Akinlolu Omoyinmi V. A. O. Ogunsiji & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

ALFRED P. E. AWALA, J.C.A.

The Appellant was the plaintiff at the trial court – the High court of Justice of Ogun State. He is a legal practitioner and sued the respondents who are also legal practitioners together with five other nominal defendants claiming as follows:-

“A declaration that the Plaintiff is entitled to commission at 10% of the compensation money (N2,375,000.00) paid to the defendants in respect of the land acquired for the Federal Advance Teachers College at Osiele near Abeokuta on the ground that the said Commission is secured:-

(a) by an agreement by way of authority dated 7/1/81 under the hand of the 1st defendant.

(b) A power of attorney dated 24/4/82 donated under the hand of 3rd to 7th Defendants.

Alternatively a declaration that the Plaintiff has a lien or charge on the said compensation money for the amount of the plaintiffs commission and that so far as it is necessary the 1st and 2nd Defendants are trustees of the money each of them received on that ground.

2. An order for payment to the plaintiff of the sum of N375,000.00 representing the said Commission being 10% of N2,375,000.00.

Alternatively, an order for any other relief or remuneration based upon a quantum meruit.

3. Interest on the said Commission at the 10% per annum from the date of judgment until payment to the plaintiff.

Pleadings were settled and hearing began on 13/6/05 ending on 19/9/85 and parties learned counsel addressed the court with the 2nd defendant doing so in person on 8/10/85. In the end the plaintiffs claims were dismissed as unproved.

Dissatisfied he appealed here formulating eight grounds of Appeal in his Amended Notice of Appeal dated 11/4/2000, and pursuant to the Rules of this court parties counsel filed and exchanged their respective briefs of argument namely Appellant’s, 2nd Respondent’s and Reply briefs only. The 1st and 3rd Respondents did not file briefs inspite the fact they were duly served with the Notice of Appeal and Hearing Notices. Meanwhile the names of 4th to 7th Respondents who were reported dead had ceased to parties in the appeal.

On 6/2/07 the appeal was heard following an earlier order by this court on 6/6/06 to hear the appeal on the available briefs as stated above.

The Appellant in person and the counsel for the 2nd Respondent adopted and relied on their respective briefs of arguments. The Appellant raised four issues while the 2nd Respondent distilled fifteen out of the said eight grounds of appeal.

The four issues couched by the Appellant read:-

1) “Whether having regard to the pleadings, the evidence, and the admissions of counsel and the findings of the court the Plaintiff failed to prove his claim.

2) Whether the contract made irrevocable which the plaintiff had executed was validly revoked and Defendants’ liability thereby extinguished.

3) Whether 2nd defendant was wrongly joined having regard to the circumstances and terms under which he collected money.

4) Whether the court was right to raise issues for the parties and base its decision on them.”

On the other hand, the 2nd Defendant’s fifteen issues as aforesaid are:-

1. Whether the second defendant was a party to the alleged contract between the plaintiff and the first, third to seventh Defendants?
2. If he was not a party to the contract, was he bound by it and can it be enforced against him either in law or equity?
3. Was the Plaintiff right in not joining the clients of the principals of the second defendant on behalf of whom the money was collected by the second defendant?
4. Where the clients of the second defendant parties to the contract between plaintiff and first defendant?
5. Was the contract legally enforceable against them?
6. From the plaintiffs evidence before the court was it established that the second defendant at any state of the claim solicited the services of the plaintiff or did he the second defendant’s clients undertake to pay any percentage commission for the plaintiffs service? Did he render any services to them on their instruction?
7. Was the plaintiff entitled to be paid 10% commission which be claimed on the total proceeds of the compensation with his two other colleagues.
8. Was the plaintiff alone entitled to be paid 10% of the proceeds of the compensation under the power of Attorney, Exhibit 4?
9. Was the Osiele Community for whom the plaintiff purportedly worked the sole beneficiary of the proceed of compensation and the only community on the acquired site?

10.Where the third to seventh defendants the only claimants of compensation in respect of the acquired site?

