MR. ALLEN EGBE & ANOR v. AYODEJI ODU (2014)

MR. ALLEN EGBE & ANOR v. AYODEJI ODU

(2014)LCN/7492(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of October, 2014

CA/A/420/2012

RATIO

LEGAL PRACTITIONER: ON WHAT BASIS IS A LEGAL PRACTITIONER ENTITLED TO BE PAID

A legal practitioner is certainly entitled to be paid agreed or appropriate fees for professional services rendered by him. A Legal Practitioner is entitled to be paid his fees on the basis of;
(a) An agreed sum
(b) Advance payment for his services, and
(c) On quantum meruit. per. JOSEPH E. EKANEM, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT IS BOUND TO INTERFERE WITH THE MONETARY AWARD BY A TRIAL COURT

An appellate court is duty bound to interfere with a monetary award by a trial court, if there is a complaint against it, where the trial court, inter alia, acted in misapprehension of facts or where the court took into consideration irrelevant matters and disregarded relevant matters while considering its award. See THOMPSON V. ADEFOPE (1961) 1 ALL NLR 322 and OYENEYIN V. AKINKUGBE (2010) 4 NWLR (1184) 265, 288. per. JOSEPH E. EKANEM, J.C.A.

Before Their Lordships

ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria

JOSEPH E. EKANEMJustice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHAJustice of The Court of Appeal of Nigeria

Between

1. MR. ALLEN EGBE
2. VERALLEN (NIG) LTDAppellant(s)

AND

AYODEJI ODURespondent(s)

JOSEPH E. EKANEM, J.C.A. (Delivering The Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory (“Trial court” for short) delivered on 21st day of May, 2012 in suit No. FCT/HC/CV/959/10. In the judgment the trial court awarded the sum of Twelve Million Naira (N12,000,000:00) as professional fee in favour of the respondent (the plaintiff in the case) against the appellants (the defendants in the case). The court also awarded interest at the rate of 10% per annum on the judgment sum from 1st day of August, 2000 till 21st day of May, 2012 as well as 10% per annum as post judgment interest.

Dissatisfied with the judgment, the appellants have appealed to this court by way of a notice of appeal containing five grounds of appeal. The facts of the case leading to this appeal in summary are as stated hereunder.

The respondent as a legal practitioner was briefed by the appellants to sue the Sokoto State Government and others at the Federal High Court, Sokoto Division. The respondent filed the case and after trial, the Federal High Court entered judgment in favour of the appellant to the tune of N335,400,000:00 (Three Hundred and Thirty Five Million, Four Hundred Thousand Naira). The judgment debtors appealed against the judgment to the Court of Appeal, Kaduna Division. The parties in that appeal eventually settled the matter amicably and the appellants were eventually paid the sum of Two Hundred and Fifty Two Million Four Hundred and Twenty Three Thousand Naira (N252,423,000.00).

The respondent demanded in vain for the payment of his professional fees by the appellants. He served them his bill of charges and thereafter sued the appellants for his professional fees for the professional services rendered by him to the appellants in respect of the case at the Federal High Court and the Court of Appeal.

At the hearing of this appeal, counsel on both sides adopted and relied on their respective briefs earlier filed and exchanged, as their arguments for or against the appeal. In the appellants’ brief settled by Ali D. Zubairu, Esq; two issues are formulated for the court’s determination of the appeal, viz;

“1. Whether having regard to the pleadings and the evidence before the court, the learned trial judge was justified in making the award of N12,000,000.00 (Twelve Million Naira only) including 10% annual interest on same from 1st August, 2008 till 21st day of May, 2012 when the judgment sum was given and a further 10% annual interest on the whole sum with effect from 21st day of May, 2012 till judgment is liquidated on the basis of quantum meruit for the services allegedly rendered by the Appellants.
2. Whether the Respondent who incidented a criminal complaint to the inspector General of the Police (EXHIBIT K) alleging that the consent judgment of the Court of Appeal No.CA/K/31/04 was obtained by fraud was entitled to make a claim for professional fees based on the said judgment so as to entitle him (Respondent) to an award of N12,000,000.00 (Twelve Million Naira Only) including 10% annual interest on same from 1st August, 2008 till 21st day of May, 2012 when the judgment was given and a further 10% annual interest on the whole judgment sum with effect from 21st day of May, 2012 till the judgment is liquidated by the trial court”.

