GUINNESS (NIGERIA) PLC V. PAT ONEGBEDAN ESQ. (2011)

GUINNESS (NIGERIA) PLC V. PAT ONEGBEDAN ESQ.

(2011)LCN/4520(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of May, 2011

CA/B/198/2009

RATIO

WAIVER OF RIGHT: IMPLICATION OF WAIVER OF RIGHT BY A PERSON WHO IS NOT UNDER ANY LEGAL DISABILITY

It is trite law that a person who is not under any legal disability should be the best judge of his own interest. Where he had full knowledge of his rights, interest, benefits or profits conferred upon him by statute or accorded to him under a statute and intentionally yet interestingly decided to give up all or some of these statutory rights, he therefore can not be heard to complain afterwards. He should be held to have waived such rights. See Ariori & Ors v. Elemo & ors (1983) SC 13 at 1; Ajibola v. Sogeke (2003) 9 NWLR (Pt 826) at 494; Ezomo v. Oyakhire (supra). In this instant case, the alleged non-compliance with Section 16 (2) of Legal Practitioner Act, in my view, relates to a private or personal right as distinct from public or constitutional rights which can not be waived. See Odua Investment Co. Ltd v. Talabi (supra). PER AMIRU SANUSI, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 16 OF THE LEGAL PRACTITIONERS ACT 1975 AS TO EFFECTIVELY RAISING AN OBJECTION OF NON-PARTICULARIZATION OF THE CONDITIONS THAT MUST BE SATISFIED BY A LEGAL PRACTITIONER IN AN ACTION TO RECOVER HIS FEES UPON A BILL OF CHARGES WHERE NOT COMPLIED WITH

Returning to the provisions of Section 16 of the Act, it can be said that from the contents of the said provisions (supra), for a legal practitioner to begin an action to recover his fees upon a bill of charges he is duty bound to satisfy the three conditions which I will state hereunder:- (a) He must prepare a bill of charges which should particularized the principle items of his claims. (b) He must serve his client with Bill; and (c) He must allow a period of one month to lapse from the date the bill was served It is noted by me, that the appellant raised the issue of non-particularization. With due respect to the learned appellant’s counsel, the law is trite on this and it is to the effect that any issue of non-particularization or inadequacy of particulars should be formally raised or objected to. See the case of Oyekanmi v. NEPA (supra). In this instant case since the adequacy or otherwise of the bill of charges was at no stage raised or made an issue and the Bill of charges served on it vide Exhibit Q was admitted in evidence without any objection by the defendant/appellant, hence in my view, it remained litigable. PER AMIRU SANUSI, J.C.A.

BILL OF CHARGES: GUIDELINES AS TO THE FORM, CONTENTS AND PURPOSE OF A BILL OF CHARGES

PROOF OF FACTS: WHETHER AVERMENTS IN PLEADINGS CAN TAKE THE PLACE OF PROOF OF FACTS DEPOSED TO IN THE PLEADINGS

The law is settled and trite too, that averments in pleadings do not take the place of proof of facts deposed to in the pleadings. Whoever makes and assertion in pleadings has the burden to prove such averment through credible evidence be it oral or documentary. PER AMIRU SANUSI, J.C.A.

WRITTEN CONTRACT: ON WHAT BASIS WILL A TRANSACTION NOT REDUCED INTO A WRITTEN FORM BE DECIDED

The parties, for instance, never entered into any written contract agreement before the commencement of the retainership or relationship on what fee should be payable. It is only if there was such prior agreement duly entered into by both of them, that the matter becomes one of contract. In the absence of any such written agreement between them, the law provides that such transaction be decided or governed on quantum meruit basis, simpliciter. See Okonedo Egharegbami v. Julius Berger (1995) 55 NWLR (Pt 398) 679. PER AMIRU SANUSI, J.C.A.

CLAIM OF INTEREST: WHETHER A CLAIM OF INTEREST IS NOT RECOVERABLE IN THE ABSENCE OF A CONTRACT, EXPRESS OR IMPLIED

In a nut shell, the transaction between the parties is purely on recovery of professional fees or a “debt”, if I may call it so. In the case of DPMS Ltd v. Larmie (supra) this court had this to say at page 155 per Aderemi JCA (as then was). “Generally at common law, interest on any debt was not recoverable in the absence of a contract express or Implied. Whether a plaintiff would be entitled to an award of interest or not would be gathered from the agreement between the parties and if their transaction is regulated by statutory provisions, then it is the statute that determines whether interest would be paid or not”. See also Ekwunife v. Wayne (supra) In the instant case, the interest claimed by the respondent was not premised on any contractual agreement by parties or by mercantile custom or statute. Similarly, in all the cases on the bill of charges no such claim of interest was alluded to or specially made by the respondent. What justification has he then to claim interest? I do not think the respondent merits such claim of interest on professional fee he sued the appellant to recover, since there was no contractual agreement express or implied entered by the two parties earlier that the professional fees should attract any interest payment. PER AMIRU SANUSI, J.C.A.

