SOULUS MRF1 LIMITED v. OLUMIDE AJU (2018)

SOULUS MRF1 LIMITED v. OLUMIDE AJU

(2018)LCN/12157(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of November, 2018

CA/L/356/2017

RATIO

COURT AND PROCEDURE: UNDEFENDED PROCEDURE LIST

“The law has remained very well settled to the effect that the essence of placing a matter on the Undefended List, otherwise known as the summary judgment procedure, as in the instant case, is that such matters which border on liquidated money demand must be quickly dealt with and disposed of by trial Courts. That is, it is the timely and quick dispensation of justice to the parties, that is the goal of the rules of Court guiding the procedure for the initiation and defence of actions that are placed on the Undefended List. In Mat Holdings Ltd v. United Bank for Africa, Plc (2003) 2 NWLR (Pt. 803) @ 90, the law was succinctly stated with respect to suits placed on the Undefended List, inter alia: ‘The rules of Court providing the cases to be placed on the undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defence directed at frustrating the plaintiff of judgment he well deserves, a case should therefore not be at the whims and caprices of a defendant who merely finds the words ‘fair hearing’ convenient as well handy slogan’.” PER TOM SHAIBU YAKUBU, J.C.A.

EVIDENCE: WHERE THERE IS CONFLICTING EVIDENCE

“Hence, it is trite and elementary law that where there are conflicting pieces of evidence on any matter, a party whose evidence is supported by documentary evidence, is accorded more credibility by the Court. Eya v. Olopade (2011) 11 NWLR (Pt. 1259) 505. Therefore, the submission by the learned appellant’s counsel, to the effect that, there is no law which stipulates that the appellant needed not to have attached any document to his counter affidavit to substantiate or fortify his allegation of arbitrariness or excessiveness of the professional legal fees by the respondent, in this mater, is in my considered opinion, very disingenuous” PER TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

SOULUS MRF1 LTD Appellant(s)

AND

OLUMIDE AJU

(Trading under the name and style of Olumide Aju & Co.) Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):

This appeal, arose from the decision of the High Court of Lagos State, Lagos Judicial Division, Holden at Lagos, which was delivered on 24 February, 2017, against the appellant who was the defendant in that Court. The respondent, a Legal Practitioner, being the claimant, at the Court below, had filed the action against the appellant, vide an application for summary judgment, praying for the following reliefs, namely:-

(a) An Order for the payment of the sum of N5,140,000.00 (Five Million One Hundred and Forty Thousand Naira) or $32,530.00 being the outstanding professional fees owed the Claimant by the Defendant for Legal services provided by the claimant.

(b) Interest on the sum of N5, 140, 000.00 or US$32, 530.00 at the rate of 21% per annum from 11 December, 2013 until judgment is given and thereafter at the rate of 10% until the judgment sum is fully satisfied.

The facts pleaded in support of these reliefs are as follows: Between December 2012 and December 2013, the Appellant contracted the Respondent to provide legal and advisory services to the Appellant at an agreed professional fees of USD$80, 000.00 (Eighty Thousand United States Dollars) or its naira equivalent in the sum of N 12, 640, 000.00 (Twelve Million Six Hundred and Forty Naira) at an agreed exchange rate of $1.00 to N158.00). The retainership agreement was specifically for a period of one year subject to further renewal.

The Respondent rendered the said legal and advisory services to the Appellant and was partly paid the sum of N7, 500, 000.00 (Seven Million Five Hundred Thousand Naira) being the equivalent of $47, 470.00, (Forty Seven Thousand Four Hundred and Seventy U.S. Dollars) at the said agreed exchange rate of N158.00 to $1.00 leaving an outstanding balance of US$32,530 (Thirty Two Thousand U.S. Dollars or N5,140,000.00 (Five Million, One Hundred and Forty Thousand Naira).

The Respondent subsequently made several demands for payment of the balance of US$32,530.00 (Thirty-Two Thousand U.S. Dollars) or (N5,140,000.00 (Five Million, One Hundred and Forty Thousand Naira) which the Appellant admitted owing but refused to pay.

