OFFA LOCAL GOVERNMENT v. TOYIN OLADIPO ESQ. (2012)

OFFA LOCAL GOVERNMENT v. TOYIN OLADIPO ESQ.

(2012)LCN/5615(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of October, 2012

CA/IL/15/2012

RATIO

PROCEDURE: DUTY OF A COURT WHERE PRELIMINARY OBJECTION IS MOVED

APPEAL: WHETHER DEFECTIVE GROUNDS OF APPEAL MAY BE CHALLENGED THROUGH PRELIMINARY OBJECTION

As a starting point, I wish to state clearly that an objection to the competence of grounds of appeal herein amounts to an objection against the hearing of the appeal on those grounds of appeal. This is so because appeals are either allowed or dismissed on the basis of the grounds of appeal and not on the issues canvassed in appeals. It is therefore not the law that defective grounds of appeal cannot be challenged through preliminary objection. In Chief Yakubu Sani v Okene Local Government Traditional Council & 1 Or. (2008) 34 NSCQLR 979 @ 988-989, His Lordship Niki Tobi JSC said;

“A preliminary objection is raised where a party fails to comply with the enabling law and/or the rules of court.”The objection of the Respondent in this appeal is that the three grounds alluded to in the preliminary objection are not couched in accordance with the rules of this court. PER PAUL ADAMU GALINJE, J.C.A.

APPEAL: PURPOSE OF FORMULATION OF GROUNDS OF APPEAL

“The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant and, consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out not withstanding that it did not conform to a particular form. The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at form rather than the substance.”

See also the case of Olanrewaju v. Bank of the North (1994) 8 NWLR 622. PER PAUL ADAMU GALINJE, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

OFFA LOCAL GOVERNMENT Appellant(s)

AND

TOYIN OLADIPO ESQ. Respondent(s)

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): The facts that gave rise to this appeal are simple and straight forward. The appellant herein caused a letter dated 12th January, 2010 to be written to the Respondent in which a suit No: KWS/OF/1/2010 which was instituted against it by one Abdulganiyu Adediran and two others was referred to the Respondent, a legal practitioner to appear in court and defend its interest. By a letter dated 8th January, 2010, the Respondent accepted the brief and a subsequent letter dated 21st January, 2010, the Respondent communicated his professional fee of N2,500,000.00 to the chairman of the Appellant on an invoice No.016. The Appellant did not join issues with the Respondent on the professional fees.
Parties to the suit that was referred to the Respondent settled their dispute out of court and the case was subsequently struck out from the cause list on 13th April, 2011.
The Respondent thereafter demanded for payment of the professional fees as a result of the services he rendered to the Appellant. This demand was rebuffed by the Appellant despite an offer from the Respondent to accept N1,500,000.00 if the Appellant would pay within a specified period. The frustration that trailed the settlement of the fees culminated into taking out a writ of summons, by the Respondent at the Kwara State High Court against the Appellant in which he claimed the following reliefs:-
1. The sum of N2,500,000.00 being professional fees for defending the defendant in suit No. Kws/of/1/2010 between Abdulganiyu Adediran & 2 Ors vs Offa Local Government pursuant to written instruction of the defendant in its letter dated 12/1/2010.
2. Interest on said sum at the rate of 10% per annum from the date a judgment until the total sum is liquidated.
This claim was supported by an eighteen paragraphs affidavit in which the Respondent herein, who was the plaintiff at the lower court, averred that the Appellant had no defence to the claim and the lower Court was therefore asked to place the suit on the undefended list.

On the 17th October, 2011, Mr A. A Bello filed a memorandum of appearance on behalf of the Appellant and also delivered a notice of intention to defend the action in writing to the Registrar of the lower court together with an affidavit of eleven paragraphs. The suit came up for mention on the 18th October, 2011 before Akanbi (J) who placed it on the undefended list and adjourned same to 31st October, 2011 for hearing. On the return date the learned trial Judge found that the Appellant herein had no defence to the suit and accordingly entered Judgment for the Respondent as per his claim. In addition the Appellant was ordered to pay N7,180 as filing fees and N10,000 as cost of prosecuting the case in favour of the Respondent.
The Appellant is dissatisfied with the Judgment. Being aggrieved it has brought this appeal. The notice of appeal at pages 33-36 of the record of this appeal contained four grounds of appeal.
Parties filed and exchanged briefs of argument. Mr A. A. Bello learned counsel for the Appellant, who also settled the Appellant’s brief of argument formulated two issues for determination of this appeal at page 5 of the Appellant’s brief of argument dated 11th May, 2012 and filed on the 15th May, 2012. These issues read as follows:-
7. Whether the learned trial judge was not in error for failing to consider the Appellant’s notice of intention to defend and the affidavit in support by holding that it was filed out of time without leave of court, extending the time.
2. Whether the affidavit evidence of both parties at the trial court disclosed triable issues which ought to make the trial court transfer the suit to general cause list rather than holding that the Respondents claim remained undefended.