JUSTICES

AMIRU SANSUI Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

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

Between

GUINNESS (NIGERIA) PLC Appellant(s)

AND

PAT ONEGBEDAN ESQ. Respondent(s)

AMIRU SANUSI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Edo State (hereinafter referred to as “the lower court”) delivered on 2nd day of February 2009. At the lower court, the present respondent as plaintiff thereat, instituted an action against the defendant now appellant, seeking payment of the under mentioned claims as per his Amended Statement of Claim. The claims are as below:-
a) The sum of N19, 944,090,00k (Nineteen Million, nine hundred and forty four thousand and ninety Naira only) being professional outstanding fees
b). 21% interest per annum from year 2000 up to the day of judgment and thereafter at 10% interest until final judgment is made less N306, 375.00 paid while the case was in court.”
The facts which gave rise to the institution of the suit at the lower court by the plaintiff against the defendant leading to the filing of this appeal are simply that, the respondent, a Benin based legal practitioner, served as a retainer to the appellant company for twelve years rendering legal services on its behalf on legal matters in South-South and South East Zones of this country. When a new company Director was appointed for the appellant sometimes in 1999, all payments due to the respondent for completed/concluded and pending cases and other legal services were stopped. The defendant thereafter wrote series of letters demanding for such payments and also made several personal visits to demand for the settlement of his outstanding entitlements but all to no avail. This led to the institution of the suit at the lower court for the recovery of his professional fees and accrued interest on same.
On the other hand, the defendant company vides its Statement of Defence, denied owing the plaintiff any outstanding professional fees and also denied appointing the plaintiff s as its solicitor or the existence contract between them at all, of any contract. It also pleaded that the plaintiff had breached contract by not concluding some of his cases and was thus not entitled to any such payment. The defendant also counter-claimed against the plaintiff/respondent in respect of some cases where it lost or was forced to enter settlement due to the plaintiff’s action or inaction.
After pleading were ordered, filed and exchanged, hearing in the suit commenced in earnest. As plaintiff, the present respondent testified on his own behalf without calling any witness. He also tendered several documentary exhibits to prove his claims and in defence of the defendant’s/appellants counter claim. On its part, the defendant/appellant called three witnesses in defence of plaintiff s claims and to establish or support its counter claim. At the end of the hearing of the suit, the lower court found in favour of the respondent after holding that he proved his claims on the preponderance of evidence and thereby entered judgment in his favour as claimed. The lower court also dismissed the defendant’s/appellant’s counter claim. Being dissatisfied with the judgment, the defendant appealed to this court. To that effect, it filed a Notice and Grounds of Appeal dated 26th of February 2009 containing twelve grounds of appeal.
In compliance with the rules and practice applicable in this Court, parties filed and exchanged their briefs of Argument. The appellant in its brief of argument dated 2nd October 2009 distilled three issues for determination of the appeal from the twelve grounds of appeal filed including the omnibus ground of appeal. The said issues for determination are reproduced hereunder:-
“1. In the absence of requisite pleadings particulars and prove of delivery or “services on the appellant”, whether the Respondent’s purported Bill of Charges satisfied the mandatory provisions of Section 16(2) of the Legal Practitioners Act, as to entitle him to judgment. (Ground 1)
2. Whether the aggregate lump judgment award of N19 Million is legally sustainable on the unparticularized Pleadings and evidence adduced by the Respondent, be it for concluded litigation briefs or on the basis of quantum meruit for the unconcluded briefs (Grounds 3, 4, 5, 8)
3. Whether the award of interest on the bases of CBN guidelines or at all is sustainable on the pleadings evidence presented by Respondent (Ground 2)
It is pertinent to state here, that the appellant had also filed Appellant’s Reply Brief of Argument dated 30th November 2009 but filed on 7/12/2009. I will later address it in the course of my treatment of the appeal.
The respondent on the other hand, filed his Brief of Argument dated and filed on 16/10/2009. Therein, three issues for determination of the appeal were formulated which read thus:-
(i) Whether or not the Appellant justifiably complain of non-compliance with the provisions of Section 16 (2) of the Legal Practitioner Act by the Respondent, inspite of the overwhelming evidence to the contrary, in order to escape its obligation to the Respondent.
