B.T. AZUASONOGO, ESQ v. BENUE STATE GOVERNMENT & ANOR (2019)

B.T. AZUASONOGO, ESQ v. BENUE STATE GOVERNMENT & ANOR

(2019)LCN/13072(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/MK/146/2016

RATIO

EVIDENCE: HE WHO ASSERTS MUST PROVE

I will commence by restating the well-worn evidential principle that he who asserts must prove;Hilary Farms v MV Mahtra & Ors (2007) 6 S.C. (PT 11) 85, (2007) LPELR-1365(SC); Agala v Okusin (2010) LPELR-221(SC). Section 131(1) of the Evidence Act provides that whoever desires any Court to give judgment as to any legal right which liability is dependent on the existence of facts which he asserts must prove that those facts exist. Section 132 of the same Act provides further that the burden of proof in a suit in a proceeding lies on that person who will fail if no evidence at all were given on either side.PER ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: MATERIAL WITNESS: WHO IS A MATERIAL WITNESS

A material witness was described by the Supreme Court per Rhodes-Vivour, JSC in Ogudo v The State (2011) LPELR-860(SC) in these terms, page 28 of the E-Report:
“A vital witness is a witness whose evidence is fundamental, in that it determines the case one way or the other.?
See also Adamu v. State (2019) LPELR-46902(SC). Dr. Philip Ierkwagh was a material witness for the Appellant to prove his assertion. The learned trial Judge therefore rightly held that the assertion of the Appellant that the failure of the Respondents to call the then Attorney General to testify made his case unassailable is not in line with the law.PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

B.T. AZUASONOGO, ESQ. Appellant(s)

AND

1. BENUE STATE GOVERNMENT
2. ATTORNEY GENERAL, BENUE STATE Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The professional services of the Appellant, a private legal practitioner, were retained by the Respondents vide letter dated 11/7/2013 to defend them in Suit No. MHC/83/201: Mr. J.O. Onazi and Others v Benue State Government & Others, before the High Court of Justice, Benue State, sitting in Makurdi. The Appellants letter of acceptance of the Respondents’ brief together with his bill of charges, were served on the Respondents on 15/7/2013. The Appellant wrote a reminder for settlement of the said bill to the Respondents on 6/11/2014, without response. The Appellant further alleged that in a closed door discussion he had with Dr Philip Ierkwagh, who occupied the position of the 2nd Respondent at the material time, he was persuaded to proceed with defence of the suit and assured that his professional fee would be settled as soon as financial position of the 1st Respondent improved. The Appellant was however not paid until judgment was given in the said Suit No. MHC/83/201: Mr. J.O. Onazi and Others v Benue State Government & Others.

Upon the successful discharge of his obligations, the Appellant wrote to the Respondents a final demand letter dated 23/10/2015, disclosing an intention to sue for recovery of his fees, should the Respondents fail to honour the letter of demand. The Respondents still failed to settle the bill and did not respond to the Appellant’s letter. On 18/1/2016, the Appellant instituted the present Suit No. MHC/6/2016 against the Respondents, claiming the sum of N10, 000,000.00 (ten million Naira) as his said professional fees. In their defence, the Respondents denied that there was consensus ad idem on the Appellant’s professional fees.

At the conclusion of hearing, the trial Court held on 7/6/2016 that the Appellant failed to prove his claim for professional fees of the sum of N10, 000,000.00 but however awarded to him the sum of N100, 000.00 as consultation fees. Dissatisfied with the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 9/8/2016, on eight grounds of appeal, pages 167 -174 of the Notice of Appeal.

The parties filed Briefs of Argument, pursuant to the Rules of this Court. The Appellant?s Brief was settled by

the Appellant himself, and was filed on 7/9/2016. The Respondents? Brief was settled by E. Enyikwola, Esq., PSC 1, Ministry of Justice, Benue State. It was filed on 8/3/2017 but deemed properly filed and served on 17/9/2018. The Appellant filed a Reply Brief on 19/9/2018. On 21/1/2019, Vershima Akaange, Esq. who appeared for the Appellant adopted the Briefs of the Appellant and urged the Court to allow the appeal. Mr. Enyikwola adopted the Respondents Brief and urged the Court to dismiss the appeal.

Out of the eight grounds of appeal, the Appellant distilled eight issues for determination as follows:
1. Whether the decision of the trial Court is not against the weight of evidence. (Distilled from Ground 1).
2. Whether the learned trial judge did not err in law when he misconstrued the import of appellant’s bill of charge in Exhibit B1 to represent a statement of expenditure that must be proved by evidence. (Distilled from Ground 2).
3. Whether the learned trial judge did not err in law in the peculiar circumstances of appellant’s case, when

he held that: The bill anticipated by the law must be the aggregate of what the legal practitioner agrees with his client as his professional fees and other incidentals reasonably arising and incurred in the course of his assignment. And that, it usually comes at the close of the particular assignment for which the services of the legal practitioner has been engaged, at which time he would have become aware of all the extra expenses incurred in addition to his agreed professional fee.
(Distilled from Ground 3).
4. Whether the learned trial judge did not err in law when he held that the appellant’s assertion that the failure of the respondents to call the former Attorney General of the State with whom he claims to have agreed on the bill, makes his case unassailable, is not in line with the law.(Distilled from Ground 4).
5. Whether the learned trial judge did not err in law to have imposed a higher burden of proof upon the appellant than that required by the law. (Distilled from Ground 5).
6. Whether the learned trial Judge was not in failure of duty when he refused accepting

the appellant’s unchallenged evidence in respect of the Attorney General’s Commitment on the appellant’s bill of charge in Exhibit B1. (Distilled from Ground 6).
7. Whether the learned trial judge did not err in law when he failed to consider the appellant’s evidence on estoppel. (Distilled from Ground 7).
8. Whether the learned trial judge did not err in law when he held that the instruction to conduct the proceeding in Exhibit B3 was accepted by appellant in expectation that, legal fees would be agreed upon later. (Distilled from Ground 8)

For the Respondents, a sole issue was formulated in this manner:
Whether on the strength of evidence adduced before the trial Court, the learned trial Court was right in dismissing the claim of the Appellant in every other Respect.

The issues as framed by the Appellant are rather unwieldy and unnecessary as most of the issues flow into one another. I shall reframe the issues for determination of this appeal in this manner:
1. Whether the claim of the Appellant was rightly

dismissed by the trial Court.
2. Whether the trial Court ought to have considered the Appellant?s evidence on estoppel.

These issues are entwined and shall be resolved together.
The Appellant’s evidence in support of his claim was, in summary, that the Respondents’ commitment to him in relation to the contract in issue consisted in both conduct and verbal representation, upon which premise Appellant acted to his detriment. When Appellant was briefed to handle the Respondents’ defence by letter, Exhibit B, the Appellant served upon the Respondents his letter of acceptance together with his Bill of Charge, Exhibit B1, on 15/7/2013. The Respondents received Exhibit B1 without question, but rather urged the Appellant to proceed with work and be paid subsequently. It was submitted that the Respondents were not left in the dark about Appellant’s engagement and continuous activity on the job. On 6/11/2014, the Appellant wrote to the Respondents, Exhibit B2, reminding them about the payment of his professional fees. It is the Appellant’s evidence as PW1 that he followed his letter, Exhibit B2 to office of the

then Attorney General, and demanded for part payment of his professional fee of N10, 000,000.00. PW1 testified that in the course of their discussions, which were held behind closed doors, the then Attorney General gave him a firm commitment that his bill would be settled by the 1st Respondent. The Appellant proceeded with his duties until judgment was given in favour of the Respondents on 9/10/2015, Exhibit B 3. On 23/10/2015, the Appellant wrote his final demand letter, Exhibit B4, in which he threatened Court action should the Respondents fail to settle his bill. The Respondents did nothing until action was instituted by the Appellant.

The Respondents? main opposition to the Appellant?s claim was that there was no consensus ad idem between the parties on Appellant’s professional fees. They contend that the Appellant?s Bill of Charges, Exhibit B1, was not agreed upon by the Appellant and the Respondents. The relationship between a lawyer and his client in handling the Client’s matter is contractual in nature and that before any contract or agreement can be said to have come into existence in law there must be precise offer and

unconditional acceptance of the term mutually agreed upon by the parties there to. The parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. Reliance was placed on Best (Nig) Ltd v B. Hodge (Nig) Ltd (2011) Vol. 194 LRCN 31 at 65-66; Adesoye Olanlege v. Afro Continental Nig. Ltd (1996) 7 NWLR (Pt 458) 29 at 46. There was no proof before the trial Court to show that the Appellant and the Respondents reached at a consensus ad idem before, during and at the end of suit. There was also no proof that the Respondents accepted the terms contained in Exhibit B1 either by express words or implied conduct. It was argued that the Appellant cannot unilaterally impose his fees on the Respondents.

The Attorney General at the material time, Dr. Philip Ierkwagh, who the Appellant said assured him of the payment of his Bill did not testify. The Appellant had argued that the said Dr. Philip Ierkwagh was a vital witness for the defence to dislodge his allegations. On who a vital witness is, learned Counsel for the Appellant cited the case of Framo Nig Ltd v. Daodu (1993) 3 NWLR (PT. 281)

372. He further relied on Jallaco Ltd v. Owoniboys Technical Services Ltd (1995) 4 NWLR (PT. 391) 534 at 546 to submit that with the failure of the Respondents to call the Attorney General there was a presumption that evidence was being withheld.

For the Respondents, it was submitted that the then Attorney General, Benue State, Dr Philip Ierkwagh, who was no longer in office as the 2nd Respondent as at the time this suit was filed and heard, was a vital witness for the Appellant to affirm agreements reached in their meeting behind closed doors to the effect that the Appellant’s money would be paid upon completion of the suit. It was incumbent on the Appellant to call him in order to substantiate his assertion. The burden to call the said Attorney General was on the Appellant and not the Respondents. Reliance was placed on the provisions of Section 136(1) of the Evidence Act, 2011; the decisions in Lewis & Peat Ltd. v. Akehimien (1976) 10 NSCC 360 at 365 and Ogolo v. Fubara (2003) 5 SC 141. The Appellant must succeed on the strength of his own case and not rely on the weakness of the Respondents’ case; relying on Abimbola v. Abatan (2001) 4 SC (Pt 1) 64.

The Appellant also built his case on the doctrine of estoppel by representation, citing Section 169 of the Evidence Act, 2011. The Appellant had served upon the Respondents Exhibit B1, his acceptance letter together with the bill of charges, payable in expectation of the Appellant’s professional service. The Respondents accepted delivery of Exhibit B1 without question, but rather urged Appellant to commence work immediately in expectation of payment, and the Appellant swung into action. The Appellant contended that there was no caveat in the parties’ agreement that the Governor’s consent or approval was to be sought and had before any final drawn up agreement on the Appellant’s bill of charge. Neither was there any disagreement raised over the Appellant’s bill of charge since it had been presented until completion of work. There was no initial understanding between the parties that agreement on the Appellant’s bill would be reached only after the completion of the case. The Respondents’ evidence that Appellant’s bill of charges was forwarded to the Governor of Benue State for consideration and result being awaited was not proved, as there was

no evidence of any forwarding letter to that effect. The Appellant received assurances from the 2nd Respondent and upon the fate of such assurances, he continued with his work amidst severe financial straits. When the Respondents received service of Appellant’s final letter of demand in Exhibit B4, they made no response. It was submitted that the conduct of the Respondents in relation to the contract, as manifest by the above sequence of events made clear representation to the Appellant to act upon. The Appellant acted thereon to his financial detriment. Reliance was placed on the case of Gillet v. Holt (2001) Ch. 2010 at 232. In proof of his financial detriment, the Appellant testified that he is a legal practitioner based in Gboko, with office of his legal practice at No. 11, JS Tarka Way, Gboko Benue State. The venue of trial of the suit in Exhibit B3 was held at Makurdi. Appellant incurred grave financial expenses in pursuit of the defence in Exhibit B3, shuttling between Gboko and Makurdi through Okpokwu, for a period of three years, from 2013 to 2015. The Appellant testified that, at a point, he had to borrow money from private sources to finance

appearance of the defence witnesses who came from Igumale in Ado Local Government Area of Benue State to Makurdi to testify. The Appellant also sought financial intervention from the Benue State Ministry of Commerce and Industries, which was one of the defendants in Exhibit B3 by letter, Exhibit B5. But, the Appellant was turned down as the Ministry had no funds. It was argued that these financial detriments suffered by the Appellant owing to the Respondents’ representations severely altered Appellant’s financial position, which ought to be liquidated by the Respondents on equitable doctrine of estoppel. Reliance was placed on the provisions of Section 169 of the Evidence Act, 2011.

