” PER EKANEM, J.C.A.
WHETHER OR NOT A LEGAL PRACTITIONER IS ENTITLED TO HIS LEGAL FEES FOR HIS PROFESSIONAL SERVICES
The first point to be made is that a legal practitioner is entitled to his fees for his professional services except where the services are offered pro bono which is not the case in this instance. A legal practitioner may recover his fees on the basis of an agreed sum, quantum merit or bill of charges. In respect of bill of charges Section 16(1) and (2) of the Legal Practitioners Act provides:
“(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 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.”
In Oyekanmi V National Electric Power Authority (2000) 15 NWLR (Pt. 690) 414, 431 – 432. Uwaifo, JSC, held that; “It is to be observed that in order for a legal practitioner to be able to begin an action to recover his fees upon a bill of charges he has to satisfy the three conditions namely, first he must prepare a bill of charges or a bill for the charges which should duly particularise the principal items of his claim; second he must serve his client with the bill; and third he must allow a period of one month to elapse from the date the bill was served”.
See also Evong V Messrs Obono, Obono & Associates (2012) 6 NWLR (Pt. 1296) 338. PER EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellants are legal practitioners. As at 2019, the 1st appellant was about 10 years old at the bar while the 2nd appellant was 12 years old at the bar. Sometime in November, 2012 the Benue State Independent Electoral Commission (BSIEC) conducted elections into Local Government Councils. The respondent sponsored candidates for the election. Upon the declaration of winners of the election, the defendant along with some of her candidates were sued in election petition No. OHC/LGET/01/2012: Hon. Joseph Adah & anor V Mr. Daniel Ada & 5 ors and petition No. OHC/LGET/02/2012: Hon. Robert OchigboIdoko & anor V Joseph Adagba 2 ors.
The case of the appellants was that they were engaged by the respondent to defend her in those petitions. The appellants took steps to defend the respondent and did so to conclusion. The petitions were dismissed in respondent’s favour. When the respondent failed to pay their professional fees for their services, the appellants forwarded their bills of charges to the respondent vide a letter. Still the respondent failed to pay the fees. Consequently,
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the appellants took out a writ of summons numbered MHC/195M/19 against them before the High Court of Benue State, Makurdi Judicial Division (the lower Court). A statement of claim was also filed along with the writ. The claim endorsed thereon is as follows:
“i. The professional charges/fees as per the bills- N71,380,000.00
ii. The cost of engaging counsel – N7,000,000.00
iii. Interest on the judgment sum at the rate of 30% from the date of judgment until same is fully repaid”.
The appellants also, pursuant to Order 11 Rules 1 and 5 of the Benue State High Court (Civil Procedure) Rules 2007 applied to the lower Court for an order entering judgment in their favour in terms of their claim. The motion was supported by an affidavit, exhibits and a written address. Inspite of the service of the processes on her, the respondent did not file any process to defend the suit. On 28/2/2019, counsel for appellants moved their motion for summary judgment. On 8/3/2019, the lower Court (coram : A.I. Ityoyima, J.) gave judgment dismissing the claim of the appellants.
The reasons given by the Learned Judge of the lower Court for dismissing
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the claim are:
(i) That the bills of charges that the appellants relied upon to sue did not contain particulars of the principal items included in the bill contrary to Section 16 (1) of the Legal Practitioners Act, 2014, and
(ii) That the moneys claimed by the appellants were not liquidated money demand and so Order 11 of the High Court (Civil Procedure) Rules could not be invoked by the appellants.
Aggrieved by the decision, the appellants filed a notice of appeal to this Court which bears eight grounds of appeal.
In the appellants’ brief of argument settled by S.O. Okpale, Esq., three issues are distilled from the eight grounds of appeal for the determination of the appeal. The issues are:
“i. Whether in the circumstance of this case the Learned Trial Judge was right to have raised the issue of the particularization of the Bills of charges suo motu resolve the issue against the Appellants and thereby dismissing their case without hearing from the Appellants on the issue. (GROUNDS 3, 6, 7 AND 8).
ii. Whether in the light of the unchallenged and uncontradicted evidence of the Appellants before the Lower Court, with
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respect to the bills of charges delivered to the Respondent, and the absence of defence to the claims of Appellants, the Learned Trial Judge was right to have dismissed the case of the Appellants. (GROUNDS 1, 2, AND 4).
iii. Whether the Appellants in the circumstance of this case are entitled to a summary judgment been (sic) entered for them per their claims before the lower Court pursuant to the provisions of Orders 11 Rule 5 (2) of the Benue State High Court (Civil Process (sic)) Rules 2007. (GROUND 5).”
