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AGBO & ORS v. NLC & ORS (2022)

AGBO & ORS v. NLC & ORS

(2022)LCN/16081(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/MK/111/2021

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

1. ENE AGBO (Suing On Behalf Of The Late Chief S. O Agbo’s Estate) 2. MORONKE E. FAYOMI 3. ELIZABETH N. TIONSHA 4. JOSEPH P.A. AGBO 5. OKOPI F. ECHE (All Carrying On Legal Practice Under The Name And Style Of Fotteau Law House). APPELANT(S)

And

1. NIGERIA LABOUR CONGRESS 2. NIGERIA LABOUR CONGRESS, BENUE STATE COUNCIL 3. COMRADE GODWIN ANYA RESPONDENT(S)

 

RATIO

WHETHER OR NOT ISSUES FOR DETERMINATION FORMULATED WITHOUT A GROUND OF APPEAL GOES TO NO ISSUE

It is the law that an issue formulated without a ground of appeal to stand on goes to no issue and is liable to be struck out. I did not see any cross-appeal by the respondents for issues 4 and 5 formulated by the Respondents to stand on, neither had they tied it to any grounds of appeal formulated by the Appellants.
See the Authority of APC v. PDP & ANOR (2021) LPELR 55858 (CA) P. 8 – 9, paras E – A, where this Court restated the position of the law as follows:
“A Respondent who has not cross appealed or filed a respondent’s notice cannot formulate issues for determination which have no relevance to the grounds of appeal. Such issues are incompetent and are liable to be struck out. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395, Oke v. Maja (2014) 3 NWLR (Pt. 1394) 379, 388, Luna v. C.O.P Rivers State (2018) 11 NWLR (Pt. 1630) 269, 286.” PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice J. M. Ijohor in Suit No. MHC/357/2016, on the 13th day of March, 2018, wherein the trial Court dismissed the Plaintiffs claims for payment of professional fee to the estate of S.O. Agbo.

The Appellants were the Plaintiffs, while the Respondents were the Defendants at the trial Court. The Appellants being aggrieved with the decision of the trial Court had appealed against same to this Court vide his Notice of Appeal dated 8th day of March, 2021 and filed on the same date. The Notice of Appeal which challenged the decision of the trial Court on five grounds is found after pages 238 of the Record.

The Record of Appeal was compiled and transmitted to this Court on the 14th of July, 2021. The Appellants’ brief was filed on the 20th of August, 2021, while the Respondents’ brief of argument was filed on the 23rd of September, 2021. The Appellants upon receipt of the Respondents brief filed a reply brief which is dated the 29th September, 2021 and filed on the same date.

At the hearing of the appeal, counsel to both Appellants and Respondents adopted their respective briefs upon which this Court reserved the appeal for judgment.

This appeal was commenced by the Appellants vide a writ of summons dated 3rd of November, 2016, and filed on the same date which was issued to the Respondents who were tagged as defendants at the trial Court. The Appellants at the trial Court by Paragraph 28 of their statement of claim, claimed the following reliefs:
a. The sum of 3,980,000 (Three Million, Nine Hundred and Eighty Thousand Naira) only being professional fees.
b. The sum of N5,000,000 (Five Million Naira only) being General damages for breach of contract. See page 8 of the Record.

The Respondents upon being served with the writ and accompanying documents, filed a joint statement of defence and the 3rd Respondent counter Claimed against the Appellants as Defendants to counter-claim in paragraph 25 of the counter-claim as follows:
a. The sum of N650,000.00 being specific damages.
b. The sum of N5,000,000.00 being general damages for inconvenience and hardship visited on the Plaintiff.
c. Cost of the instant suit. See page 67 of the Record.

BRIEF STATEMENT OF FACTS
The case of the Appellants against the Respondents was that the 1st Appellant is the daughter, next of Kin and legal administrator of the estate of Late Chief S. O. Agbo while the 2nd, 3rd, 4th and 5th Appellants were lawyers working in the law firm of Chief S. O. Agbo until his demise in April, 2015.

The Appellants’ case was that while Chief S. O. Agbo was alive, he conducted cases on behalf of the Respondents for which he was not paid, and the 2nd to 5th Appellants were counsel in chambers while the late Chief S.O. Agbo was handling the matters for the Respondents and they were even sent to handle the matters. That after the demise of Chief S. O. Agbo which the Respondents were well aware of, the Respondents did not come to withdraw their files from his office and the 2nd to the 5th Appellants continued with the matters. In fact, the Respondents still come to the office to instruct the 2nd – 5th Appellants to handle a new suit for them.

The Appellants’ case is that the 2nd to 5th Appellants eventually registered a new law firm under the business name FOTTEAU LAW HOUSE and maintained the same law office address as the Late Chief S.O Agbo. That despite several demands to the Respondents, the Appellants were not remunerated for the services rendered to the Respondents which eventually led to the filing of the instant suit on appeal at the trial Court.

