EJUMEJOWO ANTHONY ASUOTU v. TRIARCH NIGERIA LIMITED
(2019)LCN/13267(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/A/438/2017
RATIO
LAW OF CONTRACT:PARTIES ARE BOUND BY THE TERMS OF THEIR CONTRACT
It is settled law that parties are bound by the terms of their contract, and the only duty of the Court is to enforce such contracts.
In A. G RIVERS V. A. G. AKWA IBOM (2011) 8 NWLR (Pt. 1248) 31,
‘Where parties have entered into a contract or an agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement. Moreover, a Court of law must respect the sanctity of the agreement reached by the parties, where they are in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them and expressed in a written form”. PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
EJUMEJOWO ANTHONY ASUOTU (ESQ.) Appellant(s)
AND
TRIARCH NIGERIA LIMITED Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of S.C. Oriji J., of the High Court of the Federal Capital Territory, Abuja, wherein the Trial Court entered judgment in favour of the Appellant to the tune of N500,000.00 (Five Hundred Thousand Naira) only, being the refund of the initial deposit made by the Appellant as part consideration for Block MDT3BR/04/02 of the Respondent’s Estate, Plot 40, Wumba District, Abuja FCT in 2009.
The concise statement of facts as can be gleaned from the Record is that the Appellant herein, as Plaintiff at the Trial Court, claimed against the Respondent as Defendant, under the Undefended List Procedure, the following:
a. The sum of N52,504,385.25 (Fifty Two Million, Five Hundred and Four Thousand, Three Hundred and Eighty Five Thousand Naira, Twenty Five Kobo only), against the Defendants, being professional legal fees owed to the Plaintiff for legal services rendered between 2008 and 2012,
2. The sum of N500,000.00 (Five Hundred Thousand naira) only being the refund of the initial deposit made by the Plaintiff as part consideration for Block
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MD3BR/04/02 in 2009.
3. 10% monthly interest rate on the total judgment sum until the judgment sum is liquidated.
4. The sum of N5, 000,000.00 (Five Million Naira) only, being the cost of the action.
?
The Appellant deposed to a 36 paragraph affidavit in support of his claim. He averred that sometimes in 2008, the Respondent retained his professional services for drafting of legal documents, which he enumerated in paragraph 6 (a-j) of the affidavit in support, at pages 3 and 4 of the Record. He averred further that the Respondent made him an offer that following his bill for his legal services, an offer of Plot MDT 3BR/04/02, valued at about N15, 000, 000 .00 (Fifteen Million Naira) only, was made to him, by the Respondent in lieu of cash payments, for the development of the said property and he accepted the offer and subsequently made an initial deposit of N500, 000.00 (Five Hundred Thousand Naira) only. It was his story that the Respondent refused and/or neglected to develop the property within the agreed ten to eighteen months period, and have also refused and/or neglected to pay his professional fees, hence the filing of the suit at the Trial
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Court.
The Respondent filed his notice of intention to defend, and in the supporting affidavit admitted to owing the Appellant, the sum of N4, 500,000.00 (Four Million, Five Hundred Thousand Naira) Only. The Trial Court in its Ruling entered judgment in favour of the Appellant to the tune of N4, 500,000.00, admitted by the Respondent, and transferred the balance claimed by the Appellant to the general cause list for full trial.
At the trial, the Appellant testified on his behalf and tendered several exhibits, in support of his claim. The Respondent also called a lone witness who testified on its behalf and tendered no exhibits.
?
At the close of the trial, the Trial Court in its judgment, dismissed the claim of N48,004,385,25 (Forty Eight Million, Four Thousand, Three Hundred and Eighty Five Hundred and Twenty Five Kobo) only, being claimed as unpaid legal fees by the Appellant but entered judgment in favour of the Appellant to the tune of N500,000.00 (Five Hundred Thousand Naira) only, being the refund of the initial deposit made by the Appellant as part consideration for Block MDT3BR/04/02 of the Respondent’s Estate, Plot 40, Wumba District,
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Abuja FCT in 2009.