?For the Respondents, it was submitted that the fact the Respondents did not respond to the Appellant?s letters was a signal to the Appellant that Respondents did not agree with Exhibit B1 submitted by the Appellant. The Appellant?s relationship with the Respondents was purely contractual in nature and both must agree on Exhibit B1 rather than the Appellant assuming that his fees were accepted by the Respondents. The Respondents reiterated that the Appellant never

received any assurance from the former Attorney General, Benue State that his fees were agreed to; there was no proof by the Appellant to that effect. The burden placed upon the Appellant under Section 136(1) of the Evidence Act was not discharged. It was submitted that while acceptance may be verbal, or, inferable from conduct or in writing, it was not the case herein. Sufficient legal acceptance is not based on silence or mental assent; relying on Orient Bank Plc v. Bilante Int’l Ltd. (1997) 8 NWLR (Pt 515) 37 at 100.

The Appellant had contended that the learned trial Judge was in error in that he misconstrued the import of Appellant’s bill of charge, Exhibit B1, to represent a statement of expenditure that must be proved by evidence. It was submitted that the said bill of charge, Exhibit B1, was a statement of fees for the Appellant’s professional services to be rendered to the Respondents, which bill could be accepted or rejected by them. The legal practitioner’s professional fee are payable in expectation of his legal services. Exhibit B1 was the price for Appellant’s labour and was never intended to be proved as if same were statement

of expenditure. Expenses are amenable to proof, but fees are not amenable to the same burden. The Appellant had no duty to prove Exhibit B1 before the Court below, citing Section 19(1) of the Legal Practitioners Act, 2004.

The learned trial Judge had also held, page 163 of the Record of Appeal:
?The bill anticipated by the law must be aggregate of what the legal practitioner agrees with his client as his professional fees and other incidentals reasonably arising and incurred in the course of his assignment. It usually comes at the close of the particular assignment for which the services of the legal practitioner has been engaged, at which time he would have become aware of all the extra expenses incurred in addition to his agreed professional fee.?

It was submitted that the learned trial Judge was in error. Reliance was placed on the provisions of Section 19 (1) of the Legal Practitioners Act. Unlike expenses, fees are not chargeable at twilight of the transaction but at the commencement of the parties’ contractual relationship in expectation of service to be rendered by the practitioner. It was argued that the provisions of

Sections 15, 16, 17, 18, and 19 of the Legal Practitioners Act, providing for the remuneration of practitioners, made no provision for a client’s consent or agreement whilst a legal practitioner is considering his professional charge, the client’s input is not required. When confronted with the charge, the client had the liberty of choice in the parties’ negotiation; he may elect to accept or reject the charge. When he accepts, either by express words or by implied conduct, he becomes bound thereby. He may reject and make his counter-offer, as the case may be. On the cardinal rule of interpretation being that a Court when interpreting a provision of a statute must give the words and the language used their ordinary meaning, the decisions in Lawal v. G.B Olivant (1972) 3 SC at 124; Toriola v Williams (1982) 7 SC at 27; Abioye v. Yakubu (1991) 5 NWLR PT. 190 at 130; Adisa v. Oyinwola (2000) 10 NWLR PT 674 at 116 were cited and relied on. It was submitted that the learned trial judge misconstrued the law on the remuneration of legal practitioners by reading into the said enactment what was not therein provided and thereby occasioned the grave miscarriage of

justice. It was contended that the Appellant made his offer in Exhibit B1 to the Respondents which offer was accepted by the Respondents both in words and conduct. Exhibit B1 was the statement of fees to be paid before Appellant’s services for handling the Respondents’ case in Exhibit B3 could be rendered. It was argued that it would be absurd for the fee to be agreed upon at the end of the transaction, as fees are meant to be paid before services are rendered.

It was also contended that the trial Court imposed a higher burden of proof upon the Appellant than required by law when he dismissed the larger part of Appellant’s claim. Section 131(1) of the Evidence Act, 2011 defined the general burden of proof cast upon the Appellant, which has been interpreted to mean that he who asserts must prove those facts the basis of which he has approached the Court for the enforcement of his legal right, citing Famuroti v. Agbeke (1991) 5 NWLR (PT. 189) 1 at 13. By Section 134 of the Evidence Act, the burden of proof in civil cases is discharged by the plaintiff on the balance of probability. It was submitted that the Appellant as plaintiff in the lower Court

discharged the burden of proof on him by leading credible and unchallenged evidence in proof of the averments in his pleadings. Having discharged the initial burden, the Appellant flung over the burden of rebuttal evidence to the Respondent who failed to offer any rebuttal evidence to dislodge the Appellant’s allegations of fact. The cases of Nwaga v. Registered Trustees Recreation Club (2004) FWLR (PT. 190) 1360; Alao v. Kure (2000) FWLR (PT. 6) 889; Olowu v. Olowu (1985) 63 NWLR (PT. 13) 372 at 386 were cited and relied on. The Court was urged to resolve the issue in favour of the Appellant and hold that the decision of the learned trial Judge was against the weight of evidence.

For the Respondents it was submitted that the trial Judge did not place higher burden of proof on the Appellant but adverted his mind to the provision of the law that he who asserts must prove in line with Section 136(1) of the Evidence, having regard to the pleadings of the Appellant. The case of Lewis & Peat Ltd v. Akhimien (1976) 10 NSCC 260 at 365 was also cited and relied upon. The Appellant’s bill of charges in Exhibit B1 listed

various heads of items which the Respondents contended were false, excessive ridiculous, unjustifiable and not claimable and which were not proved by the Appellant. It was argued that the Appellant failed to discharge the burden on him. He needed to specifically plead and strictly prove these various items listed in the Bill of charges; relying onGabriel Okunzua v. Mrs. E. B Amosu & Anor (1992) NWLR (Pt 248) 416. No provision of the law exempted the Appellant from proving his Bill of charges. The Court was urged to resolve the issues in favour of the Respondents; dismiss all the grounds of Appeal and uphold the judgment of the trial Court.

Resolution
I will commence by restating the well-worn evidential principle that he who asserts must prove;Hilary Farms v MV Mahtra & Ors (2007) 6 S.C. (PT 11) 85, (2007) LPELR-1365(SC); Agala v Okusin (2010) LPELR-221(SC). Section 131(1) of the Evidence Act provides that whoever desires any Court to give judgment as to any legal right which liability is dependent on the existence of facts which he asserts must prove that those facts exist. Section 132 of the same Act

provides further that the burden of proof in a suit in a proceeding lies on that person who will fail if no evidence at all were given on either side. In Maihaja v Gaidam (2017) LPELR-42474(SC), Eko, JSC, said, at pages 61-62 of the E-Report:
?Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Put streetwise, he who asserts must prove his assertion. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why Section 132 of the Evidence Act provides further that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.?
See also Section 133 (1) and (2) which provides:
(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were

produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
Section 136 (1) of the Act further provides:
(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.
Thus, whereas legal burden of proof remains throughout on the plaintiff to establish his case otherwise he loses his claim, the evidential burden of proof in a case fought on the pleadings rests on the party who asserts in the affirmative and shifts depending on

the pleadings of the parties at each turn; Odom & Ors v. PDP & Ors (2015) LPELR-24351(SC). See also Jallco Ltd & Anor v. Owoniboys Technical Services Ltd (1995) LPELR-1591(SC); Okoye & Ors v Nwankwo (2014) LPELR-23172(SC); Union Bank v. Ravih Abdul & Co. Ltd (2018) LPELR-46333(SC). The Appellant had the burden to establish his case, and depending on the pleadings, the burden would oscillate between the parties at each turn.
In his Reply to the Statement of Defence, the Appellant averred that the Attorney General in office at the material time who gave him a firm commitment that his professional fees would be paid by the 1st Respondent upon conclusion of the case he was instructed to handle when they met with behind closed doors, was Dr Philip Ierkwagh. See paragraph 5 at page 99 of the Record of appeal. Specifically, he testified in paragraph 7 of his deposition of 16/3/2016, at page 107 of the Record of Appeal, which he adopted as his evidence on 18/4/2016:
?This discussion was held between me and the 2nd defendant in the office of the Attorney General, on 6.11.2014, behind closed doors.?

No other person was privy to this discussion said to have been held held behind closed doors. There was no detail of the discussion transcribed in writing. The burden of proving that such a discussion took place, in which commitment was given that his fees would be paid upon conclusion of the matter, lay on the Appellant. This burden could not have been discharged merely by his ipse dixit. Further, under cross examination, the Appellant as PW1 now said, page 135 of the Record of Appeal:
?When I served Exhibit B1, I expected it to be either rejected or accepted. The defendant accepted the offer. The defendant accepted the offer orally. The Attorney General was then Alex Adum. No other person was present when the Attorney General accepted my offer in Exhibit B. He was no longer in office when I filed the suit?The two previous Attorney (sic) General are still alive but I do not know where they are at the moment.?
In other words, Alex Adum, Esq., who had also occupied the position of Attorney General of the State, had accepted his bill of charges in Exhibit B1 orally. The question would now be whether it was both Dr Philip Ierkwagh and Alex

Adum, Esq., that gave him assurances on the acceptance of his bill of charges or either one of them. The answer is not clear. The Appellant was required to first prove his assertion that such discussion took place behind closed doors or at all and that his bill of charges was accepted orally by both (or either) Dr Philip Ierkwagh and Alex Adum, Esq. before any burden would oscillate to the Respondent; Adama Beverages Limited v. Galleon (2016) LPELR-40314(CA).

The Appellant has argued that the Respondents by their conduct were estopped from denying his claims. The Appellant reviewed the conduct of the Respondents in this matter and submitted that by the manifest conduct of the Respondents in relation to the contract of the parties, the Respondents had made clear representations to the Appellant to act upon and which he did act to his detriment. The Appellant was by Exhibit B1, dated 11/7/2013, instructed to represent the Respondents in Suit Nos: MHC/83/2013 and NICN/MKD/42/2013. The Appellant accepted the briefs by letter dated 15/7/2013, Exhibit B1, and therein enclosed his Bill of Charges for both Suits, being a total sum of N20, 000,000.00, with N10, 000,000.00 billed for each suit. The Respondents acknowledged receipt of the bill of charges, Exhibit B1, on 15/7/2013, pages 13, 14 and 15 of the Record of Appeal. The Appellant commenced work on the briefs as assigned. On 6/11/2014, he wrote to the 2nd Respondent, Exhibit B2, which reads in part as follows:
?3. We accepted your brief and delivered our bill of charges on your office since 15/7/2013 ? see copy

attached. Nevertheless, we are yet to receive your official action, and it has taken more than a year from today.
4. Sir, we hereby write to remind you of your obligation to us since we have already commenced action on the brief.?

Judgment was delivered on 9/10/2015 in respect of Suit No MHC/363/2014 in favour of the Respondents. On 23/10/2015, the Appellant wrote once again to the Respondents, notifying them that the matter assigned to him had been successfully defended. The Appellant then made a final demand for payment of his professional charges of N10, 000,000.00 and one month?s notice of his intention to take legal action to recover his fees, Exhibit B4.

The Respondents? witness, DW1, deposed to a written statement on 6/4/2016, Exhibit C, in which he testified as follows:
4. That I know as a fact that suit No. MHC/83/2013, between Mr. J. O. Onazi and Ors. Vs. Benue State Government and 4 Ors. was firmed out to the plaintiff?s chambers to handle for the defendants.