Respondent’s Counsel, C.T. Mue, Esq. in his brief of argument adopts the three issues formulated by appellants’ counsel. I shall therefore be guided by the three issues in my effort to determine the appeal. I intend to consider the three issues together since they seem to be interwoven. At the end, I propose to set out distinctly my answers to the issues before reaching my conclusion.
I shall pause here to state that at the hearing of the appeal on 17/3/2020, S.O. Okpale, Esq. for appellants adopted and relied on appellants’ brief of argument filed on 5/4/2019 and the reply brief filed on 11/2/2020 as well as a list of
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authorities in urging the Court to allow the appeal. C.T. Mue, Esq. for Respondent adopted and relied on respondent’s brief of argument filed on 24/1/2020 but deemed duly filed and served on 17/3/2020 in urging the Court to dismiss the appeal.
Appellants’ counsel apparently arguing issue 1 without so stating, stated the trite position of the Law that no Court is permitted to go outside the issues submitted to it by the parties to determine their case. Again, he stated the axiomatic position of the law that a Court should not raise an issue suo motu and proceed to decide a dispute on that issue without affording the parties the opportunity of being heard on the issue. He added that failure to do so amounts to a breach of the right to fair hearing of the party adversely affected by the decision. Counsel contended that since the respondent did not file processes in opposition to the claim of the appellants, they did not intend to defend the same and so no issues were joined to the claim, including particularization of the bills of charges. It was his position that the lower Court erred in suo motu raising the issue of particularization of the
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bills and dismissing the claim on that account without affording the appellants an opportunity to address it on the issue. He stressed that the injustice in the decision lies in the fact that the bills were sufficiently particularized as required by the law.
Continuing, counsel argued that assuming, but without conceding, that the bills were not particularized, the fact that the respondent did not raise the issue meant that she waived her right to do so. This, he stated, is because the whole essence of the preparation and delivery of a bill of charges is for the benefit of the client. He added that it is a personal right of the client who can waive it. He placed reliance on Guinness (Nig) Plc. V Pat Onegbedan (2011) LPELR -4222 (CA) among others cases.
On issue 2, counsel summarized the facts relied on by the respondent. He noted that there was a client – Counsel relationship between the parties; that the bills of charges were delivered to the respondent more than three months before appellants sued on it, that the appellants were compelled to engage a counsel at the cost of N7,000,000.00 as a result of refusal of respondent to pay. Since the lower
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Court observed that “no word has come from the respondent in resentment to the application”, he submitted that the lower Court seriously erred in dismissing appellants’ claim.
Regarding issue 3, counsel referred to Order 11 Rule 1 of the Benue State High Court (Civil Procedure) Rules 2007 (hereinafter called “the Rules”). He contended that since the respondent did not file any process, the only duty of the lower Court was to enter judgment for appellants. It was his position that the procedure for summary judgment under Order 11 of the Rules is not limited to claims for liquidated money demand and/or debts. Rather, it admits of any claim which the plaintiff believes the defendant has no defence to. Nevertheless, it was his position that the claim of the appellants qualified as debt or liquidated money demand.
Counsel urged the Court to set aside the judgment of the lower Court and enter judgment for appellants for all the reliefs including the claim for cost of engaging counsel which he stated is supported by exhibit 8 and decided cases including Naude V Simon (2014) All FWLR (Pt. 753) 1878.
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respondent’s Counsel in arguing issue 1, submitted that the appellants did not explicitly particularize the items as stated in the bills of charges. He referred to Section 16 (1) of the Legal Practitioner’s Act and posited that failure to itemize a bill of charges renders the same a nullity. He set out what he considered as defects in the bills submitted by the appellants and contended that the bills were a nullity. He placed reliance on First Bank of Nigeria Plc. V Ndoma-Egba (2005) 10 CLRN 84. In considering the point, counsel contended, the lower Court was only considering a question of law and also interpreting the provision of Section 16 (1) of the Legal Practitioners Act as well as acting judicially. He urged the Court not to disturb the decision of the lower Court.