(ii) Whether or not the Respondent’s 33 Bills of Charges are in compliance with the guidelines by the Supreme Court in OYEKANMI V. NEPA (2000) 15 NWLR (Pt 690) 414.
(iii) Whether or not the award of interest was justified on the basis of the Respondent’s pleadings/evidence and relevant judicial authorities on interest claim.
The above sets of issues for determination more or less border on same points hence I will approach the appeal upon being guided by the issues proposed by the appellant. In doing so, I shall first consider the first two issues together and later consider the third or last issue, if need be.
Issues one and two
On these two issues, the learned counsel for the appellant first of all queried the finding of the lower court to the effect that the respondent had in line with the pleadings, served his bill of charges on the appellant and by so doing, had thus satisfied the provisions of Section 16 (2) of the Legal Practitioner Act and also argued that it was based on such findings that the lower court entered judgment in favour of the respondent Sequel to that, the learned appellant’s counsel further submitted that there was no prior agreement entered into by the appellant and respondent on professional fees payable for each litigation brief handled by the respondent. He also argued that even though the respondent stated in his testimony in court, that he was guided by prescribed Rules on fees in assessing the fees as contained in his Bill of Charges, he however never pleaded, particularized, or tendered the said Bill of Charges. He stated that the provisions of Section 16(2) of the Legal Practitioners Act, Cap III, Laws of Federation of Nigeria 2004 provides the ingredients governing claims of fees by a legal practitioner which must be supplied by such legal practitioner before he becomes entitled to begin an action to recover charges. That is to say, the claimer/legal practitioner must present a bill of charges containing particulars of the principal items including the bill signed by him or one of the partners in his firm to be served on the client personally or left in his or its last known address or sent to postal address of the client. Secondly, a period of one month notice must lapse from the date of delivery of the Bill, before the institution of an action to recover such charges. The learned appellant’s counsel on this submission, put reliance on the case of OYEKANMI V. NEPA (2000) 15 NWLR (PT 690) 414 at
431/432.
It was further submitted by the appellant’s learned counsel that the respondent’s counsel failed to strictly comply with the requirements of Section 16 (2) of the Legal practitioner Act in that he failed to plead material facts and by failing to do so, the court is deprived of jurisdiction. He, on this submission, relied on the cases of UDERE V. AGWU (1997) 3 NWLR (Pt 491) 57, Brawna V. Osoba (1997) 3 NWLR (Pt 492) 164 at 179; Balonwn v. OBG (2007) 5 NWLR (Pt 1028) 480, Madukolu v. Nkemdilim (1962) SCNLR 341 Adegoke Motor v. Adesanya (1989) 2 NWLR (Pt 109)
Learned appellant’s counsel submitted again, that the respondent’s professional fees notes did not bear the name and address of the appellant and also he did not plead, tender proof receipt, or acknowledgment of the fees notes or exhibits or any proof of dispatch of same. He similarly argued that the Bill was not dated or pleaded by the respondent as required by Section 16 (2) of the Legal Practitioners Act. He added that failure to plead essential ingredients in proof of any civil wrong is fatal to the success of an action and thus relieved the defendant of the burden to plead facts in his defence. See the case of Morohinfola v. Kware College of Technology (1990) 4 NWLR (Pt 145) 506 at 577/528; Okoebor v. Police Council (1998) 9 NWLR (Pt 566) 534, Ekrebe v. Ekrebe (1999) 2 NWLR (Pt 516) 154.
In yet another submission, the learned appellant’s counsel stated that in order to sustain his claim, the respondent ought to have pleaded and proved the ingredients of the claim such as date, name and address stated in the Bill of Charges and receipt of posting the said Bill of Charges to the appellant which was not done by him and had therefore not joined issues and as such the appellant/defendant need not proffer any defence on the unpleaded facts See Egbe v. Duru (1998) 9 NWLR (Pt 565) 288 1960 Jinadu v. Ibeabuchi (1993) 1 NWLR (Pt 33) 179. He said in determining the sustainability of cause of action, a court is to look at and be guided by averments in the Writ of Summons or pleadings of the plaintiff and NOT that of the defence. See Okulele v. Aiwanya (2000) 2 NWLR (Pt 646) 530 at 555/556; Tukur v. Gov of Gongola State (1989) 4 NWLR (Pt 117) 517; Akande v. Alagbe (2000) 15 NWLR (Pt 690) 353. He further argued that for the reasons that the Notice of Determination of witness, relationship and mode of dispatch of the Notice Letter were not pleaded by the plaintiff/respondent. For