The Respondents on the other hand filed a joint statement of defence and denied liability to the claims of the Appellants. The Respondents’ case was that the 2nd Respondent has a long standing relationship with the late Chief S. O. Agbo Esq., which dates back to the 1990s. That on the strength of the relationship S.O Agbo would provide legal services to the 2nd Respondent and was remunerated on mutual terms without any issue of unpaid bills.

The Respondents’ case was that Suit No. NICN/MKD/18/2015 was instituted against Nigeria Civil Service Union & 2 Ors to wit: Nigeria Labour Congress as 2nd Defendant and Comrade Simon Anchaver as 3rd Defendant. That the office of Late Chief S.O Agbo entered appearance for the 2nd and 3rd Defendants in the Suit No. NICN/MKD/18/2015, well after the demise of S. O. Agbo Esq. That the tenure of Simon Anchaver, the 3rd Defendant in Suit No. NICN/MKD/15/2015, ended and elections conducted ushered in the present 3rd Respondent as chairman of the 2nd Respondent.

That when the new executives of the 2nd Respondent headed by the 3rd Respondent came into office, the Appellants cause the letter of demand of professional fee in EXH. G to be served on the 2nd and 3rd defendant. That upon received of EXH. G, the 2nd and 3rd Respondents made EXH. E requesting for additional information to furnish and equip the 2nd Respondent on the alleged bill of charges, and instead of furnishing the further particulars, the Appellants dragged the Respondents to the trial Court for unpaid professional fees.

That a perusal of the letter of administration in EXH. L obtained by the 1st Appellant, it did not grant her powers to administer the law firm of Chief S. O. Agbo Esq., and the 2nd to 5 Appellants’ claim that she sent the Respondents a letter to retrieve their file with the law firm upon registering FOTTEAU LAW HOUSE is not back with any documentary evidence. Neither could the Appellants produce the name of the officer of the 2nd Respondent who briefed the law firm.

ISSUES FOR DETERMINATION
The Appellants’ brief of argument distilled three issues for determination by this Court as follows:
– Whether the learned trial Court was right to hold that the 2nd to 5th appellants failed to prove the existence of a contract between themselves and the respondents. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal).
– Whether the Appellants are entitled to remuneration for legal services rendered to the respondents. (Distilled from Grounds 3, 4 and 4 of the Notice of Appeal).
– Whether the learned trial judge was right to hold that the 1st appellant failed to prove respondents’ indebtedness to her father and her right to take benefit therefrom. (Distilled from grounds 4 and 5 of the Notice of Appeal).

The Respondents in their brief of argument formulated four issues from the grounds of appeal as follows:
– Whether the learned trial Court was right to hold that the 2nd – 5th Appellants failed to prove existence of a contract between themselves and the Respondents.
– Whether the Appellants are entitled to remuneration for legal services render to the Respondents.

– Whether the learned trial Court was right to hold that the 1st Appellant failed to prove Respondents’ indebtedness to her father and her right to take benefit therefrom.
– Whether the writ issued by the Appellants not being a concurrent writ, the service on the 1st Respondent allegedly effected by serving the writ and subsequent process on the premises of the 2nd Respondent constitutes proper service in the circumstance.
– Whether the suit of the Appellants discloses a cause of action maintainable in law against the Respondents.

In this appeal, I shall adopt the three issues distilled in the Appellants’ brief as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.

Let me quickly state that I have noted that the Respondents had formulated five issue which I reproduced above while the Appellants formulated three issues. While Issues 1 – 3 formulated by the Respondents is same with issues 1 – 3 formulated by the Appellants, issues 4 and 5 formulated by Respondents appears to be standing on its own without a ground of appeal to hang on.
It is the law that an issue formulated without a ground of appeal to stand on goes to no issue and is liable to be struck out. I did not see any cross-appeal by the respondents for issues 4 and 5 formulated by the Respondents to stand on, neither had they tied it to any grounds of appeal formulated by the Appellants.
See the Authority of APC v. PDP & ANOR (2021) LPELR 55858 (CA) P. 8 – 9, paras E – A, where this Court restated the position of the law as follows:
“A Respondent who has not cross appealed or filed a respondent’s notice cannot formulate issues for determination which have no relevance to the grounds of appeal. Such issues are incompetent and are liable to be struck out. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395, Oke v. Maja (2014) 3 NWLR (Pt. 1394) 379, 388, Luna v. C.O.P Rivers State (2018) 11 NWLR (Pt. 1630) 269, 286.”
The Respondents cannot be seen to be crying more than the Appellants who brought this appeal by raising issues and arguing them where same has no basis from the Notice of Appeal. Therefore, issues 4 and 5 formulated by the Respondents which have no foundation on a ground of appeal to stand on are hereby struck out and I shall not consider counsel submission on same in determining this appeal.

ISSUE ONE
Whether the learned trial Court was right to hold that the 2nd to 5th appellants failed to prove the existence of a contract between themselves and the respondents. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal).