Arguing issue 2, counsel contended that there was nothing to show any “client/counsel” relationship between the parties that entitles the appellants to sue to recover fees. He argued that the claim for cost of engaging counsel and interest are special damages which must be pleaded and strictly proved, and that a claim for recovery of professional fees has been
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rejected in Nwanji V Coastal Services of Nigeria Ltd (2004) LPELR – 2106.
In respect of issue 3, counsel submitted that a claim under Order 11 Rule 5 (2) of the Rules must be for liquidated money demand. He argued that the appellants did not show how they arrived at the amounts in the bills. He referred to the definition of liquidated money demand in Micmerah International Agency Ltd V A-Z Petroleum Products Ltd (2012) 2 NWLR (Pt. 1285) 564 and argued that the claim of the appellants did not fit into it.
Counsel submitted that the issue of 30 percent post-judgment interest did not arise.
In his reply, appellants’ Counsel posited that a legal practitioner’s bill is not rendered a nullity merely because of its non-conformity with Section 16 (2) of the Legal Practitioner’s Act, in the absence of an objection by the client. He submitted that the case ofFirst Bank of Nigeria Plc V Ndoma-Egba supra relied upon by respondent’s counsel was rendered per incuriam in the light of the decision of the Supreme Court in Oyekanmi V NEPA (2000) LPELR – 2873). Counsel argued that no issue was joined in the lower Court as to
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whether there was a client/counsel relationship between the parties.
Resolution
I shall first deal with the submission of the respondent’s counsel that there was nothing to show any client/counsel relationship between the parties to this appeal. The submission is, with due respect, misconceived. It is a fresh issue since it was not raised in the Court below and the Court did not therefore decide the point in its judgment. The respondent can only raise the point by way of a respondent’s notice pursuant to Order 9 Rule 2 of the Court of Appeal Rules. Having not done so, I shall discountenance the point.
In any event, the lower Court all through its judgment proceeded on the presumption that there was a client/counsel relationship between the parties. The lower Court was right. Paragraphs 4 and 5 of the statement of claim and paragraphs 5 and 6 of the affidavit in support of the application for summary judgment show clearly that there was a client/counsel relationship between the parties. The respondent instructed or engaged the appellants to defend her in suit No. OHC/LGET/01/2012 and OHC/LGET/02/2102 and the appellants did so. The
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depositions in the affidavit of the appellants to that effect were not denied by the respondent and so are deemed to be admitted and true. See Agbaje V Ibru Sea Food Ltd (1972) 5 SC 50 and Mabamije V Otto (2016) 13 NWLR (pt 1529) 171, 192.
It is clear that the trial Court did not invite appellants’ counsel to address it on the issue of the particularization of the principal items in the bill of charges before proceeding to decide the case against them based in part on the issue. The respondent did not file any process to raise the issue. It is the law that the judgment of a Court must be based on issues raised by the parties. It is not permitted for a Court to suo motu raise an issue and decide a matter based on it without affording the parties an opportunity to be heard on it. See Kuti V Balogun (1978) 1 SC 53, Mabamije V Otto supra and Sani V Kogi State of House of Assembly (2019) 4 NWLR (Pt. 1661) 172.
The current position of the law is that, if a Court raises an issue suo motu and proceeds to decide a case based on it without affording the parties an opportunity to address it on the issue, it will be fatal to the decision of the Court if it is
11
shown that the decision was wrong or that it occasioned a miscarriage of justice to the party complaining. See Ibekwe V Imo State Education Management Board (2009) 5 NWLR (Pt. 1134) 234, 256, Effiom V Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt. 1213) 106, 133 and Alims Nigeria Limited V UBA Plc (2013) 6 NWLR (Pt. 1351) 613, 626 where Fabiyi, JSC, opined that:
“However, failure of the Court to so invite the address of counsel, does not, ipso facto, render such a decision a nullity unless it is shown that the decision is incorrect or occasioned miscarriage of justice.”