Following the Appellant’s failure to pay the balance, the Respondent instructed his Solicitors to take steps to recover the money. The Respondent’s Solicitors also made demands on the Appellant but the Appellant still failed, refused and/or neglected to pay the money despite the fact that the Appellant admitted its indebtedness in various emails to the Respondent.

The Respondent filed his Writ of Summons and Statement of claim alongside an application for summary judgment dated 23 August 2016. The Appellant filed its Statement of defence and Counter Affidavit to the Motion for summary judgment.

The Appellant, resisted the claim against her by filling a statement of defence, a Counter Affidavit and a written address. The respondent thereafter filed a Further Affidavit and his own written address. At the hearing of the application for summary judgment, both learned counsel for the parties, adopted their respective written addresses. The learned trial judge, in his ruling, found for the respondent. The appellant, not unnaturally, was piqued by the decision against her, hence this appeal was filed and anchored on two grounds.

The appellant, in activating the prosecution of the appeal, was armed with the appellant?s brief of argument, settled by Mahmud K. Adesina, Esq., & Miss Taofikat Odunuga, which was filed on 7 August, 2017 but deemed filed on 21 June, 2018. In it, two issues were identified for the determination of the appeal. They are, to wit:

1. Whether the issue of excessive, arbitrary and unreasonable professional legal charges is a triable issue.

2. Whether the Lower Court was right in entering Summary Judgment in favour of the Respondent having failed to consider the triable issue raised by the Defendant in its Statement of Defence filed before the Lower Court.

In the respondent’s brief of argument, prepared by Benson Akunya, which was filed on 30 May, 2018, but deemed filed on 21 June, 2018, a sole issue was nominated for the resolution of the appeal, thus:

Whether having regards to the Appellant’s admission of its indebtedness to the Respondent, the decision of the learned trial judge that the purported statement of defence did not disclose a triable issue and the subsequent entry of judgment in favour of the Respondent can be faulted in law?

Upon my perusal of the processes filed by both parties at the Court below, the judgment of the learned trial judge and the appellant’s grounds of appeal against it, I am of the considered opinion that appellant’s issue 1 and the respondent’s sole issue can be married together to formulate the following sole issue for the resolution of the appeal, namely:

Whether the appellant’s statement of defence and counter affidavit disclosed a triable issue which was not considered by the learned trial judge in his judgment.

Appellant’s Arguments:

The appellant contends that the issue of excessive and arbitrary legal fees which the respondent charged it for the legal services rendered to it which yielded no successful fruit due to the respondent’s incompetence which was raised in the counter affidavit and also in the appellant’s statement of defence, was a triable issue and that the same was not considered by the learned trial judge. He also submitted to the effect that, the learned trial judge did not exercise his discretion appropriately in the consideration of the appellant’s defence because he shut his eyes to the facts alleged against the respondent in the appellant’s counter affidavit. Paragraphs 5, 6 & 7 of the appellant’s statement of defence were referred to. So also, a myriad of decided authorities of the Supreme Court and this Court were relied on by the appellant’s learned counsel.

He insisted that the appellant had concisely and clearly averred in its defence the fact of the excessive, arbitrary and unreasonable professional charges by the respondent, that it did not merely deny its indebtedness to the claim, but gave particulars of the reasons it is not indebted to the respondent due to the overcharging of professional fees and the respondent’s incompetence in performing his own part of the agreement; that it never pleaded that it was unable to pay its debts to the respondent, that it has shown sufficient particulars in its defence that it has bonafide to the claim; that the triable issue of excessive and arbitrary legal fees it raised in its defence is a legal objection.

Respondent’s Argument:

It was submitted by respondent’s learned counsel to the effect that the appellant failed to attach any documentary exhibits to its bare assertion/deposition that in the course of the subsistence of the project, it discovered that the respondent had not only overcharged it, but also that the respondent, was incompetent in performing his part of the agreement. That the appellant was expected to have furnished the Court below with the scale of fees, or industry rate vis-a-vis the scope of work that was to be performed by the respondent compared to the agreed sum of US$80,000.00, showing the excessiveness and arbitrariness of the respondent’s professional legal fees.

