Alhaji Aliyu Abubakar V. Lawrence E. Manulu (1998)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
The respondent in this application was the plaintiff in an action brought under the undefended list procedure at the Jos High Court. As plaintiff he claimed against the present applicant (as the defendant) the sum of N314,356.26 being the outstanding balance of professional fee for legal services rendered to the applicant. On 23/2/96, judgment was entered in favour of the respondent for the said sum of N314,356.26.
An application by the applicant that the said judgment be set aside filed on 23/7/96 was refused. The applicant filed a notice of appeal against the ruling of the lower court dated 23/7/96.
He raised the following grounds of appeal;
“(1) The decision is against the weight of evidence.
(2) The learned trial Judge erred in law in relying on Exhibits A and B in the further and better affidavit in arriving at his decision.
PARTICULARS OF ERROR
(a) The court stated thus:
“To my kind (sic) Exhibits A, B and C in accompanying the plaintiff’s affidavit and also Exhibits A and B in support of the further and better affidavit are glaring and have made a good case in favour of the plaintiff.”
(b) The further and better affidavit filed by the plaintiff after receiving service of the notice of intention to defend is not permissible under the undefended list procedure
(3) The learned trial Judge erred in law in refusing to transfer this case to the general cause list when triable issues have been raised.
PARTICULARS OF ERROR
(a) The plaintiff stated that he negotiated his bill with the defendant.
(b) The defendant confirmed the negotiations and that both parties agreed on a fee of N400.000.00 which he paid.
(c) The plaintiff again turn round to claim N314,356.26 without negotiations and the Judge awarded him the said sum.
(4) The learned trial Judge erred in law in failing to give the defendant an opportunity to be heard viva voce on the issue of fraud and illegality.
PARTICULARS OF ERROR
(a) The issue of illegality was never resolved at all by the court.
(b) The issue of illegality cannot in any case be resolved on affidavit evidence.
(5) The defendant did not have a fair hearing in breach of his right as guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979.”
The applicant has now brought an application before us praying for the following:
“(1) Leave of the honourable court to raise fresh issues on appeal in terms of grounds 4 and 5 of the proposed amended notice of appeal attached as Exhibit ‘A’.
(2) Leave of the honourable court to file and argue additional grounds of appeal.
(3) Leave of the honourable court to amend and file an amended notice of appeal incorporating the proposed new issues and additional grounds of appeal and deleting the original grounds 2, 3 and 5 as shown in Exhibit ‘A’ to this application.”
In the proposed amended notice of appeal annexed to the motion paper and affidavit as Exhibit ‘A’, the new issues which the applicant wishes to raise before this court are as embodied in the 4th and 5th grounds of appeal which read thus:
“(4) The learned trial Judge erred in law in entering judgment against the appellant when the bill of charges served by the respondent pursuant to section 16(2)(a) and (b) of the Legal Practitioners Act, Cap, 207, Laws of the Federation 1990, and upon which he predicated his suit were insufficient and or incompetent to entitle respondent to commence the suit in law.
PARTICULARS OF ERROR
By section 16(2)(a) and (b) of the Legal Practitioners Act, 1990, the respondent could only be competent to commence the suit if and only if:
(i) He had duly prepared his bill of charges with the particulars of the principal items included and had duly signed same;
(ii) The bill of charges duly signed had been served on the appellant personally or left for him at his last address as known to the respondent, or sent to the appellant by post; and
(iii) A period of one month beginning with the date of delivery of the bill has expired.
(b) In this case Exhibits A and B (see pages 5 and 6 of the record) are the bill of charges served by the appellant.
(c) Both exhibits were addressed to the Managing Director of Savannah Associates Ltd and not the appellant.
(d) Appellant is not shown by the respondent to be the same person as the Managing Director of Savannah Associates Ltd.
(5) The learned trial Judge erred in law when he assumed the jurisdiction to try the matter when the respondent was by law not entitled to commence the action and his claim was not justiciable.
PARTICULARS OF ERRORS
The bill of charges served by the respondent and upon which his claim was based fell short of the requirements of Section 16(2)(a) and (b) of the Legal Practitioners Act, 1990.”
