UNITY BANK PLC v. KAYODE OLANTUNJI ESQ (2014)

UNITY BANK PLC v. KAYODE OLANTUNJI ESQ

(2014)LCN/7452(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of September, 2014

CA/K/300/2012

RATIO

APPEAL: PRELIMINARY OBJECTION IN AN APPEAL; THE ATTITUDE OF THE COURT TO NON-COMPLIANCE BY THE RESPONDENT WITH THE PRESCRIBED MODE OF RAISING A PRELIMINARY OBJECTION IN THE COURT OF APPEAL

The attitude of the Courts to non-compliance by a respondent with the prescribed mode of raising a preliminary objection in the Court of Appeal has been varied. In some instances, the non-compliance was treated as fatal. The provision of Order 10 Rule 1 of the Court of Appeal Rules 2011 used to be in Order 3 Rule 15 (1) of the Court of Appeal Rules 1981. In Okolo Vs Union Bank Of Nigeria Ltd (1988) 2 NWLR (Pt.539) 618, Achike, JCA (as he then was), said at page 644:

“It is quite clear to me that no such notice of preliminary objection as prescribed under Order 3, rule 15(1) was filed by the respondent herein nor was any served on the appellants…. The respondent having failed to comply with the relevant provisions of Rules of Court for objection to hearing of the appeal, the purported aforesaid objection is hereby refused.”

In Arewa iles Plc Vs Abdullahi and Brothers Musawa Ltd (1988) 6 NWLR (Pt.554) 508, Ogebe, JCA (as he then was), said at page 512:

“During the oral hearing of this appeal the learned counsel for the respondent conceded that he did not give formal notice of preliminary objection in accordance with Order 3, rule 15 (1) of the Court of Appeal Rules. By Order 3 rule 15(3) of the Court of Appeal Rules, if the respondent failed to comply with this rule, the court may refuse to entertain the objection. Rules of court are meant to be obeyed and are not in our statute books for fancy. Accordingly, in accordance with Order 3 rule 15(3) I refuse to entertain the respondent’s preliminary objection.”

These two passages were quoted with approval and followed by the Supreme Court in Oforkire Vs Maduike (2003) 5 NWLR (Pt.812) 166. The position was reiterated by the Supreme Court in Magit Vs University of Agriculture, Makurdi (2005) 19 NWLR 211, Dada Vs Dosunmu (2006) 18 NWLR (Pt.1010) 134, Nwaolisah Vs Nwabufor (2011) 14 NWLR (Pt.1268) 600, Arum Vs Nwobodo (2013) 10 NWLR (Pt.1362) 374, Abba Vs Shell Petroleum Development Company (Nig) Ltd (2013) 11 NWLR (Pt 1364) 86. This position of the Supreme Court was applied by the Court of Appeal in Securities and Exchange Commission Vs Kasunmu (2009) 10 NWLR (Pt.1150) 509, Moyosore Vs Governor of Kwara State (2012) 5 NWLR (Pt.1293) 242, Union Bank of Nigeria Plc Vs Ogunsiji (2013) 1 NWLR (Pt.1334) 1, Coca-Cola (Nig) Ltd Vs Akinsanya (2013) 18 NWLR (Pt.1386) 255.

In other instances the courts have shown a liberal attitude to non-compliance or failure to file a notice of preliminary objection in accordance with the rules by holding that it does not render such objection ineffective, so long as the grounds and arguments in support of the objection are incorporated in the respondent’s brief and argued before the appeal is heard – Ajide Vs Kelani (1985) 3 NWLR (Pt.12) 248 at 257, Salami Vs Mohammed & Anor (2000) 9 NWLR (Pt.673) 469, Uwazurike Vs Attorney General, Federation (2007) 8 NWLR (Pt 1035) 1 and Revenue Mobilization, Allocation & Fiscal Commission Vs Units Environmental Sciences Ltd (2011) 9 NWLR (Pt.1252) 379. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PRACTICE AND PROCEDURE: WHETHER WHERE A STATUTE HAS PRESCRIBED THE MODE OF PERFORMING AN ACT OR OF EXERCISING A RIGHT, THAT MODE OF PERFORMING THE ACT OR OF EXERCISING THE RIGHT MUST BE STRICTLY COMPLIED WITH

It is trite law that where a statute has prescribed the mode of performing an act or of exercising a right, that mode of performing the act or of exercising the right must be strictly complied with – Systems Applications Products (Nig) Ltd Vs Central Bank of Nigeria (2004) 15 NWLR (Pt.897) 655, Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025) 423 and Abubakar Vs Nasumu (No.2) (2012) 17 NWLR (Pt.1330) 523. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; THE IMPORTANCE OF ISSUES FOR DETERMINATION IN AN APPEAL AND THE CHARACTERISTICS OF A WELL DRAFTED ISSUE FOR DETERMINATION

Now, an issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt.199) 501 and G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt.945) 392. Issues for determination are an important part of a brief of arguments and their purpose is to enable the parties narrow the issues in the grounds of appeal filed. The characteristics of a well drafted issue for determination in a brief of argument are precision, brevity, accuracy and clarity – Uwaifo Vs Uwaifo (2005) 3 NWLR (Pt.913) 479, Iloabachie Vs Iloabachie (2005) 13 NWLR (Pt.943) 695. An issue for determination must be concise and devoid of irrelevant complexities and frivolities and must be such as to ease the comprehension of matters to be adjudicated upon by the court – Ezeugo vs State (2013) 9 NWLR (Pt.1360) 508. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

APPEAL: THE NATURE OF AN APPEAL; WHETHER AN APPEAL IS AGAINST THE DECISION OF A LOWER COURT AN A CHALLENGE TO THE VALIDITY OF THAT DECISION

Now, it is trite law that that an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt.685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt.1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt.1340) 31. An appeal is against the decision of a lower Court and a challenge to the validity of that decision Chukwuogor Vs Chukwuogor (2006) 7 NWLR (Pt.979), United Bank of Africa Plc Vs BTL Industries Ltd (2006) 19 NWLR (Pt.1013) 61, Shettima Vs Goni (2011) 18 NWLR (Pt.1279) 413. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE IMPORTANCE OF FAIR HEARING TO A PROCEEDING AND WHETHER EVERY PERSON IS ENTITLED TO FAIR HEARING

It is a settled principle of law that every person in this country has a right to instruct or brief any Counsel of his choice in respect of any issue, matter or case he is involved in and inherent in this right is the power of the citizen to change his Counsel as he desires at any stage of the issue, matter or case, without giving any reason for doing so and to engage as many law firms as he can afford to represent him on the issue, matter or case. It is a right guaranteed by the Constitution to every person in Nigeria and it is clearly implicit in the provisions of section 36 of the 1999 Constitution which guarantees every citizen of this country who desires a determination of his civil rights and obligations, including any question or determination by or against any government or authority, a right to fair hearing – Okoduwa Vs State (1988) 2 NWLR (Pt.76) 333, Atake Vs Afejuku (1994) 9 NWLR (Pt.368) 379, Akuma Vs Ezikpe (2001) 8 NWLR (Pt.716) 547 and Ukweni Vs Governor, Cross Rivers State (2008) 3 NWLR (Pt.1073) 33.