APPELLANTS’ COUNSEL SUBMISSION
The Appellants in arguing this point referred to their pleadings in paragraphs 6 to 12 found on page 6 of the record of appeal and submitted that the Appellant’s pleadings was backed with oral evidence of Joseph Agbo (PW 1) and that the appellants’ averments and oral evidence of PW1 in this regard which remained consistent with the appellants’ claims was further supported by documentary evidence particularly Exhibits C, H, I, J, K, M which detailed the briefs handled by appellants on behalf of the respondents.

Counsel submitted that the Respondents’ assertions that they have no contractual relationship with the appellants was not backed by any piece of evidence, but rather while the respondents claimed they did not brief the appellants, they did not deny that the appellants rendered professional services to them which they benefitted from after the demise of Chief S. O. Agbo. That the trial Court in arriving at her judgment did not avert her mind to the fact that, whatever contractual relationship the respondents had with Late Chief S. O. Agbo terminated at his demise and by allowing appellants to continue to handle their cases and even briefing them of a new suit, the respondents had created a new contractual relationship with the appellants.

Counsel relied on the authority of Tsokwa Oil Marketing Co. Nig. Ltd Vs. Bank of the North (2002) FWLR (Pt. 112) 53 SC to submit that the contract the Respondents had with late chief Agbo was discharged by frustration as a result of his death, and the Respondent who were aware of the demise of late Chief S. O. Agbo as stated by DW2 in his testimony knew that their file would be left hanging without anyone attending to them except for the proactive action of the 2nd to the 5th Appellants.

Counsel submitted that there is no justification for the learned trial judge to hold that “the plaintiffs erroneously assumed that the defendants would continue to engage their services even after the death of Chief S.O. Agbo” when pleathora of evidence before the trial Court revealed that the respondents refused/neglected to come to the law office to get their files as some of the other clients did. That the suit in Exhibit K which was instituted after the demise of Chief S. O Agbo was brought to the office by the then chairman of respondents for legal representation by the appellants. Therefore, the question is, who did the respondents expect to continue with these cases since Chief Agbo was dead?

Counsel submitted that the Respondents continued to enjoy legal services provided by appellants and it was only when it came to the matter of remuneration, they were trying to deny any relationship between themselves and the appellants. Counsel on that note relied on the provisions of S. 169 of the Evidence Act and submitted that the Respondent made them believe they are representing them, and now when it comes to remuneration, they cannot say otherwise.

Counsel referred also to the authority of Obau Engineering Ltd Vs. Almasol (Nigeria) Ltd (2013) ALL FWLR (Pt. 666) pg 484 and submitted that the conduct/omission of the respondents in not coming to take their files from the Late Chief S.O. Agbo’s office even when they knew he was dead and as a matter of fact still briefed the other lawyers in the office with Exhibit K is sufficient to imply a contractual relationship with the 2nd to 5th appellants and Counsel urge your ‘Lordships to so hold. See also Nigerian Dynamic Ltd Vs. Aguocha (2002) FWLR (Pt. 104) Pg 630.

Counsel submitted further that the appellants rendered legal services to the respondents after Chief S.O. Agbo died on 16th April, 2015 by Exhibit L. In fact, the respondents did not deny that the appellants rendered professional services for them after Chief S.O. Agbo’s demise, as their Defence is that they didn’t brief the appellants, they only briefed Late Chief S.O. Agbo. However, according to Counsel, the question remains that when they knew Chief S.O. Agbo was dead, why did they still bring Exhibit `K’ a new suit to the appellants for them to be represented by the Appellants if they did not intend to brief the appellants?

That the fact that Exhibit K did not fly into the appellants’ office of its own volition, meant someone, an officer, particularly of the respondents brought it to the appellants. Hence, according to counsel by this conduct the respondents created a new contractual relationship with appellants. See Obau Engineering Ltd Vs. Almasol (Nigeria) Ltd (Supra) and Nigerian Dynamic Ltd Vs. Aguocha (2002) FWLR (Pt. 104) Pg 630, where the Court held that “the Court may infer the intention of parties from their conduct”.

Counsel submitted that other legal assignments which shows clearly that the 2nd to the 5th Appellants’ rendered legal services to the Respondents include Exhibit ‘C’, Exhibit ‘H’, Exhibit T , Exhibit `J’, Exhibit `K’, and Exhibit ‘M’. Counsel submitted that the exhibits clearly evidenced the fact that even after Chief S.O. Agbo’s demise, the appellants continued to put up representation in different Courts even as far as Enugu, also incurring hotel bills and filing of processes on behalf of the respondents which the respondents themselves have not denied and which they were very much aware of by their actions.

Counsel submitted that the judgment of the trial Court is therefore perverse, the Appellants having brought these facts to the knowledge of the trial Court. Counsel relied on the authorities of Onyejekwe Vs. State (1992) 3 NWLR (Pt. 230) 444, Ogundulu Vs. Chief Olabode (1973) 2SC 71, Odusole Vs. Military Governor, Ogun State (2002) FWLR (Pt. 123) Page 397 Paras F, and Buhari Vs. INEC (2009) 7 WRN 1 at 174H 73 on the definition of a perverse decision.