He further submitted to the effect that it is not the function of the Court to read into an agreement by parties, terms which were not agreed upon by them and that the Court and parties, to an agreement, are all bound by the terms contained in the agreement. With respect to the appellant’s contention to the effect that the respondent was incompetent in the performance of his part of the agreement, it was submitted that the appellant failed to substantiate the allegation of the respondent’s incompetence.

Learned counsel referred to pages 91 – 93 of the record of appeal which chronicled the appellant?s commendation of the respondent’s competence and excellent legal work performed by the latter on the appellant?s project and that the said commendation was communicated by the appellant, to three persons as shown in the emails annexed to the respondent’s Further Affidavit at page 86 of the record of appeal. He insisted that the appellant had no bonafide defence to the claim and was only being manipulative in order to cause unnecessary delay in the trial in a summary judgment procedure, which the learned trial judge refused.

And with respect to the admission of the appellant’s indebtedness, he referred to Exhibits A03 & A06 at pages 44 and 86 respectively, of the record of appeal. Furthermore, it was submitted that in order to determine whether there was a triable issue shown in the appellant’s defence, the learned trial judge extensively considered it at pages 173 – 175 of the record of appeal and found that the appellant’s defence, disclosed no triable issue. Finally, it was submitted that the appellant was oblivious of Order 11 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012 which provides for front loading, amongst other things, of documents to be used by a defendant in his defence to an action in a summary judgment procedure.

Resolution:

The law has remained very well settled to the effect that the essence of placing a matter on the Undefended List, otherwise known as the summary judgment procedure, as in the instant case, is that such matters which border on liquidated money demand must be quickly dealt with and disposed of by trial Courts. That is, it is the timely and quick dispensation of justice to the parties, that is the goal of the rules of Court guiding the procedure for the initiation and defence of actions that are placed on the Undefended List. In Mat Holdings Ltd v. United Bank for Africa, Plc (2003) 2 NWLR (Pt. 803) @ 90, the law was succinctly stated with respect to suits placed on the Undefended List, inter alia:

‘The rules of Court providing the cases to be placed on the undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defence directed at frustrating the plaintiff of judgment he well deserves, a case should therefore not be at the whims and caprices of a defendant who merely finds the words ‘fair hearing’ convenient as well handy slogan’.

Therefore, upon the receipt of the writ of summons by the defendant in respect of a suit in a summary Judgment procedure, he must file a defence, if he intends to dispute the claim, a counter affidavit disclosing a defence on the merits and if otherwise, a summary judgment, will be entered for the claimant, without necessarily calling upon him to formally proved his claim by calling witnesses to testify for him. Ben Thomas Hotel Ltd v. Furniture Co., Ltd (1989) 12 SCNJ 171. Furthermore, the affidavit evidence deposed by the defendant, must envince verifiable facts, disclosing that there are triable issues which necessitates a trial of the claim on the merits. Ezekiel Okoli v. Morecab Finance Nig. Ltd (2007) 5 SCNJ 25; Chief Peter Amadi Nwankwo & Anor v. Ecumenical Development Co-operative Society (EDCS) U.A. (2007) 2 SCNJ 89; Imoniyame Holdings Ltd & Anor v. Soneb Enterprises Ltd & Ors (2010) 1 SCNJ 203; John Bull Adams Nig. Ltd v. Isoko Community Bank Ltd (2013) LPELR 20730 (CA).

In the instant case, the claim of the respondent was governed by the provisions of Order 11 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012, which stipulates that:

“Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than the time prescribed for defence, file:

(a) his statement of defence;

(b) depositions of his witness;

(d) A Counter affidavit and a written brief in reply to the application for summary judgment?.