Was there a miscarriage of justice or was the trial Court wrong in this instance? It is clear that the respondents engaged the services of the appellants, who represented her in two petitions arising from the local government election held in Benue State in November, 2012. The petitions were determined in favour of the respondent. When the respondent failed to pay their professional fees as demanded, the appellants sent bills of charges to the respondent.
The first point to be made is that a legal practitioner is entitled to his fees for his
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professional services except where the services are offered pro bono which is not the case in this instance. A legal practitioner may recover his fees on the basis of an agreed sum, quantum merit or bill of charges. In respect of bill of charges Section 16(1) and (2) of the Legal Practitioners Act provides:
“(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 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.”
In Oyekanmi V National Electric Power Authority (2000) 15 NWLR (Pt. 690) 414, 431 – 432. Uwaifo, JSC, held that;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“It is to be observed that in order for a legal practitioner to be able to begin an action to recover his fees upon a bill of charges he has to satisfy the three conditions namely, first he must prepare a bill of charges or a bill for the charges which should duly particularise the principal items of his claim; second he must serve his client with the bill; and third he must allow a period of one month to elapse from the date the bill was served”.
See also Evong V Messrs Obono, Obono & Associates (2012) 6 NWLR (Pt. 1296) 338.
The position of the lower Court after setting out what it considered lacking in the bills was that the bills of the appellants did not contain duly particularized items of the claim. At page 72 of the record the lower Court held that,
“By the failure to comply with the requirement, no further questions arise. In due fidelity to the dictate of the law, the Bill of Charges upon which the application for summary judgment is predicated does not bear out the Applicants’ case.
In effect, Plaintiffs/Applicants have not made out a case for the recovery of professional fee for any work or service
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rendered”.
In Oyekanmi V NEPA supra. at page 433, Uwaifo, JSC, opined that:
“At the moment the position does not seem so clear in regard to what is sufficient particularization as to hold … that Exhibit J was a bad bill. What is sufficient for that purpose does not appear to have received judicial consideration in our Courts. But it is clear to me that if there is an issue of insufficiency of particulars, that should be formally raised by objection.” (Italization is mine for emphasis).
In emphasizing his position, Uwaifo, JSC stated at page 434 of the report that,
“In the present case, no objection of any kind was taken to the bill of charges … The learned trial Judge adverted for the first time, and suo motu, to the question of the adequacy of the said bill of charges by his discussion of Re A Solicitor (supra). The issue was not raised or canvassed by any of the parties. What the learned trial Judge did was a digression which was unwarranted. He was in grave error of judgment”.
This Court in Guinness Nigeria Plc V Pat Onegbedan (2011) LPELR – 4222 (CA) held the view that failure to
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raise issue of non-compliance with the requirements of Section 16(2) of the Legal Practitioners Act must be formally raised by a defendant. It must be mentioned that in the case of First Bank Nigeria Plc V Ndoma – Egba (2006) All FWLR (Pt. 307) 1012, 1039, Omokri, JCA, opined that:
“… it is clear that one of the conditions precedent for an action to recover the charges is that the legal practitioner must have a bill of charges containing the particulars of the principal items included in the bill. Where that is not done the action filed by the legal practitioner is of no moment. Indeed the respondent in this case on appeal not having given the particulars of the principal items included in the bill is not entitled to begin an action to recover his charges because he has not fulfilled the condition precedent stipulated in Section 16(2) of the Legal Practitioners Act, 1975”.
In Oyekanmi V NEPA supra. 445 apart from the position of Uwaifo, JSC, Onu, JSC, held that,
“On the point whether the failure of the appellant to itemize his bill of costs was fatal or incurably bad as to make his claim irrecoverable, I am of the
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firm view that the decision in Re A Solicitor (1955) 2 All ER 285 upon a correct and proper application would only be bad or incurably bad unless there are no redeeming features. This is because of the admission made in paragraph 21 (Ibid) of the respondent’s statement of defence… Thus, whereas an itemized bill of costs as required by Section 16(1) of the Legal Practitioners Act is desirable, failure to itemize the bill of cost on the part of the appellant with particularity would not, in my view, render it a nullity for non-conformity with the Law or Act”.