Counsel urged this Court set aside the decision of the trial Court as the findings of the learned trial judge in holding that the 2nd to 5th appellants failed to prove the existence of a contract between themselves and the respondents when all evidence before the Court showed otherwise, is perverse and has therefore occasioned a miscarriage of Justice to the appellants.

RESPONDENTS’ COUNSEL SUBMISSION
The Respondents’ counsel on the other hand submitted that the learned trial judge was right to hold that the 2nd – 5th Appellants failed to prove the existence of a contract between themselves and the Respondents. Counsel referred to paragraphs 6 and 7 of the Appellants’ pleadings and submitted that the import of the pleadings therein is that the Respondents briefed Chief S. O Agbo orally and the 2nd to 5th Appellants are not Chief S. O. Agbo, and there is no evidence from Chief S. O Agbo either by way of demand letter or any correspondence to show that the Respondents were indebted to S. O Agbo Esq.

Counsel contended that Appellants made Exhibit `G-‘ and ‘F’ and indeed the claims in EXH G and F without more are short of details of the instructions (if any) as relating to consideration and the scope of the instruction, and it is settled law that the Court must, in construing the relationship of the parties in any contract confine itself to the plain words and meaning which can be derived from the provisions containing the rights and obligations of the parties provided therein. Counsel referred to Augustine Ibama v. Shell Petroleum Development Company of Nig Ltd (2005) ALL FWLR (Pt. 287) 832 at 844 para B – D.

According to counsel, assuming without conceding that there exists a contract between S.O Agbo Esq., and the Respondents as alleged, the question is whether the Appellants are privy to the contract? Counsel referred to the case of Thomas Chukwuma Makwe v. Chief Obanua Nwukor (2001) 14 NWLR (Pt733) P. 356 at 381 where the Supreme Court held thus:
“As a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, wily the parties to a contract can sue or be sued on the contract and generally, a stranger to a contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him right to sue or to make him liable upon it. In the same vein, the fact that a person who is stranger to the consideration of a contract stands in a such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract. See also ADAMS O. IDUFUEKO VS PFIZER PRODUCTS LTD & ANOR (2014) ALL FWLR (Pt. 745) 269 at 287 para. G-H.”

Counsel on this note contended that Suit No. NICN/MKD/18/2015 was instituted after the demise of Chief S.O Agbo Esq., and the Memorandum of Appearance was entered by one Comfort Umburga who is now deceased, with the address of service therein is S.O Agbo & Co. It is not certain whether the brief was accepted for the then law firm of S.O Agbo & Co or whether the said deceased Comfort Umburga was personally briefed as the scope of the said brief is also not certain.

Counsel while relying on the settled position of the law that he who alleges must prove by the authorities of United Cement Company (Nig) Ltd. v. Isidor (2016) ALL FWLR (Pt. 844)2137 CA, Odum v. Chibueze (2016) ALL FWLR (Pt. 848) 714 CA, Rufai Adeyemi v. Akande (2016) ALL FWLR (Pt. 858) 652 CA submitted that the Appellants have made sweeping assertions in paragraphs 3, 6, 8, 9, 10, 19, 20, 22, 27 and 28 without corresponding duty to prove these assertions, therefore, the suit of the Appellants is built on speculation.

Counsel therefore urged this Court to passionately hold that paragraphs 6, 7 and 19 are inadequate to distill a contract between the Appellants and Respondents, and their case must fail for lack of proof of existence of contract between themselves and the respondents.

RESOLUTION OF ISSUE ONE
The Appellants by this issue are challenging the decision of the trial Court which held that they had not established that they had any contractual relationship with the 2nd and 3rd Respondents. It is taken that upon the demise of Chief S.O Agbo, the relationship between the late Chief S.O Agbo and the 2nd and 3rd Respondents is terminated and it is also the law that contractual relationships are created by oral and written agreement and also impliedly by action of parties.

I agree completely with Appellants counsel that upon the demise of late Chief S.O Agbo, the relationship between himself and the 2nd and 3rd Respondent was discharged, however, the question as to whether the Appellants had established that they had a contract orally, written or impliedly with the 2nd and 3rd Defendant to warrant payment for legal services rendered as FOTTEAU LAW HOUSE is the bone of contention under this issue.

The Appellants’ was that even after the demise of late Chief S.O Agbo, the 2nd and 3rd Respondents brief them Suit No. NICN/MKD/18/2015, to which they entered appearance and represented them. The Appellants also contended that they represented the Respondents in Suit No. MHC/121/2011, Suit No. NICN/MKD/38/2013, and Suit No. NICN/MKD/29/2012, which were all briefs belonging to S. O. Agbo & Co., as the Appellants were only counsel who conducted the case under the law firm of S.O. Agbo and Co.