11. If there were other Communities, were those Communities bound by Exhibit 4 executed in favour of the plaintiff by the First defendant and by the third to seventh defendants even when Exhibit 4 was executed without their knowledge and consent?
12. Did the first, third – seventh defendants have power to act for all the village communities and individuals that own land within the acquired site or even for the Osiele Community itself?
13. If the answer is in the positives in what capacity will they be so acting? And from where did they derive that power?
14. In view of all the above, was the plaintiff right to join the 2nd defendant in the suit at all?
15. The issues on paragraphs 2 and 5 on page 2 of the plaintiffs brief are not covered by evidence before the court and are not related to any of the grounds of appeal.”

Before I proceed to consider the issues formulated by parties, I must emphasized it is wrong to couch more issues than there are grounds of appeal as the 2nd Respondent did in his brief of argument. It behoves counsel to avoid prolixity in their formation of issues or reargue issues in the reply brief which counsel for the Appellant did profusely in his reply brief.

A reply brief is not a forum to mend fences or for the appellant to reargue his issues which the Appellant did. This is in breach of Order 6 Rule 5 of the Rules of this court 2002, and as such the reply brief here must be discountenanced. See Okpala v. Ineme (1989) 2 NWLR (Pt. 102) 208. Okenwa v. Military Government of Imo State (1990) 5 NWLR (Pt.152) 594.

Counsels are advised with respect to be more conversant with brief writing to stand well in our superior courts – The Court of Appeal and the Supreme Court. I now proceed to consider the issues distilled by counsel for the parties. I adopt the four raised by the appellant as they are more apt to resolving this appeal.

Issue one, Appellant learned counsel submits that the lower court failed to consider the plaintiffs instruction as contained in Exhibit 17 in the hand of the 1st Defendant and on behalf of the 3rd to 7th Defendants at page 225 lines 5 to 12 of the record together with Exhibit 4 the Power of Attorney executed by the said defendants in favour of the plaintiff. Exhibit 17 guaranteed payment of the Appellant’s commission as a priority on successful execution of the instruction. That also the lower court did not consider Exhibit 1 by which, the Appellant proceeded to put up the claim for compensation for the entire land acquired including and on behalf of the 2nd defendant’s clients land. Following the success of the claim, the 1st defendant admitted he collecting money in trust for the claimants his clients (see page 244 lines 12-14 and page 261 lines 21-23 of the record) the court accepted this contention at page 289 lines 14-16.

Contending further Appellant’s counsel submits that PW1, one Mr. Uzomah an Education Officer testified that the Appellant requested that he be paid the compensation money but the legal adviser of the Ministry of Education, one Mrs. Omoniyi insisted that the money should instead be paid to the Ministry of Works (Land’s Division) and on production of the Exhibit 4 the power of Attorney executed in favour of the Appellant the compensation money was paid in respect of the whole site and by agreement between plaintiff, 1st and 2nd Defendants and the officials of the Land Division a cheque in the sum of N2.3 Million for the entire site acquired was raised. This evidence was corroborated by PW2 one Mr. Lawson a Principal Estate Officer from the Land’s Division who testified as follows:

“I know the plaintiff and the 1st and 2nd defendants. In October 1983 the plaintiff and the 1st Defendant made a joint claim in respect of the whole land. In the end payments were made, one for crops, the other for land as per Exhibits 10 and 11.

On 14/10/83 the 1st Defendant wrote a note to the appellant (Exhibit 18) imploring him to agree with the wishes of the Land Division and allow them draw the cheque in his name and the 2nd Defendant also agreed that it be so drawn and was accordingly made out in the name of the 1st Defendant namely the total compensation money of N2.3 Million for the entire site acquired and later the 1st defendant embraced the 2nd defendant and accepted his claim on behalf of his clients – Akinbile, Agburin and Akinlagun villages as a compromise position to avoid lapse of the approval by Government and failure to get paid the compensation. On this agreement and that his (Appellant’s) interest will be taken care of, Appellant reluctantly agreed.

Formal agreement was entered into with the approval of the Land Division to that effect (see page 229 of the record) and paragraphs 39 and 40 of the pleadings in the Amended statement of Claim dated as 30/4/85 thereat as follows:-

“39 (1) The whole compensation for the Land shall be in three shares.