On his part, Mr Teju Adigun, learned counsel for the Respondent issued a notice of preliminary objection to the competence of the 2nd, 3rd and 4th grounds of appeal. The argument in respect of the preliminary objection is incorporated at pages 2-4 of the Respondent’s brief of argument dated 22nd May, 2012 and filed on the 23rd May, 2012. Thereafter learned counsel proceeded to formulate three issues for determination of this appeal, a situation where he seems to be crying more than the bereaved. These three issues are hereunder reproduced as follows:-
I. “Did the lower court consider the Appellant’s notice of intention to defend before giving judgment to Respondent –
II. Was the Appellant’s notice of intention to defend filed within the time prescribed by the High Court Rules.
III. Did the Appellant’s affidavit in support of notice of intention to defend disclose any defence on the merit.”

The law is settled that where a notice of preliminary objection is filed and moved before a court of law, that court is duty bound to consider and rule upon it first before venturing into the main appeal. This is so because the essence of a preliminary objection is to terminate the appeal and save the court from dissipating unnecessary energy in considering an unworthy appeal. It is on this premise that I will consider the preliminary objection by the Respondent to the 2nd, 3rd and 4th grounds of appeal first. In order to appreciate the nature of the objection raised by the Respondent and his submissions thereupon, it is pertinent to set out the three grounds of appeal, subject matter of the objection without their particulars as follows:-
“2. The learned trial judge erred in law when he held thus:- The affidavit of the defendant himself admitted the fact that the claimant was put in abeyance. See paragraph 5 of the Defendant’s Affidavit. The claimant even followed up his fee to the Local Government but Mr Salako in charge of litigation said nothing is done concerning fees. See paragraph 14 of the affidavit of the claimant which is not denied.”
3. The lower tried (sic) court erred in law in holding that the Appellant was out of time to file his Notice of intention to defend
4. The trial judge erred in law in holding thus: “Accordingly judgment in the sum of N2,500,000.00 being the professional fee for defendant in suit No Kws/OF/1/2012 between Abdulganiyu Adediran & Co. 2005 and Offa Local Government pursuant to written instruction of the defendant in its letter dated 12th January, 2010 is hereby given in favour of the claimant.”

On the objection to ground 2, Mr Adigun, learned counsel for the Respondent/objector submitted that the said ground is vague, nebulous and disclose no reasonable ground of appeal. According to the learned counsel, the ground, of appeal merely quoted a portion of the judgment of the learned trial judge without saying in what manner the error in law occurred. Learned counsel, urged this court to strike out particular 2, 3, 4 and 5 as they have no connection with the issues raised in the passage of the judgment quoted as forming the error committed by the trial judge. In aid learned counsel cited the authority in Nwakodo v. Ohajuruka (2010) All FWLR (pt.511) 864 @ 868 where this court defined what constitute a vague ground of appeal.
On the 3rd ground of appeal, learned counsel submitted that the particulars numbers 4-7 are not competent on the ground that they are not related to the main ground of appeal. Learned counsel, placed reliance on the authority in Ushie v. Edet (2010) All FWLR (pt.547) 728 @ 740-741 in urging this court to strike out the alleged incompetent particulars.
On the 4th ground of appeal, learned counsel submitted that particulars 1, 2, 3, 4 and 5 are irrelevant and do not complement the ground of appeal. According to the learned counsel, if particulars 1, 2, 3 and 5 are struck out, the only particulars left cannot sustain the ground. In aid learned counsel cited Samuel Ndefo v. Obiesie & Ors (2001) All FWLR (pt.40) 1759 @ 1769 -70 and Order 3 Rule 2 of the Court of Appeal Rules. Finally learned counsel urged the court to strike out the 4th ground of appeal.