In the respondent’s brief settled by Sola Egbeyinka, Esq; three issues are distilled for the Court’s determination of the appeal. The issues are;

“1. Whether upon the preponderance of evidence in line with the provision of section 134 of the Evidence Act, 2011 the learned trial Judge rightly and properly evaluated fact and evidence as presented by parties before reaching a conclusion that the Respondent be paid the sum of N12,000,000.00 (Twelve Million Naira) with effect from the 1st day of August, 2008 till the 21st day of May, 2012?
2. Whether assuming without conceding that there exist no express agreement on professional fees payable by the appellant to the Respondent, the learned trial judge was right to hold that the Respondent being a Legal Practitioner of over 25 years standing at the bar is entitled to the payment of his professional fees.
3. Whether in the light of the fact that the Appellants having raised the fact that consent judgment in CA/K/31/2004 between SOKOTO STATE GOVERNMENT AND OTHERS V. VERALLEN NIGERIA LIMITED AND OTHERS was obtained by fraud would deny the Respondent from earning his professional fees from the said judgment the act of fraud not having been established beyond reasonable doubt in line with Section 135 (1) of the Evidence Act 2011?

I have considered issue one in the briefs of the parties in the light of the grounds of appeal. There is nowhere in grounds 1, 2, 3, and 4 of the grounds of appeal (from which the issue is said to be distilled) or in any other ground that the appellant complained against the award of interest by the Lower Court. The complaint of the appellant is against the award of the sum of Twelve Million Naira by the Lower Court.

The essence of formulation of issues for determination is to enable parties to narrow the issue in controversy in the ground of appeal filed. See AKEREDOLU V. MIMIKO (2014) 1 NWLR (1388) 402, 435. It follows therefore that formulation of issues cannot be used as a backdoor or subterfuge to expand the complaint in the grounds of appeal beyond what is contained therein. I shall therefore use the blue pencil rule to excise from issue one the point relating to award of interests by the Lower Court.

It is also my view and on this I agree with appellants’ counsel that issue 2 formulated by the respondent does arise from any of the grounds of appeal and since the respondent did not cross – appeal or file a respondent’s notice, he cannot formulate an issue that does not take its root from the appellants’ grounds of appeal. There are several authorities establishing this position. I shall cite only two as set out in the appellants’ reply brief, viz; CENTRAL BANK OF NIGERIA V. DINNEH (2010) 17 NWLR (1221) 125, 147 and NWAGU V. FADIPE (2012) 13 NWLR (1318) 547, 561. Consequently, I hereby strike out issue 2 in the respondent’s brief and the arguments relating thereto.

The issues formulated by the appellants and the rump of the issues formulated by the respondents are virtually the same. I intend to resolve this appeal by considering and resolving issue one in the appellants’ brief which is the same as issue one in the respondent’s brief I shall however rephrase issue one as follows;

Whether the Lower Court was justified in awarding the sum of N12, 000,000.00 (Twelve Million Naira) in favour of the respondent.

The argument made by counsel on both sides in respect of issue two of the appellant shall be considered under issue one to avoid repetition.

On the issue for determination, counsel for the appellants submitted that the burden was on the respondent to prove by credible evidence that he rendered the services upon which his claim was anchored. This, he said, was necessary since there was no prior agreement between the clients and the counsel so as to enable the court assess the compensation due to the counsel on the basis of quantum meruit. He cited and relied on the case of SAVANNAH BANK OF NIGERIA PLC V. OPANUBI (2004) 15 NWLR (896) 437 to support his submission. He was of the view that the respondent did not show that he undertook the task itemized in the bill of charges – Exhibit “H”.