(2) One share each shall go to the 1st Defendant 2nd Defendant and to one Mr. Dosunmu a valuer respectively.

(3) Each of the 1st and 2nd Defendants shall receive his share for and on behalf of persons beneficially entitled.

(4) A composite plan showing owners of alloquot portions of the land acquired was to be procured.

(5) Disbursement shall be based on the composite plan.

(6) Pending events in (4) and (5) above the 1st and 2nd Defendants shall deposit their shares in a common pool account in a Bank.

(7) The said common pool will be utilized to payout all the money due to the Plaintiff and the 1st and 2nd Defendants, the surveyor and all owners of the land.

40(1) On the strength of the agreement above referred to in paragraph (31) (sic) 39 above the Land Division finally effected settlement.

(a) By means of a cheque in the sum of N1,179.000.00 (One Million one hundred and seventy Nine thousand Naira) paid to the 1st Defendant.

(b) By means of a cheque in the sum of N1,179.000.00 (One Million One Hundred and Seventy Nine Thousand Naira) paid to the 2nd Defendant.

(c) By means of a cheque in the sum of N17,000.00 (Seventeen Thousand Naira) paid to the said Mr. Dosunmu.

Appellant’s counsel contends further that the learned trial judge referred to the above agreement in his judgment and which the 2nd Defendants did not deny nor challenge same and upon which the cheques were drawn out in favour of the 1st, 2nd Defendants and to Mr. Dosunmu (See page 303 lines 7 to 8 of the record)

Contending further he argued that on the principle in Oduye v. Nigeria Airways (1987) 2 NWLR (pt.55) 126 where the Supreme Court states “where there is a contract regulating any arrangement between parties the main duty of the court is to interprete the contract and give effect to the desires of the parties as expressed in the contract document.” The trial judge would have enforced the above agreement, counsel argued.

On top of the above agreement counsel submits there are admissions by Mr. Akande counsel for the 1st- 3rd to 7th Defendants in his address at pages 264 to 266 of the record against their interest and by the 2nd defendant in person, admitting that the Appellant did put up the claim in Exhibit 1 for all the land and for his clients inclusive.

In like manner, when the 1st Defendant wrote Exhibit 6 and sought to draw the whole money the court held at page 37 of the record as follows:

“The plaintiff agreed with the 1st and 2nd Defendants that the whole money be paid jointly to the 1st and 2nd Defendants” (Emphasis by counsel.)

All the above, counsel submits, were all ancillary agreements as found by the lower court including the following:-

1. “They (that is to say, the three lawyers) agreed to take out the money and dish it out (see page 303 lines 7 & 8)
2. “They constituted themselves into a Land tribunal with power to settle rival claims on the land (See page 303 lines 9-10)
3. They agreed to draw the N2.3 Million from the treasury and they did so. (See page 303 lines 13-16).

The implication of the above findings, Appellant counsel argued is that they (the three lawyers) were solicitors in business in which their liabilities or profits are joint in law. He cited Robinson v. Anderson (1085) 44 (ER 94).

In the end he urged us to resolve issue one in favour of the appellant.

On issue two, Appellant’s counsel submits firstly “whether a completed contract can be set aside as null and void as the lower court did without making proper evaluation? (Emphasis by counsel). For example the evidence of PW3 who testified at page 239 of the record as to a meeting of claimants of the site acquired including the plaintiff, 1st, and 2nd Defendants and entire communities held at 1st Respondent’s house at Osiele he being an indigene. In the course of the meeting, the plaintiff was commended and was told not to relent in his efforts to ensure that the claim does not lapse.

Appellant’s counsel submits the trial judge wrongly commented on the evidence of the plaintiff and of the 1st Defendant and said in his judgment thus:

“I note that only the plaintiff and the 1st Defendant gave evidence about this Osiele meeting (at page 205 lines 18-22 of the record) and therefore held.

“I must say that I prefer the story of the 1st Defendant.