In reply, Mr Bello, learned counsel for the Appellant submitted that the preliminary objection is incompetent as it is not an objection to the hearing of the appeal, but an objection against three of the four grounds of appeal. In support, learned, counsel cited Mayegun v The Governor of Lagos State (2010) All FWLR (pt.542) 1704 @ 1707, a decision of the Lagos division of this Court and N.E.P.A. v. ANGO (2001) 15 NWLR (pt.737) 627.
On the 2nd, 3rd, 4th and 5th grounds of appeal, learned counsel submitted that they are competent as they are neither vague nor irrelevant. It is the further contention of the learned counsel for the Appellant that all the particulars under ground 2, complement and explained in details the basis of Appellant’s grudges while particulars 4-7 under the 3rd ground of appeal explained the reason why the trial judge should have not held that the Appellant was out of time to file his Notice of Intention to defend the action.

Finally, learned counsel submitted that even if the objection is upheld, there are still some aspect of the grounds of appeal that can sustain the appeal. In conclusion, learned counsel urged this court to overrule the objection.
As a starting point, I wish to state clearly that an objection to the competence of grounds of appeal herein amounts to an objection against the hearing of the appeal on those grounds of appeal. This is so because appeals are either allowed or dismissed on the basis of the grounds of appeal and not on the issues canvassed in appeals. It is therefore not the law that defective grounds of appeal cannot be challenged through preliminary objection. In Chief Yakubu Sani v Okene Local Government Traditional Council & 1 Or. (2008) 34 NSCQLR 979 @ 988-989, His Lordship Niki Tobi JSC said;
“A preliminary objection is raised where a party fails to comply with the enabling law and/or the rules of court.”The objection of the Respondent in this appeal is that the three grounds alluded to in the preliminary objection are not couched in accordance with the rules of this court. To that extent therefore, the argument of the learned counsel for the Appellant that the preliminary objection is incompetent because it is not an objection to the hearing of the appeal is without foundation and the case Mayegun v. The Governor of Lagos State (supra) a decision of this court was decided without having fore knowledge of the Supreme Court decision in Chief Yakubu Sani v. Okene Local Government Traditional Council (supra). The preliminary objection herein is therefore competent and it is worthy of my consideration.

The purpose of formulation of grounds of appeal is to give the Respondent notice of the grievances and dissatisfaction of the Appellant which he is expected to meet and react to in the appeal. The provisions of the rules of this court with respect to formulation of grounds of appeal, spell out what are required of a ground of appeal, and the purpose is to ensure that the Respondent is not taken unawares. Where such grounds clearly explain such grievance and dissatisfaction, same cannot be struck out merely because it does not conform to a particular form. In Tavershima M. Hamble & Anor v. Agbehuaze Shid & Anor (2001) 5 NSCQLR 342 @ 35. Ogundare JSC of blessed memory said:-
“The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant and, consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out not withstanding that it did not conform to a particular form. The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at form rather than the substance.”
See also the case of Olanrewaju v. Bank of the North (1994) 8 NWLR 622.

I have examined the three grounds against which the preliminary objection was issued, I am of the firm view that the Respondent clearly understood the appellant’s complaints in this appeal. Particular 1 of the ground 2 clearly states that the appellant’s affidavit did not say that the claimant was put in abeyance simpliciter. If this particular alone supports the main ground, that is enough conferment of legitimacy on the ground aforesaid and conveys the intention of the Appellant to the Respondent. It is interesting to note that the objection of the Respondent is not against all the particulars in support of grounds 2, 3 and 4. If there are certain particulars that are competent among series of particulars in support of a ground of appeal, such ground of appeal will not be incompetent merely because some particulars do not support the ground. To hold otherwise will be tantamount to insistence on form rather than substance.
On the whole I find no merit in the preliminary objection, which I hereby overrule.
Having disposed of the preliminary objection, I will now proceed to consider the appeal. I have carefully read through the printed record of this appeal and the briefs of argument presented by parties to this appeal, and I am of the firm view that the only issue calling for determination of this appeal is whether the Appellant filed a notice of intention to defend the suit at the lower court in accordance with the provision of Order 23 of the Kwara State High Court (Civil Procedure) Rules, 2005, and if so, did he disclose any defence on the merit.
Mr. A. A. Bello, learned counsel for the Appellant submitted that the notice of intention to defend the suit with the affidavit in support was filed on the 17th October, 2011.