5. That I am aware that the defendants and the plaintiff are yet to negotiate and agree on the professional fees of the plaintiff for handling the suit for the defendants.
6. That as Chief Litigation Registrar in the Department of Civil Litigation, all agreements as to professional fees of counsels handling cases/matters must be received and filed by my office.
7. That I am very much aware that when the bill of charges of the plaintiff was received by the 2nd defendant, the former Director of Civil Litigation, P.O. Ahemba, Esq. on the directive of the 2nd Defendant forwarded a copy of the bill of charges to His Excellency, the Governor of Benue State for his action whose response was not received before he exited from his office.
8. That when the current Government came into power and upon the receipt of the Plaintiff?s letter of demand to pay, the 2nd Defendant forwarded the Plaintiff?s bill of charges to His Excellency, the governor of Benue State for his action whose response has not yet been received. This fact the plaintiff is aware.

9. That I am also aware that it is only His Excellency the Executive Governor of Benue State who has the power to approve the release of professional legal fees agreeable to both parties which has not been done yet.
10. That I know no money has been paid to the plaintiff up till now because the plaintiff and the defendants have not reached a consensus on the amount of professional legal fees to be paid to the plaintiff.

The position of the Respondents was therefore that the parties did not formally agree on professional fees to be paid to the Appellant.

?The Appellant had testified that the Attorney General at the material time accepted his offer represented by Exhibit B1; and, that he was not notified by the Respondents of the requirement for the approval of the Governor of the State before payment was made available to him on his bill. The point has already been made that the mere ipse dixit of the Appellant cannot prove the oral acceptance of the Appellant?s bill of charges by the 2nd Respondent. However, the doctrine of estoppel would be considered in relation to the facts of this case. <br< p=””

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In A.G Bendel State v. A.G Federation & Ors (1981) LPELR-605(SC), the Law Lord, Obaseki, JSC at page 149 of the E-Report expounded:
?The doctrine of estoppel forms part of the law of evidence, and an estoppel, except as a bar to testimony, has no operation or efficacy whatsoever. Its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail. It has no other function. See Rogers v. Pitcher (1815) 6 Taunt 202. Thompson v. Palua (1933) 49 CLR 507 at 509; High Court of Australia per Sir Owen Dixon CJ. ?
Estoppel does not lie in mere imagination or assertion, there must be facts proved which will give rise to estoppel. In Greenwood v. Martins Bank Ltd . (1933) AC 51 at 57, Lord Tomlin defined the essential factors as:
(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made;
(2) An act or omission resulting from the representation whether actual or by conduct by the<br< p=””

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person to whom the representation is made;
(3) Detriment to such person as a consequence of the act or omission.?
In AG Rivers State v. AG Akwa Ibom State & Anor (2011) LPELR-633(SC) at page 20-21, the Supreme Court again elucidated:
?The doctrine of estoppel by conduct, though a common law principle has been enacted into our body of laws as Section 151 of the Evidence Act. It is in these terms:
“When one person has, by his declaration, Act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief (a thing to be true and to act upon such belief), neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person?s representative in interest, to deny the truth of that thing.?
Also called estoppel in pais, this common law principle, which as shown above, has gained statutory acceptance in Nigeria, forbids a person from leading his opponent from believing in and acting upon a state of affairs, only for the former to turn around

and disclaim his act or omission. Both the common and statutory law do not permit this conduct; that is why Section 151 of the Evidence Act has used the emphatic phrase ?neither he nor his representative in interest shall be allowed?” this principle was explained better in Ude v. Osuji (1998) 10 SCNJ 75 at 22 thus:
“The principle of estoppel by conduct is that one party has, by his words or conduct, made to the other his words or conduct, a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous. Legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER & 69 at 770.” See also Buhari v. INEC (2009) All FWLR (Part 459) 419 at 517.?
Section 151 is now Section 169 of the Evidence Act, 2011. ?

In the case of Chukwuma v. Ifeloye (2008) LPELR-862(SC) at pages 35 ? 37 of the E-Report, the Noble Lord, Ogbuagu, JSC, restated the law on estoppel by conduct thus:
where a person or one by words and/or deed or even by conduct, made to another, a clear and unequivocal representation of a fact either with knowledge of its falsehood or with the intention that it should be acted upon, or has conducted himself that another would, as a reasonable man with his full faculties, understand that a certain representation of fact, was intended to be acted upon, and that other person in fact acted upon the representation whereby his position was thereby altered to his detriment, an estoppel arises against person who made it and he will not be allowed to say that the representation is not what be presented it to be. This is known as estoppel by conduct estoppel in pais.
In other words, where one by his words or conduct, willfully causes another to believe the existence of certain state of things and induces him to act on the belief so as to alter his own previous position, the former is precluded from asserting against the

later, a different state of things as existing at the same time?
In Black’s Law Dictionary, 7th Edition page 571, it is stated that it is a defensive doctrine preventing one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped, has induced another person to act in a certain way, with the result that the other person, has been injured in some way. That this doctrine is founded on principle of fraud.
There are five essential elements i.e.
“(1) that there was a false representation or concealment of material facts.
(2) that the representation must have been known to be false by the party making it or the party must have been negligent in not knowing its falsity.
(3) that it was believed to be true by the person to whom it was made.
(4) that the party making the representation must have intended that it be acted on or the person acting on it must have been justified in assuming this intent, and
(5) that the party asserting

estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds.?
Estoppel is therefore an admission or conduct which the law views as equivalent to an admission. By its very nature, it is so important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it;AG Rivers State v. AG Akwa Ibom State & Anor (supra). One essential attribute of estoppel is that there is a change of position of the parties. The party relying on the conduct or representation of the other party must have altered or changed his position to his own detriment; Lawal v. UBN Plc & Ors (1995) LPELR-1762(SC). It should also be mentioned that an estoppel cannot be set up if its establishment results in preventing the performance of constitutional and statutory duties. Similarly, it must fail if its establishment must result in illegality; A.G Bendel State v. A.G Federation & Ors (supra).
?For clarity, I shall rehash the straight forward facts of this case. On 11/7/2013, the Appellant was

briefed by the Respondents to defend them in two suits, Exhibit B. On 15/7/2013, the Appellant accepted the brief and gave a bill of charges for each suit being N10, 000,000.00, Exhibit B1. He also notified the Respondents that he had commenced action on the brief as instructed. The brief for which the present action was commenced was Suit No MHC/83/2013: Mr. J. O. Onazi and Ors. v. Benue State Government and 4 Ors. but it was later renumbered as Suit No MHC/363/2014. The Respondents received Exhibit B1 on 15/7/2013. About a year later, the Appellant wrote Exhibit B2, dated 6/11/2014, which was a reminder for settlement of his bill of charges and again notifying the Respondents that he had commenced action on the brief. More than a year after Exhibit B2, the Appellant on 23/10/2015, wrote Exhibit B4 to the Respondents, bringing to their attention that his brief had been successfully completed, a final demand for payment and one month?s notice of intention to commence legal action to recover the sum of N10, 000,000.00 as charged. There was no response, and, in consequence, the Appellant instituted action at the lower Court on 18/1/2016.

Up until the suit was instituted at the lower Court, there was absolutely no communication in writing in response to the Appellant?s Exhibits B1, B2, and B4. Aside from the evidence of PW1, there actually was no evidence of an oral discussion in which the Respondents accepted the Appellant?s bill of N10, 000,000.00. Indeed, PW1 testified that such discussion with the former Attorney General of the State took place behind closed doors in which a commitment to pay the bill was given, but there was no witness to their discussion.
The evidence thus reveals that the Respondents were well aware that the Appellant had been appearing on their behalf in the matter as instructed by them from 11/7/2013 until judgment in Suit No MHC/363/2014 was given on 9/10/2015. Exhibit B3 was a certified copy of the said judgment. For the entire period of almost two years, the Respondents did not respond in writing to the demands of the Appellant, either to seek negotiation of the bill of N10, 000,000.00 or to formally accept same. In this entire period, the Respondents did not bring to the attention of the Appellant the fact that the approval of the State

Governor was required for payment of his bill. The storyline told by DW1 that a copy of the bill of charges was forwarded to the former Governor of Benue State for his action who took no action thereon before his exit from office and that the current Governor of the State had also not taken action is, to say the very least, unfortunate. It is however not necessary herein to comment on inferences revealed by this storyline that could be drawn as to how matters of such utmost importance are conducted by the Respondents.
?The relationship between the parties can be likened to parties to a contract. The Respondents made an offer to the Appellant by Exhibit B, which he accepted but gave his condition for acceptance; vide his bill of charges, Exhibit B1, which in effect was a counter offer. The Respondents did not formally accept the condition for acceptance by the Appellant but they made no further adjustments thereto. The Appellant was allowed to proceed to carry out the Respondents? instructions under the impression or representation by conduct, that the Respondents accepted his condition for accepting their offer. It is important to

emphasize that the unchallenged evidence revealed that the Appellant was allowed to commence and conclude the defence of the Respondents in Suit No MHC/383/2013 without any whimper from the Respondents to challenge or negotiate his bill, Exhibit B1. The Appellant thus proceeded with the contract with the impression that he and the Respondents had an understanding that his bill would be settled upon conclusion of his action on the brief.
?On the uncontroverted facts I find I must agree with the Appellant that the Respondents by their conduct led the Appellant on to alter his position to make professional and financial commitments to ensure his instructions in Exhibit B were diligently conducted and concluded. The Appellant was not notified at the time his bill was presented that the prior approval of the Governor was required before his bill could be accepted for payment. Surely it would be inequitable in this circumstance to expect the Appellant to wait ad infinitum for the approval of the Governor of the State of payment of his professional fees for work already completed by him on the instructions of the Respondents.

When through misrepresentation or conduct, a person has been induced by another person to act in a certain way, with the result that the other person has been injured or suffered loss, in some way, the one who has induced him falsely must be estopped from taking unfair advantage of the other;AG Rivers State v. AG Akwa Ibom State & Anor (supra). For this reason, the Respondents cannot be allowed to deny liability to the Appellant for his professional charges. See also: BPS Construction & Engineering Company Limited v. Federal Capital Development Authority (2017) LPELR-42516(SC); Pina v. Mai-Angwa (2018) LPELR-44498(SC).

The total sum charged in Exhibit B1 amounted to the sum of N10, 000,000.00. The learned trial Judge had expressed the view that the bill of charges, Exhibit B1, deserved close scrutiny, especially since it did not arise from any agreement between the parties. He saw the charges as being in the nature of special damages, which were not proved. He allowed only the sum of N100, 000.00 as consultation fees. The question is whether the bill of charges amounted to special damages.
Special damages constitute of such loss as the law would

not presume to be the consequence of the defendant?s action but which depend in part on the special circumstances; Incar (Nigeria) Ltd v Benson Transport Ltd (1975) LPELR-1512(SC); Badmus v Abegunde (1999) 11 NWLR (PT 627) 493; Xtoudos Services Nigeria Ltd v Taisei (WA) Ltd (2006 LPELR-3504(SC). By virtue of Section 19(1) of the Legal Practitioner?s Act, 2004 (LPA), ?bill of charges” means any charges, whether by way of fees, disbursements, expenses or otherwise, in respect of anything done by a legal practitioner in his capacity as a legal practitioner. Professional fees, which must necessarily and directly flow from the work a legal practitioner has done in his capacity as legal practitioner, therefore do not constitute special damages.