The Appellants’ case is clearly that they were the lawyers that conducted the case on behalf of the 2nd and 3rd Respondents under the law firm of Chief S.O Agbo and Co., and that they continued with the cases after the demise of Chief S.O Agbo Esq., under the law firm of Fotteau Law House with the knowledge of the Respondents.

Although the Appellants alluded to the fact that they notified the Respondents of the demise of Late Chief S. O. Agbo and gave them the option to come and collect their files or continue with them, there is no evidence to that effect. The defendant having denied ever being in receipt of such correspondence, it behooves on the Appellants to produce that document to vindicate their claim, but none was produced at the trial Court as the trial judge noted that much. That goes without saying that Appellants had failed to establish that the Respondents elected to continue her brief to Chief S.O Agbo & Co., with them.

This takes me to the other leg of the Appellants contention that since S. O. Agbo was death, and DW1 said he was aware of his demise as he heard it over the radio, therefore, the Respondents having kept mute and allowed the 2nd to 5th Appellants to continue their case had created an implied contract.

I must quickly say that we must put this contention into perspective of the fact that the 2nd to 5th Appellants were lawyers under the law firm of Chief S. O. Agbo and Co., and now they are claiming under the law firm of Fotteau Law House. Again, all the brief and cases for which the 2nd to 5th Appellants are claiming contractual relationship for are all briefs assigned to Chief S.O Agob Esq., orally, and not to Fotteau Law House. This goes without saying that the terms of the contract or engagement between the 2nd and 3rd Respondents with Chief S. O Agbo Esq., is not known by the 2nd to the 5th Appellants. Whether the brief assuming was pro bono, the 2nd to 5th Appellant has not justified before the trial Court what the terms were.

That is even aside, to the issue, it was clear, that it was the law firm of S. O. Agbo and Co., that had the briefing as even the memorandum of Appearance entered for the Respondent was in the name of S.O. Agbo and Co. Now, the 2nd to 5th Appellants want payment on the basis of implied contract to be made to them under the Fotteau Law House. To my mind, if the 2nd to 5th Appellants claimed for their professional fees under the law firm of S.O Agbo & Co., it would had passed for their claim of implied contract, since the Respondents only knew S.O. Agbo and Co., and the 2nd to 5th Appellants handled the matters under the name of S. O Agbo and Co.

But to claim that since the 2nd to 3rd Respondent did not come to retrieve their brief after the demise of S.O Agbo Esq., meant they had an implied contract with Fotteau Law House to my mind is not the law of contract. I agree with the learned trial judge that the 2nd to the 5th Appellants quietly assumed that they had a contract with the 2nd to 3rd Respondents instead of securing a formal brief after the death of S.O Agbo and the creations of Fotteau Law House. This completely brings the issue of privity of contract to play. The 2nd to 5th Appellants may have benefited as lawyers under the law firm of S.O Agbo & Co., but not as lawyers under the law firm of Fotteau Law House, as there is no nexus at all between the two law firms.

I must say that I have read Counsel to appellants’ submission on the fact that the Respondent did not deny engaging the services of the law firm, and that should count for something. However, the details of the briefing to S.O Agbo & Co and what is paid or outstanding or not had not been established by any pleading except that the 2nd to 5th Appellants represented the Respondents and the question is on what terms?

I must say that I agree with the trial judge that a legal practitioner must be paid his legal fee, but in the absence of any justifies terms and basis of the Respondents engaging the Appellant, it would appear to me that the Appellants only went ahead of themselves and represented the Respondents without getting proper briefing and now they cannot establish the terms of the engagement between themselves and the respondents and they are leaving it to the Courts to imply.

Issue one is resolved against the Appellants as I cannot see any implied contract between the 2nd and 3rd Respondents with the 2nd to 5th Appellants, but only a contract between the respondents and late chief S. O. Agbo Esq., who is late and same effectively terminated the contract.

ISSUE TWO
Whether the Appellants are entitled to remuneration for legal services rendered to the respondents. (Distilled from Grounds 3, 4 and 4 of the Notice of Appeal).

APPELLANTS’ COUNSEL SUBMISSION
Counsel on this issue having relied on the authority of GTB Plc & Anor Vs. Anyanwu, Esq., (2011) LPELR- 4220 (CA) where the Court held that a legal practitioner is entitled to be remunerated for his legal services submitted that base on the evidence available before the honourable trial Court, the learned trial judge erred in arriving at the conclusion that the appellants have not proved existence of a contract between themselves and the respondents.

Counsel referred also to the authorities of Oyo Vs. Merchantile Bank (Nig) Ltd (1989) 3 NWLR (Pt. 108) 213, and Akingbehin Vs. Thompson (2008) 6 NWLR (Pt. 1083) 270 where the Court of Appeal Per Adamu, JCA, held thus:
“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 merit or quasi-contract.”