In the relevant part of the affidavit in support of the application (i.e. paragraphs 6 and 7) it was deposed thus:
“(6) That I am further informed by the said H.N. Ugwuala, and I believe him that:
(a) The additional grounds of appeal (covering the new issues) prima facie raise substantial issues of law and need be allowed.
(b) No additional evidence is required to be adduced before the fresh issues can be canvassed as the necessary documents are already in evidence.
(7) That it is in the interest of justice to grant this application and I make the oath in good faith.”
The respondent deposed to a counter-affidavit in reply to applicant’s affidavit.
Paragraphs 2 to 5 of the counter-affidavit read thus:
“(2) That I know that the Managing Director Savannah Associates Limited is the same person as Alhaji Aliyu Abubakar.
(3) That I know that the applicant never raised this issue before the trial court and the trial court never. decided this fact as to whether Alhaji Aliyu Abubakar is the same person as Managing Director of Savannah Associates Limited.
(4) That the issue whether the Managing Director of Savannah Associates Limited is the same as Alhaji Aliyu Abubakar cannot be decided without further evidence. The judgment of the court is hereby shown to me as Exhibit ‘A’.
(5) That I know that Alhaji Aliyu Abubakar never denied being the Managing Director of Savannah Associates Limited. Notice of intention to defend with affidavit of eth applicant is hereby shown to me as Exhibit ‘B’.”
We heard arguments for and against this application on 19/3/93. Mr. H.N. Ugwuala for the applicant submitted that the fresh issue which the applicant wished to raise on appeal were substantial and that no additional evidence was needed to sustain the fresh issue – Adegoke Motors Ltd. v. Adesanya (!989) 3 NWLR (Pt. 109) 250 at 281. Counsel said that the proposed ground 5 raised the issue of jurisdiction. In support of the submission that no further evidence would be required, he relied on Katsina Local Authority v. Makudawa (1971) 1 NMLR 100 at 106 – 107 and Okenwa v. Military Governor of Imo State & 3 Ors. (1996) 6 NWLR (Pt. 455) 394 (1996) 6 SC NJ 221 at 232 – 233. Whilst final urging us to grant the application, he observed that the counter-affidavit filed by the respondent had no evidential value.
The respondent, a lawyer, in his reply submitted that an applicant seeking leave to raise fresh issues on appeal must show (1) that the court hearing the appeal had before it all the facts bearing on the new issue as completely as if the matter had been raised in the court below; (2) that there could possibly be no explanation given if the matter was raised in the court below – Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 – 175; Fadiora v. Gbadebo & Ors 1 LRN. 97 at 108-109. The respondent observed that the proposed ground 5 was predicated on the proposed ground 4. That the present counsel presently appearing for applicant had not appeared before the lower court was irrelevant – Adebisi Djukpan v. Rhorhadjor Orovuyovbe & Anor (1967) All NLR (Reprint) 144 at 147. He finally urged us to refuse the application.
The first point to be made in this ruling is that I should not grant this application to raise a new point on appeal unless it is a point of substantive or procedural law which needs to be allowed to avoid miscarriage of justice. See K. Akpene v. Barclays Bank of Nigeria Ltd & Anor (1977) 1 SC 47 at pp. 96 – 114; Fadare v. A.G. Oyo State (1982) 4 SC 1 .
Further, I am not to grant the application unless I am satisfied beyond doubt:
(i) that I have before me all the facts bearing on the new contention as completely as if it has been raised in the lower court; and
(ii) that no satisfactory explanation could have been given in the court below if it had been so raised. See Fadiora v. Gbadebo (1978) 3 SC 219.
I would readily accept here that the new point sought to be raised is a point of substantive or procedural law which ought to be raised to avoid a miscarriage of justice. Section 16(1),(2) (a) and (b) of the Legal Practitioners Act, Cap. 207 Laws of the Federation 1990 provides:
“16(1) Subject to the provisions of this Act, a legal practitioner shall be entitled to recover his charges by action in any court of competent jurisdiction.