CONTRACT: THE DOCTRINE OF NOVATION AND THE PRINCIPLE OF VARIATION OF CONTRACT; WHAT IS THE DOCTRINE OF NOVATION, THE PRINCIPLE OF VARIATION OF CONTRACT AND THE CONDITION FOR VARIATION TO BE UPHELD

This question touched on two important principles of the law of contract; the doctrine of novation and the principle of variation of contract. The term “novation” was defined by the Supreme Court in Union Beverages Ltd Vs Owolabi (1988) 1 NWLR (Pt.68) 128 at 137 where Nnaemeka-Agu, JSC said: “A novation is a transaction whereby a new contract or new parties to a contract by consent of both parties express or implied is deemed to have been substituted for or with the one originally made, or a material part thereof is added to or materially amended.” See also the cases of Nathaniel Ola Mann Vs Alhaji Bello Aweda (1969) All NLR 603 and Jackie Phillips Vs Arco Ltd (1971) All NLR 302. In Grover Vs International ile Industries (Nig) Ltd (1976) 11 SC 13 (Reprint Ed), the Supreme Court explained the doctrine of novation thus: “The law is well settled that a later Agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the later Agreement is either made under seal or is supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is …still executory. This is because each party, by the later Agreement, is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new Agreement in its place …” See also the cases of AbdulKareem Vs Incar Nigeria Ltd (1984) 10 SC 1 and Ashibuogwu Vs Attorney General, Bendel State (1988) 1 NWLR (Pt.69) 138. The learned authors of Black’s Law Dictionary 5th Ed define an executory contract as a contract that has not as yet been fully completed or performed. It is not in dispute between the parties that as at the 13th of January, 2004 when the Appellant wrote the letter revising the legal fees payable to the Respondent from 10% to 5%, the Respondent was yet to complete the recovery of the debts from Sabiplast Nig Ltd. The contract was thus still executory at the time.

The principle of variation of contract involves a definite alteration of contractual obligations by the mutual agreement of both parties. Variation is analogous to the entry by the parties into a new contract. The requirements of offer, acceptance and consideration are thus imposed. In Goss Vs Lord Nugent 110 ER 713 at 716, the Court stated:

“By the general rules of the common law . . . it is competent to the parties at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreements, or in any manner add to, subtract from or vary or qualify the terms of it and thus make a contract …”

For a variation to be upheld, there must be a valid and subsisting contract on foot between the parties; there must be some form of consensus between the parties as to the obligations which are to be altered; and the parties must have acted in some way to their benefit or detriment in either agreeing the variation or as a result of the variation. A mutual abandonment of the existing rights of the parties under the agreement between them is sufficient consideration to support variation of the agreement – Ekwunife Vs Wayne (WA) Ltd (1989) 5 NWLR (Pt.122) 422 and Prospect ile Mills Ltd Vs Imperial Chemical Industries Plc England (1996) 6 NWLR (Pt.457) 668. Also, consideration will be said to have been provided where a party would derive a superadded benefit from the contract by reason of the variation – Williams Vs Roffrey Bros & Nicholas (Contractors) Ltd (1991) 1 QB 1. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONTRACT: TERM OF CONTRACT; WHETHER THE COURT MUST GIVE THE OPERATIVE WORD IN THE DOCUMENT THEIR SIMPLE, ORDINARY AND ACTUAL MEANING WHERE THE WORDS USED IN A DOCUMENT ARE CLEAR AND UNAMBIGUOUS

It a trite and fundamental principle of interpretation that where the words used in a document are clear and unambiguous, the court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt.333) 385, Adewunmi Vs Attorney General, Ekiti State (2002) 2 NWLR (Pt.751) 474, Daodu Vs United Bank of Africa Plc (2004) 9 NWLR (Pt.878) 276, Egwwnewu Vs Egeagwu (2007) 6 NWLR (Pt.1031) 431. Even more so, the court deals with the document according to the clear intention of the parties appearing in the four corners of the document itself; in other words, the courts goes for the words used in the document to arrive at the intention of the parties – Abbey Vs Alex (1999) 14 NWLR (Pt.637) 146 and Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt.937) 631. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: DUTY OF COURT; WHETHER THE DUTY OF THE COURT IS FOR ESPOUSING THE LAW AND NOT A PLACE FOR SENTIMENTS AND THE PLACE OF LAW AND MORALITY

The Supreme Court has stated over and over that the Court is for espousing the law and not a place for sentiments and that sentiments command no place in judicial adjudication – Ezeugo Vs Ohanyere (1978) 6-7 SC 171, Oniah Vs Onyia (1989) 1 NWLR (Pt.99) 514, Mbachu Vs Anambra-Imo River Basin Development Authority, Owerri (2006) 14 NWLR (Pt.1000) 691. and Udosen Vs State (2007) 4 NWLR (Pt.1023) 125. Thus, it is settled law that if there is a right to do an act, the fact that the motive for doing the act is bad or self-serving will not affect its validity or legality. Similarly, where there is no right or the thing done is illegal, the purity of the motive or magnanimity of the act done will not alter the legal consequence – Chukwumah Vs Shell Petroleum Development Corporation (1993) 4 NWLR (Pt.289) 512, Anosike Building & Commercial Co Vs Federal Capital Development Authority (1994) 8 NWLR (363) 421, Ebongo Vs Uwemedimo (1995) 8 NWLR (Pt.411) 22 and Nwajagu Vs British American Insurance Co. (Nig) Ltd (2000) 14 NWLR (Pt.687) 356. This point was succinctly made by this Court in Peugeot Automobile Nigeria Ltd Vs Oje & 3 Ors (1997) 11 NWLR (Pt.530) 625 where Mahmud Mohammed, hJCA (as he then was) stated in the case at page 636 D-E thus: “… I think the age-long principle of the law, that law and morality are almost always poles apart is still very much alive. The truth in this case is that payment of ex-gratia is tied to the end of the year which, in normal calculation, is the 31st day of December of each year. So, unless where the company decides to pay ex-gratia to some employees at a time different from ‘end of the year’, an employee whose employment ceases before ‘end of the year’ is not in any way entitled to the company’s payment of ex-gratia. The respondents were declared redundant on the 3rd day of November, 1986. They were not therefore entitled to the payment of ex-gratia for the year 1986 by the appellant. That is the true position.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

UNITY BANK PLC (formerly known as Bank of the North Limited) – Appellant(s)

AND

KAYODE OLANTUNJI ESQ.

(Carrying on business in the name and style

of Kayode Olatunji & & Co. Legal Practitioners) – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court in Suit No K/537/2010 delivered by Honorable Justice Wada Abubakar Rano on the 14th of June, 2012. The action before the lower Court was commenced by the Respondent, as plaintiff, against the Appellant, as defendant, and the claims were for:

i. A declaration that the debriefing of the Plaintiff and termination of his contract for legal services in the recovery of the indebtedness of Alhaji Sabiu Bako and Sabiplast Nig. Ltd, the Defendant’s Kano City customers, in the circumstances of this case is wrongful, illegal and constitutes a breach of contract with the Plaintiff.

ii. A declaration that the Plaintiff is entitled to compensatory damages of 10% recovery fees of the total indebtedness of the Defendant’s customers in the judgment obtained by the Plaintiff in Suit No K/389/03 in the sum of N12 Million.

iii. An order for the immediate payment to the Plaintiff of 10% of the recovered sum of N38 Million from the Defendant’s customers, Alhaji Sabiu Bako and Sabiplast Nig. Ltd, in respect of the judgment obtained by the Plaintiff in Suit No K/389/03 in the sum of N3.8 Million.

iv. An order for the payment to the Plaintiff of 10% of the balance of the judgment sum of N74 Million which the Defendant’s customers have agreed to pay and have commenced instalmental payment in the sum of N7.4 Million representing 10% recovery fees being damages flowing from the Defendant’s breach of contract.

v. Court interest on the sums awarded from the date of judgment until liquidation and costs.

