POPOOLA v. UGHAOGARANYA & ORS (2020)

POPOOLA v. UGHAOGARANYA & ORS

(2020)LCN/15255(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/IB/424/2013

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

S.O.A. POPOOLA, ESQ APPELANT(S)

And

1. GILBERT UGHAOGARANYA 2. EJIKE OFORJEKWU 3. MIKE EDE RESPONDENT(S)

RATIO

WHETHER R NOT PRELIMINARY OBJECTION SHOULD BE GIVEN PROMINENCE BEFORE THE ISSUES FOR DETERMINATION

The settled position of the law commands that before the consideration of the issues for determination in an appeal, the preliminary objection where such is raised should be given prominence. The reason for this is that should it succeed there may be no need to go into the issues contended as the appeal would have been terminated in limine. See JIMI-JAJA Vs. COP, RIVERS STATE (2013) 6 NWLR (Pt. 1350)225; NEPA Vs. ANGO (2001) 15 NWLR (Pt. 737) 627; OKUMODI Vs. SOWUNMI (2004) 2 NWLR (Pt. 856)1; B.A.S.F. (NIG.) LTD Vs. FAITH ENT. LTD (2010) 4 NWLR (Pt. 1183)104; UDENWA V UZODINMA (2013) 5 NWLR (Pt. 1346)Pg. 94 at 111 Paras. D-E. PER OJO, J.C.A.

DUTY OF THE COURT IN ENSURING THE INTEREST OF JUSTICE

WHETHER OR NOT THE COURT IS ONLY CONCERNED WITH DAMAGES WHICH ARE NATURAL AND PROBABLE CONSEQUENCES OF THE BREACH OR DAMAGES IN A CLAIM FOR DAMAGES FOR BREACH OF CONTRACT

Let me quickly add that the law is certain that in a claim for damages for breach of contract the Court is only concerned with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See MOBIL OIL (NIG) LTD VS. AKINFOSILE (1969) 1 NMLR 217; XTOUDOS SERVICES (NIG) LTD & ANOR VS. TAISEI (W.A.) LTD & ANOR (2006) LPELR 3504 (SC). IN E.A. AKINBOBOLA VS. PLISSON FISKO (NIG.) LTD & ORS. (1991) 1 SC (PT. II)1, the Supreme Court held thus:
“The claim for damages by the Appellants was not a consequential claim but a substantive claim; and if claimed must be sustained from the facts before it.”PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Oyo State High Court sitting in Ibadan in Suit No: I/763/07 delivered on 18th of June, 2013. In that Judgment, the trial Court found substantially against the Appellant who was the Claimant on the issues he submitted for determination against the Respondents who were the defendants.

The Appellant is dissatisfied with the Judgment hence this appeal.

By an amended Writ of Summons filed on 25/01/08 combined with paragraph 16 of the Amended Statement of Claim filed along with that Writ, the Appellant claimed against the Respondents jointly and severally as follows:
(i) The sum of N724,000 being the Claimant’s professional fees/allowances for his professional services rendered to and enjoyed by the Defendants in their brief Suit Nos. I/375/04, Mr. Lawrence Awosejo & 4 Ors Vs. Hallmark Bank Plc & 3 Others at the Oyo State High Court, Ibadan between 8th October, 2004-13th December, 2006 which the Defendants refused and neglected to pay despite repeated demands.
(ii) 21% interest per annum on the total debt sum of N724,000.00 with effect from 8th October, 2004 until Judgment is delivered and 10% interest per annum thereafter till liquidated.
(iii) Damages on the total sum of N10,750,000.00 being special, general and exemplary/aggravated damages for the breach of contract i.e. refusal to honour and fulfill its financial obligations of paying the Plaintiff’s professional fees/allowance for the professional services rendered to and enjoyed by the Defendants in their brief SUIT NO: I/375/04, Mr. Lawrence Awosejo & 4 Ors. Vs. Hallmark Bank Plc & 3 Others at Oyo State High Court, Ibadan between 8th October, 2004 – 13th December, 2006 which the Defendants has (sic) refused to pay despite repeated demands which caused the Plaintiff to suffer personal, professional and financial embarrassment, deprivation, unnecessary litigation expenses, inconveniences, humiliation, blackmail, ridicule, incalculable injury to his personal and professional reputation, loss of honour, prestige, respect, dignity, patronage, pride, integrity etc.

The Appellant’s case as borne out by his pleadings at the lower Court and evidence adduced thereon is that the Respondents engaged his services as a legal practitioner in respect of SUIT NO: I/375/04 between Awosejo & 4 Ors Vs. Hallmark Bank Plc & 3 Ors. That in furtherance of his said brief he conducted searches, filed Court processes and prosecuted the Suit as required of him by representing them (the Respondents) at an agreed professional fee. He said he passed his bill of Charges to them as required of him. He alleged that SUIT NO: I/375/04 was struck out due to the persistent absence of the Respondents in Court and that they paid only a small part of his fees. He said he made reasonable efforts to recover his outstanding fees but all his efforts proved abortive hence his decision to approach the trial Court for redress.

The Respondents placed a different set of facts before the trial Court in their Further Amended Statement of Defence filed on 14/11/2012 and the evidence on record. They denied all the allegations levied in the Appellant’s Amended Statement of Claim. They emphasized that the Appellant lured and/or convinced them that he could handle their matter and also promised to secure good Judgment for them in Court. They alleged it was based on his promise that they agreed he will be entitled to 10% of whatever Judgment sum the Court awards at the end of the day. They made a down payment of N10,000.00 (Ten Thousand Naira) for each Court appearance.

The issue in the litigation in SUIT NO: I/375/04 centers round the validity of the Respondents’ tenancy in a shop situate along Iwo Road. Hallmark Bank purchased the shop from their landlady and thereafter threatened to eject them before the expiration of their tenancy. To forestall this threat, the Respondents proceeded to Court but Hallmark Bank demolished the shop during the pendency of the Suit. The Respondents allege that Hallmark Bank Plc offered to settle the matter out of Court as a result of which they paid them the sum of N150,000 (One Hundred and Fifty Thousand Naira) only as full and final settlement of the issues in dispute. They claim that after the money was paid, they took it to the Appellant in his chambers where it was shared equally such that each person got N30,000 (Thirty Thousand Naira) only. The Respondents emphasized they instructed the Appellant to withdraw their Suit from the Court and believing their instruction had been carried out they stopped going to Court. They said they never knew the Appellant continued with the Suit.