Counsel submitted that in light of the fore-going decided authorities, the respondents having enjoyed legal services from the appellants are estopped from denying their obligation to pay the appellants for their professional charges, as the appellants have by evidence in the bill of charges in Exhibit ‘G’ showed that they represented the Respondents in Suit Nos. MHC/121/2011, Suit No. NICN/MKD/18/2015, Suit No. MICN/MKD/29/2015 and NICN/MKD/38/2013, and this was never denied by the respondents. Therefore, they are entitled to their remuneration.

Counsel submitted that they followed up EXH G sent to the Respondents with EXHS F and D. That having prepared the bill and served the Respondents and waited for one month are entitled to be remunerated for the services rendered even if on a quantum merit basis.

RESPONDENTS’ COUNSEL SUBMISSION
Counsel submitted that it is the Appellants’ case that the law firm of Chief S.O Agbo was orally briefed to handle cases for the 1st and Respondents and the 2nd to 5th Appellants are simply lawyers in the law firm of Chief S. O Agbo & Co. Counsel submitted from this, Appellants have not furnished the terms governing the said briefs between the Iate Chief S. O Agbo and the Respondents neither were Appellants privy to the relationship between the late S.O Agbo & Co and the 2nd Respondent. That the Appellants have also not furnished the particulars of the officer of the Respondents who allegedly briefed the Appellants and further still whether such officer had the capacity and the mandate to bind the Respondents, nor have the Appellants proved that Fotteau Law House was ever briefed by the Respondents to handle any of the briefs listed in paragraph 6 of the claim.

Counsel submitted that contrary to the averments in respect of paragraphs 8, 9 and 10 of the claim, under the fire of cross-examination, no piece of evidence was elicited in that regard, not even a correspondence to any other client evidencing communications to the clients of the late S.O Agbo for the withdrawal of briefs or notification of the death of S.O. Agbo & Co was tendered in evidence. Suit No. NICN/MKD/18/2015 was instituted after the demise of Chief S.O Agbo Esq., and before the election of the 3rd Respondent as state Chairman of the 2nd Respondent, thus it is clear that the 3rd Respondent has proved that he was not in office when the facts allegedly forming the crux of this suit occurred.

Counsel contended that the evidence of the 2nd and 3rd Respondents have remained consistent that they never briefed the Appellants, as there is no evidence before the Court to assert that the 2nd – 5th Appellants were brief while working under the late S.O Agbo Esq. There is equally no evidence to show that the 3rd Respondent was the Chairman of the 2nd Respondent when the cause of action for Suit No. NICN/MICD/18/2015 arose.

Counsel contended that the submission of Appellants in Paragraph 6.05, 6.06 and 6.08 and 6.10 of their brief has interpreted the law upside down as the Appellants have failed to provide the needed flesh for the law and the judicial authorities cited in the said paragraphs. That the requirements expected of the Appellants includes but not limited to the following:
a. How much was the agreed consideration for the briefs that were assigned to S.O. Agbo & Co and for which of the three Respondents specifically.
b. Evidence of how much was paid out of the agreed consideration and the requisite balance if any.
c. Appellants to prove that after the demise of S.O. Agbo, the contract between the Appellants and the 2nd Respondent underwent a novation in favour of the 2nd – 5th Appellants, and
d. Assuming without conceding that there is a balance accruing to the Estate, whether the Exhibit ‘L’ without more entitles the 1st Appellant to recover the said balance.

Counsel urged this Court to find and hold that the Appellants have failed to prove entitlement to any remuneration for professional services allegedly offered to the Respondents.

RESOLUTION OF ISSUE TWO
First and foremost let me say that a lawyer is entitled to his remunerations and should be duly paid for his/her services. Having resolved that the Appellants had not established that they had any contractual relationship with the 2nd and 3rd Respondent does not in any way, shape or form mean that they should not be paid for the legal services rendered.

However, this will clearly be where the Appellants established by cogent and credible evidence the legal fees payable to them by the Respondents. The only document carrying an amount forming the monies payable to the Appellants as their legal fees in the Sum of N3,980,000.00 is the Appellants letter to the 1st Respondent dated 29th March, 2016, which is found at page 58 of the record.

To this letter, the 1st Respondent replied with her letter of 14th July, 2016, found at page 59 of the record where she demanded inter alia that the appellants provide letter of engage/instrument of authority in order for her to determine appellants’ professional fee and appellant clearly stated by her letter dated 18th July, 2016, found at page 60 of the record that the Respondents instruction to handle the matter had been oral.

The Appellants had failed to provide the professional fee agreed upon and they did not even provide who gave the oral instruction or professional fee agreed by the oral instruction. This I must say make it difficult to pronounce an amount for payment as professional fee to the Appellants as it is clear that the Appellants rendered legal services they represented the Respondents, a fact which the respondents had not denied, but only claimed that they had no contract with the Appellants.