Learned counsel described correctly in my view the procedure precedent to the filing of notice of intention to defend an action that is placed on the undefended list at page 6 of the Appellant’s brief of argument. According to the learned counsel the notice of intention to defend an action placed on the undefended list can only be filed after the court that is seized with that action enters same on the undefended list and fixes a date for hearing. In aid learned counsel cited Patigi L. G. v. I. K. Eleshin-Nla, Esq & Anor (2008) All FWLR (Pt.421) 850 @ 874 paragraph 9. Again learned counsel submitted correctly that the record of proceedings at page 19 shows that the trial judge became aware of the suit on the 18th October, 2011 and entered same on the undefended list and fixed 31st October, 2011 as return date. From the submissions of learned counsel for the Appellant, was the notice of intention to defend the action filed between the date the suit was placed on the undefended list and the return date as provided for by Order 23 of the Kwara State High Court (Civil Procedure) Rules? I do not think so. Order 23 of the Kwara State High Court (Civil) Procedure Rules, 2005 provides as follows:-
Rule 1: “Where a claimant files a writ of summons endorsed with a claim to recover a debt or liquidated money demand only and the writ is supported by affidavit setting forth the grounds upon which the cause of action is based and stating that in the deponent’s belief there is no defence to the action, the judge shall if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended list” and cause the writ of summons to be marked accordingly and enter thereon a date for hearing.”
Rule 2: “There shall be delivered by the claimant to the Registrar as many copies of the affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service.
Rule 3: (1) “If the party served with one writ of summons and affidavit delivers to the Registrar, not less than 5 days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend, upon such terms as the Court may think just.”

Learned counsel is aware that as at the time the processes were served on him, the suit had not been placed on the undefended list as the summons were not so marked, yet he proceeded to file a notice of intention to defend an action that was not placed on the undefended list. The notice of intention to defend the action clearly was not filed within the time prescribed by the Rules of the lower Court. In essence therefore there was no notice of intention to defend the suit that was filed by the Respondent. The appellant’s counsel in the circumstance placed the cart before the horse and when the horse moved there was a collision which led to the destruction of the cart.
Even though the notice of intention to defend the suit was filed outside the prescribed period, the learned trial Judge did consider the aforesaid notice and did observe at page 29 of the record as follows:-
“The affidavit of the defendant which did not crave for time or leave to defend after being out of time to defend did, not state clearly what it wants to offer. It is devoid of particulars or sufficient facts to support his case other than being evasive, refused to acknowledge either the refused fee or the full fee or the full fee vide letter written vide Exhibit D.
The affidavit of the defendant himself admitted the fact that the claimant was put in abeyance, see paragraph 5 of the defendant’s affidavit. The claimant even followed up his fee to the Local Government but Mr. Salako in charge of litigation said nothing is done concerning fees. See paragraph 14 of the affidavit of the claimant which is not denied.
It seems to me that the defendant has not defence (sic) this action when you compare the affidavit of both parties.”

I have read the affidavit in support of the purported notice of intention to defend the suit at the lower court. Paragraphs 3 and 4 of the affidavit which is at page 17 of the record of this appeal read thus:-
“3. That I know as a fact that on 12th January, 2010, I was directed by the defendant to write a letter in respect of the suit No KWS/OF/1/2010, between MR ABDULGANIYU ADEDIRAN & 2 ORS VS OFFA LOCAL GOVERNMENT.
4.That I know as a fact that there was no consensus ad idem between the claimant and the defendant as to the fee to be charged or paid the claimant.”
The letter which was written by Mr. O. Salako on behalf of the Appellant as deposed to in paragraph 3 of the affidavit at page 17 of the record of appeal is at page 6 of the record of appeal. Particulars of the case against the Appellant were submitted to the Respondent to prepare papers for defence of the suit. It is therefore an admission that the Appellant had engaged the professional services of the Respondent, and was duty bound to settle the Respondent’s professional fees as reflected in the Respondent’s letter dated 21st January, 2010 and addressed to the chairman of the appellant.
Having admitted that the professional services of the Respondent was obtained and there is clear evidence that the Respondent had forwarded to the Appellant his professional fee in writing, the Appellant’s argument that there was no agreement on the fee payable to the Respondent is baseless and amount to a sham defence as it is not competent to dictate the Respondent’s professional fees. I therefore agree with the learned trial judge that the Appellant’s affidavit in support of the purported notice of intention to defend the action disclosed no defence on the merit.
The Apex Court has held that a defendant who has no real defence to an action should not be allowed to dribble and frustrate the plaintiff and cheat him out of judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. See Azekiel Okoli v Morecab Finance (Nig) Ltd. (2007) 30 NSCQLR 453 @ 474.