The case of the Respondent on the pleadings was that by a letter dated the 19th of May, 2003, the Appellant contracted his legal services for the recovery of the indebtedness of its customers, Alhaji Sabiu Bako and Sabiplast Nig. Ltd, and which was in the sum of N203,593,193.71 as at 30th of April, 2003 and that his stated fee for the brief was 10% of the sum recovered. It was his case that his law firm wrote several letters of demand to the customers and that when the repayment of the debt was not forth coming, he commenced an action in Suit No K/389/2003 on behalf of the Appellant against the said customers of the Appellant. It was his case that the matter was keenly contested and that he subsequently obtained judgment against the customers of the Appellant, and in favour of the Appellant, in the sum of N112 Million. It was his case that the customers paid the sum of N25 Million in reduction of the judgment sum and they filed a motion for instalmental payment of the balance sum and that the motion was granted and they commenced the instalmental payments and had paid an additional sum of N13 Million.

It was the case of the Respondent that he was entitled to be paid 10% of the N38 Million that had been paid by the customers and that his law firm continued monitoring the instalmental payments of the judgment sum and that the matter was, to the knowledge of the Appellant, being handled by a Counsel in his law office, Felix Jones Osimerha Esq, and that his law office was willing, ready and able to conclude the recovery of the said indebtedness. It was his case that, to his shock, he received a letter dated in November, 2008 from the Appellant debriefing him on the matter and assigning the brief to Felix Jones Osimerha Esq, who was by then still acting on behalf of his law office, and that this was done to deprive him of his earned fees and that he suffered injury and damages by reason of this action of the Appellant.

The Appellant in response admitted it contracted the legal services of the Respondent for the recovery of the indebtedness of its customers, Alhaji Sabiu Bako and Sabiplast Nig. Ltd, and which was in the sum of N203,593,193.71, as at 30th of April, 2003 and that the fee rate of the Respondent for the brief was 10% of the sum recovered but stated that it subsequently reduced the stated fee rate to 5% of the sum recovered. The Appellant admitted that a suit in Suit No K/389/03 was indeed commenced on its behalf against its said customers for the recovery of the indebtedness but stated that the Respondent never took part in the said suit and neither did the Respondent take any steps towards realizing the judgment sum. It was the case of the Appellant that the judgment entered in its favour in Suit No K/389/03 was for the sum of N82,971,565.16 and not N203,593,193.71 and that it had reduced the stated fee of the Respondent for the brief from 10% to 5% by its letter dated the 13th of January, 2004 and that this reduction of fee was accepted by the Respondent, as evidenced by his conduct in a letter dated 8th of November, 2006.

It was the case of the Appellant that the Respondent abandoned the brief given to him to recover money from its said customers and left the shores of Nigeria and relocated to London and that the said brief suffered by reason thereof and that it debriefed the Respondent by a letter dated 23rd of October, 2008 and instructed the law firm of FJ Osimerha & Co to take the brief. It was its case that it was perfectly within its right to terminate the legal services of the Respondent on the said brief for non-performance and abandonment and that it was the law firm of FJ Osimerha & Co that rendered it the necessary services on the brief, including the court matter and actual recovery and that as such the Respondent was not entitled to any recovery fees or compensatory damages.

The matter proceeded to trial and at the end of which the lower Court entered judgment in favour of the Respondent. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 2nd of July, 2012 against the judgment and the notice of appeal contained four grounds of appeal. The records of appeal show that the Respondent too was dissatisfied with a portion of the judgment and he caused a notice of cross-appeal dated the 22nd of August, 2012 to be filed and the notice of cross-appeal contained one ground of appeal.

In arguing the appeal before this Court, Counsel to the Appellant, in compliance with the Rules of this Court filed a brief of arguments dated the 11th of February, 2013 and it consisted of twenty seven pages and was settled by Ibrahim M. Boyi Esq. The Respondent, in response, filed a brief of arguments dated the 10th of January, 2014 on the 5th of February, 2014 and it consisted of twenty-four pages. The Respondent’s brief of arguments was deemed properly filed on the 3rd of April, 2014. At the hearing of the appeal, Counsel to the Respondent brought to the attention of the Court that he gave a notice of preliminary objection in his brief of arguments and that he argued same on pages 11 to 13 of the brief of arguments. Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments. The Respondent gave notice in his brief of arguments that he was abandoning his cross-appeal and same is hereby struck out.

Counsel to the Respondent did not file a separate notice of preliminary objection to raise and bring to the attention of the Appellant and of this Court the grounds of his preliminary objection before proceeding to argue same in the brief of arguments. The Court of Appeal Rules stipulate the procedure that a respondent intending to raise a preliminary objection should follow. Order 10 Rule 1 provides that a respondent intending to rely on a preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection and shall file such notice with the registrar within the same time. Order 10 Rule 3 states that where a respondent fails to comply, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such order as it thinks fit – Kaydee Ventures Ltd Vs Minister, Federal Capital Territory (2010) 7 NWLR (Pt.1192) 271.

In Arewa iles Plc Vs Abdullahi and Brothers Musawa Ltd (1988) 6 NWLR (Pt.554) 508, Ogebe, JCA (as he then was), said at page 512:

This Court will, in the instant case, followed the position of the Courts that say that a respondent willing to raise a preliminary objection must file a formal notice of preliminary objection as stipulated in Order 10 of the Court of Appeal Rules. This is in consonance with the principle of law that says that Rules of Court partake of the nature of subsidiary legislation by virtue of section 18(1) of the Interpretation Act and consequently have the force of law and they must prima facie be obeyed and followed by all the parties before the court. The Rules of Court are part of the machinery of justice made by the courts to regulate their proceedings and to help parties present their cases within a procedure made for the purpose for a fair and quick trial and it is compliance with them that gives predictability and clarity to the system of administration of justice – Aromolaran Vs Oladele (1990) 7 NWLR (Pt.162) 359, Duke Vs Akpabuyo Local Government (2005) 19 NWLR (Pt.959) 130, Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt.1097) 182, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt.1187) 348, Oyegun Vs Nzeribe (2010) 7 NWLR (Pt.1194) 577.

Additionally, it is Order 10 of the Court of Appeal Rules 2011 that gives a respondent to an appeal the right to file a preliminary objection and it stipulates the manner of fling such preliminary objection. It is trite law that where a statute has prescribed the mode of performing an act or of exercising a right, that mode of performing the act or of exercising the right must be strictly complied with – Systems Applications Products (Nig) Ltd Vs Central Bank of Nigeria (2004) 15 NWLR (Pt.897) 655, Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025) 423 and Abubakar Vs Nasumu (No.2) (2012) 17 NWLR (Pt.1330) 523.

The Respondent having failed to file a formal notice of preliminary objection in compliance with Order 10 of the Court of Appeal Rules either separately or as part of his brief of arguments, the preliminary objection raised and argued in the Respondent’s brief of arguments was incompetently raised and it will not the entertained by this Court. It is accordingly struck out.