Dissatisfied with the decision of the Trial Court, the Appellant filed his notice of appeal dated and filed on 13th of March 2017, upon Four grounds, as itemized at pages 415 to 421 of the Record of Appeal.
Briefs of arguments were in accordance with the relevant Rules of this Court, duly filed and exchanged and at the hearing of the appeal on the 4th of March 2019, parties adopted and relied on their respective briefs of argument.
From his four grounds of appeal, the Appellant, who settled his brief, distilled the following three issues for this Court’s determination. They are:
1. Whether or not the learned trial Judge was right in dismissing the claims of the Plaintiff/Appellant for the payment of the sum of N48,004,385.25 (Forty Eight Million, Four Thousand, Three Hundred and Eighty Five Hundred and Twenty Five Kobo) only, on the grounds that the Plaintiff/Appellant having terminated his legal services to the Defendant/Respondent, he is not entitled to the payment of professional fees under the Legal Practitioners’ Act and the Legal Practitioners (Remuneration for Legal Documentation and other Land
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Matters) Order.
2. Whether or not the Trial Court was right in holding that the Defendant/Respondent, having breached the contract between them by not completing and delivering the said BLOCK MD T3BR/04/02 Plot 40 Wumba District, Abuja FCT to the Plaintiff/Appellant within 9 – 18 months as agreed, the Defendant/Respondent cannot be asked for payment of professional fees under the Legal Practitioners Act and the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order, but that the Defendant/Respondent can unilaterally decide on the amount to pay the Plaintiff/Appellant as professional fees?
3. Whether or not the Trial Court was right in rejecting the documentary evidence of the Plaintiff/Appellant and relying on oral evidence of the Defendant/Respondent to contradict same?
Funmi Falana Esq., who settled the Respondent brief, formulated the following four issues for determination, to wit:
1. Whether Issues 1, 2, and 3 as formulated and argued by the Appellant in his Appellant brief was distilled from any of the grounds of appeal as contained in the Appellant’s Notice of Appeal filed on the 13th day of March
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2017.
2. Whether a Legal Practitioner who executes a contract of agreement with his client for the payment of his legal fees can jettison the contract agreement and bring his claim for professional fees under the Legal Practitioners’ (Remuneration for Legal Documentation and Other Land Matters) Order 1991.
3. Whether a Legal Practitioner who rely (sic) on the provisions of the Legal Practitioners Act to claim his legal fees must first comply with the provisions of Section 16 sub section 2(A) – and (B) of the Legal Practitioners’ Act 2004 before he can approach this Honourable Court to claim against the Respondent for payment of his professional fees?
4. Whether an Appellant can adduce fresh evidence in his Appellant brief?
?
I will pause here to consider Issue one, distilled by the Respondent herein. I hasten to add that this issue ought ordinarily to have been by way of a Preliminary Objection, and not as an issue for determination, since Learned counsel for the Respondent has drawn the attention of this Court to the fact that the Appellant’s Issues one, two and three do not flow from the grounds of appeal. He further
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submitted that a detailed look at the Appellant’s Issues one, two and three, would reveal that these issues did not emanate from any of the grounds of appeal. He relied on the cases of:
FABIYI v. ADENIYI (2000) 6 NWLR (PT 662) 532;
CHIME v. CHIME (2001) 3 NWLR (PT 701) 527;
UDOETE v. HEIL (2002) 13 NWLR (PT 783) 64;
and contended that issues for determination should not be formulated in the abstract, but must be related to the grounds of appeal filed. He urged this Court to strike out the three issues.
I have already reproduced the Appellant’s three issues above.