In Maduike v. Tetelis (Nig.) Ltd (2016) 6 NWLR (Pt.1509) 619 at 637, this Court, whilst interpreting the provisions of Order 11 of the High Court of Lagos State (Civil procedure) Rules 2012, held as follows:

“…What then is the duty of the Court, the plaintiff and the defendant under summary judgment procedure pursuant to Order 11? In this respect, I call in aid the opinion of my learned brother, Per Augie, JCA (as she was) in Emerald Garland Beverages Ltd v. Maduechesi (2010) LPELR – 4101 at 18 – 21, when he stated:

“Nonetheless, there are conditions to be fulfilled and procedures to be followed by the plaintiff, the defendant and the Judge”.

Where a defendant intends to defend the suit, he must file-

(a) His statement of defence;

(b) Depositions of his witness;

(d) A written address in reply to the application for summary judgment

The learned trial judge, contrary to the appellant’s contention extensively dealt with the question as to whether or not the appellant’s defence it filed in disputing the respondent’s claim disclosed any triable issue with respect to the allegations of overcharging of professional legal fees and incompetence of the respondent in the performance of the agreement, at pages 173 ? 175 of the record of appeal, thus:

“The Defendant/Respondent filed its statement of Defence dated 18th November, 2016 and the crux of its Defence is as stated in paragraphs 3, 4, 5, 6, 7, 8 and 9 which are hereunder set out thus:

3. The Defendant denies paragraphs 7,8,9,10 and 11 of the Claimant’s Statement of Claim and puts the claimant to the strictest Proof thereof.

4. The Defendant admits paragraphs 4, 5, and 6 of the 3 Claimant’s Statement of Claim only to the extent that the professional fees for the Claimant’s services would be $80,000 (Eighty Thousand United States Dollars) subject to the successful execution of the project undertaken by the Defendant.

5. The Defendant further to the above states that it discovered during the subsistence of the Defendant’s project that the Claimant had overcharged it and in addition did not render adequate professional legal services required by him for the successful execution of the Defendant’s project.

6. The defendant denies Paragraph 7 of the Claimant’s Statement of Claim and in contrary states that it did not admit in any of the email correspondence that it owes the Claimant the sum of N5,140,000 (Five Million, Five Hundred and Forty Thousand) Naira as professional fees.

7. The Defendant further to the above states that the Claimant did not fully perform his own part of the agreement and as such the project upon which the Claimant’s professional services was required was not successfully executed due to the Claimant’s incompetence.

8. The Defendant denies Paragraph 8 of the Claimant’s Statement of Claim and in contrary states that it did not refuse to pay any outstanding balance to the Claimant as it is not owing the Claimant any money whatsoever.

9. The Defendant denies Paragraphs 9, 10 and 12 of the Claimant’s Statement of Claim and in contrary states that it neither owed, neglected nor delayed to pay the outstanding balance of $32,530 or N5,140,000 whatsoever to the Claimant and as such the Claimant is not entitled to any interest of the sum.

This Court deems it necessary to set out above mentioned paragraphs so as to determine whether there is a triable issue that would necessitate plenary session as rightly argued by the Defendant/Respondent in its written address.

It is apparent to this Court as rightly observed by the Claimant that the Defendant/Respondent did not attach any document to be relied upon in the course of trial and it is a condition that such be attached so as to afford the Court the opportunity of determining whether there are triable issues. Although, the Court is not to determine at this stage whether the defence will succeed or not but there must be documents supportive of the allegation of overcharging and incompetence of the claimant in the course of their relationship. Rather there are documents as shown in Exhibits OA1, OA2 establishing a relationship and evidencing payment of part of the agreed sum which was not denied by the Defendant. Exhibit OA3 are correspondences of follow up wherein the Defendant?s director prayed for time within which to make the payment as claimed.

The Supreme Court in MACAULAY v. N.A.L. MERCHANT BANK (SUPRA) held that where there is no defence and or triable issues then summary Judgment must be entered. This Court having perused all the processes before it cannot find any defence and or triable issue raised by the Defendant herein and as rightly agreed by the Defendant, summary Judgment must be granted so as to forestall delay, because justice delayed, is justice denied?.