In the Appellant’s brief of arguments, its Counsel formulated three issues for determination in this appeal and these were:

i. Whether the learned trial Judge was not in error in holding that the termination of the legal services of the Respondent by the Appellant conveyed by Exhibit 25 was improper and amounted to a breach of contract because Exhibit 1, a letter engaging the legal services of the Respondent to recover debts of its customers did not contain any clause for termination.

ii. Whether the Respondent had discharged the burden of proof of his claims contained in paragraphs 18 of the statement of claim as required by law to warrant judgment in his favour, particularly the award of 10% recovery fees on N34 Million which was not claimed or proven and 10% recovery fees on N74 Million instalmental payment which was not proven and which was against the terms of Exhibit 1 which specified that the Respondent would be paid for amounts recovered.

iii. Whether the learned trial Judge was not in error to have ordered that 10% recovery commission was payable to the Respondent instead of 5% when he relied on the persuasive authorities of his learned brothers in other cases and on oral evidence to oust the documentary evidence of Exhibit 23 on the downward review to 5% which the Respondent accepted by Exhibit 24, the written demand of the Respondent for payment of 5% commission on recovery.

Counsel to the Respondent agreed that there were three issues for determination in the appeal and he reformulated the issues thus:

i. Whether or not the findings and judgment of the lower court in favour of the Respondent in this case that the unilateral termination of Respondent’s contract in EXH 1 in the circumstances of this case was improper and unjustified were erroneous when the Appellant did not join any issue with the Respondent on his claim at the trial nor lead evidence in proof of averments in its pleading.

ii. Whether or not the learned trial Judge was in error in awarding to the Respondent 10% recovery fees on N34 Million found recovered by the Respondent on the evidence presented before it which is less than the N38 Million claimed and the subsequent N1 Million monthly repayment of the balance of the judgment debt when no contrary evidence was presented by the Appellant nor evidence led at all in support of its pleadings.

iii. Whether or not EXH 23, the Appellant’s purported circular dated 31st of January 2004 had any effect on the contractual 10% agreed recovery fees in this case and the Appellant is not estopped from relitigating same issue already finally settled in previous judgments of superior courts between same parties.

The issues for determination formulated by both the Counsel to the Appellant and Counsel to the Respondent are a perfect example of how not to draft an issue for determination. They were narratives and they lacked all the distinctive qualities of a well crafted issue for determination. Some of the issues for determination consisted of multiple questions and the Courts have said that an issue for determination should not comprise of other issues; it should not be a composition of two different issues – Iloabuchie Vs Ebigbo (2000) 8 NWLR (Pt.668) 197, Ehikhamwen Vs Iluobe (2002) 2 NWLR (Pt.750) 151, Unokan Enterprises Ltd Vs Omuvwie (2005) 1 NWLR (Pt.907) 293, Ikare Community Bank (Nig) Ltd Vs Ademuwagun (2005) 7 NWLR (Pt.924) 275. With respect, both Counsel displayed less than adequate skills in the formulation of the issues for determination in this appeal.

Reading through the records of appeal and the respective briefs of arguments of the parties, it is the view of this Court that there are indeed three issues for determination in this appeal. These are:

i. Whether the lower Court was correct when it held that the debriefing of the Respondent and the termination of his legal services was improper and amounted to a breach of contract, in the circumstances of this case.

ii. Whether the lower Court was correct when it held that the Respondent was entitled to 10% of the recovered sum as legal fees as against the 5% contained in the letter of the Appellant dated the 13th of January, 2004, Exhibit 23.

iii. Whether the Respondent led cogent and credible evidence in proof of his claims to warrant the lower Court entering judgment in his favour.

This appeal shall be considered and determined on these issues for determination and the issues will be considered separately.

On the first issue for determination, Counsel to the Appellant stated that the lower Court erred when it held that because there was no termination clause in the letter of engagement of the legal services of the Respondent, Exhibit 1, the termination of the legal services of the Respondent by the Appellant as conveyed in a letter, Exhibit 25, was improper and amounted to a breach of contract. Counsel stated that the Respondent never canvassed at the trial that the termination of his legal services was wrongful because there was no termination clause in the letter of his engagement and that the lower Court thus descended into the arena by raising the issue of no termination clause and decided an issue not joined by the parties, and that this was wrongful and he referred to the cases of Trade Bank Plc Vs Chami (2004) All FWLR (Pt.235) 118 and Ngige Vs Obi (2006) All FWLR (Pt.330) 1041. Counsel stated that the issue joined and argued before the lower Court was whether the termination of the legal services of the Respondent by the Appellant was proper on the ground of non-performance and abandonment of the brief by the Respondent by reason of the relocation of the Respondent to the United Kingdom.

Counsel stated that there was abundant evidence before the lower Court that the Respondent did indeed relocate from the shores of Nigeria to the United Kingdom and abandoned the brief of the Appellant to recover monies from its customers, and that just like any other contract, the Respondent was under an obligation to exercise reasonable diligence in the recovery efforts and to do so within a reasonable time and having failed to do so, the Appellant was entitled to terminate the legal services of the Respondent. Counsel stated that the Appellant was so entitled even if such a right was not stated in the letter of engagement of the Respondent as it was at liberty to regard itself as discharged from any further obligation under the contract of Engagement once the Respondent is guilty of non-performance and he referred to the case of Onyemelukwe Vs I. Dalberto & Co. Ltd (2001) FWLR (Pt.83) 2166. Counsel stated that it was irrelevant that the principal Counsel of the law firm briefed by the Appellant after the termination of the services of the Respondent, FJ Osimerha, was the Counsel that used to handle the same brief of the Appellant in the Chambers of the Respondent and/or that the address of service of the new law firm was care the office of the Respondent.

Counsel stated that the Respondent did not lead any evidence of the services he performed for the Appellant with regard to the said brief between 2008 when he departed the shores of Nigeria and 2010 when the Respondent forwarded a bill of charges. Counsel stated that what the Respondent invited the lower Court to do was to assume that Messrs FJ Osimerha & Co, who were briefed by the Appellant in respect of the brief in October 2008, must have handling the brief on his behalf since they used his office as their address for service and that such assumption have no place in Court. Counsel referred to the case of Nkwo Market Community Bank Nig Ltd Vs Obi (2010) All FWLR (Pt.529) 1094. Counsel stated that the letter on instruction to Messrs FJ Osimerha & Co, Exhibit 26 at the trial, cannot be challenged or wished away by oral evidence and he referred to the case of Fortune International Bank Plc Vs Pegasus Trading Office (GmBH) (2004) 4 NNLR 863. Counsel urged this Court to resolve the issue for determination in favour of the Appellant.

In response, Counsel to the Respondent stated that the onus of proving that the Respondent abandoned and/or that he did not perform in respect of the said brief for which his services were engaged was on the Appellant and neither of the two witness called by the Appellant in proof of its case at the trial led any evidence on the allegations of abandonment and/or non-performance pleaded by the Appellant. Counsel stated that all the allegations of abandonment and/or non-performance are thus deemed abandoned and he referred to the cases of Federal Capital Development Authority Vs Alhaji Musa Naibi (1990) 3 NWLR (Pt.138) 272 and Olanrewaju Vs Afribank Nig Plc (2007) 4 SCNJ 359. Counsel stated that it is settled law that an appellate Court will, in the absence of compelling evidence indicating an erroneous appraisal of facts, show utmost restraint and reject any temptation to interfere with considered findings of a trial Court and he referred to cases of Okafor Vs Idigo (1984) 6 SC 1 and Olatunde Vs Abidogun (2001) 8 NSCQR 326. Counsel stated that apart from the finding that the letter of engagement of the Respondent did not contain a termination clause, the lower Court made other findings after reviewing the case of the parties and could not see any justification or proved allegation of the Appellant supporting the termination of the Respondent’s legal services since the Respondent had completely performed the contracted and had recovered part and negotiated final payment of the other part of the debt in installments. Counsel urged this Court to resolve the issue for determination in favour of the Respondent.

