MR. GODWIN AMUSA & ANOR v. BARR. GEORGE OGARA & ORS (2019)

MR. GODWIN AMUSA & ANOR v. BARR. GEORGE OGARA & ORS

(2019)LCN/13087(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/PH/386/2016

 

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

1. MR. GODWIN AMUSA
2. GODSONS FUDUSTRIAL SERVICES LIMITED Appellant(s)

AND

1. BARR. GEORGE OGARA
2. BARR. COSMAS I. ENWELUZO
3. BARR. ABDUL OLORIEBE Respondent(s)

RATIO

WHETHER OR NOT AN ACTION CAN BE TRANSFERRED TO THE GENERAL CAUSE LIST WHERE A DEFENDANT HAS DISCLOSED DEFENCE ON THE MERIT THAT ATTACKS THE CLAIM ITSELF

It is settled that an action can only be transferred to the general cause list where the defendant has disclosed a defence on the merit that attacks the claim itself and not a general denial or such that is calculated merely to frustrate the claimant or cheat him out of Judgment. See OBITUDE VS. ONYESOM COMMUNITY BANK LTD. (2014) 4 SC (PT. 11) 126. PER AKEJU, J.C.A.

THE FUNDAMENTAL ISSUE OF JURISDICTION

By virtue of various pronouncements of the apex Court on that issue it has become trite and settled that jurisdiction is a fundamental issue in any adjudication of a matter before the Court. In UTIH VS ONOYIVWE (1991) LPELR-3436 (SC) page 46; Bello CJN stated that ?Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood, it will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.?
Again in EGHAREVBA VS. ERIBO (2010) 9 NWLR (PT. 1199) 411, Adekeye JSC put it thus; ?Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court what a door is to a house. That is why the question of a Court?s jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well conducted and brilliantly decided they right have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Due to this its fundamental and radical nature, the issue of jurisdiction can be raised at any stage of the proceedings in the Court of first instance or in the appellate Courts and it can be raised by any of the parties or by the Court suo motu where from the record it has become clear that there is a want of jurisdiction or competence in the Court. See ODIASE VS AGHO (1972) 1 ALL NLR (PT.1) 170; IJEBU-ODE LOCAL GOVERNMENT AREA VS ADEDEJI (1991)5 NWLR (PT. 242) 410. PER AKEJU, J.C.A.

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Rivers State delivered on 1st July, 2016 in suit No PHC/924/2015 and copied at pages 69 ? 72 of the Record of Appeal whereby judgment was entered in favour of the Respondents who were claimants and against the Appellants (as defendants) jointly and severally in the sum of N8,045,800.00 (Eight Million, Forty Five Thousand, Eight Hundred Naira) only being and representing consideration payable to the Respondents (Claimants) for services rendered to the Appellants by Claimants, as well as post judgment interest at the rate of 10% per annum from date of the Judgment.

The Appellants who were dissatisfied with the aforesaid Judgment of the High Court of Rivers State (the lower Court) filed their Notice of Appeal on 4/7/16 with three grounds of Appeal on pages 73 ?77 of the Record of Appeal.

As Claimants at the lower Court, the Respondents commenced Suit No. PHC/924/2015 through the Writ of Summons filed on 4th September, 2015 and marked for hearing under the undefended List for the following Claim;

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The sum of N8,045,800.00 (Eight Million, Forty Five Thousand, Eight Hundred Naira) only being and representing consideration payable to the claimants for the services rendered to the Defendants as stated in the memorandum of Understanding entered into between the Defendants and the Claimants on 3rd day of June, 2014.
Post Judgment interest on the said sum of money as per the Rules of this Honourable Court i.e. the lower Court.

The Appellants filed their Notice of Intention to Defend the action under Order 11 Rule 10 of the High Court of Rivers State (Civil Procedure) Rules 2010 with Affidavit Disclosing a Defence on the Merit on 1/2/16, but in the Ruling of the lower Court, the Notice did not disclose a defence on the merit, hence the action was heard as an undefended suit.