The summary of the case of the Respondents is that, the Appellant is not entitled to his claims at the trial Court.

The Appellant filed a reply to Statement of Defence on the 26th of June, 2008 as well as a Consequential Reply to the Amended Statement of Defence wherein he joined issues with the Respondents on their averments in their Further Amended Statement of Defence.

At the trial, the Appellant testified and called one official witness. One of the Respondents testified on behalf of himself and other Respondents. Written Addresses were filed, exchanged and adopted by parties and at the end of which the trial Judge gave a considered Judgment. The trial Judge at pages 70-71 of the Record held specifically as follows:
“I find the Defendants jointly and severally liable to pay the Claimant the following:
1. A sum of N15,000.00 outstanding as consultation fee.
2. A sum of N7,000 outstanding for the Court appearances fees, and
3. A sum of N10,000.00 for the balance of Professional Fee.
In conclusion, award is made on the following outstanding fee:
1. Consultation fee N15,000.00
2. Court appearances fee N7,000.00 and
3. Professional services rendered N10,000 as assessed.
Leg 1 is granted as assessed and adjudged.
Leg 2 which is a claim for 21% interest predating delivery of Judgment fails because no evidence was led on it.
Leg 3 which is a claim for special, general and aggravated damages for breach of contract is refused.
Since the Court is empowered by its rules to award interest post Judgment, 5% interest is hereby awarded from the date of Judgment until the Judgment is liquidated.”

The trial Court in its Judgment that led to the above decision made the following findings:
1) That the Appellant’s argument that as at the time the Respondents testified, their Further Amended Statement of Defence had not been regularized is a belated argument and deemed to have been waived following the decision of the Supreme Court in OBISI VS. CHIEF NAVAL STAFF (2004) 11 NWLR (PT. 885) 482 AND DIKE VS. AKPABIO (2005) 19 NWLR (PT. 959) 130 (See Page 61 of the record)
2) That a contractual relationship exists between the Appellant and Respondents. Since parties agreed that the Appellant’s services were to be remunerated, he (Appellant) is entitled to professional fees (See Page 61 of the Record)
3) That Exhibits H-H4 (prepared and described by the Appellant as contingency fee agreement/undertaking of first charge payment) having not been signed or executed by any party did not define their relationship. It is therefore a worthless document (See Page 62 of the Record).
4) That there is no endorsement on Exhibit C1 (Appellant’s bill of Charges dated 08/10/2004). Consequently, the Appellant failed to prove that he served that exhibit on the Respondents. (See Page 63 of the Record)
5) That Exhibit E (receipt issued by the Appellant for the sum of N10,000.00 representing part payment of consultation, having stated therein that there is an outstanding consultation fee in the sum of N15,000.00, speaks for itself and is acceptable for what is stated therein. Exhibit E1 (receipt for another sum of N30,000.00) having also stated that there is an outstanding balance of N20,000 speaks for itself. Even though a total sum of N50,000.00 is outstanding on Exhibits E and E1, the fact that Suit No. I/375/04 was not prosecuted to its logical conclusion is a factor to consider in assessing the Appellant’s overall entitlement (See Page 63 of the Record)
6) That Exhibits F-F1 (Appellant’s letter of demand for payment of the sum of N724,000 by NIPOST Express Service) does not contain any information concerning the Appellant’s professional fees, status and standing or special difficulty he encountered while handling SUIT NO. I/375/04 in line with the requirements in OYEKANMI VS. NEPA (2000) 82 LCRN 3205 @ 3223, PARAGRAPHS E-F. Therefore, Appellant’s insistence that the trial Court should continue to sit on the matter after the Respondents had since stopped attending Court and after he was informed that the matter had been settled out of Court by Counsel to the other side was a calculated attempt to build up his professional bill and Court appearance allowances (See Pages 64-65 of the Record)
7) That the Appellant’s argument that the Respondents could not have lawfully settled the Suit out of Court without him is misconceived and the cases of WOLUCHEM VS WOKOMA (1974) 1 ANLR 605 AT 617; AGBAJE VS ADIGUN (1993) 1 NWLR (PT. 269)261 AT 272 PARAGRAPH E AND RAS PALGAZI G. CONSTRUCTION LTD VS. FCDA (2001) 87 LRCN 1862 AT 1882H- 1883A do not support his argument. No law or rule of practice makes it mandatory for Counsel’s consent or involvement in negotiations or settlement out of Court (See Page 65 of the Record)
8) That a Claimant has a duty to provide the necessary parameters and evidence upon which the Court would assess his reasonable compensation for the services rendered up to the time his services were terminated. To do this, he must specifically plead the actual work done. He must also plead the reasonable value of such work indicating on the bill of charges the nature of the various aspects of the services he rendered, his experience at the bar which matched the skill of the particular legal matter demanded and the reasonableness of the charges for the services. That Exhibits C and G fell short of this standard when it failed to specify the peculiar difficulty encountered and his standing or status or years of experience at the bar (See Pages 66-67 of the Record)
9) That the Appellant is entitled to payment for thirteen Court appearances in the sum of N6,000.00. The necessary implication is that the Respondents still owe him (Appellant) for the remaining seven Court appearances in the sum of N7,000.00 (See Page 68 of the Record)
10) That the general rule that where a binding contract is terminated, the other party is entitled to damages does not apply in the circumstance of this case since the Court is not allowed to award double compensation where the contract terminated is that of a lawyer. The settled law is that a lawyer is rewarded in damages by payment for the services rendered which equals the professional fees already awarded. (See page 69 of the Record)
11) That the Appellant’s claim on special damages for his Solicitor’s fees is not recognized in Nigeria. It is unethical and an affront to public policy in view of the decision of the Supreme Court in NWANJI Vs. COASTAL SERVICES (2004) 11 NWLR (Pt. 885) 552 SC.