Certain facts were not in dispute between the parties in this matter. It was not in dispute that by a letter dated the 19th of May, 2003, Exhibit 1, the Appellant instructed the law firm of the Respondent, Messrs Kayode Olatunji & Co, to take necessary steps to recover the sums due to it from Sabiplast Nigeria Ltd. It was not in dispute that in furtherance of the instructions, the law firm of the Respondent wrote letters of demand to the debtors and, when nothing was forth coming, commenced an action in Suit No K/389/03 – Bank of the North Ltd Vs Alhaji Sabiu Bako and Sabiplast Nig. Ltd. It was not in dispute that in the course of the matter, the debtors made some repayments to the Appellant and that on the 26th of October, 2005, the law firm of the Respondent obtained judgment in the suit against the debtors and in favour of the Appellant in the sum of N112,971,565.16k less the sum of N25 Million already paid; certificate of judgment was Exhibit 11. It was not in dispute that the debtors did not pay up the judgment sum and they filed applications for instalmental payments and that one of such applications was filed as recent as March, 2010; Exhibit 14.

It was not in dispute that by a letter dated the 23rd of October, 2008, Exhibit 25, the Appellant debriefed and terminated the legal services of the law firm of the Respondent in respect of the recovery of debt from the said debtors and in respect of the Suit No K/389/03 which was still on-going, albeit in respect of post judgment applications. It was also not in dispute that by a letter dated the 11th of November, 2008, Exhibit 26, the Appellant instructed the law firm of F. J. Osimerha & Co to take over the brief and the continuation of the Suit No K/389/03. These facts were admitted by the Respondent in his statement of claim before the lower Court and in his letter dated the 27th of September, 2010 addressed to the Appellant, Exhibit 8. It was not in dispute that the debtors were yet to fully pay up the judgment sum as at the time the law firm of the Respondent was debriefed.

In resolving the issue of whether the debriefing of the law firm of the Respondent by the Appellant was proper, the lower Court, after going through the evidence led by the parties, stated in the judgment thus:

“Having read exhibit 1, the agreement between the parties, I can not see any clause that allows any of the parties to terminate the contract. Therefore, the purported termination of the plaintiff’s contract by the defendant is improper in the circumstances of this case and same no doubt amounts to a breach of contract.” (see pages 357 to 358 of the records)

It is obvious from the judgment of the lower Court that the sole reason for the finding that the debriefing of the Respondent by the Appellant was improper and amounted to a breach of contract was because there was no clause on termination in the letter of engagement of the Respondent. It was not in dispute between the parties that by Exhibit 1, the Appellant engaged the services of the law firm of the Respondent to act as its legal Counsel in its bid to recover sums due to it from its customers. It is a settled principle of law that every person in this country has a right to instruct or brief any Counsel of his choice in respect of any issue, matter or case he is involved in and inherent in this right is the power of the citizen to change his Counsel as he desires at any stage of the issue, matter or case, without giving any reason for doing so and to engage as many law firms as he can afford to represent him on the issue, matter or case. It is a right guaranteed by the Constitution to every person in Nigeria and it is clearly implicit in the provisions of section 36 of the 1999 Constitution which guarantees every citizen of this country who desires a determination of his civil rights and obligations, including any question or determination by or against any government or authority, a right to fair hearing – Okoduwa Vs State (1988) 2 NWLR (Pt.76) 333, Atake Vs Afejuku (1994) 9 NWLR (Pt.368) 379, Akuma Vs Ezikpe (2001) 8 NWLR (Pt.716) 547 and Ukweni Vs Governor, Cross Rivers State (2008) 3 NWLR (Pt.1073) 33.

It is also settled law that the concept of fair hearing is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – Nwokoro Vs Onuma (1990) 3 NWLR (Pt.136) 22 at 35, Iwuoha Vs Okoroike (1996) 2 NWLR (Pt.429) 231, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt.1173) 384. When the law vests a right on a citizen, a court of law will resolutely resist any attempt, and by whatever method, to deny the citizen the enjoyment of the right conferred by law – Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt.1189) 1.Thus, unless a citizen expressly contracts out a right vested in him by law, the right will be held applicable in all engagements entered into by such citizen. Therefore, in the instant case, while it is correct that the letter of engagement of the Respondent, Exhibit 1, did not contain a termination clause, this cannot derogate from the right of the Appellant to debrief and terminate the legal services of the Respondent and to instruct another Counsel in any stage it desired. The right must be read into the terms of the letter of engagement of the Respondent and it is also irrelevant to the exercise of the right that the new Counsel engaged by the Appellant used to work in the law firm of the Respondent.

The basis upon which the lower Court found that the debriefing of the Respondent by the Appellant was improper and amounted to a breach of contract was erroneous and very faulty. It is trite that an appellate Court is enjoined in such circumstances to interfere with the findings of a lower Court and as such the finding of the lower Court on this issue must be set aside – BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209. The first issue for determination is resolved in favour of the Appellant.

This takes us to the second issue for determination; whether the lower Court was correct when it held that the Respondent was entitled to 10% of the recovered sum as legal fees as against the 5% contained in the letter of the Appellant dated the 13th of January, 2004, Exhibit 23. Counsel to the Appellant stated that while it was correct that by Exhibit 1 the parties were agreed that the legal fees of the Respondent will be 10% of recovered sum, there was documentary evidence before the lower Court that by its letter dated the 13th of January, 2004, Exhibit 23, the Appellant reduced the recovery fees to 5% of recovered sum and that the Respondent accepted this reduction in the percentage by his letter dated 8th of November, 2006, Exhibit 24, wherein he demanded for 5% as recovery fees and was paid. Counsel stated that rather than rely on these documentary evidence to find that the parties had agreed to a reduction in the percentage of recovered sum payable as legal fees, the lower Court relied on the oral evidence of the Respondent that Exhibit 24 was written in error and on his letter of dated 17th of January, 2007, Exhibit 3, written thereafter he demanded for 10% to hold that Exhibit 24 was “of no moment” and that there was a mistake in the letter. Counsel stated that the lower Court fell into error as it should have known that having conceded the 5% of recovered sum as legal fees, the Respondent cannot later be heard to demand for 10%.

Counsel stated that the lower Court also fell into error in allowing itself to be persuaded by the decisions of the High Court of Kano State in Suit No K/207/2009 – Kayode Olatunji Vs Unity Bank Plc and Suit No K/305/2009 – Kayde Olatunji Vs Unity Bank Plc wherein the issue of the percentage payable on recovered fees was resolved in favour of the Respondent as 10%. Counsel stated that the lower Court did not make any specific finding on whether the parties and subject matter in the two suits were the same as the present suit and whether or not there were pending appeals against the judgments before relying on them and that the attempt by the Respondent to raise estoppel on the basis of the judgments cannot hold and same were not pleaded nor led in evidence as constituting estoppel; he referred to the case of Polyvalent Nigeria Ltd Vs Akinbote (2011) All FWLR (Pt.557) 638. Counsel urged this Court to resolve this issue for determination in favour of the Appellant.