those omissions or lapses on the part of the respondent, he submitted that most important prerequisites for the claim of fees were not established or pleaded by the respondent; hence the lower court was in error by finding in favour of the plaintiff/respondent. See Yadis Nig. Ltd. v. GNIC Ltd (2007) 14 NWLR (Pt 1055) 584 at 607. He added also, that failure to plead a prior demand made on the appellant and also his failure to plead and prove the dispatch/receipt of such demand vitiated the respondent’s claim. Kosile v. Folerm (19S9) 3 NWLR (Pt 107) 1 at 17; Salibe v. Yassin (2002) 4 NWLR (Pt 756) 1 at 18; Ofu V. ACB International Bank (2008) 3 NWLR (Pt 1073) 178 RR 11; Chime v. chime (1995) 6 NWLR (Pt 404) 734 R 5; Madukolu v. Nkemdilim (supra); Buhari v. Obasanjo (2005) 13 NWLR (Pt 941) 1; Dabo v. Abdullahi (2005) 7 NWLR (Pt 923) 181. He argued also that the lower court’s finding that the appellant was served with Bill of charges by the defendant was perverse as it was not supported by any evidence and therefore this court should set aside that finding. See Adebayo v. Adugue (2004) 4 NWLR (Pt 862) 44; Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt 7) 393; Nwokoro V. Nwosu (1994) 4 NWLR (Pt. 337) 172.
With regard to the award of N19 Million outstanding professional fees by the lower court, to the plaintiff/respondent, the learned appellant’s counsel submitted that the respondent, as plaintiff, failed to plead any particulars of the said 33 suits on which the claim was based. The suits numbers, reliefs sought, and number of appearances or specific services rendered and the fees claimed for each specific services etc were also not pleaded. He said reliance by respondent on “fee note” attached to Exhibit Q could not suffice as ‘fee note’ does constitute Bill of Charges as contemplated by Section 16 (2) of Legal Practitioners Act, especially, since they were neither addressed to nor served on the appellant/defendant. He added that the relief sought by the respondent was premised on contract; hence it is liquidated claim which is an item of special damages which must be a specifically pleaded and strictly proved. See P. Z. and Co. Ltd v. Ogedengbe (1972). All NLR 206 at 210 Total Nkpeua Plc v. Onuoha (2007) 11 NWLR (pt. 725) 634. In a further submission, the appellant’s counsel remarked that the respondent’s claim is a monetary one even though not so called and that it constitute special damages which requires specific pleading and to also be duly particularized in the amended statement of claim which was not done here. See Nwanji v. Coaster services Ltd (2004) 1 NWLR (Pt 885) 552 at 567; Megwalu v. Megweatu (1994) 7 NWLR (Pt 359) 718 at 732; Haway v. Medeowa Nig. Ltd (2000) 13 NWLR (Pt 683) 778 R 4.
Also the learned counsel for the appellant submitted that in an action of claim of fee by a legal practitioner, it is incumbent upon such claimant to plead and tender Bill of Charges which should particularize his fees and charges for each service rendered Reliance was placed on Savannah Bank v. Opanubi (supra) at page 428 Paragraph D. He said in the instant case, the respondent failed to present a Bill of Charges with specific charges for specific service rendered since the Bill of Charges annexed to Exhibit Q was not addressed to the appellant/defendant.
Then coming to the principle of Quantum Meruit upon which the plaintiff/respondent based his claim, it was submitted by the learned appellant’s counsel that the respondent is not entitled to claim quantum meruit over uncompleted, indivisible contract which he arbitrarily terminated midstream in utter breach of contract. This is so according to the learned counsel, because a claim on quantum meruit can only be sustained where it is the employee that determines the contract but occasioned by employer’s repudiator breach of the contract. See Savannah Bank v. Opanubi (supra). He also argued that the respondent was not entitled to claim quantum meruit for unconcluded, indivisible litigation service contract which he himself unilaterally abandoned and even seized the case files. He finally submitted on this point, that as a legal practitioner and as such an officer of court he was not entitled in law and by virtue of Rule 30 of Rules of Professional Conduct 2007 to abandon Brief without a formal permission of the court to withdraw from a matter he is handling in court and to size case files, thereby impeding further proceedings in court.
In his response, the learned counsel for the respondent submitted that the issue of alleged non-compliance with the provisions of section 16 (2) of the Legal Practitioners Act was raised for the first time by the appellant in this appeal even though it entered appearance and defendant the suit at the trial court after filing its pleadings. It therefore had waived its mandatory statutory right to contest the suit, hence can not be heard raising the issue of non-compliance with his statutory right. On the issue of waiver raised, he cited and relied on the cases of Aprlori & Ors v. Elemor & Ors (1983) 1 SC 13, Ezomo V. Oyakhire (1985) 1 NWLR (Pt 2) 195 at 202/3; Ogbuaymia v. Okudo (No 2) (1990) 4 NWLR (Pt 146) 551 at 576; Akbole v. Sogeke (2003) 9 NWLR (Pt 826) 494 at 530 E-G.