The Appellant who is dissatisfied with the Judgment of the trial Court filed a Notice of Appeal with four grounds of Appeal on 18th September, 2013 which Notice was deemed as properly filed and served on 20th April, 2018. See Pages 72-75 of the Supplementary Record of Appeal. The Record of Appeal transmitted on 17/12/2013 was deemed as properly transmitted and served on 13th June 2019. Parties filed their respective Briefs of Argument as follows:
1) Appellant’s Brief of Argument dated 15/01/2014 was deemed as properly filed and served on 13th June 2019. It was settled by S.O.A. Popoola of Counsel.
2) Respondent’s Brief of Argument filed on 24th September, 2019 was deemed as properly filed on 13/6/2019. It was settled by Taiwo Ojo of Counsel.
3) Appellant’s Reply Brief of Argument filed on 9th October, 2014 settled by S.O.A. Popoola of Counsel was deemed as properly filed and served on 13th June, 2019.

At the hearing of this appeal on 2nd March, 2020 learned Counsel representing both parties adopted and relied on their respective Briefs of Argument. While the Appellant’s Counsel argued in favour of allowing this appeal, Counsel representing the Respondents submitted in favour of its dismissal.

The following issues were formulated on behalf of the Appellant:
i) Whether the learned trial Judge erred in law when he awarded paltry sum of N32,000.00 (Thirty-Two Thousand Naira only) for the 1st leg (main) claim of the Claimant/Appellant instead of N724,000 (Seven Hundred and Twenty Four Thousand Naira only) claimed in paragraph 16(1) Amended Statement of Claim dated and filed 25th January, 2008 when he believed the Defendants’ witness’ evidence that their agreement with the Claimant for his professional fees for their brief, SUIT NO. I/375/04 Mr. Lawrence Awosejo & 3 Ors. Vs. Hallmark Bank Plc & 3 Ors was 10% of whatever sum of money that may be awarded in their favour, by the Court.
ii) Whether the learned trial Judge erred in law when he refused the 2nd and 3rd legs of the Claimant/Appellants’ claim paragraph 16(2) & (3) Amended Statement of Claim dated and filed 25th January, 2008 on the ground that the Defendants’ did not receive the Claimant’s bill of charges’ letter couriered to them by him.
iii) Whether the learned trial Judge erred in law by relying on the contradicting and inconsistent pleadings of the Defendants and their witnesses’ evidence on the payment and receipt of N150,000.00 compensation by the Defendants in SUIT NO: I/375/04 to the Plaintiffs (defendants) therein as out of Court settlement in arriving at his perverse decision and miscarriage of justice.
iv) Whether Judgment of the learned trial Judge is against the weight of evidence before him.

Counsel to the Respondents incorporated a Notice of Preliminary Objection which he argued in the Respondents’ Brief and formulated four (4) issues for the determination of this appeal as follows:
i) Whether the learned trial Judge on the face of the evidence led at the trial was right in arriving at the finding of facts made in this Suit.
ii) Whether the Appellant has complied with the provision of the Legal Practitioners Act to warrant the institution of the Suit for the amount being claimed.
iii) Whether the evidence adduced at the hearing of the Suit by the Respondent runs foul of the pleading.
iv) Whether the Court was right by not awarding damages to the Appellant having awarded cost further service rendered (sic)

In the Appellant’s Reply Brief of Argument Counsel responded to the Respondents’ preliminary objection and formulated a sole issue for determination in the following words:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“Whether Grounds 1, 2 & 3 of the Appellant’s Notice of Appeal as presently couched is vague, imprecise, incoherent, inaccurate, verbose, rigmarole and unnecessarily repetitive as to render the Notice of Appeal incompetent before this Honourable Court.”

I agree with learned Counsel to the Respondents that the four issues formulated for determination on behalf of the Appellant are incoherent. This is however not to say that the reframed issues formulated on behalf of the Respondents are any better. For instance, the Respondents’ issues 2 and 3 do not suggest they address any specific part of the Judgment of the trial Court. I have critically examined the issues formulated for both parties and I am of the very firm view that all of the four issues formulated on behalf of the Appellant arise for the determination of this appeal. The four issues are modified as follows:
(i) Whether the trial Court was right when it awarded the total sum of N32,000.00 to the Appellant instead of the sum of N724,000.00 claimed.
(ii) Whether the trial Court was also right when it refused to grant the Appellant’s claims for interest and damages contained in both legs 2 and 3 of the Writ of Summons and paragraph 16(2) and (3) of the Amended Statement of Claim
(iii) Whether the trial Court was right when it relied on the Respondents’ pleadings and evidence to enter Judgment substantially against the Appellant.
(iv) Whether the Judgment of the trial Court is against the weight of evidence adduced.

I shall determine issue one (1) alone while issues two(2), three(3) and four(4) would be taken together as done by learned Counsel to the Appellant.

I shall therefore proceed to address the grounds of the preliminary objection as adumbrated in Paragraph 1.02 of the Respondents’ Brief of Argument. They are:
1) Grounds 1, 2 and 3 of the appeal are incompetent.
2) Grounds 1, 2 and 3 of the appeal are incompetent in that they are needlessly vague, repetitive or do not disclose reasonable grounds of appeal
3) Grounds 1, 2 and 3 of the appeal do not disclose the particulars and the nature of the misdirection or error were not stated in the Notice of Appeal.

Learned Counsel to the Respondents submitted that the Appellant juxtaposed error of law with the misdirection of facts and that the grounds and their particulars are vague, imprecise, incoherent, inaccurate, verbose, rigmarole and unnecessarily repetitive. He cited the cases of LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114)427 AT 456 AND CBN VS. OKOJIE (2002) FWLR (PT. 103)349, (2002) 8 NWLR (PT. 768)48 to support his submissions.

He submitted further that the grounds of appeal are incompetent being vague and general in terms and disclose no reasonable grounds of appeal. These grounds he submitted are liable to be struck out. He relied on the provisions of Order 6 Rule 3 of the Rules of this Court.