In response, Counsel stated that the issue of whether the legal fees due to the Respondent on the briefs he accepted from and executed on behalf of the Appellant was the 10% stated in the letters of engagement or the unilaterally reduced rate of 5% stated by the Appellant in its circular of 13th of January,2004 was raised and seriously agitated in Suits Nos. K/207/2009 and K/305/2009 and that in both cases, the issue was resolved against the Appellant. Counsel stated that the Appellant did not appeal against the judgments in the two suits and paid the fees in accordance with the judgments and that the attempt by the Appellant to re-litigate the issue in the instant case amounted to an abuse of judicial process and he referred to the case of Oguntayo Vs Adelaja (2009) 15 NWLR (Pt.1163) 150. Counsel stated that the judgments in the two suits were binding on the parties and created estoppel against the Appellant raising the issue again and that this fact was confirmed by this Court in a decision delivered on the 1st of March, 2013. Counsel urged this Court to resolve the issue in favour of the Respondent.

In dealing with this issue in the judgment on appeal, the lower Court referred to the contents of Exhibits 1 and 23 and stated thus:

“The issue of payment of 5% or 10% commission on amount recovered was submitted for determination in Suits Nos. K/207/2009 and K/305/2009 by the same parties and the decision in the two suits were in favour of the plaintiff. This is as per exhibits 30 and 31 (the two judgments in the two suits). I have no reason to depart from these two decisions of this court by my learned brother Judges as I am fully persuaded by them. The plaintiff is entitled to be paid 10% of the recovered sum as agreed by the parties in exhibit 1. The plaintiff rightly demanded the payment of 10% recovery fee in exhibit 3. Exhibit 24 by which the plaintiff demanded 5% is of no moment at all as it has been superseded by exhibit 3. I agree with DW2 that it appears there is a mistake in one of these two letters of the plaintiff. In view of the contents of exhibit 1, I think the mistake is in exhibit 24 wherein the plaintiff demanded 5% instead of 10% recovery fee. The percentage due to the plaintiff on the amount recovered by him was 10% and not 5% …” (see page 356 of the records).

Reading through the records of appeal, it appears that only the judgment in Suit K/207/2009 was tendered by the Respondent at the trial and it was admitted as Exhibit 30. There is no record showing that the judgment in K/305/2009 was tendered and admitted evidence. It is elementary that before a court can be persuaded by or rely on the judgment of a court of coordinate jurisdiction or of a higher court in resolving an issue presented before it for adjudication in a matter, the facts and circumstances of the two cases must be very similar or substantially the same. It is a settled principle in our legal jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the facts and issues framed for adjudication in a particular case. This point was succinctly made by the Supreme Court in Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (P.1333) 506 at 538A when the Court stated that:

“Isolated and general principles of law cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case.”

The point was reiterated by the Supreme Court in Emeka Vs Okadigbo (2012) 18 NWLR (Pt.1331) 55 where Rhodes-Vivour, JSC stated at Page 96 thus:

“Facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow courts to apply the ratio of a case across the board and with little regard to the facts of the case before them.”

This is because decisions of courts draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Fawehinmi Vs Nigerian Bar Association (No 2) (1989) 2 NWLR (Pt.105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt.625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt.706) 365, Abubakar Vs Nasumu (No.2) (2012) 17 NWLR (Pt.1330) 523.

Looking at the facts and circumstances in Suit No K/207/2009 as stated in the judgment, Exhibit 30, the sole issue before the Court was whether the legal fees payable to the Respondent, as plaintiff in that matter, by the Appellant, as defendant in the matter, was the 10% of the recovered sum as stated in the letter of engagement of the legal services of the Respondent for the recovery of debt from Gombe Oil Seed Processing Company Ltd or the reduced rate of 5% of the recovered sum as stated in the circular of the Appellant dated 13th of January, 2004. In the present suit, an additional question was raised on whether, by writing a letter, subsequent to the revision of the percentage, wherein he demanded for 5% of the recovered sum as fees, the Respondent had accepted the unilateral revision of the percentage payable as legal fees and was thus estopped from insisting on 10%. This question was not raised or considered by the Court in Suit No K/207/2009. The question of acceptance or non-acceptance of the revised percentage was fundamental to the resolution of the issue submitted by the parties in this suit and as such the reliance placed by the lower Court on the decision of the High Court of Kano State in Suit No K/305/2009 was inappropriate.

The question presented by the parties before the lower Court was – what was the effect of the circular of the Appellant dated the 13th of January, 2004 reviewing the percentage of the recovered sum payable as legal fees to the Respondent from 10% to 5% and the letter of the Respondent dated 8th of November, 2006 wherein he demanded for his legal fees on the sum recovered from Sabiplast Nig Ltd at the rate of 5%. Did it amount to the parties varying the initial agreement to pay the Respondent sums equivalent to 10% of the recovered sum as legal fees and entering into a new contract of paying the 5% instead?

“A novation is a transaction whereby a new contract or new parties to a contract by consent of both parties express or implied is deemed to have been substituted for or with the one originally made, or a material part thereof is added to or materially amended.”

See also the cases of Nathaniel Ola Mann Vs Alhaji Bello Aweda (1969) All NLR 603 and Jackie Phillips Vs Arco Ltd (1971) All NLR 302. In Grover Vs International ile Industries (Nig) Ltd (1976) 11 SC 13 (Reprint Ed), the Supreme Court explained the doctrine of novation thus:

“The law is well settled that a later Agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the later Agreement is either made under seal or is supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is …still executory. This is because each party, by the later Agreement, is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new Agreement in its place …”

See also the cases of AbdulKareem Vs Incar Nigeria Ltd (1984) 10 SC 1 and Ashibuogwu Vs Attorney General, Bendel State (1988) 1 NWLR (Pt.69) 138. The learned authors of Black’s Law Dictionary 5th Ed define an executory contract as a contract that has not as yet been fully completed or performed. It is not in dispute between the parties that as at the 13th of January, 2004 when the Appellant wrote the letter revising the legal fees payable to the Respondent from 10% to 5%, the Respondent was yet to complete the recovery of the debts from Sabiplast Nig Ltd. The contract was thus still executory at the time.

Further, the fact that, as matters turned out, only one party benefits from the variation is irrelevant.

The core issue relevant to the application of either the doctrine of novation or the principle of variation of contract to the facts of the instant case is whether by his letter dated the 8th of November, 2006, Exhibit 24, wherein he demanded for his legal fees on the sum recovered from Sabiplast Nig Ltd at the rate of 5%, the Respondent consented or impliedly agreed to the variation of his legal fees from 10% to 5% of the recovered sum. In his oral testimony at the trial, the Respondent testified that the said letter was written error and that it was corrected by a letter dated the 17th of January, 2007 wherein he demanded for his fees at the rate of. 10%. The letter dated 17th of January, 2007 tendered Exhibit 3. This testimony of the Respondent was not disparaged or contested under cross-examination. The second defence witness called by the Appellant at the trial stated under cross-examination that:

“By letter dated 17th of January, 2007, Exhibit 3, the plaintiff demanded 10% on the recovered sum. Exhibit 3 came after Exhibit 24. It appears there is a mistake in one of the letters”

This testimony supported the case of the Respondent that the letter dated 8th of November, 2006, Exhibit 24, was written in error. Thus, the contents of the letter cannot amount to consent or implied agreement on the part of the Respondent to the suggested variation of his legal fees from 10% to 5% of the recovered sum by the Appellant. The doctrine of novation or the principle of variation of contract are thus inapplicable in the circumstances to create a new contract between the parties on the percentage of the recovered sum payable as legal fees to the Respondent by the Appellant. The agreed percentage in the letter of engagement of the Respondent, Exhibit 1, was 10% and the circular of the Appellant dated the 13th of January, 2004, Exhibit 23, directing a downward review of the percentage to 5% was nothing but an attempt to unilaterally vary the terms of agreement. It is trite law that a party is not at liberty to unilaterally vary the terms of agreement and any such attempt is illegal, null and void.The lower Court was thus on firm ground when it found on the evidence that the Respondent was entitled to 10% of the recovered sum as his legal fees. The second issue for determination is resolved against the Appellant.