?Usually, the legal practitioner and his client would agree in advance on professional fees or rely on the terms of any agreement reached for payment of his fees at the conclusion of the matter. He would be paid upon the agreed fees. However, where he has not received his fees, by Section 16 (1) of the LPA, he must first of all, prepare a bill of charges or a bill for the charges

which should duly particularize the principal items of his claim; 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;Rebold Industries Ltd v. Magreola & Ors (2015) LPELR-24612(SC); Oyekanmi v. National Electric Power Authority (2000) LPELR-2873(SC); GTB Plc. & Anor v. Anyanwu, Esq. (2011) LPELR-4220(CA).
This Court in GTB Plc. & Anor v. Anyanwu, Esq. (supra) per Augie, JCA (as he then was) considered the circumstance when a legal practitioner has not been paid his fees and there was no agreement by the parties thereon as follows, pages 24 ? 26 of the E-Report:
?A legal practitioner has a right to be remunerated for his services; he can either be paid in advance upon named fees or rely on the terms of any agreement reached for his fees. However, if he has not received his fees and no agreement was reached as to what they would be, he must submit his bill of charges – see Oyo V. Mercantile Bank (Nig.) Ltd. (1989) 3 NWLR (Pt. 108) 213. All the relevant authorities say that reasonable remuneration must be given for the actual <br< p=””

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service rendered by a claimant on quantum meruit, which is Latin for “as much as he deserved” ? see SBN Ltd. V. Opanubi (2004) 15 NWLR (Pt. 896) 437 SC. In effect, when the bill of charges or fees (as they are called) are properly brought by the legal practitioner in compliance with the provision of the LPA, the Court will normally give Judgment for the amount of fees so claimed unless there are other factors preventing it from doing so, such as the absence or non-existence of any agreement for the payment of the fees by the client or an attempt by the legal practitioner to illegally enrich himself at the expense of his client (by way of champarty) – see Oyo V. Mercantile Bank (Nig.) Ltd. (supra) and Akingbehin V. Thompson (2008) 6 NWLR (Pt. 1083) 270, where Adamu, JCA added as follows-
“In some cases, even where the charges or fees were not agreed upon or fixed by a contract between the parties – – the Court can award a reasonable fees or remuneration to the legal practitioner for his services actually rendered or admitted to have been rendered by him at the request or instruction of his client on the basis of quantum meruit or quasi-contract.

See also SBN Ltd. V. Opanubi (supra), where Uwaifo, JSC held –
“- – The Respondent – – was expected to provide parameters and necessary evidence upon which the Court would assess what is reasonable compensation on quantum meruit for the services rendered by him – – He ought to have indicated in the bill of charges the nature of the various aspects of the services he rendered; his experience at the bar which matched the skill the particular legal matters demanded; and in evidence justified the reasonableness of the charges for the services…A legal practitioner should be able to present a bill of charges which, among other facts, should particularize his fees and charges, e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in Court and the dates; (e) summarized statement of the work done in Court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of counsel at

the bar in terms of years of experience and/or the rank with which he is invested in the profession. It is necessary to indicate amount of fees against each of these items. – – In compensating a legal practitioner upon a quantum meruit for services he has actually rendered, it will be more realistic to make assessment on the basis of the particulars of the nature of work done by him to arrive at what can be considered a reasonable compensation. It is then a sum which “the Judge appears to have arrived at on consideration of all necessary factors would be a reasonable remuneration in all the circumstances” as observed by Lord Atkinson in Way v. Latilla”.
In this case, notwithstanding anything the Respondent may have said to the contrary, there is no evidence whatsoever before the Court that his fees were agreed upon or fixed by any contract between the parties.
As the Appellants pointed out, he never pleaded that the parties agreed on any fees not to mention N12.5 Million Naira fees he demanded from them and he never gave any such evidence either. Nonetheless, a Court can award a reasonable fees or remuneration to

a legal practitioner for his services actually rendered or admitted to have been rendered by him – see Akingbehin V. Thompson (supra), SBN Ltd. V. Opanubi (supra).?
(Emphasis mine)
In light of the foregoing, it is my view that although the Respondents are estopped from denying their obligation to pay the Appellant for his professional charges, this obligation must be fulfilled in respect of services actually rendered or admitted to have been rendered by him on the basis of quantum meruit. For direction, it would be enlightening to place the details of Exhibit B1 under the scrutiny of evidence adduced before the lower Court.
The Appellant had in Exhibit B1 claimed as follows:
Consultation Fees – N100, 000.00
Research, preparation, filling of defence Processes, and other related interlocutory applications in Suit No. MHC/83/2013 – N8, 000,000.00

Appearance in suit No MHC/83/2013 – N1, 950,000.00
Under cross examination, PW1, the Appellant, admitted that all documents of the Respondents had been filed before he came into the matter, page 135 of the Record of Appeal. In other words, the Appellant filed no process in the matter before that trial Court, not even an interlocutory application. In any event, the Appellant did not controvert the evidence of DW1 that the Respondents, being public officers, paid no filing fees, whether or not the suit was handled on their behalf by private practitioners. That is to say, even if the Appellant had filed any process, he would not have needed to pay any fees. The Appellant lumped together his charges for Research, preparation, filling of defence Processes, and other related interlocutory applications at N8, 000,000.00. Since he filed no process, on his own admission, no

payment was due on this head.
The unchallenged evidence of DW1 was that counsel appearance fees per sitting in Benue State High Court was no more than N2, 000.00. In Exhibit B3, the trial Court in its judgment noted that there had been delays in the hearing of the matter, which pushed conclusion of the matter to 9/10/2015. The charge for appearances was put at the sum of N1, 950,000.00, which if shared by N2, 000.00 per sitting that would mean that the Appellant appeared for the matter 975 times in about two years. The Appellant gave no details of the number of appearances, and this is understandable because as at the time Exhibit B1 was given, the Appellant had not appeared at all in the matter. This detail of the charge was therefore anticipatory. The evidence before the lower Court was that the Appellant had his law office in Gboko but had to travel to Makurdi in order to appear for the hearing of the matter, which was concluded more than two years after he was instructed. He testified that he lodged in hotels throughout the duration of the case. The Respondents challenged this item. However, to my mind, although the Appellant presented no hotel

receipt, he did not need to. Traveling and lodging in order to appear and conduct defence in the matter was an identifiable cost.
It must be emphasized that the Appellant presented his bill of charges, Exhibit B1, before he appeared in the matter at all or assessed what would be his fees for his professional skills. At the conclusion of the matter, the Appellant also failed to review the bill of charges, Exhibit B1, in order to adjust it in line with realities. In consequence, the Appellant presented no charge for his professional skill, as is the norm. I would agree with the learned trial Judge that the bill of charges ought to have finally been presented:
at the close of the particular assignment for which the services of the legal practitioner has been engaged, at which time he would have become aware of all the extra expenses incurred in addition to his agreed professional fee.?
Nevertheless, in determining fair compensation for the Appellant, having regard to the evidence adduced, I find particularly instructive and shall be guided by the decision of the Apex Court per Uwaifo, JSC, in S.B.N. PLC. v. Opanubi

(2004) LPELR-3023(SC) at page 24 ? 25 of the E-Report, as follows:
?In compensating a legal practitioner upon a quantum meruit for services he has actually rendered, it will be more realistic to make assessment on the basis of the particulars of the nature of work done by him to arrive at what can be considered a reasonable compensation. It is then a sum which “the Judge appears to have arrived at on consideration of all necessary factors would be a reasonable remuneration in all the circumstances” as observed by Lord Atkinson in Way v. Latilla (supra);
Unfortunately, however, there were no parameters presented in evidence to enable the Court arrive at a realistic assessment of reasonable compensation due to the Appellant. These parameters would include particulars of the nature of work undertaken, the Appellant?s years at the Bar etc. These details are all missing and cannot be speculated upon by this Court. In my considered view therefore, having regard to the evidence adduced, I find that the Appellant is entitled to the sum of N1,100, 000.00 assessed as follows:
Consultation fees ? N100,000.00

Appearance ? N1,000,000.00

In sum, the appeal succeeds in part. The Appellant is entitled to the sum of N1,100,000.00 as above. The Appellant is also entitled to costs which I assess at N100,000.00, against the Respondents.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein. I however intend to add a word or two of mine for emphasis.

A legal practitioner is entitled to be paid agreed or appropriate fees for professional services rendered by him. He may be paid on the basis of;
(a) an agreed sum;
(b) advance payment; or
(c) quantum meruit.
The appellant in the instant matter relied on a bill charges for his fees for the professional services rendered to the respondents thus making his claim on the basis of quantum meruit. In that circumstance, the burden was on the appellant to:
(i) Serve the respondent with a bill of charges with the principal items of his claim at least a month before instituting action to recover his fees;

(ii) prove in Court the actual services rendered by him to the respondents and the parameters to assess the value of such services ? See Savannah Bank of Nig. Plc V Opanubi (2004) 15 NWLR (Pt. 896) 437.

It is clear that the bill of charges relied upon by the appellant was received by the 2nd respondent as is evidenced in paragraph 7 of the written deposition of respondents’ witness, Sylvanus Agbaji, wherein he stated,
“That I am very much aware that when the bill of charges of the plaintiff was received by the 2nd defendant…”
The 2nd respondent did not object to the bill nor did he have it taxed long after receiving it. The result is that it is considered prima facie to be right. Nevertheless, it is permissible to treat the claim based on the bill as if it were an action at law in which the respondents would be allowed to question the reasonableness of the particular items which could have been objected to had there been taxation. In other words, the bill is litigable as to its quantum. See Oyekanmi V National Electric Power Authority (2000) 15 NWLR (Pt. 690) 414, 436.

I have looked at the items in the bill of charges vis ? a ? vis evidence led in this matter. It is clear to me that item No. 3 on the bill of charges is not only questionable but also unjustifiable. Item 3 reads:
“3. Research, preparation, filling (sic) of defence processes, and other related interlocutory applications in suit No. MHC/83/2013 ? N8,000,000:00.”
The appellant admitted in cross ? examination that all the processes of the respondents had been filed before he came into the matter. Furthermore, the DW1 testified that filing fees are not paid by the respondents, they being public officers. The appellant is therefore not entitled to be paid in respect of that item. It is the duty of the Court to ensure that in assessing the entitlement of a legal practitioner to fees for his professional service, he is paid appropriate fees for the services actually rendered and not for services not rendered, as to do otherwise would amount to unjust enrichment.
?The appellant is entitled to his consultation fee. Though he did not state his age at the bar, it is my view that the sum of N100,000:00 is a reasonable sum of money

therefor. He is entitled to N1,000,000:00 for appearance as methodically arrived at by my learned brother.

It is on account of foregoing and the more comprehensive reasons set out in the judgment of my learned brother that I also hold that the appeal succeeds in part.
I abide by the consequential orders made in the judgment of my learned brother.

JOSEPH TINE TUR, J.C.A. (DISSENTING): I have had the privilege of reading in advance the judgment of my learned colleague, O.A. Otisi, JCA regarding the determination of the matters in controversy. I have headed the resolution of the issues submitted by the appellant as arising from the grounds of appeal as a ?determination?. I could have headed same as a ?decision? or an ?opinion? by virtue of the provisions of Section 294(2) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:-
?294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
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318(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation?.
Section 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 to wit:-
?36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only

that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.
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294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.?
A Court that hears evidence and relies on addresses by learned Counsel has to reach a decision within ninety days thereafter as provided under Section 294(1) of the Constitution. But a violation of the provisions can be remedied under Section 294(5) and (6) of the Constitution to wit:-

?294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.?
?The Court of Appeal determines appeals on briefs of argument hence the requirements of Section 294(1) of the Constitution for the rendering of a ?decision?, an ?opinion? or a ?determination? within a given period of time is omitted and ought not to be imported into Section 294(2) of the

Constitution. In Maxwell on the Interpretation of Statutes, 12th edition by P. St. J. Langan appears the following passage at page 33:-
?It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: ?It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.? ?We are not entitled,? said Lord Lorebun, L.C., ?to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.? A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.?
Section 294(3) of the Constitution provides thus:-
?294(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members?.