Again on the alleged respondent’s non-compliance with Section 16(2) of the Legal Practitioners Act seriously hammered on by the learned appellant’s counsel, the learned respondent’s counsel though not conceding any allegation of non-compliance, he argued that such alleged non-compliance bordered on private or personal right and NOT on public right. It can therefore be waived unlike in case of public right. He said once a party waives his or its private/personal right, then the mandatory nature of such statute collapses. See Odua Investment Co. Ltd V. Talabi (1991) 1 NWLR (Pt 170) 761 at 780 Feed & Food Farms (Nig.) Ltd. NNPC (2009) 12 NWLR (Pt 1155) 387 at 401/402. He then urged that when the appellant filed all processes and contested the suit to judgment, then its personal/private or domestic right founded on Section 16 (2) of the Legal Practitioners was extinguished permanently.
Then on the other alleged non-compliance with Section 16 (2) of Legal practitioners Act by not stating that mode/manner of delivery of or receipt of Exhibit Q (which embodied the Bill of Charges), the Learned respondent’s counsel denied that alleged non-compliance and stated that the appellant as defendant conceded in paragraph 43 of its statement of Defence wherein it admitted that such requirements were complied with. Issues were therefore not joined by parties on the mode or manner of delivery and receipt of the Bill of Charges. He then urged me to discountenance the appellant’s argument on those points. See Ibikunle v. State (2001) 2 NWLR (Pt 1019) 546 at 572; Olaniyan v. Adeniyi (2007) 3 NWLR (Pt 1020) 1 at 23; Niger Construction Ltd v. Okugbeni (1987) NWLR (Pt 67) 787 at 792; Aduola v. Coker (1981) 5 SC 197 at 263.
The learned respondent’s counsel also submitted that the 33 Bill of Charges embedded in the Demand Notice Letter and admitted as Exhibit Q, were prepared in substantial compliance with Section 16 (2) of Legal Practitioners Act and also according to the guidelines enunciated in the Supreme Court case of Oyekanmi v. NEPA (supra).
On the alleged omission of particulars of the 33 suit on which the Bill of charges were raised in the plaintiffs amended statement of claim, the learned respondent’s counsel argued that Order 25 Rules 4 (1) of the Edo State High Court (Civil Procedure) Rules merely requires that only statement in summary from of the material facts should be given in pleading and NOT evidence by which such facts will be proved, adding that what he provided in his Paragraphs 9, 17, 21 and 23 are succinct summarily of the 33 Bills of Charges and those satisfied the provisions of Order 25 Rule 4(1) of the High Court Rules. See Monier Construction Co. Ltd v. Azubuike (1990) 3 NWLR (Pt 36) 74 at 86 Thanni v. Saibu (1977) 2 SC 87 at 116; Odunsi v. Bengbola (1995) 1 NWLR (Pt 374) 641 at 667; Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt 453) 148 at 166. He said in keeping with the guidelines provided in the case of Oyekanmi v. NEPA (supra), in all the 32 out of 33 Bills of Charges he had supplied suit numbers, names of parties, cause of action, reliefs claimed, action taken by lawyers who handed the suits, numbers of court appearances and dates, payment of account, receipt of filing fee also provided and number of witnesses called and the final fees claimed. He even went further to argue that even failure to itemize the Bill of Charges with particularity would not render it a nullity for non-conformation with the law. See Akingbehim v. Thompson (2003) 6 NWLR (Pt 1083) 270 at 291/292. Oyo v. Mercantile Bank (Nig) Ltd (1989) 3 NWLR (Pt 108) 213; See also Oyeanmi v. NEPA (supra).
Then, with regard to the appellants submission that the respondent did not prove special damages in his Bill of Charge, the respondent’s counsel replied that that is of no moment as the law merely requires that a special amount be indicated against each of the particulars given in the Bill of Charge, taking into account, the statute and experience of the legal practitioner and the time and the efforts involved. See Okafor v. Nwaife (1987) 4 NWLR (Pt 64) 129 at 137 and Oyekanmi’s case (supra). With regard to respondent’s claim under quantum meruit, it was submitted on behalf of the respondent that that was the proper claim to be made in the surrounding circumstances of that case. See Savannah Bank Plc v. Opanubi (supra) Oyo v. Mercantile Bank (Nig) Ltd (1989) 3 NWLR (Pt 108) 213 at 3320. He finally urged me to resolve the two issues in his (respondent’s) favour.
It is apt to say at this stage, that the core issue on which arguments of parties mainly revolve is the alleged non-compliance with the provisions of Section 16 (2) of Legal Practitioners Act 1975. For ease of reference and comprehension, I shall reproduce the provisions hereunder:-
Section 16 reads