The Appellants? Brief of Argument in this appeal was prepared by Aham Eke Ejelam, SAN and filed on 9/9/16 but deemed on 19/2/18 while the Respondents? Brief was prepared by George T. Ogara Esq. and filed on 24/10/16 but deemed on 19/2/18. The Appellants set the following as the issues for determination;
1. Whether the Honourable Court had the requisite jurisdiction to

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proceed and enter judgment for the Respondents when the condition precedent to the exercise of jurisdiction pursuant to Section 16(2) of the Legal Practitioners Act was not complied with.
2. Whether the learned trial Judge was right in holding that the Respondents (Claimants) as Legal Practitioners were entitled to their Claims when the issue as to preparation and delivery of bill charges as required by Section 16 (2) (a) of the Legal Practitioners Act Cap L11, LFN, 2004 to the Appellants was not resolved at all by the lower Court.
3. Whether from the state of the affidavit evidence before the lower Court, the Learned Trial Judge was right in holding that Appellants? Notice of Intention to defend together with the supporting affidavit did not disclose a defence on the merit or a triable issue to the claim of the Respondents.

The Respondents formulated a sole issue for determination;
Whether the learned trial Judge was right in holding that the Appellants failed to disclose a defence on the merit and subsequently entered judgment for the Respondents.

?The Briefs were adopted by learned counsel for the parties at the hearing of the appeal.

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It is noted that the sole issue formulated by the Respondents is the third issue raised by the Appellants, the three issues distilled by the Appellants are adopted for the purpose of determination of the appeal so as to ensure that nothing of substance is left untouched.

On the issues 1 and 2 that were argued together, the SAN for the Appellants submitted that the Court is competent when it is properly constituted with regards to the number and qualification of its members, the subject matter is within its jurisdiction, no feature exists in the case which prevents the Court from exercising jurisdiction, and the case comes before the Court upon being initiated by due process of law and fulfillment of conditions precedent to exercise of jurisdiction; MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341; OKOROCHA VS PDP (2014) 7 NWLR (PT. 1406) 213. It was also submitted that the question of jurisdiction is very fundamental and its absence robs a Court of any power to adjudicate on a given case; any proceedings conducted when the Court lacks jurisdiction is a nullity and futile exercise; OKARIKA VS SAMUEL (2013) 7 NWLR (PT. 1352) 19. It was further submitted

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that the issue of jurisdiction is a threshold issue that can be raised at any stage of a proceeding even in the Supreme Court for the first time and no leave is required to raise it, it can also be raised by any party and even by the Court suo motu; F.G.N. VS SHOBU (NIG.) LTD (2014) 4 NWLR (PT. 1396) 45.

The Senior Advocate of Nigeria contended that by virtue of Section 16(2) of the Legal Practitioners Act, no legal practitioner is entitled to commence an action for recovery of his professional fees unless he has prepared and delivered a bill of charges to the client the service of which must be personal. Where there is no proof of service of the bill any suit commenced thereby shall be a nullity. It was submitted that the word shall used in that provision is mandatory; ONOCHIE VS ODOGWU (2006) 6 NWLR (PT. 975) 65; OGIDI VS STATE (2005) 5 NWLR (PT. 918) 226; GUINNESS (NIG.) PLC VS ONEGBEDAN (2012) 15 NWLR (PT. 1322) 31. The Senior Counsel submitted that where a statute provides a condition precedent to be fulfilled, non compliance with that condition precedent renders the suit a nullity; ODUA INVESTMENT CO. LTD VS TALABI (1997) 10 NWLR (PT. 523)1.

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It was the contention of the Appellants that in their affidavit disclosing a defence on the merit at the lower Court, they denied receiving any bill of charges and none was delivered to them which fact was not denied by the Respondents. It was further argued that the lower Court did not only fail to transfer the suit for hearing under the general cause list, it also proceeded to enter judgment against the Appellants without considering the defence that no bill of charges was sent to the Appellants by the Respondents.

The senior Counsel also contended that the Court lacked the requisite jurisdiction to enter judgment for the Respondents when it was not proved that the purported bill, exhibit Ogara 8 was delivered to the Appellants and did not meet the requirements of a bill of charges under Section 16(2) of the Legal Practitioners Act.