?Determination? was defined in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 226 by Alexander, C.J.N. at pages 243-244 to wit:-
?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
?The learned authors of Black?s Law Dictionary, 9th

edition, page 514 defines ?determination? as follows:-
?1. A final decision by a Court or administrative agency (the Court?s determination of the issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).
Initial determination: The first determination made by the Social Security Administration of a person?s eligibility for benefits. (Cases: Social Security and Public Welfare?..
2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easement?s determination after four years) ? determine, vb.?
Osborn?s Concise Law Dictionary, 12th edition, page 144 also defines ?determine? as ?(1) To come to an end; (2) to decide an issue or appeal.? In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders ?determination? and to ?determine? and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned Judges and Justices in Nigeria in the administration of law and

justice in this century at pages 63-64 as follows:-
?A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire?s Modern Real Property (10th Edition) 281).
?It is said that ?termination? and ?determination? do not mean the same thing; that ?termination? means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term

were created of fifty years, determinable at the death of ?A?, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd?s edition of Johnson?s Dictionary, the fourth sense given of the word ?determination? is ?expiration,? ? ?end?. And the lexicographer adds, ?Used only by lawyers; as, from and after the determination of the said lease.? The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.
?The words of the condition (in a bond) are, ?if the determination of the said action shall be in favour of the plaintiff,? etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and

there was no stay of execution on the judgment, such a state of things amounts to ?a determination? of the action in favour of the plaintiff within the meaning of the condition.
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour.? Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.
?There is a ?con in Chapter 3 of the Income Tax Act, 1952, which relates to ?Appeals and Relief for Mistake? and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ?An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ?determined? and ?determination? are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an

assessment.?Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.
NEW ZEALAND ? ?Article 19 (of a partnership agreement)? says: ?Upon the determination of the partnership the assets of the firm shall be realized The word ?determination appears to me to be used for ?termination?, and usage shows that they are now used interchangeably.? Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.
DETERMINE:
?I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ?determines? any provision of the settlement. Be that as it may, it is, I think, clear that in the Section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a

settlement ?by virtue or in consequence? whereof a sum of money is payable by the ?settlor or the wife or husband of the settlor?: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ?otherwise determine? mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.? Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
?It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest

cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine? must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ?determine.? There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex neccessitate be interests in remainder or reversion. Therefore, if the use of the word ?determine? introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ?determine?. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act

provides: ?In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death.? There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as ?determining? if it fails while it is yet reversionary in character.? Re Wilson?s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.?
In Baba vs. Civil Aviation (1991) SCNJ (Pt.1) 1, Nnaemeka-Agu, JSC held at page 25 when construing Section 33(1) of the 1979 Constitution that:
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section

33(1) of the Constitution, 1979 did not arise under the Affini Panel.?
The substantive suit was filed by the appellant as the plaintiff in the High Court of Justice of Benue State holden in Makurdi on 18th January, 2016 against the respondents. The appellant was at the time of filing the suit a legal practitioner. The 1st and 2nd respondents do not need any introduction going by their names.
The suit proceeded to trial. A.O. Onum, J., (as he then was) relied on the oral and documentary evidence and addresses of learned Counsel to deliver a ?decision? on 7th June, 2016 in favour of the respondents.
There is nothing like a ?lead? or ?dissenting judgment?, ?decision?, ?opinion? or ?determination.? What matters is the decision, opinion or determination of the dispute or controversy by majority of the Justices of the Court of Appeal that heard the argument of the parties or learned Counsel.

I shall now determine this appeal on the merit. I have read the pleadings and studied the oral and documentary exhibits along with the briefs filed by the parties.

I do not need to embark on a detailed review of the pleadings, oral and documentary evidence or submissions of learned Counsel to determine this appeal. In Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63, Ejinwunmi, JSC held at pages 79-80 as follows:-
?Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the

light of the arguments advanced in the consideration of the merits of the appeal.?
I shall adopt the procedure by Lord UpJohn in Ijale vs. Shonibare, Privy Council Judgments (1841-1973) by Olisa Chukura, SAN, 1980 edition, 947 where his Lordship held at page 948 that:-
?There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and

evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES .?
I am aware of the provisions of Order 19 Rule 3(1)-(4) of the Court of Appeal Rules, 2016 which provides as follows:-
?3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the

Court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to raise and the reasons upon which the argument is founded.?
The appellant filed a brief of argument on 7th September, 2016 setting forth the following issues for determination at pages 5-7 to wit:-
?1. Whether the decision of the trial Court is not against the weight of evidence. (Distilled from Ground 1).
2. Whether the learned trial Judge did not err in law when he misconstrued the import of appellant?s bill of charge in Exhibit ?B1? to represent a statement of expenditure that must be proved by evidence. (Distilled from Ground 2).
3. Whether the learned trial Judge did not err in law in the peculiar circumstances of appellant?s case, when he held that: The bill anticipated by the law must be the aggregate of what the legal practitioner agrees with his client as his professional fees and other incidentals reasonably arising and incurred in the course of his assignment. And that,

it usually comes at the close of the particular assignment for which the services of the legal practitioner has been engaged, at which time he would have become aware of all the extra expenses incurred in addition to his agreed professional fee. (Distilled from Ground 3).
4. Whether the learned trial Judge did not err in law when he held that the appellant?s assertion that the failure of the respondents to call the former Attorney-General of the State with whom he claims to have agreed on the bill, makes his case unassailable, is not in line with the law. (Distilled from Ground 4).
5. Whether the learned trial Judge did not err in law to have imposed a higher burden of proof upon the appellant than that required by the law. (Distilled from Ground 5).
6. Whether the learned trial Judge was not in failure of duty when he refused accepting the appellant?s unchallenged evidence in respect of the Attorney-General?s commitment on the appellant?s bill of charge in Exhibit ?B1?. (Distilled from Ground 6).
7. Whether the learned trial Judge did not err in law when he failed to consider the appellant?s

evidence on estoppel. (Distilled from Ground 7).
8. Whether the learned trial Judge did not err in law when he held that the instruction to conduct the proceeding in Exhibit ?B3? was accepted by appellant in expectation that, legal fees would be agreed upon later. (Distilled from Ground 8).? The duty of respondents in filing a brief is provided in Order 19 Rule 4(1)-(2) of the Court of Appeal Rules, 2016 to wit:-
?4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.?
A respondent that did not cross-appeal is to answer any point of substance contained in the appellant?s brief showing why the decision of the learned trial

Judge should be dismissed hence, I shall determine this appeal on the issues formulated by the appellant in his brief of argument. Besides, where the issues raised overlap, this Court has the duty to merge them. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 paragraph ?G? and page 17 paragraph ?G?.
The appellant?s issues must arise from the grounds of appeal; the grounds of appeal must arise from the decision of the learned trial Judge whose determination has to arise from the pleaded facts. See Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 537; Akinlagun vs. Oshobajo (2006) 12 NWLR (Pt.993) 60 at page 80 paragraphs ?D?-?E? and Idahosa vs. Orasanya (1959) 4 FSC 166. The Supreme Court deprecates the proliferation of issues for determination when a consideration and the determination of a few issues will determine the appeal in favour of the appellant or the respondent. See Omega Bank (Nig.) Plc vs. O.B.C. Ltd. (2005) 8 (Pt.928) 547; Mozie vs. Mbamalu (2006) 15 NWLR (Pt.1003) 466 and Odaemena Nwaigwe & Ors. vs. Nze Edwin Okere (2008) All FWLR (Pt.431) 843

at 858 paragraphs ?A?-?B?.

The powers of the Court of Appeal in hearing appeals is provided in Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 from 1st day of December, 2016 when the Rules came into effect as follows:-
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.?

Since the issues for determination must arise from the grounds of appeal, I shall refer to Order 7 Rules 1-6 of the Court of Appeal Rules, 2016 which provides as follows:-
?1. Part 2 of this Rule shall apply to appeals to the Court from any Court or tribunal acting either in its original or its appellate jurisdiction in civil cases, and to matters related thereto.
2(1) All appeals shall be by way

of rehearing and shall be brought by notice (hereinafter called ?the notice of appeal?) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the appellant or his legal representative.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general

ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent.
4. The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the foregoing provisions the court in deciding the appeal shall not be confined to the grounds set forth by the appellant; provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.
6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.?
Power is conferred on the Court of Appeal Justices to strike

out by ?its own motion or on application by the respondent? any ground of appeal which ?is vague or general in terms or which discloses no reasonable ground of appeal? for such ?is not permitted, save the general ground that the decision is against the weight of evidence See Order 7 Rule 3 of the Rules (supra). Grounds 1-4 in the Notice of Appeal is in conformity with the provisions of Order 7 Rules 1-3 of the Court of Appeal. They cover issues 1-4 set down for determination by the appellant in the brief of argument. Grounds 5-8 in the Notice of Appeal said to have been covered by issues 5-8 in the brief of argument have neither stated the Law nor the sections that the learned trial Judge ?erred in law? to have misconstrued for this Court to interfere with the decision of the Court below in favour of the appellant. The Supreme Court has set down since Chidiak vs. Laguda (1964) NMLR 123 was determined at page 125 when a learned trial Judge has ?erred in law? per Taylor, JSC to wit:-
?Time and again do cases come up on appeal in which matters are treated in the Grounds of appeal as

misdirection which are no more than findings of fact by the trial Judge. Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray vs. Ford (2) Lord Watson said that:-
?Every party to a trial by Jury has a legal and constitutional right to have the case which he has made either in pursuit or in defence, fairly submitted to the consideration of that tribunal.?
This is done by the trial Judge directing the Jury, who are the Judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the Jury. Where, however, the Judge sits without a Jury, he misdirects himself if he misconceives the issues, or summarizes the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be described as a misdirection. It is of course desirable, and we consider that it should be the practice that the particular findings

to which objection is to be taken at the hearing of an appeal should be specified in the grounds of appeal, possibly under the ground of appeal alleging that the judgment was against the weight of evidence.?
In N.N.S.C. vs. Establissment Sima (1990) 12 SCNJ 35 the Supreme Court held at page 38 as follows:-
?Now, the appellant right from the Federal High Court to the Court of Appeal and finally to this Court has tenaciously insisted his grounds of appeal from the High Court are grounds of law, merely by tagging them ?error in law?. Mere assertion that a ground of appeal is based on ?error in law? does not make it one if the errors particularized are no more than matters of fact. (Metal Construction (W.A.) Ltd. vs. Migliore (1990) 1 NWLR (Pt.126) 299). The grounds of appeal tagged by the appellant as those based on ?error in law? are no more than mere facts, the decision complained of are those of Court?s discretion based on facts deposed in affidavit evidence. (Ogbechie vs. Onochie (1986) 2 NWLR (Pt.23) 484; Ifediora vs. Ume (1988) 2 NWLR (Pt.74) 5; Obijuru vs. Ozims (1985) 2 NWLR (Pt.6) 167).<br< p=””

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When a ground of appeal is based on facts alone, or on mixed law and fact it could not be filed in the Court of Appeal unless leave is sought and obtained. (See Section 221(1) and (2) of the Constitution, 1979; Oluwole vs. L.S.D.P.C. (1983) 5 SC 1; State vs. Omeh (1983) 5 SC 20; Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) 718. Once a ground of appeal is based on facts or mixed law and facts the jurisdiction of both Court of Appeal and Supreme Court is ousted unless leave has been sought and obtained to file the ground (Ojemen vs. Momodu II (1983) 1 SCNLR 188, 205).
The appellant right from the Federal High Court to the Court of Appeal has fought a futile battle to have a stay of proceedings pending appeal because its appeal is incompetent being appeal on grounds of facts for which leave was necessary and none was sought or obtained.
It was for the foregoing reasons that I, on 2nd day of October, 1990 dismissed this appeal with costs of N500.00 to the respondent.?
In Nwadike vs. Ibekwe (1987) 12 SC 14 the Supreme Court held at page 54 as follows:-
?(ii) Several issues that can be raised on legal interpretation of deeds,

documents, terms of art, words or phrases, and inferences drawn therefrom are grounds of law; Ogbechie vs. Onochie (supra) at pp.491-192.?
Issues 5-8 covered by grounds 5-8 in the Notice of Appeal having not stated the Law nor the sections which the learned trial Judge erred to have interpreted or construed and which gave rise to a substantial wrong or miscarriage of justice under Order 4 Rules 9(1)-(2) and Order 7 Rules 7(2)-(3) and 3 of the Court of Appeal Rules 2016 are incompetent. They are struck out.