The desire of the Appellant to negotiate with the Respondent on the appropriate fees in the circumstance of the case, does not in any way excuse it from the liability to settle the Respondent’s professional fees.
I am therefore of the total conviction that the lower court was right when it refused to transfer the suit to the general cause list.
The sole issue identified by me is therefore resolved in favour of the Respondent and against the Appellant. The appeal therefore lacks merit and it is therefore dismissed.
The Respondent is entitled to the cost of prosecuting this appeal which I assess at N30,000.00 against the Appellant.

ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading the draft of the lead judgment of my learned brother Paul A. Galinje JCA (PJ), just delivered. I agree with his reasoning and conclusions and hereby adopt the same in resolving the issues in this appeal.
There is sufficient evidence of engagement of the Respondent by the Appellant for services and there is nothing to show that the Appellant disputed the bill forwarded to it by the Respondent after his service to the Appellant. The Appellant neither showed commitment to settle the bill nor denied the services rendered to it to attract the bill.
In the words of my learned brother, Ogbuinya JCA in Ilorin East Local Government vs. Alasinrin (2012) 23 WRN 114, held 12:
“Equity cannot allow appellant to enjoy the best of two worlds take the benefit of an executed job without the corresponding burden of payment”
By the authority of that same case (Ilorin East Local Government v. Alasinrin (supra), at page 136)
“The discretion to place a suit on the undefended list resides with the trial Judge, once he is satisfied, based on the depositions of the plaintiff that, there are good grounds to believe that the defendant has no defence to the action. And even when the defendant files a notice of intention to defend and an affidavit thereto, disclosing, what he thinks are grounds to defend the action. And even when the defendant files a notice of intention to defend and affidavit thereto, disclosing what he thinks are grounds to defend the action, as per Order 22 Rule 3, the discretion still remains with the trial court to satisfy itself that the affidavit of the defendant discloses “a defence on the merit” (per Mbaba JCA).
That discretion can only be faulted, on appeal, if the Appellant proves that it was not exercised judiciously and judicially, or that it was perverse. That has not been proved in this Appeal.
With this and the more elaborate reasons in the lead judgment, I too hold that the appeal lacks merit. It is dismissed.
I abide by the consequential orders in the lead judgment’

OBANDE OGBUINYA, J.C.A.: I have had the privilege of reading, in advance, the succinct judgment delivered by my learned brother, Paul Adamu Galinge, JCA. I, totally, agree with his reasons and conclusions.
Following the series of correspondence between the parties, the appellant hired the legal services of the respondent, a legal practitioner of note. The respondent rendered his legal services, qua advocacy, by defending the appellant in Suit No. KWS/OF/1/2010 instituted against it. The appellant having received these legal services is bound in law, justice and equity to pay the respondent, without procrastination, on the footing of quid pro quo. The law does not allow the appellant to reap from the legal services of the respondent without the corresponding burden and duty of paying him for services rendered, see Ilorin East Local Government vs. Alasinrin (2012) 23 WRN 114 at 148. A labourer, of any status, deserves his wages, a fortiori the respondent, a skilled lawyer, who expended his dexterity in defending the appellant. The lower court was right in treating the respondent’s suit under the undefended list procedure proceeding. I find no extenuating justification, from the appellant, to impeach the lower court’s decision in this appeal.
For these reasons, coupled with more comprehensive ones marshalled out in the leading judgment, I, too dismiss the appeal and abide by the consequential orders made therein.

Appearances

APPELLANT not RepresentedFor Appellant

AND

Teju Adigun with him is Amaka Nwosu for the RespondentFor Respondent