I am satisfied that the plaintiffs Authority in the power of Attorney was validly revoked by the donor’s as well as by their solicitor when he wrote exhibit 23” (See page 295 lines 22-25 of the record). (Emphasis by counsel)

What then was the testimony of Pw3 counsel asked? PW3 is Mr. Kasimawo Adekunle, a lorry driver, he testified on oath as follows:-

“I know the land acquired by Government at Osiele. On 15/10/83 there was a meeting at the 1st Defendant’s house. I was present at the meeting. Other villagers were also present at the meeting. Some of those present are in court. 1st Defendant and the plaintiff were present. They were speaking about the compensation due to them. The plaintiff told the gathering that the compensation for their land were ready; he said if they did not collect it before December, Government would no longer pay. They said that the 1st Defendant was their son. The meeting was peaceful. (Emphasis by counsel)

Counsel submits it is wrong for the trial judge not to consider the PW3′ s evidence as he testified as to general meetings at Osiele of all the stakeholders and Claimants.

Counsel concluded that the evidence which the court noted at page 295 lines 9-13 and page 296 lines 22-23 is at variance with the pleading.

The decision of the court that Exhibit 4 was revoked was not borne out by the evidence. He cited Ige v. Akojie (1994) 4 NWLR (PT. 340) 535 AT 546 and submits that that decision was perverse. He urged us to resolve issue two in favour of the appellant.

On issue 3 “whether the 2nd defendant was wrongly joined in this suit?”

Counsel submits considering the plaintiffs claim, the trial court held

“However that may be the sum total of all these in that the plaintiff has not satisfied me that the monies paid out to the 1st and 2nd defendants were those due to his clients and he is not therefore entitled to commission.”

(See page 304 lines 1-5 of the record).That the trial judge held further:-

“I am satisfied that the plaintiff has not made any case against the 2nd defendant and he is accordingly dismissed from the suit “(See page 304 lines 20-22).

Finally the court decided that “For the reason above 1 hold that the plaintiff has failed to prove his case and it is ordered that this claim be dismissed – page 304 lines 23-25 (Emphasis by counsel) Contending further counsel submits that the reasons for the decisions stated above by the court can be gleaned from the following:-

1. That the 2nd defendant is not a party to Exhibits 4 & 17.
2. That the second defendant claimed that he was acting on behalf of totally different set of claimants.
3. That the plaintiffs cause of action should have been against the Ministry of Lands since it is assumed the plaintiffs claim is that his clients’ money was wrongly paid to the 2nd defendant.
4. That the money did not belong to the plaintiffs clients.

The complain here, firstly by the Appellant, is that since the plaintiff did not disprove or challenge the 2nd defendant’s claim, the court wrongly placed the onus on the plaintiff to prove that he asserted that the 2nd Defendant was a party to the Plaintiffs claim. He cited Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799.

Secondly, that the court wrongly refused to enforce an agreement made in contemplation of the main contract under which both the 1st and 2nd Defendants incurred liability to the Plaintiff since the court accepted the fact that only the plaintiffs efforts produced the money. Appellant’s counsel referred to page 207 lines 14-31, 302 lines 25-37 of the record and submits that the court should have held that the plaintiffs commission should be paid by all defendants. He cited Scholey v. Peek (1893) 1 CHD 709 held “A solicitor is entitled to his professional fees even if the owner of the funds recovered by him are not the clients of the solicitor.” (Emphasis by counsel.)

He urged that issue 3 be resolved in favour of the Appellant.

On issue 4, “Whether the court was right to raise issues for the parties and base its decision on them?”

Learned Appellant counsel submits that the law is now trite where the court finds a contract and a breach of it there is no further need to embark on some other collateral issues but to enforce it. He cited Abbott v. Sullivan (1952) 1 KB 189/205. Nigerian Airways v. Lapite (1990) 7 NWLR (Pt.163) 392. See also Adekeye v. Akin Olugbade (1987) 3 NWLR (Pt.60) 214 where the Supreme Court laid emphasis on this principle of law and states:-

“In such a case as this, where the Court had found a cause of action and a legal right in the plaintiff the court will see to it that substantial as justice is done.” (Emphasis by counsel)

Learned Appellant counsel concluded as found by the Supreme Court on Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 as follows:-.