(1) Subject to the provisions this Act, Legal Practitioner shall be entitled to recover his charges by action in any count claim patent jurisdiction.
(2) Subject as aforesaid, a legal practitioner shall not be entitled to begin an action to recover his charges unless;
(a) “a bill for the charges containing particulars of the principle items included with Bill and signed by him or in the cased of a firm by one of that partners or in the name of the firm has been served on the client personally or left for him at this address as known to the practitioner or sent by post addressed to the client at that address; and
(b) the period of one month beginning with the date of delivery of the bill has expired.”
Now before I consider the issue of alleged non-compliance with the above provisions on the part of the respondent herein as alleged by the present appellant, perhaps it will be opposite to note at this stage, that when the suit was instituted at the lower court by the plaintiff, now respondent, the appellant as defendant thereat, never raised the issue of non-compliance with to the said provisions at all, at the lower court. It defended the suit and contested same for a period of about seven years. The issue of non- compliance was only raised here on appeal. Couldn’t this then amount to a waiver of statutory right, if I may ask? It is trite law that a person who is not under any legal disability should be the best judge of his own interest. Where he had full knowledge of his rights, interest, benefits or profits conferred upon him by statute or accorded to him under a statute and intentionally yet interestingly decided to give up all or some of these statutory rights, he therefore can not be heard to complain afterwards. He should be held to have waived such rights. See Ariori & Ors v. Elemo & ors (1983) SC 13 at 1; Ajibola v. Sogeke (2003) 9 NWLR (Pt 826) at 494; Ezomo v. Oyakhire (supra). In this instant case, the alleged non-compliance with Section 16 (2) of Legal Practitioner Act, in my view, relates to a private or personal right as distinct from public or constitutional rights which can not be waived. See Odua Investment Co. Ltd v. Talabi (supra). I am not unmindful of the submission by the learned appellant’s counsel, that the case relied on by the respondent’s counsel relates to pre-action notice as opposed to strict non-compliance with the provisions of Section 16 (2) of the Legal practitioners Act as he complained in the instant case. However, with due deference to the learned counsel to the appellant, the gravamen of his complaint is on non-compliance with the entire provisions of Section 16 (2) of the Act. His complaints include non-particularization of bill of charges, date and none service of the Bill of Charge on it, non specification charges or furnishing evidence of proof of service of the Bill of charges, manner or mode of delivery or receipt of Exhibit Q which incorporated the Bill of charges, supply of names of parties, cause of action, reliefs claimed, action taken by the respondent, number of court appearances and date, payment on account received, filing fee provided, number of witnesses called etc. This catalogue of complaints by the appellant substantially border on non-compliance with Section 16 (2) of the Act and the guidelines. The contention of the respondent/plaintiff is that the appellant/defendant being aware of all these lapses or acts of non-compliance with the statutory provisions, yet never cared to complain or raise the issue throughout the period of the proceeding at the lower court but yet he joined issues with the plaintiff and defended the suit. I think this is a proper case of waiver of private or personal right provided by the statute. The principle enunciated in the case of Ariori & Ors v. Elemo & Ors (supra) is therefore relevant and applicable to the present situation and I accordingly so hold.
Returning to the provisions of Section 16 of the Act, it can be said that from the contents of the said provisions (supra), for a legal practitioner to begin an action to recover his fees upon a bill of charges he is duty bound to satisfy the three conditions which I will state hereunder:-
(a) He must prepare a bill of charges which should particularized the principle items of his claims.
(b) He must serve his client with Bill; and
(c) He must allow a period of one month to lapse from the date the bill was served
It is noted by me, that the appellant raised the issue of non-particularization. With due respect to the learned appellant’s counsel, the law is trite on this and it is to the effect that any issue of non-particularization or inadequacy of particulars should be formally raised or objected to. See the case of Oyekanmi v. NEPA (supra). In this instant case since the adequacy or otherwise of the bill of charges was at no stage raised or made an issue and the Bill of charges served on it vide Exhibit Q was admitted in evidence without any objection by the defendant/appellant, hence in my view, it remained litigable.