For the ease of reference, I shall set out the four grounds of appeal as follows:
GROUND ONE
The Learned trial Judge erred in law when he held that in the light of the agreement of the parties, the Plaintiff/Appellants legal fees as pleaded, the Court cannot sustain or grant the Plaintiff’s claim of N48, 004, 385. 25 (Forty Eight Million Four Thousand Three Hundred and Eighty Five Naira, Twenty Five Kobo) only, being unpaid legal fees based on the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order, made pursuant to
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Section 15 of the Legal Practitioners’ Act
GROUND TWO
The Learned trial Judge erred in law when he held that the non mention of a specific of the three of the scale of charges under the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order, made pursuant to Section 15 of the Legal Practitioners Act of the Legal Practitioners Remuneration by the Plaintiff/Appellant is fatal to his claim for entitlement to the payment of his professional fees warranting the dismissal of the claim for the professional fees.
GROUND THREE
The learned trial Judge erred in law when he found and held that the Plaintiff/Appellant for terminating his legal services to the Defendant/Respondent before the completion of the Defendant’s housing project of MDT3BR/04/02 Abuja F.C.T. is only entitled to the refund of the sum of N500,000.00 (Five Hundred Thousand Naira) only paid as initial deposit to the sale of MD T3BR/04/02 as indicated Exhibits 0, Q and R (the Plaintiff/Appellant’s cheque to the Defendant/Respondent dated 24th March 2009, the Respondent/Defendant’s offer letter dated 2nd June, 2009 to the Plaintiff/Appellant and the
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Plaintiff/Appellant’s acceptance letter to the Defendant/Respondent dated 29th June 2009) and the payment of the sum of N4,500,000,00 (Four Million, Five Hundred Thousand Naira) only, being his professional legal services rendered to the Defendant/Respondent between 2008 and 2012, as indicated in Exhibits (C) -(H), as contended by the Defendant/Respondent.
GROUND FOUR
The learned trial Judge erred in law when he held that the Defendant/Respondent having failed to perform the contract for the building and delivering Block MDT3BR/04/0 Plot 40, Wumba District, Abuja FCT, to the Plaintiff/Appellant as part of the agreement between the Plaintiff/Appellant and the Defendant/Respondent and as indicated in the exhibit, the Plaintiff/Appellant cannot demand to be paid his professional fees based on the scale of charges under Section 1 of the Legal Practitioners (Remuneration for Legal Documentation and Other Land Matters) Order, made pursuant to Section 15 of the Legal Practitioners’ Act and in another breadth held that the Respondent/Defendant can unilaterally decide the amount to be paid as professional fees for legal services rendered by
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the Plaintiff/Appellant to the Defendant/Respondent.”
I however wish to point out that, appeals are determined on the issues formulated. The issues formulated on the other hand take their roots from the Grounds of Appeal. It therefore means that any issue to be determined in an appeal must be traced to or posited on a Ground of Appeal. This is because, appeals are argued not on -the Grounds of Appeal but on the issues distilled for determination from the Grounds of Appeal. Consequently, any issue or legal argument in an appeal which cannot be traced to a Ground of Appeal will be incompetent and be struck out. See FOLAWOLE & ORS v. AJAYI (2017) LPELR 42381 (CA); AKERE V. THE GOVERNOR OF OYO STATE & ORS (2012) LPELR – 7806 (SC); ONWUMERE V. STATE (1991) 4 NWLR (PT.186) P.428 AND EMESPO 1 CONT. LTD V. CORONA S & CO. (2006) 11 NWLR (PT.991) P.365.
Now placing the grounds of appeal side by side the Appellant’s three issue shows clearly that the issues and the grounds of appeal are miles apart. The corollary is that the arguments in respect of the incompetent issues must also be discountenanced. See AFOLABI v. STATE (2016) LPELR 40300
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(CA) DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD V. BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) 4 NWLR (PT. 1077) 376, ODEH V. F.R.N. (2008) 13 NWLR (PT. 1103) 1.
It is settled law that valid appeals are initiated by notices of appeal in which are stated the grounds of appeal constituting the complaints of the appellant against the decision of the C