My Lords, I have no hesitation whatsoever, in affirming the findings of the learned trial judge, reproduced above, because they are patently borne out of the documentary evidence placed before him which were carefully evaluated by him. The findings manifestly demonstrated that his Lordship meticulously perused all the processes filed by the appellant in his defence to the respondent’s claim and found curiously, that the appellant failed to exhibit any documentary exhibit which he relied upon to substantiate his allegation of overcharging of professional legal fees by the respondent, as a triable issue. And in any event, how was the learned trial judge to decipher whether the respondent excessively overcharged the appellant in respect of the professional legal fees apart from what is contained in the agreement of engagement between the parties which had fixed the said professional legal fees at US$80, 000, 00 vide Exhibit OA2.

Hence, it is trite and elementary law that where there are conflicting pieces of evidence on any matter, a party whose evidence is supported by documentary evidence, is accorded more credibility by the Court. Eya v. Olopade (2011) 11 NWLR (Pt. 1259) 505. Therefore, the submission by the learned appellant’s counsel, to the effect that, there is no law which stipulates that the appellant needed not to have attached any document to his counter affidavit to substantiate or fortify his allegation of arbitrariness or excessiveness of the professional legal fees by the respondent, in this mater, is in my considered opinion, very disingenuous.

Furthermore, the law has remained so well settled to the effect that where parties have set out their terms in a written agreement, the Court has no judicial function to read into the agreement, what the parties did not agree upon. And the parties are also bound by the terms in the agreement which cannot be varied or altered nor resiled from by any of them. It is trite and settled law that an agreement in writing can only be varied by another or subsequent agreement, also in writing. Attorney General, Rivers State v. Attorney General, Akwa Ibom State (2011) 3 SCNJ 1; (2011) LPELR ? 633 (SC). That is why, the law insists that where parties to an agreement have set out the terms thereof, in the written agreement, extrinsic evidence is not admissible to add to, subtract from or contradict the terms of the written agreement. Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 241; Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283; Union Bank Nig. V. Prof. Albert Ozigi (1991) 2 NWLR (Pt.176) 677; Union Bank of Nig. v. SAX (Nig) Ltd (1994) 9 SCNJ 1 @ 12. I had cause to restate the principle recently, that:

“The importance of terms used in an agreement is crucial because the Court regards them as sacrosanct and therefore will loathe to read into the terms of the agreement, matters which were not in the contemplation and eventual agreement of parties. Hence it is settled law that in matters such as it is in the instant case, where the terms and conditions are spelt out in a written agreement, neither the parties nor the Court is allowed to read into it any extraneous terms which the parties did not expressly reach an agreement. Kaydee Vetures Ltd. v. The Hon. Minister FCT & Ors. (2010) 7 NWLR (pt. 1192) 171 (SC), (2010) LPELR 1681 (SC), Attorney General, Rivers State v. Attorney General, Akwa Ibom State & Anor. (2011) LPELR 633 (SC), (2011) 3 SCNJ 1, BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR 9339 (SC), Ogundepo & Anor. v. Olumesan (2011) 12 SCNJ (pt. 1) 89” :- per Yakubu, JCA, in Dike & Anor v. Obienu (2015) LPELR – 25873; (2015) 9 C.A.R. 372 (CA).

I have considered the heavy weather made in the appellant’s contention to the effect that the payment of its indebtedness to the respondent was subject to the performance of the respondent’s part of the agreement, as if that was a term in the agreement between them. There is no such term in Exhibit AO1. It is strange and amusing that the appellant who had already made a part payment in the sum of US$47,470.00, to the respondent and had pleaded with the latter vide some email messages in Exhibit AO3 to give it more time to pay its debt on the agreement between them, to now turn round and deny its indebtedness to the respondent. What an unconscionable attitude of ungratefulness! As if that was not enough, the appellant who had through some email messages at pages 91, 92 and 93 of the record of appeal and also vide Exhibit AO6, at page 88 of the record of appeal, extolled the legal expertise and excellence of the respondent in the performance of his professional duties with respect to the same contract in Exhibit AO1, could make a somersault, indeed a volt de face by alleging that the respondent, has now become incompetent professionally, just because it had no financial spine and muscle to pay its debt. To my mind, that was a most uncharitable double speak by the appellant.