Counsel then examined Exhibits A2, A3, C, D, E, F and I. He noted that the respondent did not produce the complete record of proceedings in suit No.FHC/S/CS/18/98 and urged the court to apply Section 167 (d) of the Evidence Act against him. He concluded that apart from Exhibits C and H, there was no evidence before the Lower Court that the respondent rendered the services alleged in his bill of charges and so the findings of the Lower Court in favour of the respondents were in the main perverse and based on speculations.

Counsel referred to Exhibit K (letter of complaint by the respondent to the Deputy Inspector – General of police against the appellants) and submitted that having alleged therein that the judgment of the Court of Appeal was obtained by fraud by the appellants, the respondent could not turn round to seek for and obtain proceed of the judgment.

He finally urged the court to allow the appeal and set aside the judgment of the Lower Court.

Respondent’s counsel replicando proffered the following arguments:

Counsel stated that there was a solicitor/client relationship between the respondent and the appellants, respectively and that upon being briefed by the appellants, the respondent professionally discharged his duties and obligation as a legal practitioner. He stated further that the Lower Court rightly evaluated the evidence adduced and came to the right conclusion that the respondent was entitled to his professional fee for work done.

Counsel submitted that fraud is criminal in nature and must be proved beyond reasonable doubt. He noted that the respondent did not plead fraud against the appellants nor has any conviction therefore been secured.

He finally urged the court to dismiss the appeal.

In his reply brief, appellants’ counsel submitted that it was a misconception on the part of the respondent to say that the burden is on the appellant to prove fraud when the issue being canvassed is that of admission against the interest of the respondent.

I shall now consider the sole issue as identified by me which at the pain of repetition is as follows;

“Whether the Lower Court was justified in awarding the sum of Twelve Million Naira (N12,000,000.00) in favour of the respondent.

There is no doubt that on the instruction of the appellants, the respondent filed suit No.FHC/C/CS/18/98 at the Federal High Court, Sokoto Judicial Division. The court entered judgment in the sum of Three Hundred and Thirty Five Million, Four Hundred Naira (N335,400,000:00) in favour of the appellants. A legal practitioner is certainly entitled to be paid agreed or appropriate fees for professional services rendered by him. A Legal Practitioner is entitled to be paid his fees on the basis of;
(a) An agreed sum
(b) Advance payment for his services, and
(c) On quantum meruit

The respondent based his claim against the appellant on quantum meruit. A claim on quantum meruit arises where one person has expressly or impliedly requested another to render him a service without specifying remuneration but the circumstances of the request imply that the service is to be paid for … .” per EDOZIE, JSC, in SAVANNAH BANK OF NIGERIA PLC V. OPANUBI (2004) 15 NWLR (896) 437, 463 – 464. The expectation of the law is that the person would be paid reasonable remuneration for the value of the actual work done or service rendered to avoid unjust enrichment.
The burden was on the respondent to:
(a) Serve the appellant with a bill of charges with the principal items of his claim at least a month before instituting action to recover his fee;
(b) To prove in court the actual services rendered by him to the appellants and the parameters to assess the value of such services. See SAVANNAH BANK OF NIGERIA PLC V. OPANUBI supra. 457 – 458.