He pointed out further that Grounds 1, 2, 3 and 4 with their respective particulars are needlessly argumentative and offend Order 6 Rule 2(3) of the Court of Appeal Rules. He referred specifically to Particular 1 of Ground 1, Particular 2 of Ground 2 as well as Particular 3 of Ground 3. He also craved in aid the cases of ANGYU VS. MALAMI (1992) 9 NWLR (PT. 264)242, 257; OLAWEPO VS. SEC (2011) 16 NWLR (PT. 1272)122 AT 140; EKPAN & ANOR VS. UYO & OTHER (1986) 3 NWLR (PT. 26)76.

On a final note, Counsel submitted that the particulars and nature of misdirection or error was not stated in the Notice of Appeal which according to him is fatal. He craved in aid the cases of ODUAH VS. FEDERAL REPUBLIC OF NIGERIA (2012) ALL FWLR (PT. 650); LUCAS PHARMACEUTICAL CHEMIST LTD VS. ROCHE (NIG) LTD (1995) 1 NWLR (PT. 369)281; STIRLING CIVIL ENGINEERING LTD VS. YAHAYA (2002) FWLR (PT. 114)552 AT 561 and urged us to uphold the preliminary objection and strike out the appeal.

The Appellant responded to the Preliminary Objection at paragraphs 4-4.17 of the Appellant’s Reply Brief of Argument. He submitted that the Respondents’ Counsel failed to demonstrate what doubt he has on the grounds of Appeal as couched. He submitted that the grounds of appeal attack the decision of the lower Court dismissing the Appellant’s case in line with the decision of the apex Court in CHIEF N.P. UGBOAJA VS. SODOLAMU AKINTOYE SOWEMIMO & ORS (2008) ALL FWLR (PT. 439)407 AT 418, PARA. F. HE ALSO CITED THE CASE OF ERIK EMBOLAG EXPORT A/S & ORS VS. JOS INTERNATIONAL BREWERIES PLC (2001) FWLR (PT. 82)2031 AT 2043 PARAGRAPHS F-G which are all to the effect that the purpose of grounds of appeal is to give Notice to the Respondent of the case he would meet at the Appellate Court.

Appellant’s Counsel emphasized that the important consideration in the determination of the nature of a ground of appeal is not in the form of the ground but the question it raises. He craved in aid of his submission the cases OF HAMBE VS. HUEZE (2001) FWLR (PT. 42)1 AT 16, PARAGRAPHS C-E, G-H; ALHAJI ABDULRAHMAN AKANBI VS. MALLAM WASIU SALAWU & ORS (2003) 6 SCNJ 246 AT 254 AND EMMANUEL AHMED (APEH AHMED) VS. FRN (2009) 13 NWLR (PT. 1159)536 AT 537, PARAGRAPHS B-C.

He further cited ADEROUNMU VS. OLOWU (2000) 4 NWLR (PT. 652) 253; CHIEF JOSEPH ADOLO OKOTIE-EBOH VS. CHIEF JAMES EBIOWO & ORS (2005) ALL FWLR (PT. 241)277 AT 300-301, PARAS. H, A-E AND OBA J.O. OYEWUMI VS. OBA SUNDAY OLADAPO OYEDIRAN (2004) ALL FWLR (PT. 233)1781 AT 1794, PARAS. C-F to support his argument that if a ground of Appeal filed is intelligible it is not necessarily incompetent. He submitted that the issue to be considered is whether sense can be made from whatever is filed.

He argued further that the grounds of appeal as couched are competent and comply substantially with Order 6 Rule 2 of the Court of Appeal Rules, 2011 and assuming (without conceding) that Grounds 1, 2 and 3 are incompetent; the omnibus ground (Ground 4) saves the appeal as it does not require particulars to support it. He relied on the cases ofSAMSON DANIEL UKPONG & ANOR VS. COMMISSIONER FOR FINANCE & ANOR (2007) ALL FWLR (PT. 350)1246, LAMIDI BELLO (SELIA) VS. GODWIN UDOYE & ANOR (2004) ALL FWLR (PT. 225)63 AT 81 and others to support his point. He finally urged us to dismiss the preliminary objection and decide the appeal on its merit.

I have given the submissions of learned Counsel on both sides all due consideration and their respective positions is well understood by me.

The law is clear beyond peradventure that even in the mix of the narrative and inelegantly drafted particulars of grounds of appeal, if what the appellant is challenging in the Judgment or complaining about is clear, the Court in the interest of justice will consider the merit of the appeal. The interest of justice will take precedence over any rule of compliance which will lead to outright injustice.
In AWUSA VS. NIGERIA ARMY (2018) LPELR- 44377 (SC) Augie, JSC at pages 36-37 held as follows:
“The law is that once the error complained of is identified and properly oriented in the Ground of Appeal, the fact that particulars to the said ground are argumentative, repetitive or narrative is not enough for an Appellate Court to side step from doing justice. See BEST (NIG) LTD Vs. B.H. (NIG) LTD (2011) 5 NWLR (Pt. 1239) 95 SC and OMISORE Vs. AREGBESOLA (2015) 15 NWLR (Pt. 1482)205 at 257 where the Court per Nweze, JSC made the point clear as follows:
“It is not every failure to attend to grounds of appeal with the fastidious details prescribed by the powers of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of appeal and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded. Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Put differently since the essence of particulars is to protect the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow.
This position: a position shaped by the contemporary shift from technicalities to substantial justice is clearly evident in such cases like ADEROUNMU Vs. OLOWU (2000) 4 NWLR (Pt. 652)253. Indeed, this Court recently stamped its infallible authority on this current posture. ABE Vs. UNILORIN (2013) LPELR-20643, (2013) 16 NWLR (Pt. 1379)183.”
In OGBORU & ANOR Vs. UDUAGHAN & ORS (2012) 2-3 SC 66, the Supreme Court, per Muhammed, JSC held thus:
“I have gone through the submissions made in the matter and come to the conclusion that the attack on the grounds and their particulars was largely based on the format and not the substance of the appeal. I think I must be guided on this issue by what this Court stated in the case of MILITARY GOVERNOR OF BENUE STATE Vs. ULEGEDE (2001) 17 NWLR (Pt. 741)193 at Page 212-213 PER Ayoola, JSC that:
“Where the parties to an appeal and the Court are not misled by the contents of a ground of appeal, complaint about its form becomes a technicality which does not occasion a miscarriage of justice and is inconsequential.”
I have gone through the Grounds of Appeal complained about and their particulars as well as the Briefs of Argument of parties. I am of the view that the Respondents are not left in doubt as to what the complaints in the grounds are. They have also not shown what miscarriage of justice is occasioned by the grounds and I do not see any.
I wish to emphasize that the Rules of this Court on formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The prime purpose of the Rule which says that the Notice of Appeal shall set forth concisely the grounds which the Appellant intends to rely upon, 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 in the appeal. Any ground of appeal that satisfies this purpose should not be struck out notwithstanding its non-compliance with a particular form. See OLORUNTOBA-OJU Vs. ABDULRAHEEM (2009) 13 NWLR (Pt. 1157)83.
I do not see any real reason in law to justify discountenancing the Appellant’s ground of appeal or striking them out without hearing this appeal on its merit as urged upon us by Counsel to the Respondents. A Court of law would not and should not concern itself with trivialities when there are weightier matters of substantial justice before it to decide between the parties.
To my mind, reasonable complaints have been raised against the Judgment of the trial Court. The Respondents are not left in doubt as to what the Appellant’s complaints are. The complaint in the preliminary objection is as to the form of the grounds of appeal and therefore inconsequential.