In First Bank of Nigeria Plc V Ndoma – Egba, supra. Omokri, JCA, distinguished that case from Oyekanmi V NEPA supra on the basis that the bill in the latter case went beyond the perfunctory “for professional services rendered or for work done in connection with your litigation”, while the bill in First Bank of Nigeria Plc had no redeeming features and the client did not make any admission regarding the respondent’s fee as was the case in Oyekanmi V NEPA supra. See pages 1044 – 1045 of First Bank Nigeria Plc supra.
Okpale, Esq. for the appellants
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invited this Court to hold the decision in First Bank Plc V Ndoma – Egba supra as being obiter dictum. I do not see the need to embark on such a course. This is because the bill in the instant case is not incurably bad. It is similar to the bill in Oyekanmi V NEPA supra. I hereunder set out the bills:
Nature of Brief Litigation
Nature of Brief: Election Petition 1. PETITION NO. OHC/LGET/01/2012: BETWEEN HON. JOSEPH ADA O. & 1 OR VS MR. DANIEL ADA & 5ORS.
Court- Benue State Election Petition Tribunal for Zone C sitting in Otukpo, Benue State.
Subject Matter- Election Petition (Local Government)
Client- The National Chairman Peoples Democratic Party (PDP).
Summary of work done in Court- Petition heard on the merit and Judgment given in our favour
PARTICULARS
Date Particulars Fees/Charges
Professional Fee- N35,000,000.00 (Thirty Five Million Naira).
Appearance Fee- N10,000.00 per appearance for each case X 5 appearances = N50,000
Filing of Respondent Counter Affidavit/Reply on Point of Law to the petitioner’s Preliminary Objection- N200,000.00 (Two Hundred Thousand Naira)
Filing of
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Respondent’s Reply to the Petition- N500,000.00 (Five Hundred Thousand Naira)
Total- N35,750,000.00
2.
Nature of Brief Litigation
Nature of Brief: Election Petition- 2. PETITION NO. OHC/LGET/02/2012: BETWEEN HON. ROBERT OCHIGBO IDOKO & 1 OR VS JOSEPH ADAGBE & 1 OR
Court- Benue State Election Petition Tribunal for Zone C sitting in Otukpo, Benue State.
Subject Matter- Election Petition (Local Government)
Client- The National Chairman Peoples Democratic Party (PDP).
Summary of word done in Court- Petition struck out vide application on ground of same being statute barred.
PARTICULARS
Date Particulars Fees/Charges
Professional Fee- N35,000,000.00 (Thirty Five Million Naira).
Appearance Fee- N10,000.00 per appearance for each case X 3 appearances = N30,000.00
Filing of processes- N500,000.00 (Five Hundred Thousand Naira)
Total- N35,530,000.00
Grand Total = N71,280,000.00 (Seventy One Million, Two Hundred and Eighty Thousand Naira) only”.
The bills above may not be as detailed in particularization of its principal items as they should be. Certainly they are not
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classical examples of what a Legal Practitioner’s bill of charges should contain when compared to the suggestions of Uwaifo, JSC in Oyekanmi V NEPA supra. P. 437. However, they are passable and therefore have some redeeming features just as the bill in Oyekanmi’s case supra. See Pp 428 – 429. They are light years ahead of the “no – bill” in First Bank of Nigeria Plc V Ndoma – Egba supra page 1038 which tersely reads,
“To professional fees- 5,789,623.73
being 15% of N38,597,491.58
5% VAT- 289,481.19
Total payable- 6,079,104.92
Amount in words; Six Million and Seventy-nine thousand, one hundred and four naira, ninety–two kobo”.
The bills in this instance are bills in the eyes of the law. The respondent did not raise any objection to them including the issue of particularization. Indeed, it admitted the bill by not joining issues with the appellants having not filed any process as rightly acknowledged by the trial Court when it stated at page 70 of the record of appeal that;
“No word has come from the Respondent in resentment to the application.”
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The lower Court was therefore wrong in suo motu raising the issue of sufficiency of the particulars of the bills and in proceedings to dismiss the case of the appellants based in part on it without inviting address from appellants’ counsel. It led to a miscarriage of justice.
