M N I EMORI ESQ v. ABITRANS COMPANY LIMITED (2015)

M N I EMORI ESQ v. ABITRANS COMPANY LIMITED

(2015)LCN/8079(CA)

On Monday, the 22nd day of June, 2015

CA/C/236/2013

RATIO

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

M. N. I. EMORI, ESQ.
(Practising under the name and style of M. N. I. EMORI & CO. NKANU EMORI CHAMBERS) Appellant(s)

AND

ABITRANS CO. LTD Respondent(s)

RATIO

THE TAXING OF BILL OF CHARGES OF LEGAL PRACTITIONERS

The learned counsel for the judgement creditor did submit in his arguments that taxation of the judgment sum in this case can only be ordered by Court upon appropriate application being brought before the Court in line with the provisions of section 17 of the Legal Practitioners Act 1990. I do not agree with that submission because the situation anticipated under Section 17 of the Legal practitioners Act is not met in this instance. That section anticipates the taxing of the bill of charges of the legal practitioner before any action is commenced to recover same or where action for recovery l’s already commenced, that such action be stayed until the taxation is concluded. In this instance, the action for the recovery of the plaintiff’s bill of charges had long been concluded ad the proceeding is now at the state of execution of the judgment in that action. I, therefore, hold that the provision of Section 17 of the Legal practitioners Act is not applicable. PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Appellant, a legal practitioner with the firm of M. N. I. Emori & Co. Nkanu Emori Chambers was retained by the Respondent as its legal adviser, solicitor and counsel. By virtue of that status, he was briefed and his services retained to defend the Respondent which was sued under the ‘Undefended List’ in a Suit No. C/137/98: Okorafor Dan (Nig) Motors vs. Abitran Co. Ltd and Abi Local Government Council before High Court, Calabar. The Appellant filed the Respondent’s Notice of Intention to Defend and an Affidavit disclosing a defence on the merit dated June 29, 1998. No process was filed for the 2nd Defendant. Persuaded by the depositions in the affidavit that the Respondent has a defence on the merit, the learned trial Judge transferred the matter from the ‘Undefended List’ to the ‘General Cause List’ on July 27, 1998 for trial. The Appellant filed a motion on notice dated November 23, 1998, raising a preliminary objection to the competence of the suit and sought to have same dismissed on points of law. The motion was opposed. The learned trial Judge delivered a considered

Ruling on May 2, 2000, in which the submissions of the Appellant were upheld and the suit was dismissed; with costs of N2, 000.00 in favour of the Respondent.
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The Appellant by letter dated May 2, 2000, notified the Respondent of the Ruling and demanded for his professional fees as well as out-of-pocket expenses, amounting to N300, 000.00. The Respondent failed to pay the fees, or any part thereof. The Appellant wrote a follow-up letter on June 12, 2000, giving the Respondent notice of his intention to proceed against it in recovery of his professional fees. The Respondent again failed to react to the letter, causing the Appellant to institute: Suit No. HC/257/2000: M. N. I. Emori vs. Abitrans Nig. Ltd on the Undefended List for the recovery of his fee and incidental charges. The Respondent never defended the suit. Judgment was entered against the Respondent on July 24, 2000, in favour of the Appellant for the sum of N300, 000.00 with 5% interest on the said sum per annum and a cost of N5, 000.00. The total judgment sum was N327, 814.00. Upon failure of the Respondent to satisfy the judgment debt, the Appellant applied for the execution of the judgment,

which was carried out. The proceedings were now before Emilia Ibok, J. Upon the execution levied on its vehicle, the Respondent applied for instalmental payment of the debt, which was granted. By order of the trial Court, the Respondent was ordered to pay the judgment sum in four instalments, broken down as N50,000.00 as first instalment and the remaining N277, 844.00 to be liquidated in three monthly instalments of N92, 604.66 commencing in January, 2001. The Respondent paid part of the judgment debt in instalments, leaving an outstanding sum of N95, 000.00. The Respondent, through its counsel, E. E. Osim, Esq., delivered the sum of N60, 000.00 to the Appellant and informed him that 8% of the judgment debt being N35, 000.00 had been withheld by Abi Local Government as income tax charged by the Local Government on the earnings of the Appellant. The Appellant challenged the action of the Respondent in withholding the sum of N35, 000.00, contending that neither the Respondent nor Abi Local Government which was a stranger to the proceedings had such power, mandate or duty to do so. Arguments were taken by the learned trial Judge who in a considered Ruling

on October 22, 2002 held inter alia that the issue of taxation of the Appellant’s fees being the subject matter of a judgment debt was not governed by the Legal Practitioners Act and so directed that the said balance be paid to the High Court Registrar for taxation with the charge not to adopt the provisions of the Legal Practitioners Act in taxing the judgment debt because the proceedings were commenced under the Undefended List of the High Court of Cross River Rules and not the Legal Practitioners Act. Aggrieved by the Ruling, the Appellant lodged this appeal by a Notice of Appeal filed on November 22, 2002 on three grounds of appeal. The order sought from this Court is:
That the decision of the learned trial Judge be reversed and the Judgment Debtor ordered to pay the last instalment to the Judgment Creditor.