The inevitable conclusion is that the preliminary objection lacks merit and it is accordingly dismissed. Now, to the main appeal.

ISSUE 1
“Whether the trial Court was right when it awarded the total sum of N32,000.00 to the Appellant instead of the sum of N724,000.00 claimed.”
Learned Counsel to the Appellant submitted that the sum of N32,000.00 awarded to the Appellant under the first leg of his claim is paltry when compared with the sum of N724,000.00 claimed. He submitted further there was ample evidence before the trial Court that a contractual relationship existed between parties and that while the Appellant fulfilled his own side of the contract the Respondents failed to do theirs. He contended further that the trial Court contrary to settled principles of law allowed oral evidence to vary, add to and subtract from the content of Exhibit A (Court’s file in SUIT NO: I/375/04. He relied on Section 128(1) Evidence Act 2011, ANYANWU VS. UZOWUAKA & 3 ORS (2009) 13 NWLR (PT. 1159)445 AT 468, PARAS. A-B, D-G, 469, PARAS. C-H, 472, PARAS.

D-F, 473, PARAS. C-E AND 483, PARAS. A-D; ADEYEMI DUROJAIYE VS. CONTINENTAL FEEDER (NIG) LTD (2001) 10 NWLR (PT. 722)657 AT 666, PARA. A AND UNION BANK (NIG) PLC VS. OZIGI (1994) 3 NWLR (PT. 333)385 AT 400 to support his submission.

He emphasised the fact that parties agreed to the Appellant’s professional fees of N2,760,000.00, appearance fee of N1,000.00 per appearance and prepared contingent fee agreement (Exhibits 14-44) which the Respondents craftily avoided. He also stressed that the Respondents refused to attend Court for the hearing of their Suit in SUIT NO: I/375/04 despite the Appellants letter to them as a result of which the Suit was struck out for want of diligent prosecution. He stated further that he (the Appellant) was neither a party to nor aware of the Respondents out of Court settlement and did not share in the purported compensation of N150,000.00. It is also his position that SUIT NO: I/375/04 was not settled out of Court but was in Court between the year 2004 and December, 2006 when it was struck out.

He urged us to re-evaluate and appraise the facts and evidence presented during trial and commended to us the following cases of PHARMATEK INDUSTRIAL PROJECT LTD VS. TRADE BANK NIG. PLC & 4 ORS (2009) 13 NWLR (PT. 1159)577 AT 63, PARAS. C-D, ANGO VS. AWAWA (1998) 1 NWLR (PT. 532)146 AT 153, PARAS. C-E; GBAFE VS. GBAFE (1996) 6 NWLR (PT. 455) 417 AT 423, PARA. A; AZUETENMA IKE & 3 ORS. VS. ILUABUEKE UGBOAJA & 5 ORS. (1993) 6 NWLR (PT. 301)539 @ 555, PARAS. F-G AND ISAAC GAJI & 2 ORS. VS. EMMANUEL PAYE (2003) FWLR (PT. 163)1 AT 15.

It is Counsel’s further submission that the decision of the trial Court is perverse and also that the laid down rules for out of Court settlement were not complied with in the purported settlement in Suit No: I/375/04.
He finally urged us to resolve this issue in favour of the Appellant.

Arguing per contra, learned Counsel to the Respondent urged us to hold that the trial Court properly evaluated the evidence before it and not reject the findings made therefrom. He further cited the case of OLUWO VS. AMAYO (2012) ALL FWLR (Pt. 639) PG 1091 to support his argument that the Appellant’s admission that the agreement for his brief was not signed is germane and against his interest and claim. It is his further contention that the trial Court did not make any improper use of his opportunity to hear and see his witness and did not draw any wrong conclusion from accepted or proved facts. He cited BALRABE VS. NABADO (2012) ALL FWLR (Pt. 646)516 in support.

On the allegation that evidence adduced on behalf of the Respondents was not in tune with their pleadings, learned Counsel set out the evidence of DW1 on record to contend that the evidence is in line with the pleadings. He submitted that in a case fought on pleadings documentary evidence is used to determine the truth or otherwise of the matter in controversy. He urged us to hold that the evidence was properly evaluated by the lower Court and that there is no reason why this Court will interfere. He craved in aid the cases of KACHIA VS. HADI (2012) ALL FWLR (PT. 650)1403 AND TAIGA VS. TAIGA (2012) ALL FWLR (PT. 651)1548.