The third issue for determination is whether the Respondent led cogent and credible evidence in proof of his claims to warrant the lower Court entering judgment in his favour. Counsel stated that the onus was on the Respondent to prove his entitlement to the claims he brought before the lower Court and that where the onus was not discharged the Respondent was not entitled to judgment in his favour and he referred to the cases of Aro Vs Babayemi (2005) All FWLR (Pt.204) 61 and MECL Limited Vs Agility & Brothers Enterprises Nigeria Limited (2006) All FWLR (Pt 298) 1289. Counsel stated that by the letter of engagement of the Respondent, Exhibit 1, the his legal services were contracted for the recovery of a debt of N183,190,678.43 and he was to be paid 10% of the sum recovered and the letter did not specify the manner by which the Respondent was to recover the debt, i.e. whether it was to be by demands, pressure or court action; this was left to the Respondent to choose. Counsel stated that parties were bound by the terms of the engagement and that, thus, the onus on the Respondent before the lower Court to lead evidence as to the amount of money he recovered from the debtors to be entitled to any remuneration and not to prove the steps he took in recovering the debt.

Counsel stated that the lower Court thus fell into error when it held that the Respondent was entitled to be paid 10% of N34 Million and of N74 Million instalmental payment simply because the Respondent was involved in Suit No K/389/03 and had only to monitor instalmental payments, as this amounted to the lower Court rewriting the terms of agreement between the parties. Counsel stated that the case of the Respondent on the pleadings before the lower Court was that he recovered a total sum of N38 Million from the debtors, but that the Respondent did not tender any document to support the assertion. Counsel stated that the Respondent led no evidence in proof of his case before the lower Court and did not thus discharge the onus on him to have warranted the lower Court finding him entitled to any sum at all. Counsel stated that the monetary claims of the Respondent were for loss of earnings which are in the nature of special damages and which must be pleaded with particulars and strictly proved and he referred to the cases of Imana Vs Robinson (1979) 1 All NLR 1, Neka BB Manufacturing Company Ltd Vs ACB Limited (2004) All FWLR (Pt.198) 1175 and Taylor Vs Ogneneovo (2012) All FWLR (Pt.610) 1358. Counsel urged this Court to resolve this issue for determination in favour of the Appellant.

In response, Counsel to the Respondent asserted that it was incorrect that the Respondent did not lead credible evidence in support of his claims and stated that it was clear from the oral and documentary evidence led at trial that the Respondent proved that his actions caused the debtors to repay part of the debt, and which the lower found from the evidence to amount to N34 Million, and that this was corroborated by the testimony of the second defence witness under cross-examination that the efforts of the Respondent recovered N30 Million. Counsel stated that it was legitimate for the lower Court to enter judgment in his favour for 10% of the N34 Million instead of the 10% of N38 Million claimed as the courts are empowered to enter judgment for part of claim proved by a party and he referred to the case of Benson Okoebor Vs Eyobo Engineering (1991) 4 NWLR (Pt.187) 553.

Counsel stated that the award of 10% of the sums to be paid instalmentally by the debtors made by the lower Court in favour of the Respondent was also justified in view of the evidence that showed that the Respondent obtained judgment against the debtor, facilitated the instalmental payment and was monitoring its performance by the debtor and that the debtor had been paying the installments religiously. Counsel stated that since the lower Court found that the termination of the Respondent’s brief by the Appellant amounted to a breach of contract, the award was in the nature of damages for breach of contract and which is restitution by placing the Respondent in a position he would have been but for the breach and he referred to the cases of Khan Vs Aircraft Industries Corporation Ltd (1937) 3 All ER 476, UBN Ltd Vs Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558 and Cameroon Airlines Vs Otutuizu (2011) 2 SCNJ 96.

In making the monetary awards in favour of the Respondent, the lower Court stated in the judgment thus:

“… having held that the termination of the plaintiff’s contract by the defendant was improper or wrongful, it means t}e plaintiff is entitled to be compensated by the defendant for any loss he incurred as a result of the breach of contract. The plaintiff claimed to have recovered N38 Million and nothing was paid to him as recovery fee. On their part, the defendant, through the oral testimony of DW2 claimed that the plaintiff recovered N30 Million for which he was paid 5% recovery. Except that the evidence of DW2 that the plaintiff recovered N30 Million supports the plaintiff’s case, the evidence could not support the defendant’s case as same is contrary to its pleading that the plaintiff did not recover anything. . . .

Under cross examination, the plaintiff showed that the total sum of N34 Million was recovered. In the absence of any credible evidence to the contrary, I accept this piece of evidence. The plaintiff is entitled to 10% of this sum of N34 Million as his recovery fee. As Alhaji Sabiu Bako and Sabiplast Nigeria Ltd have been paying instalmental payment of N1 Million monthly as ordered by the Court, the plaintiff is entitled to 10% of the said sum from the first installment of N1 Million made up to the last installment paid as at the date of this judgment …” (see pages 359 to 360 of the records)

This Court had found that the finding of the lower Court that the debriefing and termination of the legal services of the Respondent by the Appellant was wrongful and amounted to a breach of contract was misconceived and inappropriate, thus the statement of the lower Court that “having held that the termination of the plaintiffs contract by the defendant was improper or wrongful, it means the plaintiff is entitled to be compensated by the defendant for any loss he incurred as a result of the breach of contract” cannot be a legitimate basis for the monetary awards it made in favour of the Respondent.

The parties were agreed that the terms of the engagement of the Respondent by the Appellant were contained in Exhibit 1. It is a settled principle of law that parties are free to enter into agreements and that in construing the relationship between parties to a contract, a Court is enjoined to confine itself to the plain words and meaning derived from this contract – Central Bank of Nigeria Vs Archibong (2001) 10 NWLR (Pt.721) 492, Ibama Vs Shell Petroleum Development Co. (Nig) Ltd (2005) 17 NWLR (Pt.954) 364, Momoh Vs Central Bank of Nigeria (2007) 14 NWLR (Pt.1055) 504. Parties are bound by the contract they voluntarily entered into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd Vs Integrated Dimensional System Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos State Government Vs Toluwase (2013) 1 NWLR (Pt.1336) 55

A court must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. The terms of a contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are the invariable guide to its interpretation. The duty of the court, where a dispute arises between parties to a contract, is to construe the surrounding circumstances, including the written or oral statement, so as to effectuate the intention of the parties – Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547, BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209, Daspan Vs Mangu Local Government Council (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt.1349) 1.

Exhibit 1 read in part thus:

“INDEBTEDNESS OF SABIPLAST NIGERIA LIMITED KANO CITY BRANCH CUSTOMERS

The above named customers of Kano City Branch are indebted to the bank to the tune of N183,190,678.43 in their various accounts as at 31st December, 2002.