Grounds 2-4 in the Notice of Appeal said to be covered by issues 1-4 in the appellant?s brief is a complaint against the adequacy of the award or no award made by the learned trial Judge in favour of the appellant. This is to be dealt with under Order 4 Rule 9(4)(a)-(b) of the Court of Appeal Rules, 2016 to wit:-
?9(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;

(b) Reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.?
Issue of award of damages by a learned trial Judge has become statutory. It is no longer a common law remedy. The onus is on the appellant to show the substantial wrong or the aspect of the decision which has occasioned a miscarriage of justice bearing in mind that without the proof of these two conditions this Court will not make an order ?for a new trial or to set aside a verdict, finding or judgment of the Court below? or ?order a new trial on the grounds of misdirection, or of improper admission or rejection of evidence See Order 4 Rules 9(1)-(2) of the Rules. The appellant?s prayers are in the Notice of Appeal at pages 174 of the printed record as follows:-
?4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
To set aside part of the judgment of the lower Court dismissing the

appellant?s claim, and awarding the appellant his entitlement on the contract.
I shall consider the prayers of the appellant under Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 which provides as follows:-
?9(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?

The relationship between a client and a legal practitioner in Nigeria is contractual. In Edozien vs. Edozien (1993) 1 SCNJ 166 the Supreme Court held at page 189 lines 25-190 to wit:-
?It is well settled that the relationship between Counsel and client arises from contract. The contract is with respect to the service or services which Counsel has agreed and undertaken to render in respect of his client. The general and accepted view is that

Counsel acts on the general instruction of his client. He must adhere to any special instructions given by or on behalf of his client. Counsel however, as a general rule has complete control over how these instructions are to be carried out.
There is the usual dominant and general instruction to Counsel to conduct the litigation in Court to finality. In carrying out this instruction, Counsel functions as an independent contractor who exercises his skill and judgment and is free to act as he considers fit within the instruction in the interest of his client. See Performing Right Society Ltd. vs. Mitchell & Booker Palais de danse Ltd. (1924) 1 K.B. 702.
Counsel acting within the scope of his authority express or implied can bind the client. This was the position in Mathews vs. Munster (1887) 20 Q.B.D./141. This was an action for malicious prosecution against the defendant Counsel in the absence of the defendant and without his express authority assented to a verdict for the plaintiff for 350 with costs upon the understanding that all imputations against the plaintiff were withdrawn. Defendant objected. He applied to the Queen?s Bench

to set aside the verdict. His reason was that he neither consented to the concession nor gave authority to consent to any terms of settlement. The Court of Appeal held that the settlement was within the apparent general authority of Counsel and binding. In defining the scope of authority of Counsel, Lord Esher said, at page 143:
?But when the client has requested Counsel to act as his advocate, he has done something more, for the thereby represent to the other side that Counsel is to act for him in the usual course and he must be bound by that representation so long as it continues, so that a secret withdrawal of authority unknown to the other side would not affect the apparent authority of Counsel. The request does not mean that Counsel is to act in any other character than that of advocate or to do any other act than such an advocate usually does. The duty of a Counsel is to advise his client out of Court, and to act for him in Court, and until his authority is withdrawn, he has with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.?

In Mosheshe General Merchant Ltd. vs. Nigeria Steel Products Ltd. (1987) 2 NWLR (Pt.2) 110, Eso, JSC held at page 121 as follows:
?In this appeal, what was in issue was the effect of an admission made by a Counsel in a case on behalf of his client before pleadings were served.
The facts have been well stated in the leading judgment which has just been delivered by my learned brother, Aniagolu, JSC. Indeed, I am in complete agreement with his reasoning and conclusion. I do not intend to repeat herein the details of the admission which have been fully set out in the lead judgment. All I intend to add is the nature of the general authority of Counsel in the conduct of a case.
A Counsel who has been briefed and has accepted the brief and also has indicated to the Court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court.

The only thing open to the client is to withdraw instructions from the Counsel or if the Counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.
Subject to the above statement I adopt the reasoning of my learned brother, Aniagolu, JSC and would dismiss the appeal with N300.00 costs with the sum adjudged being amended to read N296,574.00 and not N304,574.00.?

The contract between the appellant and the respondents has to be evidenced in writing and pleaded by the appellant. The parties filed and exchanged pleadings. The appellant?s statement of claim is at pages 5-7 of the record of appeal. Pages 80-82 of the record of appeal contains the 1st and 2nd respondents? statement of Defence. The appellant filed a Reply to the Statement of Defence which is at pages 98-102 of the printed record.
In Fashanu vs. Adekoya (1974) 1 All NLR (Pt.1) 32, Coker, JSC held at page 37 as follows:-
?We did say earlier on in this judgment that this case resolves itself entirely on its facts. The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only

narrowly open to a Court of appeal. The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a tribunal of trial and a Court of appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support. The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly, the duty of the Court in ascertaining ? the truth in those circumstances is all but easy and the best of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned Counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of

the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.?
See also Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253. The terms of the contract between the appellant and the respondents are in dispute hence the appellant was under an obligation to put same in evidence. In Owosho vs. Dada (1984) 7 SC 149, Aniagolu, JSC held at page 165 as follows:-
?Having regard to the stage of pleadings whereby the grantee of the land the 7th defendant specifically admitted paragraph 23 of the statement of claim and the 1st to 6th defendants did not deny specifically this paragraph which stated the fact of a purported execution of the deed of conveyance specifically stated to be registered as No.69 at page 69 in volume 1433 of the Lands Registry in Lagos and which indeed relates to the land in dispute, I am of the firm view that the plaintiff herein did not need to prove this admitted fact; see Lewis and Peat (N.R.I.) Ltd. vs. Akhimien (1976) 7 SC 157 as per Idigbe, JSC.
The defendants called no evidence and on the balance of probabilities the plaintiff was bound to succeed.?

But in Ibrahim Kano vs. Gbadamosi Oyelakin (1993) 3 SCNJ 65, Ogundare, JSC held at page 83 paragraphs 34 to 43 as follows:
?It is the duty of a plaintiff to prove his case and in so doing he must rely on the strength of that case rather than on the weakness of the defence. He is, however, entitled to take advantage of any admission by the defence favourable to his case. In the instant case, if it was the case of the plaintiff that the defendant was his customary law tenant then he must plead this and prove it. This, the plaintiff has not done, and it is wrong, in my respectful view, to suggest, without production of the agreement pleaded in paragraph 6, that the transaction between the parties to it was in the nature of a customary law transaction.?
The respondent?s plea seems to me to be a challenge to the existence of any contractual relationship with the appellant. In Ihezukwu vs. University of Jos (1990) 7 SCNJ 95 the Supreme Court held at pages 103-104 to wit:-
?In the instant case, Exhibit 1 save for providing that the respondents can terminate the appellant?s employment on

giving him 3 months? notice or payment of 3 months? salary in lieu, it is silent as regards the circumstances in which the power can be exercised. In my view, it can reasonably be implied as a term of the contract that the power to terminate the appointment of the appellant by the respondents can be exercised on grounds of say, ill-health, incompetence, misconduct, dishonesty, exigencies of service or such other similar grounds. The mere fact that the appellant was given a probationary appointment for two years, does not mean and nor could it be implied that his appointment cannot be lawfully terminated within the probationary period on reasonable notice ? see Ward. Vs. Barclay Perkins and Co. Ltd. (1939) 1 ALL E.R. 287 and Para. 3606 of Vol. II ? Chitty on Contract (24th Edition).
The essence of a probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period. Where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not given the employee a legal right

to be employed for that length of time and the employer may lawfully dismiss him before the expiry of that period.
Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract regardless of whether the appointment is on permanent or probationary (temporary) basis.
It is therefore my conclusion that both the trial Court and the Court of Appeal were right when they refused to reinstate the appellant. The normal measure of damages recoverable by an employee whose contract has been wrongly terminated is the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn in other employment. But where the employer has a right to terminate the contract before the expiry of the term (as in the instant case) damages should be assessed only up to the earliest time at which the employer

could validly have terminated the contract ? see British Guiana Credit Corporation Vs. Da Silva (1965) 1 WLR 248 and also para. 3636 of Chitty on Contract, Vol. II (24th edition).
In my view, the termination of the appointment of the appellant by payment of one months? salary in lieu of notice was not in consonance with Exhibit 1. This would not however entitle him to be reinstated when the appointment was basically temporary i.e. it was on probation for two years. He was however entitled to three months? salary in lieu of proper notice as provided in Exhibit 1. In that regard, I endorse the conclusion of Agbaje, JCA (as he then was) that:-
the appellant?s case will have to be decided according to the terms of the contract between him and the respondents. Exhibit 1 contains the terms of the contract between the appellant and the respondents, including the mode of terminating the appointment. It appears to be common ground in this case that, according to the terms of the agreement between the appellant and the respondents, the respondents could validly terminate his appointment by giving

the appellant three months? notice of the termination of that appointment or in lieu thereof, three months? salary?.
The appeal fails and it is dismissed. The judgment of the Court of Appeal is affirmed?.
The Supreme Court has always recognized that a contract is usually subject to negotiation till the parties come to a definite agreement on the consideration to be paid by one party to the other in an offeror and offeree relationship. In Omega Bank Nig. Plc vs. O.B.C. Ltd. (2005) 1 SC 150 at 166 lines 30 to page 167 lines 1-5 Musdapher, JSC held that:
?The issues formulated in this case, have the effect to obscure the fundamental and core issue in this case, that is whether the negotiations between the parties eventually crystallized into a valid and enforceable agreement for which damages may be recoverable for the breach of the contract. For, it is only when there is a valid and enforceable contract, that the issues for example of damages may become relevant and important. Accordingly, from the stand of the parties and with particular reference to the exhibits referred to above and reproduced, in my view

the central and crucial issue is first to determine whether there was a binding contract entered into by the parties.
The lower Courts arrived at the decision that there was a NEXIM loan agreement entered into by the parties and that the appellant breached the loan agreement by the interpretation of Exhibit ?P5?, Exhibit ?P6?, Exhibit ?P7? and Exhibit ?P11?.? Where there is an original contract and a later document(s) or conditions are added or introduced the rights of the parties must be interpreted in terms of documents that have modified the contract. In Sapara vs. U.C.H.B.M. (1988) 7 SCNJ (Pt.2) 291, Karibi-Whyte, JSC held at page 306 as follows:-
?It is clear therefore that ?Exhibit ?D? contains the regulations governing the contract of employment and cannot operate inconsistent with Exhibit ?A? which is evidence of such contract. Exhibit ?D? is intended to support and give effect to Exhibit ?A?. It is an accepted proposition of law that where there is an existing contract, and a new document supporting and giving effect to the

rights under the contract is drawn up, the rights of the parties must be construed in terms of the original contract. See Beesly vs. Hallwood Estate Ltd. (1960) 2 All E.R. 314 at pages 322-323. It is important to appreciate the fact that where there is a second contract dependent upon the original contract and giving effect to it, the two must be read together to ascertain the extent of the rights of the parties in the original contract. The effect of a subsequent agreement dependent on the original will depend upon the extent to which it alters the terms of the original contract. It may constitute a variation in which case the original contract still stands, or a rescission which substitutes another for the original contract. It seems to me that the intention of Exhibit ?D? was not a rescission of Exhibit ?A? because it did not ?manifest? the intention in any event of a complete extinction of the first contract The most that can be benevolently conceded is that there was ?merely the desire of an alteration, however sweeping in terms which leave it (the original contract) still subsisting?.