Let me quickly observe that it is evident on record that the Appellant admitted that the Respondents did not sign any agreement incorporating his bill of charges but that they signed every other document he prepared. This piece of evidence was corroborated by the Respondent when they said they did not sign the agreement but only agreed that a sum of N10,000 would be paid for filing Court processes and that the Appellant will be entitled to 10% of the Judgment sum if the claim succeeds, N1,000 per Court appearance and a further sum of N5,000 for service of Court processes. It is also on record that upon amicable settlement of SUIT NO: I/375/04 the Respondents paid the Appellant the sum of N30,000. They alleged they instructed the Appellant to discontinue the case and that they did not know he continued to prosecute it in Court. The Appellant contends that there is a laid down procedure for discontinuing a case and until the procedure is complied with his brief subsists. It is therefore his position that his professional fees subsists till December 2006 when the Suit was struck out for want of diligent prosecution.

Having critically examined the record, there is no doubt that a contractual relationship for professional service existed between the Appellant and the Respondents. It is also not in dispute that SUIT NO: I/375/04 was struck out on 13/12/2006 for want of diligent prosecution. The contract between the parties was thus abruptly terminated. The Appellant is thus entitled to some degree of fees, The trial Judge at page 61 of the Record held as follows:
“From the available evidence before this Court it is not disputed that the defendants engaged the services of the Claimant as a legal practitioner to prosecute their claim against Hall Mark Bank Plc & others. Therefore, I find that there is a contractual relationship between the parties. It is also agreed by parties that the Suit did not proceed to full trial before the life of the Suit was terminated. From the records of this Court the Suit was struck out on 13/12/06 for want of prosecution. Therefore, I find that the contract was abruptly terminated. Both parties agreed that the Claimant’s services were to be remunerated. He is therefore entitled to his professional fees.”

The above findings of the trial Judge finds its root in the evidence before the Court. It is also clear from the record that before 13/12/2006 when SUIT NO: I/375/04 was terminated the Respondents had paid a total sum of N46,000.00 to the Appellant which he considers paltry. He claims his original bill was the sum of N2,760,000.00 (see Exhibit C) but when the suit was struck out he re-assessed that bill by reducing it to N770,000. He subtracted the sum of N46,000.00 paid him from the re-assessed fee of N770,000 leaving a balance of N724,000.00 which is the amount he claimed at the lower Court. He relied on the written agreement tendered in evidence through DW1 and admitted in evidence as Exhibit H-H4. Exhibit H-H4 is described as contingency fee agreement/undertaking of first charge payment. Parties are on common ground that the said agreement was not signed by the Respondent and not executed by parties. The agreement cannot therefore define their relationship. The law is settled that an unsigned document is worthless and has no evidential value. See OMEGA BANK (NIG) LTD VS. OCEANIC BANK COMPANY LIMITED (2005) 8 NWLR (PT. 928)547; ONUOHA VS UBAH (2019) 15 NWLR (PT. 1694)1; AMIZU VS NZERIBE (1989) 4 NWLR (PT. 118)755; TSALIBAWA VS. HABIBA (1991) 7 NWLR (PT. 174)461 AND JINADU VS ESUROMBI-ARO (2009) 9 NWLR (PT. 1145)55. EXHIBIT H-H4 is worthless and I so hold.

I find no evidence on Record that Exhibit C1 (Bill of Charges, Professional Fees/Allowance) dated 08/10/2004 was received by the Respondents as the Appellant would wish we hold. Exhibits E and E1 reveal that the sum of N50,000 was still outstanding but since SUIT NO: I/375/04 was not prosecuted to a logical conclusion, this fact must be considered in assessing what the Appellant is entitled to. The trial Court was right when it held as such.

There is also no evidence on record that Exhibits F and F1 (Appellant’s reassessed bill for the sum of N770,000.00) was received or known to the Respondents. The Appellant claimed he sent it to the Respondents but they denied receiving it. The Appellant tendered the postal receipt thereby raising a presumption of delivery. This presumption is rebuttable in view of the denial of the Respondents. Exhibits F and F1 have their base on Exhibit C1 for which there is also no evidence of receipt by the Respondents.

The Appellant made separate allocations for the processes filed under items 3-5, 6, 7a of his Exhibit F1 without offering a single explanation. These items ought to have come within the separate charge described as filing fee; incidental and Court processes expenses. That Appellant failed to allude to his professional years, status and standing as a legal practitioner as well as the difficulty (if any) he encountered in handling Suit NO: I/375/04. See OYEKANMI VS. NEPA (2000) 82 LRCN 3205 at 3223, Paras. E-F.

The Appellant was aware from the early stage of his brief that parties in SUIT NO. I/375/2004 were involved in negotiation. He was informed by Counsel to Hallmark Bank Plc as well as his own clients (the Respondents) who stopped coming to Court. In spite of this development Appellant insisted the Court should continue to sit on the matter. Why I do not know. May be to build up his professional fee and Court appearance allowance!!! All that the Respondent received for the out of Court settlement is the sum of N150,000.00. There is no evidence to the contrary from the Appellant. The Appellant however say the Respondents could not have lawfully settle their dispute out of Court.

The law is trite beyond peradventure that where a matter has been filed in Court parties are not precluded from exploring avenues for amicable settlement of their grievance. As a matter of fact, Courts are enjoined to encourage parties to peacefully settle their disagreement. No Court can insist and should insist or compel parties to complete their case before it where there is room for amicable settlement and parties have indicated to take that option. See OBAYIUWANA VS EDE (1998) 1 NWLR (PT. 535) PAGE 670; HABIB BANK (NIG) PLC VS LODIGIAN (NIG) LTD (2010) LPELR-4228 (CA) AND ISULIGHT (NIG) LTD VS JACKSON (2005) 11 NWLR (PT. 937)PG. 631 AT 658. IN ABEY VS ALEX (1999) 14 NWLR (PT. 637)PG. 138 AT 150, the Supreme Court held thus:
“It is in consonance with the right of parties to settle civil actions out of Court and the established practice is that this should be encouraged by the Courts whenever there is such a move by parties at any stage or pending civil proceedings save in specified circumstances in which public interest or policy element is involved.”