I had noted the authority of Akingbehin Vs. Thompson (Supra) cited by Appellants where the Court held that a reasonable remuneration could be awarded, however, in this case were the Respondents had denied engaging the services of the Appellants, it makes it more difficult to award any amount which would appear like damages. I believe that the situation in Akingbehin Vs. Thompson (Supra) is for a situation where the parties engaged the legal services of counsel, but the professional fee was not agree on. The Appellants’ case however, the Respondents completely denied contracting them to represent them, hence, this Court cannot award a professional fee where it has not been established that there was a contract between the parties, this would amount to creating a contract for the parties where none had been shown to exist by the Appellants pleadings.

I agree with the Respondents’ counsel that the Appellants ought to establish how much was assigned for the briefs which the Appellants mentioned three different suits, one at High Court Benue State and two at National Industrial Court. The failure of the Appellants to provide the agreed professional fees, what was paid if any, and the balance if any has clearly left the trial Court handicapped and also this Court cannot award monetary claims which are not established by evidence. Therefore this issue is equally resolved against the Appellants.

ISSUE THREE
Whether the learned trial judge was right to hold that the 1st appellant failed to prove respondents’ indebtedness to her father and her right to take benefit therefrom. (Distilled from grounds 4 and 5 of the Notice of Appeal).

APPELLANTS’ COUNSEL SUBMISSION
Counsel on this issue while challenging the finding of the trial Court that the 1st Plaintiff had not established any relationship with the Respondents and the amount paid to her father and what is left submitted that by paragraph 19 of their pleadings which is found at page 7 of the record, the Appellants pleaded that Chief S. O. Agbo was not paid anything by the Respondents. That this pleadings was also the evidence of PW1 who adopted same in his statement on oath at paragraph 22 of his evidence.

Counsel submitted that this piece of evidence was not controverted by any piece of evidence of the respondents as the respondents neither pleaded any fact or provided any piece of evidence to contradict the assertions and evidence of the appellants, but only stated that there was no privity of contract between the respondents and appellants. Counsel relied on the Towoeni Vs. Towoeni (2002) FWLR (Pt. 122) 170 INCAR Nig. Ltd. Vs. Adegboye (1985) 2 FWLR (Pt. 8) 459 and submitted that it is trite that uncontroverted/unchallenged evidence are deemed admitted.

Counsel submitted that In this case, the appellants herein provided proof of work done by Chief S.O. Agbo when he was alive which work were continued by the 2nd to 4th appellants after his demise. That the appellants stated both in their pleading and evidence that neither Chief S.O. Agbo nor the 2nd to 5th appellants were remunerated for the work done, a fact known Appellants and the respondent did not deny that Chief S.O. Agbo was not remunerated for the services he provided, rather they were more interested in the fact that his daughter the 1st appellant and the 2nd to 5th appellants were not privy to whatever relationship they had with the deceased and therefore could not ‘receive the remuneration due to him.

Counsel submitted that Appellants having proved their case, the burden of proof shifted to the Respondent and the respondents had not discharged their burden as in law it is the person who asserts the positive that has the burden of proof. Counsel referred to S. 131 of the Evidence Act, and the case of Bank of the North Vs. Oniyo (2002) FWLR (Pt. 129) 1492 page 1507, para E, F. See also Jiwul Vs. Dimlong (2002) FWLR (Pt. 114) 481 at 506-507 Paras H. A.

It is the Appellants contention that since only a positive assertion is capable proof, when the appellants asserted that neither themselves nor Late Chief S. O. Agbo was paid for legal service rendered to the respondents, the burden rested on the respondents to prove otherwise. Therefore, the learned trial judge’s holding that 1st appellant failed to provide cogent and satisfactory evidence on the state of the suits handled by the father with regards to remuneration is in error and Counsel ought this Court to upturned the decision of the lower Court.

Counsel submit further that the trial judge’s holding that anticipated income is not one of the items listed in the letters of administration granted the 1st Appellant is wrong as it is trite that the family members of a deceased, including his wife and or children are clothed with the requisite locus standi to sue to protect the properties or estate left behind by their deceased father. See Administration of Estates Law of Benue State Cap 1, 1988, Laws of Benue State, 2004, and the case of Amodu Vs. Obayomi (1992) 5 NWLR (Pt. 242) 1.

Counsel also referred to the case of Disu Vs. Ajilowura (2006) 14 NWLR (Pt. 1000) 783 at P. 787 where the Apex Court stated that a party claiming as a next of kin must establish sufficient interest to be entitled to the reliefs sought and submitted that by paragraph 1 of the Appellants statement of claim, 1st Appellant pleaded that she is the daughter and administrator of the estate of late Chief S. O. Agbo, and therefore she can competently maintain a suit in respect of her father’s estate irrespective of the fact that the letters of Administration (Exhibit L) granted her did not specifically include anticipated income from her late father.

Counsel submitted further still that by Section 15 of the Administration of Estate Law Benue State, all cause of action against a decease shall survive deceased, and the fact that the letters of Administration in EXH L issued to the 1st Appellant did not state anticipated income is not fatal to the 1st Appellant’s case in proving that she is the daughter of late Chief S. O. Agbo. That 1st Appellant does not even need EXH L to sue the Respondents, therefore, Counsel urged this Court to hold that the 1st Appellant is well within her rights as the daughter of the deceased to claim benefits accruing to her father’s estate with or without a letter of Administration.