Please you are instructed to take necessary steps to recover the entire debt on behalf of the bank from the customers. You should liaise with the branch to obtain the current balance and any other information that will assist you in your recovery drive.

Please note that your fees shall be 10% of the amount recovered.”

Applying these principles to the contents of Exhibit 1, it is correct, as stated by Counsel to the Appellant, that the legal fees of the Respondent was tied to the actual amount recovered by the Respondent, and not to the steps taken by the Respondent in recovering the debt. Thus, if the Respondent spends sleepless nights chasing the debtors to pay and takes all the steps available to ensure payment of the debt, they will all not count for anything if the debtors pay nothing in settlement of the debt; he will not be entitled to anything as legal fees.

It was not in dispute that the Appellant terminated the brief of the Respondent by a letter dated 23rd of October, 2008, Exhibit 25, thus in considering the claims of the Respondent, it is essential to demarcate the sums recovered from the debtor before the 23rd of October, 2008 from those recovered thereafter. The case of the Respondent before the lower Court was that the debtors had, due to his efforts, paid the sum of N38 Million and had promised to pay the balance by making monthly instalmental payments. The Respondent led evidence in his examination in chief that subsequent to his commencing an action against the debtors, the debtors paid the sum of N25 Million and had paid a further sum of N13 Million subsequent to the judgment and he made a specific mention of a N2 Million paid by the debtor into the Appellant’s legacy account. Under cross examination, the Respondent stated that the said N2 Million was paid on the 5th of October, 2006 and he referred to a letter dated the 27th of October, 2008 which he said confirmed that the debtors paid another sum of N2 Million and also to a motion filed by the debtors dated the 16th of March, 2010 wherein he said the debtors confirmed paying a total sum of N5 Million.

The said letter of 27th of October, 2008 was not one of the exhibits tendered before the lower Court. The said motion dated the 16th of March, 2010 was tendered as Exhibit 14. Reading through the affidavit in support of the motion, the debtors confirmed payment of N3 Million, which they said they paid in two installments of N1 Million on the 1st of February, 2010 and N2 Million on the 8th of February, 2010, and not N5 Million as claimed by the Respondent. The fact of the payment of N25 Million by the debtors was confirmed by the High Court in its judgment in Suit No K/389/03, Exhibit 11, and a photocopy of the cheque in payment of the N2 Million made by the debtors on the 5th of October, 2006 was attached as an exhibit to the motion, Exhibit 14. Thus, effectively, the Respondent only led cogent evidence of the payment of the sum of N27 Million by the debtors before the termination of his brief by the Appellant and of the payment of N3 Million after the termination of his brief. Without doubt, the Respondent is entitled to be paid legal fees in the sum equivalent to 10% of the said N27 Million.

The next question is whether the Respondent is entitled to be paid legal fees in respect of monies paid by the debtors after the termination of his brief by the Appellant. As stated earlier, a contract for legal services is a peculiar contract, and not in the nature of other contracts, because the Constitution of Nigeria 1999 guarantees the right of every person to a Counsel of his choice at any point in time, and this includes the right to change Counsel for no reason or for any reason at all. Thus, the ordinary rules applicable to termination of other contracts, will not apply to termination of a contract for legal services. It must be noted that this right does not foreclose the entitlement of the Counsel whose brief was terminated from being paid agreed legal fees. The resolution of the question of the entitlement of the Respondent to legal fees in respect of monies paid by the debtors after the termination of his brief must thus necessarily depend on the terms of his letter of engagement, Exhibit 1.

The agreed fee of the Respondent was “10% of the amount recovered”. The operative words “amount recovered” is used in the past tense and not in the future tense. Thus, they refer to the actual amount that was paid by the debtors in the life span of the brief, and not the amount that the debtors later paid after the termination of the brief and/or have promised to pay in future. Parties are bound by the terms of agreement they have voluntarily entered into and nothing must be read into the contract. To hold that since the later payments were due to or that the future payments will be as a result of the efforts of the Respondent and that as such he should be entitled to legal fees on them is to read words into the terms of agreement and also to be swayed by sentiments. There is a saying in jurisprudence that law and morality are not synonymous. Hence, an act that is morally reprehensible may not be legally punishable – Attorney General, Federation Vs Abubakar (2007) 10 NWLR (Pt.1041) 1.

“… I think the age-long principle of the law, that law and morality are almost always poles apart is still very much alive. The truth in this case is that payment of ex-gratia is tied to the end of the year which, in normal calculation, is the 31st day of December of each year. So, unless where the company decides to pay ex-gratia to some employees at a time different from ‘end of the year’, an employee whose employment ceases before ‘end of the year’ is not in any way entitled to the company’s payment of ex-gratia. The respondents were declared redundant on the 3rd day of November, 1986. They were not therefore entitled to the payment of ex-gratia for the year 1986 by the appellant. That is the true position.”

By the terms of the letter of engagement, Exhibit 1, the Respondent is not is entitled to be paid legal fees in respect of monies paid by the debtors after the termination of his brief by the Appellant. The holding of the lower Court otherwise was thus misconceived. The third issue for determination is resolved partially in favour of the Appellant.

In conclusion, this appeal succeeds in part. The judgment entered by the Kano State High Court in Suit No K/537/2010 delivered by Honorable Justice Wada Abubakar Rano on the 14th of June, 2012 is hereby allowed in part and set aside in part. It is hereby ordered as follows:

i. The declaration made by the lower Court that the debriefing of the Respondent and termination of his contract for legal services in the recovery of the indebtedness of Alhaji Sabiu Bako and Sabiplast Nigeria Ltd, the Appellant’s Kano City Branch customers, in the circumstances of this case, is wrongful, illegal and constitutes a breach of contract with the Respondent is hereby set aside.

ii. The order made by the lower Court directing the Appellant to pay the Respondent 10% of the recovered sum of N34 Million from the Appellant’s customers, Alhaji Sabiu Bako and Sabiplast Nigeria Ltd, in respect of the judgment obtained by the Respondent in Suit No K/389/03 is hereby set aside.

iii. The Appellant is hereby ordered to pay to the Respondent legal fees in the sum equivalent to 10% of the sum of the N27 Million being the amounted recovered by the Respondent from the Appellant’s customers, Alhaji Sabiu Bako and Sabiplast Nigeria Ltd, in the execution of the brief given to the Respondent by the Appellant.

iv. The order made by the lower Court directing the Appellant to pay to the Respondent 10% of each N1 Million monthly instalmental payment made by Alhaji Sabiu Bako and Sabiplast Nigeria Ltd pursuant to the court order in Suit No K/389/03 up to the last installment paid or to be paid as at 14th of June 2012 is hereby set aside.

v. The parties shall bear their respective costs of this appeal.

These shall be the orders of this Court.

UWANI M. ABBA AJI, J.C.A.: I have read in draft the lead judgment of my learned brother, Habeeb O.A. Abiru, JCA, just delivered.

I agree with the reasoning and conclusion of my learned brother that the appeal succeeds in part.

I also allow the appeal in part to the extent as stated in the lead judgment of my learned brother. I also abide by the consequential order as to costs.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, just delivered. Having perused same, I agree with his reasoning and conclusion that the appeal be allowed in part.

I also abide by the consequential orders in the lead judgment.

Appearances

Khalifa S. BabaFor Appellant

AND

Kayode OlatunjiFor Respondent