In all, I agree with the evaluation carried out by the trial Court and the award of N32,000.00 made to the Appellant instead of the sum of N724,000.00 claimed.
The conclusion on this issue is that it is resolved against the Appellant.

ISSUES 2, 3 AND 4
As indicated earlier, issues 2, 3 and 4 would be taken together. They are reproduced hereunder:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

ISSUE 2
Whether the trial Court was right when it refused to grant the Appellant’s claims for interest and damages contained in both legs 2 and 3 of the Writ of Summons and Paragraphs 16(2) and (3) of the Amended Statement of Claim.
ISSUE 3
Whether the trial Court was right when it relied on the Respondents’ pleadings and evidence to enter Judgment substantially against the Appellant.
ISSUE 4
Whether the Judgment of the trial Court is against the weight of evidence adduced.

Learned Counsel to the Appellant submitted there is ample evidence on record that the bill of charges (Exhibit F-F1) was couriered to the Respondents via NIPOST Express Courier Service. He submitted that the Appellant satisfactorily addressed the trial Court on the rules governing posting/registration of letters and that the trial Court made a case for the Respondents when it held that the delivery/receipt of the Appellant’s letters couriered to them by NIPOST Express Courier Service is rebuttable. He cited the provisions of Section 149(c) of the Evidence Act, 1990, Section 167(c) Evidence Act, 2011 and the Interpretation Act LFN, 2004 to support his argument that when letters are posted by sender to an addressee without its being returned to the sender for non-delivery, such letter is deemed delivered and the presumption of delivery weighs in favour of that sender. He submitted the Appellant rightly demanded for his professional fees in line with S. 16 Legal Practitioners Act, LFN 2004, Rule 47 Rules of Professional Conduct in the Legal Profession, 1980 and the cases of OYO VS. MERCANTILE BANK (NIG.) LTD (1989) 3 NWLR (PT. 108)213 AT 219, PARAS. E-F AND ALHAJI OYEKANMI VS NEPA (2000) 82 LRCN 3205 AT 3221, PARAS. H-I, 3223 A-C, F-G, 3224 B-C, 3226 E AND 3244 F-G.

He contended further that both the Appellant and Respondents agreed to payment of professional fees and that the Appellant suffered damages as a result of the Respondents’ refusal to pay. He submitted the Appellant would have invested his fees if paid into a profit making undertaking and as such he is entitled to damages in the form of compensation on account of the breach. He commended to us the cases of NBN LTD VS SAVOL (W/A) LTD (1994) 3 NWLR (PT. 333) 435; PRIME MERCHANT LTD VS. MAN MOUNTAIN CO. LTD (2000) FWLR (PT. 9) 1587 AT 1593 PARA. F.

He argued further that parties to a contract have a duty to honour their respective obligations and cited the case of OKECHUKWU VS ONURAH (2000) 82 LRCN 3300 AT 3314 PARAS. E-F, H to support his submission and that it was wrong for the Respondents who benefitted from the Appellant’s professional service to deny its validity.

On the claim for interest and damages, Appellant’s Counsel reasoned that the Appellant suffered loss for which he ought to have been adequately compensated. He submitted that general damages can be awarded at large and that the Respondents’ deliberate act of denying the Appellant his professional fees which occasioned hardship on the Appellant entitles him to exemplary/aggravated damages. He craved in aid the cases of ROCKONOH PROPERTY CO. LTD VS. NITEL (2001) 89 LRCN 2602 AT 2611 PARA. D AND 2624 PARAS. F-H AND CHIEF F.R.A. WILLIAMS VS. DAILY TIMES OF NIGERIA (1990) 1 NWLR (PT. 124) PG. 1 AT 30-31 PARAS. E-A, 32 PARAGRAPHS C-D AND PG. 57, PARA. E.

Learned Counsel maintained that the failure of the Respondents to reply the Appellant’s letters of bill of Charges amount to tacit consent, acceptance and/or admission of their contents. He relied on the case of TRADE BANK PLC VS. CHARMI (2003) 13 NWLR (PT. 836)158 AT 219-220 PARAS. G-A to support his argument. He urged us to hold that the evidence of the Appellant is reliable while that of the Respondents is not. He cited the cases of A.R. MOGAJI & ORS VS. MADAM R. ODOFIN & ORS (1978) 3 SC 91 AND BELLO VS. EWEKA (1981) 1 SC 101 AT 19-20 in support and further urged us to hold that the Judgment of the trial Court is against the weight of evidence adduced before it and resolve these issues in the Appellant’s favour.

Learned Counsel for the Respondents had a different perspective on issues 2, 3 and 4. His position is that the trial Court was right when he relied on Sections 16(1) and (2) of the Legal Practitioners Act among other statutory and judicial authorities to deny the Appellant his claim to professional fees. He submitted the Appellant did not state the mode of service on the Respondents at the trial. He further drew our attention to the fact that the Respondents were not cross-examined in respect of the bill of charges which according to him amount to admission in law. He further submitted that for a legal Practitioner to begin an action to recover his fees upon a bill of charges, he must prepare a bill of charges which should particularise the principal items of his claims, serve his client with the bill and allow a period of one month to lapse from the date the bill was served. He relied on GUINNESS (NIG) PLC VS ONEGBEDAN (2013) ALL FWLR (PT. 682) PAGE 1741 AND EVONG VS. MESSRS OBONO OBONO AND ASSOCIATES (2012) ALL FWLR (PT. 636) PG. 578.

He finally submitted that there is nothing perverse about the Judgment of the trial Court to warrant any interference by this Court in that the Appellant failed to lead credible evidence during the trial to show that he is entitled to his claim. He urged us to resolve these issues against the Appellant.

While resolving issue No. 1, I had held as follows:
1) That Exhibits H-H4 (Contingency fee agreement) which was not signed is worthless
2) That there is no evidence that Exhibit C1 (the bill) was received
3) That since Exhibits E and E1 (receipts issued by the Appellant consequent upon payments made to him by the Respondents) a total sum of N50,000 is outstanding. The fact that SUIT NO. I/375/04 was not prosecuted to conclusion must be borne in mind in assessing the Appellant’s entitlements.
4) That the receipt of Exhibits F and F1 (the reassessed bill) allegedly sent through NIPOST is rebuttable.