The Appellant’s Brief of Argument was filed on 3/12/2013. The Respondent was served but it did not appear, filed no brief and was not represented. On 4/2/2015, the Court granted an application by the Appellant who appeared in person to have the appeal heard on the Appellant’s Brief alone.
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Mr. Emori adopted his Brief on 12/5/2015. He

abandoned Ground Two of the Notice of Appeal and formulated the following issues for determination:
1. Whether the Appellant’s professional fees, otherwise a legal practitioner’s fees, and subject matter of a judgment debt could be taxed after same had been almost wholly paid and without an appropriate application being brought to that effect by the judgment debtor, which in this case is the Respondent, as at when due. (Distilled from Ground One).
2. Whether the learned trial Judge, Hon. Justice Emilia Ibok was right when he directed that the balance of the Appellant’s professional fees, otherwise a legal practitioner’s fees, and subject matter of a judgment debt, be remitted by the Respondent to the Registrar of the High Court. (Distilled from Ground Three).

On Issue 1, it was submitted that what is at stake here is the remuneration of a solicitor, M.N.I. Emori, Esq. who is the Appellant for services he effected for a client, the Respondent, a body corporate that is quite distinct from Abi Local Government, its proprietor. That in resolving an issue on the taxation of the remuneration of a legal practitioner, it is the Legal Practitioners

Act, Cap 207, Laws of the Federation of Nigeria, 1990 that should be relied upon.

The Appellant relied on the provisions of Section 17 of the Legal Practitioners Act, 1990. The Appellant submitted that the word ‘shall’ used in Section 17(1) thereof is to indicate that it only becomes mandatory for the Court to make the order for taxation if and only if the client brings the application for that purpose within one month. He submitted that by the provisions of Section 17 (2) (a) and (b), an application could still be brought either by the legal practitioner himself or by the client after the expiration of the prescribed period of one month; but such application will be granted as the Court thinks fit. That by the use of the word ‘may’ in these provisions, the Court is empowered to either exercise its discretion in favour of accepting the taxation or to refuse it, even when proceedings had not commenced or had commenced. The Appellant further submitted that by virtue of the provisions of Section 17(3) (a), no order shall be made after a period of twelve months from the date on which the bill is question was paid.
Under Section 17(3) (b), an exception

to the rule was created by providing that the Court could only order taxation where it determines that there are ‘special reasons’ for making the order, if twelve months have expired since the date of the delivery of the bill or if judgment has been given.

The Appellant contended that between December 29, 2000, when the first instalment of the judgment debt being N50, 000.00 was paid and May 29, 2001, when Abi Local Government, withheld part of the judgment debt under the guise of taxing the Appellant’s professional fees, there were still seven months for the Respondent to bring an application before the lower Court for taxation, but it failed to do so.
There was no application before the lower Court for taxation after twelve months since the bill was delivered by letter of May 2, 2000 or after judgment was entered on July 24, 2000 and even after they paid approximately 90% of the bill, leaving N35, 000.00 only. There was no affidavit before the lower Court disclosing ‘special reasons’ why taxation should be ordered at this stage. He relied on Aburime vs. Nigeria Ports Authority (197s) NSCC (vol II) 231 at 240, (1978) 4 S.C (VOL.III) 129 at 130;

Oyekanmi vs. NEPA (2000) 15 NWLR (Pt. 690) 414 at 435; Okoli v. Crusader Insurance Company Limited (1994) 4 NACR 101. He also relied on Legal practitioner’s Charges in Nigeria: Law and Practice by Ernest Ojukwu at pages 58, 59, 60, 61 and 62.

On Issue No 2, the Appellant argued that even without an application and special reasons shown before the learned trial Judge for the taxation of the bill of charges, or the judgment debt itself which was yet to be wholly paid, by any of the parties, and without an application for extension of time, the trial Court ordered that the taxation should be done by the Registrar of the lower Court and with no recourse to the provisions of the Legal Practitioners Act. That under Section 18 of the Legal Practitioners Act, the taxation of a legal practitioner’s bill of charges shall be done by a Taxing Officer in accordance with the provisions of any Order in force under Section 15 of the Act. That by virtue of the provisions of Section 19(1) of the Act and of Section 68 of the High Court Law, Cap 51 Laws of Cross River State, Vol. III, the proper taxing officer is the Registrar of the High Court.
The Court was finally

urged to resolve both issues in favour of the Appellant.
Section 17 of the Legal Practitioners Act, 1990, which the Appellant has heavily relied upon, provides as follows:
1. Except where a direction providing for the giving of security is given under Subsection (3) of Section 16 of this Act and security is not given in accordance with the direction, the Court shall, on an application made by a client within the period of one month from the date on which a bill of charges was delivered to him, order that the bill shall be taxed and that no action to recover the charges shall be begun until the taxation is completed.
2. Subject to the provisions of Subsection (3) of this section, the Court may if it thinks fit, on an application made after the expiration of the period aforesaid by the legal practitioner or (except as aforesaid) by the client in question.
a. Order that the bill shall be taxed.
b. Order that until the taxation is completed no action to recover the charges mentioned in the bill shall be begun and any such action already begun shall be stayed, and an order under the subsection may be made on such terms (other than terms as

to the costs of the taxation) as the Court may determine.
3. No order shall be made under Subsection (2) of this section-.
a. in any case, after the period of twelve months from the date on which the bill in question was paid.
b. except in a case where the Court determines that there are special reason for making such an order, if twelve months have expired since the date of the delivery of the bill or if judgment has been given in an action to recover the charges in question, and an order made by virtue of paragraph (b) of this subsection may contain terms as to the costs of the taxation.