By virtue of various pronouncements of the apex Court on that issue it has become trite and settled that jurisdiction is a fundamental issue in any adjudication of a matter before the Court. In UTIH VS ONOYIVWE (1991) LPELR-3436 (SC) page 46; Bello CJN stated that ?Moreover, jurisdiction is blood that gives

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life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood, it will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.?
Again in EGHAREVBA VS. ERIBO (2010) 9 NWLR (PT. 1199) 411, Adekeye JSC put it thus; ?Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court what a door is to a house. That is why the question of a Court?s jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a

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nullity however well conducted and brilliantly decided they right have been. A defect in competence is not intrinsic but rather extrinsic to adjudication.?

Due to this its fundamental and radical nature, the issue of jurisdiction can be raised at any stage of the proceedings in the Court of first instance or in the appellate Courts and it can be raised by any of the parties or by the Court suo motu where from the record it has become clear that there is a want of jurisdiction or competence in the Court. See ODIASE VS AGHO (1972) 1 ALL NLR (PT.1) 170; IJEBU-ODE LOCAL GOVERNMENT AREA VS ADEDEJI (1991)5 NWLR (PT. 242) 410.

The contention of the appellants is that the condition(s) laid down in Section 16 (2) of the Legal Practitioners Act, Cap. L11 LFN, 2004 for a successful action by a Legal Practitioner has/have not been complied with by the Respondents who commenced their action for recovery of professional fees without preparing and delivering a bill of charges or without serving same on the client thereby rendering the action a nullity. It is however clear from the content of the document titled RE: BILL OF CHARGES WITH RESPECT TO RECOVERY OF

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THE SUM OF N114,940,000.00 etc dated 28th June, 2015 and filed with Affidavit of the Respondents as Exhibit Ogara 8 that Respondents demanded the payment of that amount from the appellants professional fees and stated in the letter thus ?we are by this letter requesting that you pay our clients the sum of N8,045,800.00 (Eight Million, Forty Five Thousand, Eight Hundred Naira only) being and representing 7% of the sum of money released to you.? The details of the Professional fees are well stated in the bill of Professional Fees on page 53 of the Record of Appeal. Thus the Respondents have substantially complied with the conditions in Section 16(2) of the Legal Practitioners Act and it is the Appellants who are now asserting the non receipt of the Bill of Charges that bear the burden of proving their assertion. The elementary and trite law is that it is he who asserts that bears the burden of proving that assertion.

It is also settled that by virtue of Section 134 of the Evidence Act 2011, the burden of proof in civil cases is discharged on the balance of probabilities.

?It is my candid view therefore that the mere assertion of non preparation

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and/or non delivery of Bill of Charges by the Appellants who failed to establish that assertion is not substantial enough to remove the jurisdiction of the lower Court.

On the refusal of the trial judge to transfer the action to the general cause list, it is the law that this is not done by the Court as a routine but upon existence of a defence on the merit and not a half hearted defence. See UBA PLC VS JARGABA (2007) 11 NWLR (PT. 1045) 247. The learned trial judge in the instant case considered the affidavit evidence of the parties and held the view that the Appellants failed to disclose any defence on the merit and refused to transfer the suit for hearing under the undefended suit. The learned trial Judge was right and I agree with him.
I resolve these two issues against the Appellants.

?On the 3rd issue, the Appellants submitted that a defendant who intends to defend a suit filed against him is required by Order 11 Rule 10 of Rivers State High Court (Civil Procedure) Rules 2010 to file a Notice of Intention to defend the suit accompanied by affidavit disclosing a defence on the merit;DIN VS OKOSE (2014) 16 NWLR (PT. 1432) 124. It was

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contended that the Appellants in the instant appeal the Appellants? affidavit contain depositions that raise triable issues to warrant transfer of the case to the general cause list; TRADE BANK PLC VS SPRING FIN. LTD (2009) 12 NWLR (PT.1155) 369; DELTA HOLDINGS (NIG.) LTD VS. OBORO (2014) 13 NWLR (PT. 1425) 590; DIN VS OKOSE (2014) 16 NWLR (PT. 1432) 124.