I have not forgotten the appellant’s grouse to the effect that the learned trial judgment did not appropriately exercise his discretion in determining that the appellant?s defence, raised a triable issue of arbitrary and excessive charges of the professional legal fees by the respondent. I remember that earlier in this judgment, I have agreed with the learned trial judge in his finding that the appellant, did not furnish the Court with any shred of documentary evidence in substantiation of the allegations of arbitrariness or excessiveness of the professional legal fees charged by the respondent and also of the incompetence of the respondent.

I still maintain that affirmation of the said finding by the learned trial judge, because I did not see any perversity in it. Therefore, I am unable to accept and agree with contention by the learned counsel to the appellants, to the effect that the learned trial judge did not exercise his discretion appropriately in his consideration of the appellant’s defence to the respondent’s claim/application for summary judgment.

In any event, suffice it to say that the question of the exercise of a judge’s discretion, is the power or right conferred by the law, on the judge by acting in certain circumstances, according to the dictates of his own judgment and conscience, uncontrolled by the judgment or conscience of others. Hence, the exercise of a judge’s discretion, which is inherent in him by virtue of his judicial oath and office to do justice to all manner of persons and authorities, in any matter before him, without fear or favour, is unfettered.Suleiman v. Commission of Police (2008) 3 SCNJ 1 @ 9 – 10. Hence, the exercise of judicial discretion by a judge is premised on principles of equity and fairness to both parties in the matter in Court, which must be justifiable. United Bank for Africa v. StahIbau GMBH & Co. K.G. (1989) 3 NWLR (pt. 110) 374; Leonard Eronini & Ors. v. F. Ihueko (1989) 2 NWLR (pt. 101) 46 @ 60. So, the exercise of a judge’s discretion, largely depends upon the facts and peculiar circumstances of each case before him for adjudication. Odusote v. Odusote (1967) 1 All NLR 219; Oyekanmi v. National Electric Power Authority (2000) 15 NWLR (PT. 690) 414; Udeze v. Ononuju (2001) 3 NWLR (pt. 700) 216; Noga Hotels International SA v. Nicon Hilton Hotels & Anor. (2007) 7 NWLR (1032) 86 @ 113 – 114.

The appellate Court will interfere with the exercise of discretion by a trial Court, only if it is discovered that the exercise of the discretion was under a mistake of law, either substantive or procedural law a misapprehension of the facts of the case before that Court or that Court had considered irrelevant things which he ought to have considered or the exercise of the discretion, worked an injustice to any or both of the parties before the Court. Solanke v. Ajibola (1969) 1 NMLR 253; Ojiako v. Attor. General, Anambra State (2000) 1 NWLR (pt. 64) 375; Noga Hotels Inter. SA v. Nicon Hilton Hotels Ltd, supra, at pg. 113. However, the appellate Court will not interfere with the exercise of discretion by a trial judge, merely because it would have exercised the discretion differently. Again see: The Nicon’s case supra, at pages 113 – 114 thereof; Ceekay Traders Ltd. v. General Motors (1992) 2 NWLR (pt. 222) 132.

Furthermore, the appellate Court, will not substitute its own discretion for that of the trial judge.Adejumo v. Ayantegbe (1989) 3 NWLR (pt. 110) 417; Ogunsanya v. The State (2011) 6 SCNJ (pt. 1) 190 @ 220 – 221.