I adopt my conclusions above in so far as they relate to the same and/or similar arguments re-canvassed by parties under issues 2, 3 and 4 now under consideration.

I wish to state that it is the duty of the Appellant and not the Respondents to adduce evidence upon which the trial Court would assess a reasonable compensation due to him for the services he rendered up to the time it was terminated. Let me quickly add that the law is certain that in a claim for damages for breach of contract the Court is only concerned with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See MOBIL OIL (NIG) LTD VS. AKINFOSILE (1969) 1 NMLR 217; XTOUDOS SERVICES (NIG) LTD & ANOR VS. TAISEI (W.A.) LTD & ANOR (2006) LPELR 3504 (SC). IN E.A. AKINBOBOLA VS. PLISSON FISKO (NIG.) LTD & ORS. (1991) 1 SC (PT. II)1, the Supreme Court held thus:
“The claim for damages by the Appellants was not a consequential claim but a substantive claim; and if claimed must be sustained from the facts before it.”

It follows therefore that the Appellant a legal practitioner had a duty to ensure that his bill for professional fees state the details of the services rendered. It should contain details relating to whether or not he prepared documents, gave professional advice, conducted necessary and specified inquiries. It should also contain the number of appearances in Court with dates, summarised statement of the work done in Court indicating some peculiar difficult nature of the case so as to give an insight to the Client in the sum demanded and finally the standing of the lawyer at the bar in terms of years.

I have no difficulty in coming to the conclusion that Exhibits F and F1 did not comply with the provisions of the Legal Practitioners Act.

The Respondents contested the number of appearances allegedly entered by the Appellant. They disowned the appearances entered after SUIT NO: I/375/2004 was settled by parties and instructions to discontinue the Suit given. It is apparent from Exhibit B that the Appellant started appearing for the Respondents on 26/10/04 and they (Respondents) appeared last in Court on 5/4/05. I note that settlement out of Court was announced to the Court by Hallmark Bank on 4/4/2006. As at 4/4/2006 the Appellant had entered a total number of thirteen appearances. I agree entirely with the lower Court that the Respondents cannot be held liable for the Appellant’s subsequent appearances. The Appellant who was present when Hallmark Bank announced the settlement out of Court had sufficient information to enable him re-assess his relationship with the Respondents.

The Appellant had thirteen Court appearances to his credit but was paid for six (6) at the agreed rate of N1,000.00 per appearance. The Respondents owed the Appellant for seven (7) Court appearances. It is significant to note that SUIT NO: I/375/2004 for which the Appellant was briefed was settled out of Court for the sum of N150,000 shared between the defendants. I have no reason to tamper with the award made to the Appellant by the trial Court. It is reasonable and supported by evidence.

On the award of damages, the Appellant, a legal practitioner having been compensated for services rendered by him is no longer entitled to further damages as this would amount to double compensation which the law frowns at. See MABAMIJE VS. OTTO (2016) 13 NWLR (PT. 1529)171; OANDO (NIG) PLC VS. ADIJERE (W/A) LTD (2013) 15 NWLR (PT. 1377)374; AGU VS GENERAL OIL LTD (2015) 17 NWLR (PT. 1488)327; G. CHITEX INDUSTRIES LTD VS. OCEANIC BANK INTERNATIONAL (NIG.) LTD (2005) 14 NWLR (PT. 945)392.

In view of all of the above I also resolve issues 2, 3 and 4 against the Appellant.

In the final analysis, I find no merit in this appeal and it is dismissed. I affirm the Judgment of the lower Court in SUIT NOS: I/763/07 delivered on 18th June, 2013. Parties are to bear their own costs.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother.

My learned brother has adequately considered all the issues that came up for determination in this appeal. I have no hesitation in agreeing with the reasoning and conclusion that the appeal is devoid of any merit. The Appellant herein, has not demonstrated by this appeal that the learned trial Judge erred in his evaluation of both documentary and oral evidence adduced at the trial; and the ascription of probative value thereto. On that note, I too, hereby dismiss appeal. I abide by the consequential order made by my learned brother.

NONYEREM OKORONKWO, J.C.A.: I have read the draft of the judgment of this appeal by my lord Folasade Ayodeji Ojo, JCA.

In the course thereof, one learns that the case the appellant was briefed to prosecute for the respondents Suit No. 1/375/04 was struck out due to persistent absence of respondents in Court. This persistent absence no doubt includes the absence of counsel otherwise the case would not be struck out for want of prosecution. This was a serious lapse on the part of counsel whose presence somehow would have averted the ominous consequence that occurred. With the striking out of the case Suit No. I/375/04 the engagement can be said to have come to an end but good-naturedly. Parties successfully negotiated for a compensatory settlement of N150,000.00 out of which the appellant was paid N30,000.00 which far exceeds the 10% of a probable Judgment sum agreed upon. At that point counsel’s brief should have ended. The need to sue his Client ought never to have arisen. On this point, my learned brother Ojo JCA said:
On the award of damages, the Appellant, a legal practitioner having been compensated for services rendered by him is no longer entitled to further damages as this would amount to double compensation. See MABAMIJE VS. OTTO (2016) 13 NWLR (PT. 1529) 171; OANDO (NIG) PLC VS. ADIJERE (W/A) LTD (2013) 15 NWLR (PT. 1377) 374; AGU VS. GENERAL OIL LTD (2015) 17 NWLR (PT. 1488) 327; G. CHITEX INDUSTRIES LTD VS. OCEANIC BANK INTERNATIONAL (NIG.) LTD (2005) 14 NWLR (PT. 945) 392.

I agree that there is no merit in the appeal. I also dismiss it and endorse the Judgment of the lower Court from which it emanates.

Appearances:

S.O.A. POPOOLA ESQ. For Appellant(s)

ADESHINA OLANIYAN ESQ, with him, DAMILOLA OROGADE and ISMAIL AJIBADE For Respondent(s)