At page 72 of the record of appeal, the trial Court held that the case of the appellants did not fall under Order 11 of the High Court Rules, it not being a claim for liquidated money demand. Appellants’ counsel was of the view that the procedure under Order 11 (summary judgment procedure) is not limited to claims for liquidated money demand or debts only. Order 11 Rule 1 of the Benue State High Court (Civil Procedure) Rules 2007 provides that
“Where a plaintiff believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the deposition of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the ground for his belief and a written brief in respect thereof”.
Unlike the undefended list procedure which is limited to liquidated
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money demand or debt, the summary judgment procedure has a wide application to cases which are virtually uncontested or to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purpose of delay. If it is for the plain and straight forward and not the devious and crafty. Mac Gregor Associates V NMB (1996) 2 SCNJ 72 and Lewis V UBA Plc (2016) 6 NWLR (Pt. 1508) 329, 349. It however does not apply to cases of libel, slander, malicious prosecution, false imprisonment, seduction, breach of promise of marriage, or claim based on allegation of fraud. See Nwadialo’s Civil Procedure in Nigeria 2nd Ed. P 517. I also add that it does not apply to suits for declaratory reliefs as they cannot be granted on admission or default of pleading but on the basis of satisfactory evidence led before the Court.
The lower Court therefore was not right in holding that the claim of the appellants did not fall under Order 11 of the High Court Rules. It is my view that it did.
It is to be re-stated that the respondent did not raise any objection to the bills of charges though she
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was served with the bills for over three months before the suit was filed. It did not also apply for the taxation of the bills within one month from its delivery pursuant to Section 17(1) of the Legal Practitioners Act. On the effect of such a failure, Uwaifo, JSC, in Oyekanmi V NEPA supra. 435 stated:
“In such circumstances, the appellant would be entitled to apply for leave to sign final judgment for the amount of the bill unless the respondent was able to show special circumstances to warrant an order for taxation of the bill … on an application made under S. 17(3) of the Act. Nothing prevented the learned trial Judge in the circumstances from giving judgment for the amount claimed in the bill to the appellant had he taken appropriate procedure to have judgment signed for him …”
The appellants took the appropriate procedure and the trial Court ought to have entered judgment in their favour in respect of relief No 1.
In respect of the claim for N7,000,000.00 for cost of engaging counsel, such claim is not grantable in Nigeria. This position was settled by the Supreme Court in Nwanji V Coastal Services Nigeria Limited
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(2004) LPELR – 2106.
On the whole and in the light of what I have stated so far, I enter the following answers to the three issues for determination:
Issue 1 – A negative answer
Issue 2 – A negative answer except in respect of relief No. 11
Issue 3 – Affirmative answer except in respect of relief No. 11.
On the whole, I come to the conclusion that the appeal has merit and it is allowed. The judgment of the lower Court is hereby set aside. In its stead, I enter judgment in the sum of N71,380,000.00 in favour of the appellants with interest of 5% per annum from today’s date until it is fully liquidated. The claim for N7,000,000.00 being cost of engaging counsel is dismissed.
I assess the costs of this appeal at N100,000.00 in favour of the appellants against the respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Judgment delivered by my learned Brother, Hon. Justice J.E. Ekanem, JCA. I agree with the reasoning and conclusions in the lead Judgment of my learned Brother.
For the fuller reasons given in the lead Judgment, I therefore find merit in the appeal. I also enter
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the judgment in favour of the Appellant per the sum of N71.380,000.00 with 5% interest per annum until it is fully liquidated.
I abide by the order(s) as to cost of this Appeal.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Joseph E. Ekanem, JCA, in which this appeal has been allowed. The resolution of the issues arising for determination have been fully considered and resolved, and. I adopt same as mine.
I therefore also allow this appeal and abide by the orders made in the lead Judgment.
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Appearances:
S.O. Okpale, Esq., with him, Messrs A.O. Atubu, O.M. Iyokpo, J. U. Ezeokafor and O. O. Peace Omenka For Appellant(s)
T. Mue, Esq. For Respondent(s)