My Lords, I have seen no reason to tamper and interfere with the exercise of the discretion by his Lordship, at the Court below, who judicially and judiciously exercised his discretion in the consideration of the appellant’s defence, which in my considered opinion, was fluffy and wishy-washy. The Supreme Court in Thor Ltd. v. First City Monument Bank Ltd (2005) 14 NWLR (pt. 946) 696 @ 714, in a similar matter, as in the instant case, had succinctly reiterated the law that:

“The nature of the defendant’s defence that will satisfy the Court to let him to defend the suit is further exemplified by the decision of this Court in the case of Sanusi Bros (Nig) Ltd v. Cotia C.E. I.S.A (2000) 11 N.W..L.R. (pt. 679) @ 580 thus :

‘A defendant must show a bona fide or good defence on the merits under the summary judgment procedure and not engage in manipulative and delaying tactics. See Macaulay v. NAL Merchant Bank Ltd (1990) 4 N.W.LR (pt. 144) 283. To show that he has a good defence to the claim on the merits, the defendant must disclose facts to satisfy the Court, usually by affidavit.'”

I am of the considered and firm opinion that the appellant woefully failed to satisfy the learned trial judge with his lack luster affidavit evidence in his defence to the respondent’s claim. His Lordship, refused to be befogged by the appellant?s delay and manipulative tactics to pull the wool on the quick dispensation of justice of this matter by his bogus defence that the allegation of arbitrary and excessive professional legal fees by the respondent, was a triable issue which would have necessitated, transferring the case to the general cause list for hearing, by the parties proffering evidence viva voce. That would have been succumbing to the appellant’s delay tactics in paying off its indebtedness to respondent. The appellant, to my mind, was only being clever by half, by trying to use a finger to cover his eyes in order not to see the sun. Alas, it is a futile gamble by a Smart Alec. Indeed, a vey futile exercise. For all, I have been saying, it is apparent, that the sole issue discussed in this appeal, is not available to the appellant. It is resolved in favour of the respondent.

In effect, the well considered judgment, rendered by A.O. Adamson, J., at the Fast Track Commercial Division, of the Lagos State High Court of Justice, Holden at Lagos, on 24 February, 2017, in re-Suit No. LD/ADR/450/2016, is hereby affirmed.

Cost of N200, 000. 00 is awarded to the respondent, against the appellant.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother TOM SHAIBU YAKUBU, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read the lead judgment of my learned brother, TOM SHAIBU YAKUBU, JCA, and I am in agreement with the judgment.

I also align my view that the lower Court rightly exercised its discretion in this case. The Appellant indeed failed to exhibit any evidence to substantiate his allegation of excessive and arbitrary charge of professional fee by the Respondent. And the Court cannot go on a voyage of inputting extraneous facts and reasoning into a case. See the case of ACN & ORS v LABOUR PARTY & ANOR (2012) LPELR – 8003 (CA) where it was held that:

“It is now trite that the discretion of the Court must be exercised judiciously and judicially, and a Court called to exercise its discretion cannot be fettered by extraneous facts or issues. The Court is to place reliance on the facts presented by the parties and do justice thereupon.”

OPUTA, JSC also stated in the case of UBA v GMBH & CO [1989] 3 NWLR (PT 110) 374 that:

“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision.”

It is also settled that agreement between parties can only be varied by a subsequent agreement. See MACAULAY v NAL MERCHANT BANK LTD [1990] 4 NWLR (PT 144); TEJU INVST. & PTY CO. LTD v SUBAIR (2016) LPELR – 40087 (CA); IHUNWO v IHUNWO & ORS (2013) LPELR – 20084 (SC).

Therefore, it does not lie in the mouth of the Appellant to refuse to pay the agreed sum based on performance of the Respondent, as same was not contained anywhere in the agreement as a condition to void the payment of the agreed professional fee.

This Court will interfere with the exercise of discretion by the lower Court, only if it is manifestly perverse. See EYO v ONUOHA & ANOR (2011) LPELR – 1873 (SC); SEYO v TUMFURE [2007] 8 NWLR (PT 1035); AJIBULU v AJAYI [2004] 11 NWLR (PT 885) 458.

For this and the fuller reasoning in the lead judgment, I too dismiss this appeal for lacking in merit.

I abide by the order as to cost and other consequential order in the lead judgment.

Appearances:

M.K. Adesina, Esq. with him, R. I. Adama, Esq.For Appellant(s)

B. C, Akunya, Esq.For Respondent(s)