In the Supreme Court case of Oyekanmi v. NEPA (2000) 15 NWLR (Pt 690) 414 and also reported as reprint in (2000) 12 SC (Pt 1) 70, which is the locus classicus on the this point, the Supreme Court provided four guidelines as to the form, contents and purpose of a bill of charges which said guidelines include the followings:
(i) The bill should be headed to reflect the subject matter. If it is in respect of litigation in the court, the counsel and the parties should be stated. See Canis v. Primrose (1844) 6 QB 265
(ii) The bill should contain all the charges, fees and professional disbursements for which the legal practitioner is making a claim. Professional disbursement include payments which are necessarily made by the legal practitioner in pursuance of the professional duty such as court fees, witnesses fees, cost of record etc if paid by him.
(iii) Charges and fees should be particularized e.g.
(a) perusing documents and giving professional advice.
(b) conducting necessary (specified) inquiries or using a legal agent in another jurisdiction for a particular purpose
(c) drawing up the Writ of Summons and statement of claim or defence
(d) number of attendances in court and dates
(e) summarise statement of the work done (in court) indicating some peculiar difficult nature of case (if any) so as to give an insight to the client as to what he is being asked to pay for.
(iv) It is required to give sufficient information in the bill to enable the client to obtain advice as to its taxation and for the taxation officer to tax it. It is necessary therefore to indicate against each of the particulars given in the bill of charges a specified amount, taking into account the status and experience of the legal practitioner and the time and efforts involved. See Oyekanmi v. NEPA (supra)
It is noteworthy that the plaintiff now respondent in Paragraph 17 of his Amended Statement of Claim adequately pleaded a letter dated 20/9/2002 which incorporated copies of all the 33 thirty three (33) professional fee notes and bill of charges and other letters sent by him to the defendant/appellant. All these documents and the bill of charges were tendered and admitted in evidence by the court without any objection from the defendant/appellant. As rightly found by the trial court, credible evidence was led by the respondent on the bill of charges and he informed the lower court also that he duly complied with those provisions of the Act in the preparation and transmission of the Bill of charges to the appellant. On the other hand, the defendant though had joined issues on some of the cases and bill of charges in its pleading. It did not however led any credible evidence especial with regard to the alleged noncompliance with the provisions of Section 16 (2) of the Act, which it is now raising freshly on appeal. The law is settled and trite too, that averments in pleadings do not take the place of proof of facts deposed to in the pleadings. Whoever makes and assertion in pleadings has the burden to prove such averment through credible evidence be it oral or documentary. The testimonies of the three witnesses called by the appellant namely, DWS 1, 2 and 3 fell short of proof of such averments made by the defendant. The learned trial judge painstakingly went at length to examine each of the 33 cases in the bill of charges, considered then before he, in the end, arrived at his conclusion that the particulars of the principle items were sufficiently given. I can not agree more with such conclusion while accepting them. The issue of non-particularization of the 33 suits in the respondent’s/plaintiff s Amended Statement of Claim is in my view, of no moment. To my mind, once the said cases were alluded to in the pleading as done in paragraph 17, such will suffice, since it would not be proper to give details in the pleading, after all he pleaded the letter containing the cases and indicated that they would be tendered at the trial which he later did.
This now brings me to the issue of Claim by the plaintiff on the basis of quantum meruit for the unconcluded brief. It is the contention of the learned appellant’s counsel, that the amount claimed by the plaintiff/appellant was premised on contract. It is against that backdrop that the learned appellant’s counsel tried to fault the trial court’s finding when it held that there was no claim for special and general damages. Without much exasperation of energy in dealing with this point, I think it is instructive to note that throughout the period the transaction ensued between the plaintiff and the defendant for several years, there was no formal contract agreement entered into or that was signed by the parties. The parties, for instance, never entered into any written contract agreement before the commencement of the retainership or relationship on what fee should be payable. It is only if there was such prior agreement duly entered into by both of them, that the matter becomes one of contract. In the absence of any such written agreement between them, the law provides that such transaction be decided or governed on quantum meruit basis, simpliciter. See Okonedo Egharegbami v. Julius Berger (1995) 55 NWLR (Pt 398) 679.
Thus, in the light of all that I have posited above, I hold the view, that the respondent had duly and substantially complied with the provisions of Section 16 (2) of the Legal practitioners Act 1975. The two issues are therefore hereby resolved in favour of the respondent.
Issue No.3
In this issue, the appellant’s grouse is on the award of 21% interest by the trial court in favour of the respondent. The learned counsel for the appellant submitted that when making the claim of 21% interest, the respondent did not specify whether such interest claim was on the principal sum or on the judgment debt. In other words, he said the respondent merely claimed “21% interest per annum from year 2000 up to the day of judgment and thereafter 10% interest until final payments.” However, the lower court according to the appellant’s counsel, recouched the Respondent’s specific claims when in its judgment, it awarded interest as follows:-
“I award interest at the approved rate of 21% per annum on the said sum of N19, 637,715.00 from 2002 to day of judgment.”