See Morris vs. Baron & Co. (1918) A.C. 1 at page 19. The conditions of service Exhibit ?D? which did not even vary the terms of the contract of employment as contained in the letter of appointment, Exhibit ?A? cannot be regarded as a variation of it. This is because a variation involves a definite alteration, as a matter of contract, of contractual obligations by the mutual agreement of both parties. See Besseler, Weachter Glover & Co. vs. Smith Derwent Coal Co. (1938) 1 K.B. 408. An agreement, capable of the benefit of both parties, but actually made for the benefit of one will not be effective to vary the contract since no consideration is present.
The clear words of Exhibit ?D? raise no doubt that it was not at any time intended to be substituted for Exhibit ?A? i.e. the letter of appointment. Accordingly Exhibit ?D? must be complimentary to Exhibit ?A? and the conditions in Exhibit ?D? will take effect subject to the terms of the contract as evidenced in the letter of appointment, Exhibit ?A?. There was therefore only one in Exhibit ?A?.?

The pleadings of the appellant appears there was also a variation of the initial contract to represent the respondents in one suit as pleaded in paragraphs 3, 6 and 9 of the statement of claim.
The onus was on the appellant to prove offer and acceptance of the legal or professional fees that the respondents agreed to pay the appellant in handling the contract for the suits the appellant defended or prosecuted. The learned trial Judge held at pages 161 lines 3-15 and at page 164 lines 30 to page 166 lines 1-3 of the printed record as follows:-
?The case eventually went into trial in the course of which either party led evidence and tendered documents. Exhibit ?A? is the written deposition of the plaintiff, while Exhibits ?B?, ?B1?, ?B2?, ?B3?, ?B4? and ?B5? are other documents that he has tendered in support of his claim. Exhibit ?B? is a letter engaging the services of the plaintiff. Exhibit ?B1? is the plaintiff?s letter accepting the brief and the offer of his bill of charges. Exhibit ?B2?

is a letter of reminder on the bill of charges. Exhibit ?B3? is the certified copy of the judgment in the case that the plaintiff handled on behalf of the defendants. Exhibit ?B4? is the plaintiff?s demand notice to the defendant, which also give the notice that litigation might follow a refusal to pay the plaintiff?s professional fee as demanded in Exhibit ?B1?. Exhibit ?B5? is a letter addressed to the Attorney-General, requesting for financial intervention to enable the learned Counsel prosecute the defence in the case. Exhibit ?C? is the written deposition of the only witness for the defence. At the close of the evidence written submissions were filed. The written submissions were eventually adopted in oral submissions. xxxxxxxx Looking at the pleadings in the instant case, it is clear that the defendants have not disputed the consultation fee of N100,000.00; that is taken as accepted and so not one of the issues in the case. The defendants have however stiffly joined issues on the claim of N8,000,000.00 as a lump sum to cover the several items of ?research,

preparation, filing of defence processes and other related interlocutory applications?. The defendants have also stiffly disputed the appearance fee of N1,950,000.00 on the ground that it is not justifiable, especially considering the facts that appearance fee of a lawyer in this jurisdiction is pegged at N2,000 per appearance. In the face of this stiff resistance, the onus lies on the plaintiff to specifically plead and prove each of the items of his claim by credible evidence. From all that I have said in the earlier part of this judgment, the plaintiff is expected to plead and strictly prove what he spent on each of the items of research, preparation of defence, filing of defence and on each of the related interlocutory applications that he prosecuted in the case. In the absence of such pleadings and evidence it is hard to see how he has met the standard of proof required to ground the special damages for those items. There is equally no pleading and evidence regarding how many appearances the plaintiff put up in the case that he defended in the Court. Costs for appearances of Counsel usually form part of the spoils of a judicial duel that ends in

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favour of Counsel?s client. It is usually demanded from the party who losses the battle. It therefore goes against the usual grains of law practice, and also overbearing on a client, for Counsel who appears to have chosen to abandon his costs following the judgment in his favour to turn around to load it down on the client as an item in his bill of charges. Again Exhibit ?B1? is self-evident of some curious features that cannot escape attention. For instance, how did the plaintiff get to know beforehand the number of appearances that he would put up in the case and the number of interlocutory matters that he would handle to justify the claim of N1,900,000.00 under that sub-head at the threshold? On what basis did he anticipated the number of interlocutory matters that he has built into the claim of N8,000,000.00? These are questions that deserve definite answers. In the absence of any positive answers to these questions in the pleadings and the evidence led, the charges regarding these special items of claim become merely speculative. See the cases, including Neka B.B.B. Manufacturing Company Ltd. vs. African Continental Bank Ltd. (supra),

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earlier referred to on the point. On the basis of the foregoing considerations, I do not see proof of the N8,000,000.00 and N1,950,000.00 contained in the bill of charges, Exhibit ?B1?, each of which has been stiffly contested. The item of N100,000.00 as consultation fee has however not been contested and so it is deemed as admitted, requiring no further proof.
In summation, I find proof of only N100,000.00 by way of special damages for which I hereby enter judgment for the plaintiff and against the defendants. The suit stands dismissed in every other respect.?
A ?debt? is defined at page 462 of the Black?s Law Dictionary, 9th edition as follows:-
?Debt:- 1. Liability on a claim; a specific sum of money due by agreement or otherwise (the debt amounted to 2,500dollars). 2. The aggregate of all existing claims against a person, entity, or state (the bank denied the loan application after analyzing the applicant?s outstanding debt). 3. A non-monetary thing that one person owes another, such as goods or services (her debt was to supply him with 20 international first-class tickets on the airline of his

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choice). 4. A common-law writ by which a Court adjudicates claims involving fixed sums of money (he brought suit in debt). ? Also termed (in sense 4) Writ of Debt.
?The action of debt lies where a party claims the recovery of a debt; that is, a liquidated or certain sum of money due him. The action is based upon contract, but the contract may be implied, either in fact or in law, as well as express; and it may be either a simple contract or a specialty. The most common instances of its use are for debts: (a) Upon unilateral contracts express or implied in fact. (b) Upon quasi-contractual obligations having the force and effect of simple contracts. (c) Upon bonds and covenants under seal. (d) Upon judgments or obligations of record. (e) Upon obligations imposed by statute.? Benjamin J. Shipman, Handbook of Common-Law Pleading, paragraph 52, at 132 (Henry Winthrop Ballantine ed., 3d ed, 1923).?
A ?fee? and ?fixed fee? is defined at page 690 of the Black?s Law Dictionary (ante) as follows:-
?Fee:- 1. A charge for labor or services, especially professional services.

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?Fixed Fee:- 1. A flat charge for a service; a charge that does not vary with the amount of time or effort required to complete the service. 2. In a construction contract, a predetermined amount that is added to costs for calculating payment due under the contract.?
An ?Attorney?s fee? is defined at page 148 of the Black?s Law Dictionary (ante) as follows:-
?Attorney?s Fee:- The charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee. ? Also spelled attorney?s fees. ? Also termed attorney fees.?
A ?Retainer?s fee? is defined at page 1430 of the Black?s Law Dictionary (ante) as follows:-
?Retainer:- 1. A client?s authorization for a lawyer to act in a case (the attorney needed an express retainer before making a settlement offer)? 2. A fee that a client pays to a lawyer simply to be available when the client needs legal help during a specified period or on a specified matter? 3. A lump-sum fee paid by the client to engage a lawyer at the outset of a matter. ?

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Also termed engagement fee. 4. An advance payment of fees for work that the lawyer will perform in the future. ? Also termed retaining fee?
?Over the years, attorneys have used the term ?retainer? in so many conflicting senses that it should be banished from the legal vocabulary? If some primordial urge drives you to use the term ?retainer,? at least explain what you mean in terms that both you and the client will understand.? Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethic, 1000, 101 (2d ed. 1988).?
The appellant did not pray for increasing the damages awarded by the learned trial Judge for none was awarded in the Notice of Appeal. This Court cannot award damages as ?quantum meruit? in the circumstances of this appeal. The appellant has to show that there is the need to order a new trial on the grounds provided in Order 4 Rule 9(4) of the Court of Appeal Rules, 2016 as to ?reduce or increase? the award of damages made by the learned trial Judge as the case may be. The Rules have no provision for the award of damages by way of ?quantum meruit?

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as the award of damages, professional or retainer fee or charges is contractual and statutory. ?The onus on the appellant to establish how the learned trial Judge erred in the award of damages claimed in the lower Court against the respondents was not discharged. Where the professional or legal fees are agreed by the client and the solicitor/barrister they become certain, ascertainable and can be claimed in the form of special damages or as a debt. An ?agreement? is defined in Black?s Law Dictionary, 9th edition, page 78 as follows:-
?Agreement:- 1. A manual understanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more persons? 2. The parties? actual bargain as found in their language or by implication from other circumstances, including course of dealing, usage of trade, and course of performance?
?The term ?agreement? although frequently used as synonymous with the word ?contract?, is really an expression of greater breadth of meaning and less technicality. Every

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contract is an agreement; but not every agreement is a contract. In its colloquial sense, the term ?agreement? would include any arrangement between two or more persons intended to affect their relations (whether legal or otherwise) to each other. An accepted invitation to dinner, for example, would be an agreement in this sense; but it would not be a contract, because it would neither be intended to create, nor would it in fact create, any legal obligation between the parties to it. Further, even an agreement which is intended to affect the legal relations of the parties does not necessarily amount to a contract in the strict sense of the term. For instance, a conveyance of land or a gift of a chattel, though involving an agreement, is not a contract; because its primary legal operation is to effect a transfer of property, and not to create an obligation.? 2 Stephen?s Commentaries on the Laws of England 5 (L. Crispin Warnington ed. 21st ed. 1950).
?An agreement, as the Courts have said, ?is nothing more than a manifestation of mutual assent? by two or more parties legally competent persons to one another.

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Agreement is in some respects a broader term than contract, or even than bargain or promise. It covers executed sales, gifts, and other transfers of property.? Samuel Williston, A Treatise on the Law of Contracts, paragraph 2, at 6 (Walter H.E. Jaeger ed., 3rd ed. 1957).
?Agreement of Sale:- An agreement that obligates someone to sell and that may include a corresponding obligation for someone else to buy In Chitty On Contract, 26th edition, Vol.1, paragraphs 1511-1512 is the statement of law on ?quantum meruit? as follows:-
?Partial Performance of Entire Contracts:- Where a party has performed only part of his obligations under an entire contract, he can normally recover nothing, neither the agreed price, since it is not due under the terms of the contract, nor any smaller sum for the value of his partial performance, since the Court has no power to apportion the consideration. The refusal of pro rata payment is based on the inability of the Court, as a matter of construction, to add such a provision to the contract, and also upon the rule that the mere acceptance of acts of part performance under an

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express contract cannot, taken alone, justify an implied contract to pay on a quantum meruit basis. Thus where an employee is engaged for a fixed period for a lump sum, but fails to complete the term for a reason other than breach of contract by the employer, e.g. frustration, the common law rule is that he can recover nothing. In the famous case of Cutter vs. Powell (1795) 6 T.R. 320, a seaman was to be paid a lump sum when he completed the voyage; he died before completion of the voyage and it was held that his executor could not recover pro tanto wages because it was an entire contract. This was a case of non-feasance, but in a case of misfeasance, as where an employee completes a period of service but does bad work, the employee may recover his wages, subject to a deduction in respect of the bad work. In contracts where wages or salaries are payable, however, the apportionment Act, 1870 has altered the common law rule, for by Section ?all rents, annuities, dividends, and other periodical payments in the nature of income? shall? be considered as accruing from day to day, and shall be apportionable in respect of time accordingly.?