In resolving the issues raised by the Appellant, it is important not to lose sight of the circumstances leading to this appeal. This matter commenced on the undefended list. The trial Court heard the matter and entered judgment in favour of the Appellant. The judgment debt comprised of N300, 000.00 with 5% interest on the said sum per annum and a cost of N5, 000.00, bringing the total sum to N327,814.00. This judgment debt did not just consist of the Appellant’s bill of charges. There was the subsequent execution of the judgment, which led to the

ensuing grant of an order for instalmental payment, upon the application of the judgment debtor, the Respondent herein. What was in issue in those proceedings was no longer just the legal practitioner’s bill of charges but the judgment debt. The proceedings to recover the Appellant’s bill of charges had long been concluded and the proceedings were at the stage of execution of the judgment.

The learned trial Judge at page 33 of the Record of Appeal said:
The learned counsel for the judgement creditor did submit in his arguments that taxation of the judgment sum in this case can only be ordered by Court upon appropriate application being brought before the Court in line with the provisions of section 17 of the Legal Practitioners Act 1990. I do not agree with that submission because the situation anticipated under Section 17 of the Legal practitioners Act is not met in this instance. That section anticipates the taxing of the bill of charges of the legal practitioner before any action is commenced to recover same or where action for recovery l’s already commenced, that such action be stayed until the taxation is concluded. In this instance, the action

for the recovery of the plaintiff’s bill of charges had long been concluded ad the proceeding is now at the state of execution of the judgment in that action. I, therefore, hold that the provision of Section 17 of the Legal practitioners Act is not applicable.

Indeed a community reading of the provisions of Section 17 (1), (2) and (3), heavily relied upon by the Appellant will reveal, as rightly observed by the learned trial Judge, that the situation anticipated under Section 17 does not include the situation at hand in this case. I therefore agree with the learned trial Judge that the provisions of the Legal Practitioners Act, 1990, including Section 17 thereof are inapplicable. The cases relied upon by the Appellant are not applicable in this case.

The learned trial Judge correctly held that the appropriate taxing agent for the purpose of taxing the judgment debt was the Registrar of the High Court. On whether in the taxing of the judgment debt the Registrar of the High Court should act in accordance with the provisions of the Legal Practitioners Act, the learned trial Judge said, at pages 33 -34 of the Record of Appeal:
Also, this Court

declines to direct that the Registrar of the High Court adopts the provisions of the Legal Practitioners Act in the taxing of the judgment debt in this case because these proceedings were commenced by undefended list under the High Court civil procedure Rules and not in accordance with the provisions of the Legal Practitioners Act.
Finally, having held that the judgment debt in this case is subject to taxation and that the Registrar of the High Court is the appropriate taxing agent in the circumstances, I hereby order that the judgment debtor pays into the Court the outstanding balance of the judgment debt in this suit. After due assessment and taxation of the amount paid in, any balance still outstanding shall be paid to the judgment creditor.

I completely agree with the learned trial Judge.

The Appellant indeed appears to have lost sight of the fact that he initiated these proceedings under the undefended list. The ensuing execution and order for instalmental payment arose from the said initial proceedings. It was not an application initiated by either the Appellant or the Respondent seeking an order of Court to have the bill of charges of

the Appellant subjected to taxation. I therefore see no reason to disturb the findings and conclusion of the learned trial Judge.

In all, this appeal is without merit and therefore fails. The appeal is accordingly dismissed. The judgment of the Hon. Justice Emilia Ibok, J., delivered on October 22, 2002 in HU/257/2002 is hereby affirmed.
I make no order as to costs.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading in advance the judgment delivered by my learned brother, O.A. OTISI, J.C.A.

I adopt the facts of this appeal as set down in the lead judgment. This appeal is unmeritorious and is hereby dismissed. I also make no order as to costs.

PAUL OBI ELECHI, J.C.A.: I have read in draft the Judgment of my Learned brother Onyekachi Aja Otisi, J.C.A. just delivered.
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For the reasons ably stated in the lead Judgment, I entirely agree with the conclusions therein that the appeal has no merit and I will also dismiss the appeal. I adopt all the Orders made in the said Judgment inclusive of no Order as to costs.

Appearances:

M.N.I. Emori, Esq.For Appellant(s)

—For Respondent(s)

Appearances

M.N.I. Emori, Esq.For Appellant

AND

—For Respondent