On the precinct of the award of interest made by the lower court as adumbrated supra, the appellant counsel’s submitted that the trial court suo motu introduced new issue or made an award not so claimed by the plaintiff and had, therefore become a “father Christmas”. It is not supposed to subtract or add to the respondent’s relief. See Ikenye v. Akpala (1895) 2 NWLR (Pt 5) 1;(sic) Okoya v. Santili (1994) 4 NWLR (Pt 338) 256 at 303; Expenyoug v. Nyong (1975) 2 SC 71. In a further submission the learned appellant’s counsel argued that the principal claim by the respondent borders on breach of contract, hence award of interest can only be made if it were within the contemplation of the contracting parties. See P.Z. & Co. Ltd v. Ogbengbe (1972) All NLR 206 at 210 DPMS Ltd v. Larmie (2000) 5 NWLR (Pt 655) 138 at 155.
In his response, the learned counsel for the respondent submitted that the award of interest was fortified on the facts of his pleading and on the evidence he led. He referred to the criteria of award of interest as enunciated in the Supreme Court’s case of Ekwumife v. Wayne (WA) Ld (1989) 5 NWLR (122) 422? See also Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 13 NWLR (Pt 1105) 486 at 573; Jall Co. Ltd v. Owoniboys T.S. Ltd (1995) 4 NWLR (Pt 391) 534 at 550; Himma Merchants Ltd v. Aliyu (1994) 5 NWLR (Pt 347) 667; at 677; Texaco Overseas (Nig) Ltd v. Pedmar (Nig) Ltd (2002) 13 NWLR (Pt 785) 526 at 547.
Truly in Paragraph 24 of the Amended Statement of Claim, the plaintiff now respondent made the following averment:-
“WHERE UPON plaintiff claims as follows:-
(a) N19, 944,090.00 as outstanding professional fee
(b) 21% interest per annum from year 2000 up to the day of judgment and thereafter at 10% interest until final judgment is made less N306, 375 paid recently” (emphasis supplied)
Thus, it would seem to me that the plaintiff in the last sentence of the above mentioned interest claimed, had indicated that N306, 375 was paid recently”. That therefore presupposes, or it can be implied that the “21% and 10% interest” is or are on the professional fee claimed under subparagraph (a) of Paragraph 24, supra even though he omitted to specifically indicate so in the body of paragraph 24 (b) supra. This could perhaps be what informed the lower court to say that it awarded the interest on the said sum N19, 637.715.00 after it deducted the N306, 375.00 already paid of by the appellant. We are now in the age of doing away with technicalities and resorting to doing substantial justice.
The next question to answer is “Is the respondent entitled to any award of interest” at all if so, on what rate? As I indicated earlier somewhere in this judgment, there is no written agreement on the whole transaction between the parties. That being so, then, there is also no ad idem on payment of any interest of whatever rate between the parties whether expressly or impliedly. The respondent’s claim of interest was therefore not based on any contractual agreement between the parties or premised on any statute or mercantile custom and the parties never contemplated any such payment of interest at all. In a nut shell, the transaction between the parties is purely on recovery of professional fees or a “debt”, if I may call it so. In the case of DPMS Ltd v. Larmie (supra) this court had this to say at page 155 per Aderemi JCA (as then was).
“Generally at common law, interest on any debt was not recoverable in the absence of a contract express or Implied. Whether a plaintiff would be entitled to an award of interest or not would be gathered from the agreement between the parties and if their transaction is regulated by statutory provisions, then it is the statute that determines whether interest would be paid or not”.See also Ekwunife v. Wayne (supra)
In the instant case, the interest claimed by the respondent was not premised on any contractual agreement by parties or by mercantile custom or statute. Similarly, in all the cases on the bill of charges no such claim of interest was alluded to or specially made by the respondent. What justification has he then to claim interest? I do not think the respondent merits such claim of interest on professional fee he sued the appellant to recover, since there was no contractual agreement express or implied entered by the two parties earlier that the professional fees should attract any interest payment.
Therefore, in the light of what I remarked supra the interest awarded by the lower court is not tenable and must be set aside. I accordingly do same. The third issue is thus resolved in favour of the appellant herein.
On the whole, it is my judgment that this appeal fails in part and succeeds in part. The judgment of the lower court is affirmed as it relates to the award of professional fees only, whereas the entire award of interest made by the lower court fails and is hereby refused and accordingly set aside. The appeal is therefore dismissed in part and allowed in part. I make no order on costs, so each party should bear his/its own costs.

GEORGE OLADEINDE SHOREMI, J.C.A.: I have read the Judgment delivered by my learned brother SANUSI JCA, I agree with the reasoning and conclusion reached therein. I adopt same as mine. The appeal succeeds in part as to the claim for professional fees.
The appeal fails on the claim for interest as it is not proved as required by law. See: CONSOLIDATED RES LIMITED V. ABOFAR VENTURE NIGERIA LIMITED (2007) 6 NWLR pt 1030 22.
On the principle guiding the award of interest by court.
See: PETGAS RES LIMITED V. MBANEFO (2007) 6 NWLR Pt. 1031 545.
I also award no cost.

CHIOMA NWOSU-IHEME (Ph.D), J.C.A.: I have read the draft of the lead Judgment delivered by my learned brother AMIRU SANUSI, JCA.
His Lordship has considered and rightly resolved the issues for determination in this appeal.
The views expressed therein are in harmony with mine and I agree that for all the reasons given in the lead judgment, the appeal should be allowed in part and dismissed in part.
Accordingly, I abide by the terms set out therein.

Appearances

A.B. Anachebe Esq. SAN
Mrs. F.C. AnachebeFor Appellant

AND

Pat Onegbedan, Esq.For Respondent