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By Section 5, ?annuities? include salaries and pensions, and it has been held that it also includes wages.
Although nowadays building contracts of any size normally provide for payments by installments, the common law rule on entire contracts was developed in cases concerning building contracts, or contracts for work and materials. Where the builder under a lump-sum contract fails to perform some of the agreed work, then, subject to the doctrine of substantial performance, he can recover nothing for the work which was actually completed, despite the fact that the other party may have received substantial benefit therefrom. The building cases take the distinction between substantial non-feasance where recovery is denied, and misfeasance, where recovery is permitted subject to a cross-action for damages. If, however, under such a lump-sum contract the building is guilty of a serious misfeasance, so that the work is substantially deficient, he can recover nothing.? The learned trial Judge evaluated the oral and documentary evidence which included assessing the credibility and veracity of the testimonies of the witnesses. It is a

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privilege the Justices of the Court of Appeal do not have. Evaluation of evidence under the ?weight of evidence? was dealt with in Mogaji vs. Odofin (1978) 4 SC 91 by Fatayi-Williams, JSC (as he then was) at pages 93-94 as follows:-
?When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the judge. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in

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preference to the other, and then apply the appropriate law to it; if that supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff?s claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. Incidentally, in deciding which evidence has more weight than the other, a trial judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions. Of course, the procedure set out above will be unnecessary if the plaintiff?s case is so patently bad that no reasonable tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the plaintiff?s claim without calling upon the defence.
?In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he

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rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following: (a) whether the evidence is admissible; (b) whether it is relevant; (c) whether it is credible; (d) whether it is conclusive; and (e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted?
It would appear from the above that what the defendants are now complaining about is precisely what this Court has criticized in the above case. In short, the

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trial Judge in that case condemned the defendant without considering the totality of the case before him and weighing the respective cases of the parties on the imaginary scale of justice!
It is manifest that the trial Judge in the case in hand has also not put the defendants? case on that imaginary scale and found it wanting in weight. We therefore think that his approach to the case is grossly unfair to the defendants. With respect, it appears to us that the trial judge, at the time he found for the plaintiffs, had not considered the defendants? case at all. We think, again with respect, that it is an under-statement to complain that the judgment is against the weight of evidence. What happened is worse than that. No imaginary scale was used in this particular case and the question of weight does not therefore arise.?
In Barau vs. Customs and Excise (1982) 2 NCR 1, Fatayi-Williams, C.J.N. held at pages 21-23 as follows:-
?In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent

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intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent?s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court held (1968) NMLR at 95) that:-
?Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.?
Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an Appeal Court in more detail as follows (1968 NMLR at 247):
?A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances.

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It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial.? [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.
In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating

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evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):
?The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his ?performance? on the

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day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when ?dealing only with the cold sullen print of the records before them? decided to set aside the Chief Judge?s findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.? Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.
In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the

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misdirections complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.?
In Lion Buildings Ltd. vs. Shadipe (1976) 2 FNLR 282, Udo Udoma, JSC reasoned at pages 289-290 as follows:-
?The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial? According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but

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according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel, namely, that judgment is against the weight of evidence.
We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle to which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence, It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest not Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 ? 1911) I N.L.R. 35, in these words:
?When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full

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consideration, it comes to the conclusion that the judgment is wrong.
If, however, the Appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.?
I am of the humble opinion that it is not within the province of this Court to re-evaluate the oral and documentary evidence so as to interfere with the decision of the learned trial Judge in the circumstances of the facts and the argument of learned Counsel. See Thomas Aplin vs. NNDC (1972) 12 SC 33 at page 47; Coker vs. Ajewole (1976) 1 NMLR 178 at 183 and Ekwunife vs. Wayne (1989) 12 SCNJ 99.
?The onus is on the appellant to plead and prove he had an offer from the respondents to appear in Court in respect of the three cases he claims to have handled on behalf of the respondents and the monetary or professional consideration fee the parties agreed would be paid to the appellant by the respondent?s predecessors or as retainer fees. Rule 18(1)-(2) and 48(1)-(3), 49-52 of the Professional Conduct for Legal Practitioners, 2007 dated 7th February, 2007 governs the relationship between the appellant and he respondents. This

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suit was filed on 18th January, 2016. The Rules are applicable to the determination of this appeal. See Utih vs. Onoyivwe (1991) 1 SCNJ 25 at 45; Uwaifo vs. Attorney-General (1989) 7 SC 124 and Are vs. Attorney-General (1960) 5 FSC 111 at 113. If a contract is evidenced in writing the task of a Court is to interpret its terms.
The Rules of Professional Conduct for Legal Practitioners, 2007 provides in Sections 48-53 as follows:-
?48(1) A lawyer is entitled to be paid adequate remuneration for his service to the client.
(2) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee.
(3) For the purpose of this rule, a fee is clearly excessive when, after a review of the facts, it is clear that it does not take into account the consideration set out in Rule 48 (now 51).
49(1) Subject to Sub-rule (2) of this rule, a lawyer may accept general or special retainers.
(2) Where a lawyer accepts a retainer in respect of litigation, he shall be separately instructed and separately remunerated by fees for each piece of work and accordingly, a lawyer shall not:-

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(a) represent or undertake to represent a client for all his litigation or a part of it on an agreed lump sum over a period of time; or
(b) accept instructions from a client on terms that a particular class of Court cases shall be done at a fixed fee in fee in each irrespective of the circumstances of each case.
(3) A lawyer who accepts a retainer shall not:-
(a) in the case of a general reminder, advise on, or appeal in any proceeding detrimental to the interest of the client paying the retainer during the period of the retainer; or
(b) in the case of a special retainer accept instruction in any matter forming the subject matter of the retainer which will involve advising or arguing against the interest of the client paying the retainer.
(4) In this rule:-
?Retainer? means an agreement by a lawyer to give his service to a client;
?General retainer? means to retainer which covers the clients work generally; and
?Special retainer? means to retainer which covers a particular matter of the client.
50(1) A lawyer may enter into a contract with his client for a contingent fee in respect of a

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civil matter undertaken or to be undertaken for a client whether contentious of non-contentions. Provided that:-
(a) the contract is reasonable in all the circumstances of the case including the risk and uncertainty of the compensation;
(b) The contract is not:-
(i) vitiated by fraud, mistake or undue influence, or
(ii) Contrary to public policy; and
(c) If the employment involves litigation, it is reasonably obvious that there is a bonafide cause of action.
(2) A lawyer shall not enter into an arrangement to charge or collect a contingent fee for representing a defendant to a criminal case.
(3) Except as provided in sub-rule(1) of this rule, a lawyer shall not purchase or otherwise acquire directly or indirectly an interest an interest in the subject matter of the litigation which he or his firm is conducting; but he may acquire a lien granted by law to secure his fee and expenses.
(4) A lawyer shall not enter into a contingent fee arrangement without first having advised the client of the effect of the arrangement and afforded the client an opportunity to retain him under an arrangement whereby he would be compensated

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on the basis of a reasonable value of his service.
(5) In his rule ?Contingent fee? means a fee paid or agreed to be paid for the lawyer?s services under an arrangement whereby compensation, contingent in whole or in part upon the successful accomplishment or deposition of the subject matter of the agreement, is to be of an amount which is either fixed or is to be determined under a formula.
51. A lawyer shall not enter into an agreement to pay for, or bear the expenses of his client?s litigation, but the lawyer may, in good faith, advance expenses:-
(a) as a matter of convenience ; and
(b) subject to reimbursement.
52(1) The professional fee charged by a lawyer for his services shall be reasonable and commensurate with the service rendered: Accordingly, the lawyer shall not charge fees which are excessive or so low as to amount to understanding:
Provided that a reduced fee or no fee at all may be charged on the ground of the special relationship or indigence of a client.
(2) In determining the amount of the fee, a lawyer may take into account all or any of the following

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considerations in ascertaining the value of the service rendered:-
(a) the time and labour required, the novelty and difficulty of the questions involved and the skill required to conduct the cause properly;
(b) whether the acceptance of employment in the particular case will preclude the lawyer?s appearance for others in cases likely to arise out of the transaction and in which there is a reasonable expectation that otherwise he would be employed;
(c) whether the acceptance of the employment will involve the loss of other employment while employed in the particular case of antagonisms, with other clients;
(d) the customary charges of the Bar for similar services; provided that in determining the customary charges of the Bar, the Lawyer may consider a schedule of minimum fees, if any, adopted by the Bar Association but he is not bound to follow it strictly or alone;
(e) the amount involved in controversy and the benefits resulting to the client from the services.
(f) the contingency or the certainty of the compensation; and
(g) the character of the employment, whether casual or for an established or constant client.

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53. A lawyer shall not share the fees of his legal services except with another lawyer based upon the division of service or responsibility.
Provided that:-
(a) an agreement by a lawyer with his firm, partner or association may provide for the payment of money, over a period of time after his death, to his estate or to one or more persons;
(b) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer that proportion of the total compensation which fairly represents the service rendered by the deceased lawyer; and
(c) a law firm may include non-lawyer employees in retirement plan, even though the plan is based on profit-sharing arrangement.?
A violation of the Rules is to be remedied in Rules 56 to wit:-
?56. In these rules unless the con otherwise admits:-
?Judge? includes any officer carrying out judicial functions in a Court;
?Lawyer? means legal practitioner as defined by the Legal Practitioners Act.?
The relationship of a Legal Practitioner with his client(s) is statutory. A breach of any of the provisions of the Rules of

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Professional Conduct for Legal Practitioners, 2007 may subject the Legal Practitioner to the provisions of Rule 55(1)-(2) of the Rules to wit:-
?55(1) If a lawyer acts in contravention of any the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975.
(2) It is the duty of every lawyer to report any breach of any of these rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action.?
I take judicial notice of the Rules which are made pursuant to Section 12(4) of the Legal Practitioners Act, 1990 by I.Bayo Ojo former Attorney-General of the Federation and Minister of Justice/Chairman, General Council of the Bar with effect from 2nd January, 2007. The appellant?s claims in the Court below is a violation of Rules 48-53 and 55 of the Rules, 2007 particularly Rule 49(1)-(4) and 50(4)-(5) which provides as follows:-
?49(1) Subject to Sub-rule (2) of this rule, a lawyer may accept general or special retainers.<br< p=””

</br<

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(2) Where a lawyer accepts a retainer in respect of litigation, he shall be separately instructed and separately remunerated by fees for each piece of work and accordingly, a lawyer shall not:-
(a) represent or undertake to represent a client for all his litigation or a part of it on an agreed lump sum over a period of time; or
(b) accept instructions from a client on terms that a particular class of Court cases shall be done at a fixed fee in fee in each irrespective of the circumstances of each case.
(3) A lawyer who accepts a retainer shall not:-
(a) In the case of a general reminder, advise on, or appeal in any proceeding detrimental to the interest of the client paying the retainer during the period of the retainer; or
(b) in the case of a special retainer accept instruction in any matter forming the subject matter of the retainer which will involve advising or arguing against the interest of the client paying the retainer.
(4) In this rule:-
?Retainer? means an agreement by a lawyer to give his service to a client;
?General retainer? means to retainer which covers the clients work generally; and

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?Special retainer? means to retainer which covers a particular matter of the client.
xxxxxxxx
(4) A lawyer shall not enter into a contingent fee arrangement without first having advised the client of the effect of the arrangement and afforded the client an opportunity to retain him under an arrangement whereby he would be compensated on the basis of a reasonable value of his service.
(5) In his rule ?Contingent fee? means a fee paid or agreed to be paid for the lawyer?s services under an arrangement whereby compensation, contingent in whole or in part upon the successful accomplishment or deposition of the subject matter of the agreement, is to be of an amount which is either fixed or is to be determined under a formula.?
In Langton vs. Hughes (1813) 12 Digest 270, 2214, Lord Ellenborough, C.J., held that: ?What is done in contravention of the provisions of an Act of Parliament, cannot be made the subject-matter of an action? ? cited with approval in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313. See alsoBrightman vs. Tate (1919) 1

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K.B. 463 and Re Mahmoud and Ispahani (1921) 2 K.B. 716 or 12 Digest 271, 2220.
?For all these reasons I dismiss this appeal and affirm the decision of the learned trial Judge. I make no order as to cost.

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Appearances:

Vershima Akaange, Esq.For Appellant(s)

E. Enyikwola, Esq. (PSC 1, Ministry of Justice, Benue State)For Respondent(s)

Appearances

Vershima Akaange, Esq.For Appellant

AND

E. Enyikwola, Esq. (PSC 1, Ministry of Justice, Benue State)For Respondent

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B.T. AZUASONOGO, ESQ v. BENUE STATE GOVERNMENT & ANOR (2019)

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