RESPONDENTS’ COUNSEL SUBMISSION
On this issue, the Respondents counsel started by submitting that upon the demise of Chief S.O Agbo, EXH L was made and a look at the said EXH L distilled the assets covered by the grant as set out at page 19 of the record of appeal to include:
a. Skye Bank PLC account No. 1771139231-N63, 324.04.
b. Keystone Bank ltd. Account No. 1000522620-N5, 644.07.
c. First Bank PLC Account No. 2002354016-N520,857.66
d. Access bank PLC Account No. 00037202233-N11, 213.35
e. Zion Microfinance Bank Ltd. Acct. No. 131002234 -N166, 991.86.
f. UBA PLC Account No. 1003708421-N274.13.

Counsel on this note relied on the authorities of Bijou Nig Ltd v. Ostdarohwo (1992) 6 NWLR (Pt. 249) Ratio 2, Amizu v. Nzeribe(1989) 4 NWLR (Pt. 118) 755 to contended that documents speak for themselves and where the operative words of the documents are clear, it is given their ordinary and simply meaning. Counsel relied on the authority of Union Bank of Nig Ltd v. Prof. A.O Ozigi (1994) 3 NWLR (Pt. 333) 385 Ratio 4.

Counsel submitted further that the said EXH L does not extend to the affairs of S.O Agbo & Co., therefore, the assets covered by the said Exhibit do not disclose anticipated income from the briefs of the Respondents or indebtedness of the Respondents to the deceased. That assuming without conceding that the Respondents were actually indebted to the last S.O Agbo Esq, Exhibit `L’ without more does not cloth the 1st Appellant with legal status to take benefit from that transaction. Furthermore, the 1st Appellant not being a party to the contractual relationship between the late S.O Agbo Esq., and the 2nd Respondent (if any), cannot validly take benefit under the said contracts. Counsel referred to the authority of Thomas Chukwuma Makwe v. Chief Obanua Nwukor (Supra) at P. 377 para ‘H’ on the principle of privity of contract.

Counsel rounded up his submission by stating passionately that EXH. L does not confer a right on the 1st Appellant to administer assets of the deceased, S.O Agbo Esq., beyond those listed in the inventory of Exhibit `L’.

RESOLUTION OF ISSUE THREE
The 1st Appellant is clearly the daughter and next of kin to late chief S.O Agbo by the letters of Administration granted to her for his estate found at the page 18 of the record. As her father’s next of kin, she inherits his estate and monies accruing to him. I do not agree with the trial Court that she cannot inherit the proceed of her father’s law firm, and I do not agree with respondents’ counsel that the letter of administration does not give her powers to claim the unpaid professional fees the respondents are owing her father, but that same is only limited to the particular item listed on the letter.

For the 1st Appellant herein, in her case, she is not a lawyer like the 2nd to 5th Appellants, she is just a beneficiary to the estate of late S.O Agbo, therefore, she is only claiming entitlements of her late father. I agree that the 1st Appellant is entitled to whatever proceeds is flowing from her late father’s estate, however, what I found disturbing is that the entitlement of the law firm of S.O. Agbo & Co accruing from the Respondents had not be established by way of evidence at the trial Court.

This evidence is crucial and same will enable the Court to determine what the 1st Appellant is entitled to from the respondents, but this piece of crucial evidence is missing. There is no gain saying that the law is trite, that anybody who wants judgment in his favor has a burden to prove his claim by cogent and credible evidence, and in this case, there a complete lack of prove on the side of the 1st Appellant on what she is entitle to from the respondents.

I see no merit on this issue as well and same is resolved in favor of the respondents.

In conclusion, having resolved issues 1-3 against the Appellants, it means that this appeal is lacking in merit and is hereby dismissed in toto. The judgment of the lower Court, Hon. justice J.M. IJOHOR, J, delivered on the 13th day of March, 2018 in suit no. MHC/357/2016 is HEREBY AFFIRMED.
Parties to bear their costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, HON.-JUSTICE MUSLIM SULE HASSAN, JCA, and I am in complete agreement with the reasoning and conclusion of my Lord in his lead judgment on all the issues raised.

On the whole, I adopt them as mine to also hold that the Appellant’s appeal is unmeritorious and same is accordingly dismissed.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA. My learned brother has properly dealt with all the issues relevant for the determination of the appeal. I agree with him entirely on his findings and the conclusion reached therein.

Consequently, I also find that the appeal is unmeritorious and is hereby dismissed. The judgment of the lower Court delivered by Hon. Justice J. M. IJOHOR J., on the 13th day of March, 2018 in suit no. MHC/357/2016 is hereby affirmed.

Appearances:

R.I. AUDU ESQ. For Appellant(s)

A.A. IKPA ESQ. For Respondent(s)