The trial court, after assessing the evidence before him entered judgment in favour of the respondent in the sum of N12,000,000.00 with the interests as earlier detailed at the beginning of this judgment.
Evaluation of evidence and the ascription of probative value to it are primarily the functions of trial court. Where a trial court makes a finding on the credibility of a witness, an appellant court would not ordinarily interfere. Where the nature of the case is such that the evaluation would not entail the assessment of credibility of witnesses and would be confined to drawing inferences and making findings from admitted and proved facts as well as the content of documentary evidence, the appellate court is in as vantage a position as the trial court to evaluate or re-evaluate the evidence and make its findings. See MOGAJI V. ODOFIN (1978) 4 SC 91, MOGAJI V. CADBURY (NIG) LTD (1985) 2 NWLR (7) 393, OLODO V. JOSIAH (2010) 18 NWLR (1225) 653, 689 – 690 and CONGRESS FOR PROGRESSIVE CHANGE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) 18 NWLR (1279) 493, 537.
The real point in this appeal is to find out if the conclusions of the lower court as to the sum the respondent was entitled to is supported by the evidence on the record. See OYEKANMI V. NATIONAL ELECTRIC POWER AUTHORITY (2000) 15 NWLR (690) 414, 441.

At page 327 of the record of appeal, the Lower Court stated as follows;

“In assessing the professional fee of the plaintiff under quantum meruit, the court will assess same by looking at the particulars of the nature of work done by him as revealed by both oral and documentary evidence before the court and compare same with the bill of charges. Exhibit H … to arrive at a reasonable compensation for the plaintiff”.

I agree with the Lower Court. I have carefully examined the conclusion reached by the Lower Court in the light of the bill of charges and the evidence in support thereof. I agree with the Lower Court that there is enough evidence to support its findings that the respondent did solicitor’s job and also filed the writ of summons and statement of claim. I also agree with the Lower Court that the respondent was a part of the team that prosecuted the case at the Federal High Court but that there is no evidence to show that he put up one hundred and fifty appearances as claimed in the bill of charges (Exhibit H). The respondent did not tender the record of proceedings of the Federal High Court. There is however no evidence or credible evidence to support the finding that the respondent took part in the proceedings at the Court of Appeal for the appellants. Exhibit A5 relied upon by the lower court for its conclusion is not an acknowledgment or an admission that the respondent took part in the case at the Court of Appeal.

Furthermore, in Exhibit A3- the terms of settlement at the Court of Appeal – J.C. Shaka, Esq. signed as being of the respondent’s firm for the 3rd respondent in the proceedings and not the appellants. It is noteworthy that in Exhibit K, the respondent wrote to the Deputy Inspector – General of Police – “D” Department complaining that Shaka, J. C. signed the terms of settlement without authorization and that the judgment and the funds relating thereto were obtained by fraud. I agree with counsel for the appellants that the respondent’s admission against interest binds the respondent and it would be blowing hot and cold for him to base any part of his claims on Exhibit A3. The appellant did not need to plead and prove fraud since it was the respondent who wrote a solemn letter asserting fraud. The respondent did not give any evidence to water down the impact of the admission. The Lower Court was therefore not right in holding that the respondent was among the counsel who signed the terms of settlement.

I therefore answer the lone issue in the negative and resolve it in favour of the appellants

The appeal is allowed. The judgment of the Lower Court awarding the sum of Twelve Million Naira (N12,000,000:00) is hereby set aside. In its place, I award the sum of Five Million Naira (N5,000,000.00) as professional fee to the respondent. The interests awarded by the Lower Court still stand since there is no appeal against them.

The parties shall bear their costs.

ABUBAKAR DATTI YAHAYA, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother, Ekanem JCA just delivered. I agree that the appeal has merit and should be allowed. I also set aside the award of N12,000,000.00 and in its stead, I award N5,000,000.00.
No order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I had a preview of the judgment just delivered by my learned brother Joseph E. Ekanem, JCA.

I agree with the conclusions reached by my learned brother. I am also of the view that this appeal is meritorious. I allow it and set aside the decision of the Lower Court.

I equally abide by the award of Five Million Naira (N5,000,000.00) as professional entitlement to the respondent.

Appearances

A. D. Zubairu, Esq. (with him, Miss E. D. Efe)For Appellant

AND

Sola Egbeyika, Esq.For Respondent