“Where there is a contract the courts will intervene to protect the contractual rights of the parties. This is sound proposition of law, no one will dispute it.” (Emphasis by counsel) In this case, Appellant counsel contends that the Court knew there was a contract but it failed to protect the plaintiff’s right. He asked how the money collected by three lawyers became money for two lawyers? Thus in this connection the common law principle of Ubi jus Ibi remedum, applies without going into extraneous issues as did by the trial court. He cites Bello v. A. G. Oyo State (1985) 5 NWLR (pt. 45) 828 Supreme Court per Karibi Whyte JSC at page 871 said

“It enjoins the Court to provide a remedy whenever the plaintiff has establish a right. The Court obviously cannot do otherwise.”

The Court is enjoined to eschew reliance on technicalities in the determination of dispute.” (Emphasis by counsel) Concluding the Appellant’s counsel submits there are six tests involved in this issue 4.

(1) Why did the defendants get the plaintiff involved in the agreements as found by the court at pages 296 lines 8- 10? 303 lines 7-10, 281 lines 10-16 (supra).

(2) Did those agreements restrained the defendants from not paying the claimant commission?

(3)The findings of the court at page 302 lines 25-27 made all the other issues become mere academic exercise, the ultimate one being a recourse to the contract supported by consideration – the successful claim of the compensation money.

(4)The consideration for work done which the court found was done by the plaintiff and payment of his commission was not effected.

(5) The plaintiff granted leave to 1st defendant and agreed reluctantly that the money be paid to the 1st and 2nd defendant on assurance that his interest will be taken care off by the duo.

(6)Finally in the words of the learned trial judge; he repeats them as follows:-

(a) “They agreed to take out the money and to dish it out”

(b) They, the three lawyers, were instructed to act.

(c) The three lawyers made a claim – they agreed to take it out from treasury.

Counsel therefore urges us to resolve the 4th in favour of the Appellant.

In response, in the 2nd Respondent’s brief with fifteen issues raised as have been duly reproduced above; he considered all the fifteen issues together and submits that the onus of proving his claim rest squarely on the Appellant and this he had failed to do. He cites Kodinlinye v. Odu 2 WACA 336. Fashanu v. Adekoya (1974) 1 All NLR 35, Wolushe v. Gudi (1981) 5 SC 291.

Secondly, that it is the law that a party who relies on a particular fact (that is to say, that his clients employed him) must plead and adduce evidence in support of that claim. He cited Igharo v. Rasamin (1986) 3 NWLR (Pt. 88) 588.

Thirdly, at page 59 paragraph 4.08 of the Appellant’s brief which he headed “Only one contract Existed” the 2nd Respondent argued that the only contract is Exhibit 4 and 17 and since the 2nd Respondent is not part of it and he did not counter-claim, he the 2nd Respondent does not need to adduce evidence to establish his innocence over the whole claim.

Fourthly, a pertinent question the 2nd Respondent posed in his brief of argument is this; is the 2nd Respondent a party to those contracts (that is to say exhibits 17 & 4) and was he bound by them? He answered is in the negative, therefore they cannot be enforced against him.

Fifthly, that since the Appellant did not amend the endorsement in his writ and he based his pleading on the said writ and since in law parties are bound by their own pleadings the Appellant is bound by his pleading. Is he entitled to 10% of the total proceeds of the amount paid to the 1st and 2nd defendants that he base the evidence of the witnesses he called in support of his claim. That the answer is a categorical No. He cites Billow v. Ewaka (1981) 1 SC (Pt.101) 11, Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432, Duru v. Nwosu (1989) 1 NWLR (Pt. 113) 24, Etitiroroye v. Okpallete 5 NWLR (pt. 92) 519.

And sixthly, that the Appellant has a misconception of the law as argued that it is 2nd defendant to prove his innocence. He argued that the onus is always on the plaintiff to prove his claim on the preponderance of evidence even if the case is not defended, not vice versa. That it is this responsibility that the plaintiff failed to discharge to his own detriment. He cited A. Yakubu v. J. Opaleye (1974) 11 SC (Pt. 189) 203, Y. Karara v. Otere Imonike (1974) 11 SC (pt. 9) 10

He concluded that the learned Chief Judge had every good reason to dismiss the 2nd defendant out of the case. He urged that this appeal be dismissed.