The learned counsel for the Respondents argued that for an action to be transferred to the general cause list from the undefended list there must be a defence on the merit disclosed in the affidavit in support of the Notice of Intention to Defend; OBITUDE VS ONYESOM COMMUNITY BANK LTD (2014) 4 SC (PT. 11) 186. It was submitted that generally it is not necessary to plead statute or law before reliance can be placed thereon; AHMADU BELLO UNIVERSITY, ZARIA VS DR. (MRS) NWAKEGO MOLOKWE (2004) ALL FWLR (PT. 238) 664; ANYANWU VS. MBARA (1992)6 SCNJ 1; OKENWA VS MILITARY GOVERNOR, IMO STATE (1996) 6 NWLR (PT. 455) 394. The exception to this general rule is where the law of pleadings requires that some specific laws be pleaded as held in OKOEBOR VS POLICE COUNCIL (2003) FWLR (PT. 164) 189.

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The learned counsel submitted that where the Rules of evidence require that a defence hinged on law of limitation or non fulfillment of a condition precedent be specifically raised, such law of limitation or non fulfillment of a condition precedent must be referred to; P.N. UDOH TRADING COMPANY LTD VS SUNDAY ABERE (2001) FWLR (PT. 57) 900; MALOMO VS OLUSHOLA (1955) WACA 12.

As further argued by learned counsel the law is that there must be a defence on the merit with details and particulars set out UBA VS JARGABA (2007) LPELR SC.102/2002; AKWETO VS AKWEZ (1940) 9 WACA 111. On the statement by the Appellants that the amount of N114,940,000.00 was recovered through the action commenced and prosecuted by Lawal Rabana, SAN, the Respondents? counsel contended that this assertion was not backed up by any receipt of payment issued by Lawal Rabana SAN and was not tendered in line with the requirement of the law; FBN LTD VS OWIE (1997) 1 NWLR (PT. 484\0 744. It was argued that the appellants failed to show any dispute as to the amount due which requires the taking of account to determine same; ACADEMIC STAFF UNION OF THE FEDERAL POLYTECHNIC OFFA VS UBA PLC (2014) ALL NWLR (PT. 748) 888.

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The learned counsel contended that the Appellants failed to raise any defence on the merit as they put up a mere general denial which is not sufficient in an undefended list action; CHAIRMAN MORO LOCAL GOVT. VS LAWAL (2008) ALL FWLR (PT. 440) 684; ADDAX PETROLEUM DEVELOPMENT NIG. LTD VS CHIEF J.I.E. DUKE (2009) LPELR (CA/C/144/2007. It was submitted that where the Court concludes that the affidavit filed in support of the Notice of Intention to Defend the action discloses no defence on the merit or a triable issue, the Court has the duty to proceed with the suit and enter Judgment accordingly without calling on the defendant to answer or be heard; NKWO MARKET COMMUNITY BANK NIG. LTD VS PAUL OBI (2010) 4-7 SC (PT. 11) 30; IMO CONCORDE HOTELS LTD VS CHOICE SUPERMARKET & RESTAURANT LTD (2008) ALL FWLR (PT. 400) 680.

It is noted that the only issue raised and argued as the issue one by the Respondents is the issue already formulated and argued by the appellants. Thus the Respondents did not raise any new issue in the Respondents? Brief so as to warrant the filing of a Reply Brief by the Appellants.

?I can only reiterate on this

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issue No.3 the view I expressed on issues 1 and 2 that I agree with the learned trial Judge upon examination of the affidavit evidence of the Respondents that no defence on the merit has been disclosed. It is settled that an action can only be transferred to the general cause list where the defendant has disclosed a defence on the merit that attacks the claim itself and not a general denial or such that is calculated merely to frustrate the claimant or cheat him out of Judgment. See OBITUDE VS. ONYESOM COMMUNITY BANK LTD. (2014) 4 SC (PT. 11) 126.

I hold as held by the learned trial Judge that the Appellants did not disclose any genuine defence that touches on the merit of the Respondent?s action, and I resolve this issue against the Appellants.

Having resolved the three issues against the Appellants there is nothing remaining in favour of the Appellants. The appeal lacks merit and it is dismissed.
I make no order as to costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in draft the lead judgment delivered by my Learned brother ISAIAH OLUFEMI AKEJU, JCA.

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I agree that this appeal fails for lack of merit and it is accordingly dismissed. I abide by all the consequential orders in the appeal.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Appearances:

C.E. IgweaguFor Appellant(s)

O. G. Nweke with him, O. O. OlajideFor Respondent(s)

 

Appearances

C.E. IgweaguFor Appellant

 

AND

O. G. Nweke with him, O. O. OlajideFor Respondent