(2) Subject as aforesaid, a legal practitioner shall not be entitled to begin an action to recover his charges unless –
(a) a bill for the charges containing particulars of the principal items included in the bill and signed by him, or in the case of a firm by one of the partners or in the name of the firm, has been served on the client personally or left for him at his last address as known to the practitioner or sent by post addressed to the client at that address; and
(b) the period of one month beginning with the date of delivery of the bill has expired.”
The new point which the applicant wishes to raise is rooted in the above provision. It is manifest that compliance with the above provisions is a condition precedent to be satisfied before a legal practitioner shall be entitled to recover his charges by action in any court. If, as the applicant attempts to show by the proposed 4th and 5th grounds of appeal, the respondent had not complied with the above provisions of the law, his suit ought to have been struck out by the lower court. There can be no doubt therefore that the issue sought to be raised is a serious issue of procedural law.
The applicant has deposed and further submitted that all the evidence needed in support of the new point is before the court. The respondent had contended that if the matter had been raised in the court below, there would have been some explanation from him as to compliance with the provisions of section 16(1) and 2(a) & (b) of the Legal Practitioners Act. It seems to me that the respondent cannot be right in his contention. Whatever explanation he might have as to compliance with section 16 ought to have been placed before the lower court before that court assumed jurisdiction to try the case and give judgment in favour of the respondent. It is a provision which lays a condition to be first met by a legal practitioner wishing to sue for his fees. It is also mandatory. At the stage the matter is (i.e judgment has been given in favour of the respondent), it must be seen that the respondent had been able to get the judgment in his favour because he had complied with the conditions precedent in section 16(2) (a) and (b). The argument that respondent would have had an explanation if the new point had been raised before the lower court is non sequitur.
In any case. I have before me the relevant Exhibits A, B and C annexed to the respondent’s motion before the lower court. The issue therefore is not that the relevant evidence is not before this court. The fear of the respondent is that these exhibits might not have fully complied with the mandatory provisions of section 16(1) & (2) of the Legal Practitioners Act. I am satisfied therefore that the evidence needed to decide the new point now sought to be raised is before this court.
If the point had been raised before the lower court would there have been an explanation which may not be shut out by allowing the applicant to raise the new point on appeal? I think not. This is a procedural point touching upon compliance with the mandatory provisions of the law. It boils down to whether or not the applicant had complied. I do not see how the applicant would have before the lower court explained away his non-compliance with the mandatory provisions of the law.”
In any case, this was a suit commenced under the undefended list procedure under the Order 23 of the Plateau State High Court (Civil Procedure) Rules 1987. Rules 1-5 of the Order provide:
“(1) Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter suit for hearing in what shall be called the ‘Undefended List’, and marked the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.
(2) There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summon for service.
(3)(1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit the court may give him leave to defend upon such terms as the court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary cause list, and the court may order pleadings, or proceed to hearing without further pleadings.
(4) Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to H summon witness before the court to prove this case formally.
(5) Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”
The undefended list procedure is not designed as one for trial by affidavit in which a plaintiff files his writ and affidavit and the defendant files a counter-affidavit to which the plaintiff replies by filing another affidavit and so on. It is not a procedure designed for the instalmental presentation by the plaintiff of his case depending on the defence raised by the defendant. The procedure is only to be used where the plaintiff has reason to believe that there is no defence to the suit, and that on the basis of the writ, affidavit and other documentary evidence presented before the court, the plaintiff is entitled to judgment. The respondent in his reaction to this application would appear to be saying that if the applicant had before the lower court raised the new point now sought to be raised, he would have filed a further affidavit explaining his non-compliance with section 16 of the Legal Practitioners Act. It is my view that that could not be the purpose of the undefended list procedure. That would debase that useful procedure to a trial by exchange of affidavits.
In the final conclusion, this application succeeds. Leave is granted to the applicant to raise on appeal the new points not raised before the lower court and as embodied in grounds 4 and 5 of the proposed amended notice of appeal. Leave is granted to the applicant to file the amended notice of appeal incorporating additional grounds of appeal as per Exhibit ‘A’ annexed to the applicant’s affidavit. The amended notice is to be filed within 14 days of this order.
There will be costs of N500 to the applicants against the respondent.
Other Citations: (1998)LCN/0444(CA)