Now the resolution of this appeal. There is no doubt that the main contracts are Exhibits 17 & 4 which bound only the Appellant and the 1st defendant only in this case. To my mind however there is the agreement pleaded in the amended statement of claim by order of court dated 30/2/85 in paragraphs 39 and 40 thereof recognized by the parties namely the Appellant and 1st and 2nd Respondents and that binds them all. It was not considered and enforced by the lower court as it should have done; it is the duty of the court so to do in law. I need not reproduced the said pleading again. Suffice it is to state that paragraph 39 and 40 of the amended Statement of Claim are the crucial contract binding all the parties to it namely the plaintiff, the 1st and the 2nd defendants with the consent of the land Division and which the lower referred to copiously. It is the duty of the court below to have given effect to it.

By a separate agreement (Exhibit 27) the 1st defendant wrote to the Appellant that his interest will be taken care of and the Appellant reluctantly gave his consent to the Land Division and the cheque of N2.3 Million was drawn out in the name of the 1st Defendant’s and the 2nd Defendant with undertaken to take care of the Appellant’s interest, namely his 10% commission on the total sum of N2,375.000.00 which is N375.000.00. I so find.

I would have at this juncture conveniently ended and put a full stop to this judgment but I will want to seize this opportunity to explain what a contract really is in law.

I will adopt the apt definition of contract by the learned author of Black’s Law Dictionary 8th Edition at page 341 and quote:

“An agreement between two or more parties creating obligations that is enforceable or otherwise recognizable at law. The term contract has been used indifferently to refer to three different things (1) the series of operatives acts by the parties resulting in new legal relations. (2) the physical document executed by the parties as the lasting evidence of their having performed the necessary operative act and also an operative fact in itself (3) the legal relation resulting from the operative acts, consisting of a right or right in persona and their corresponding duties, accompanied by certain power, privilege and immunities. The sum of these legal relations is often called obligation.”

(Emphasis mine)

There is no doubt that there was or there is legal right and obligations between the Appellant and the 1st and 2nd Respondents in this appeal which is the duty of the trial court to have enforced without going into irrelevant issues and technicalities. See Albot v. Sullivan (supra); Nigerian Airways v. Lapite (supra).

I repeat the ratio decidendi of the Supreme Court in Adekeye v. Akin Olugbade case (supra) as follows:-

“In such a case as this, where the court had found a cause of action and legal right in the plaintiff the court will see to it that substantial justice is done” (Emphasis mine)

Before I conclude this judgment I will also quote Obaseki JSC in Sapara v. UCH Board of Management (1988) 4 NWLR (pt. 86) 72.

“In commercial agreement (solicitors’ agreement in business inclusive) it will be presumed that the parties intended to create legal relations and make a contract as in the instant case. But the presumption may be rebutted but the burden is very heavy (Emphasis mine)

To my mind, the Appellant has not enjoyed the benefit of what he bargained for in his legal relationship with the 1st and 2nd Respondents at all.

See Branwhite v. Worchester Works Finance (1969) 1 .A.C. p.552, S. O. Imana v. Madam Jawin Robinson (1979) 3-4 SC 1 at page 25, Ojikutu v. Demuren (1957) 2 FSC 72 at 73. I therefore resolve all the issues in favour of the Appellant.

With regards the 1st and 3rd Respondents, who were duly served with the Notice of Appeal and Hearing Notices but failed to file their respective briefs either jointly or severally they are also bound by this judgment. The law is now trite, where a respondent to an appeal fails to file his brief of argument he is deemed to have conceded the truth of everything in the Appellant brief in so far as such is borne out in the record of appeal. See Lagricon Company Ltd. v. Union Bank Ltd & Ors. (1996) NWLR (pt.44) 185. In the premises this appeal is allowed.

I award N5000.00 as cost of this appeal in favour of the appellant and against all the Respondents severally.

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Other Citations: (2007)LCN/2285(CA)