Ami Mike Investment Ltd. V. Mr. A. Ladipo (2007)
LawGlobal-Hub Lead Judgment Report
M. D. MUHAMMAD, J.C.A.
The Appellant herein as Plaintiff instituted Suit NO.1/681/95 in the Oyo State High Court under the undefended list. The claim against the Respondent, who was the defendant in the suit, was for the sum of Two Hundred and Fifty Six Thousand, Five hundred Naira. There was a client/solicitor relationship between the Appellant and the Respondent. The sum being claimed was balance of the money the Respondent recovered for the Appellant but which the former failed to pay to latter.
After the commencement of suit No. 1/681/95 by the Appellant, the Respondent sent a bill of costs for the professional services rendered and sought to use same to counter claim in the very suit. Judgment was entered in favour of the Appellant while Respondent’s counter claim was discountenanced.
The Respondent subsequently commenced the instant suit NO.1/433/98 at the lower court seeking to recover the professional fees he was unable to in his counter claim in the earlier suit No. 1/681/95.
Appellant’s claim is for the sum of Three Hundred and Fifty Seven Thousand Naira endorsed on the bill of costs.
Pleadings were ordered, filed, exchanged and amended.
By an application dated 7th February, 2001, the Appellant herein challenged the competence of Respondent’s action on the ground that:-
“1. The Plaintiff/Respondent did not serve or deliver his bills of costs one month before filing this suit as required by the Legal Practitioners Act and
ALTERNATIVELY:-
The Plaintiff/Respondent did not Serve or deliver a competent or valid bills of costs as required under the Legal Practitioners Act before filing this suit.
- The Plaintiff/Respondent’s letter with its annexures all dated 1st November, 1995 which he described and relies upon as his bills of costs have been declared incompetent by the court in the judgment delivered in suit No. 1/681/95 on the 6th day of May, 1995 between Amimike Invest. Co. Limited v. Akin Ladipo”.
The lower court heard arguments in the Application and in a considered ruling dated 11th day of April 2001, dismissed the Appellant’s objection. Being dissatisfied with the ruling, the Appellant has appealed against same on a notice containing three grounds.
Parties have filed and exchanged briefs of argument. Same were adopted and relied upon at the hearing of the appeal.
At page four of the Appellant’s briefs an indication that Appellant has abandoned its first ground of Appeal. The appeal, therefore, endures on the basis of the 2nd and 3rd grounds of Appeal only. From these two surviving grounds of appeal, four issues have purportedly been distilled in the Appellant’s brief as having arisen fro the determination of the appeal.
These issues read:-
“1. Whether the failure of the Respondent to itemize his bill of charges was fatal to his claim particularly as the Appellant strenuously objected to the bill of charges before and during trial.
- Whether the Respondent’s bill of charges is redeemable and capable of supporting this case in its peculiar circumstances.
- Whether from the pleadings and the evidence before the court, the Appellant could be said to have slept on or waived its right under the Legal Practitioners Act and so the inadequacies in the bills of cost issued by the Respondent shall be ignored as the Supreme Court did to the inadequacies in the bill of costs issued by the Appellant in Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414.
- Whether the court below was correct in holding that the statement of the Learned Trial Judge in suit No. 1/681/95 on the validity of the bill of costs now sought to be used in this suit was an obiter dictum and cannot bar the Respondent from using same for the purpose of recovery of the sum endorsed on the bill of costs.
It is certainly wrong and unacceptable for the Appellant to formulate more issues than the grounds of appeal in its notice. Proliferation of issues has in a seemingly countless number of judicial pronouncements been frowned at. Rather than aid in understanding the issues raised by the appeal proliferation, instead, confounds them. In the instant appeal Appellant has formulated four issues from two grounds. That is an error that has time without numbers been deprecated See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) 128 and Onyemaizu v. Ojioko (2000) 6 NWLR (Pt.659) 25.
In this appeal Appellant’s first issue which subsumes its 2nd and 3rd would along with the 4th issue, provide the basis of determining the appeal.
This tallies with the Respondent’s resolve to have the appeal determined on two similar issues which read as follows:-
“1. Whether the failure to itemize, as required by the Legal Practitioners Act, the bill bf charges issued by the Respondent to the Appellant is fatal to his claim.
- Whether the decision of the trial judge that the Pronouncement of the court in suit NO.1/681/95 on the bill of charges is correct”.
The decision to determine the appeal on the two suggested issues further solves the problem created by the preliminary objection adumbrated in the Respondent’s brief over Appellant 2nd and 3rd issues for the determination of the appeal.
In arguing the Appeal Learned Appellant Counsel Uche Akaluyo Esq. contends that a legal practitioner is only obliged under the legal Practitioner’s Act to issue and serve a bill of charges for the services he rendered where the charges as endorsed on the bill are intended to be recovered by an action in a law court. If the legal practitioner should succeed in recovering the amount on the bill of charges, the bill must necessarily comply with the law that provides for it. At page 131 line 34 and page 132 lines 1-2 the lower court had found that Respondent’s bill of charges does not meet the standard set by law. This finding, Learned Counsel submits, has not been challenged.
Learned Appellant Counsel further contends that with the lower court’s finding that Respondent’s bill of charges has not been sufficiently particularized following Appellant’s protest, the only conclusion open to the court is that such an insufficiently particularized bill cannot support Respondent’s action for the recovery of the amount endorsed on the bill.
Appellant’s protests against Respondent’s bill of cost, Learned Counsel submits, are legion. Exhibit ‘B’ Appellant’s letter dated 12/12/95 annexed to the affidavit in support of Appellant’s motion on notice now on appeal has raised this protest. The fact of this protest has been admitted in paragraph 21 of Respondent’s amended statement of claim. Paragraphs 11, 11b, 12, 13, 15, 22 and 24 of Appellant’s amended statement of defence also embody this challenge to the inadequacies and unreliability of Respondent’s bill all indicating that Appellant never slept on its right. Counsel relies on the decisions in Oyekamni v. NEPA (2000) 15 NWLR (Pt. 690) 414 and Cobbett v. Wood (1908) 2 KB 420 and urges that we resolve this issue in Appellant’s favour and allow the Appeal.
Under its 4th and Respondent’s 2nd issue for the determination of the appeal, learned Appellant’s Counsel argues that Respondent had in paragraph 21 of his amended statement of claim admitted that the lower court had disallowed in suit No. 1/681/95 the use of Respondent’s bill of cost to maintain a counter-claim. This decision of the lower court in suit 1/681/95 disallowing the same bill of costs being relied upon by the Respondent raises an issue estoppel against the latter. Public policy requires that Respondent is estopped from using the same bills of cost that had been condemned in the earlier suit. Counsel buttress his argument with the decisions in Odjewedje vs. Echarokpe (1987) 1 NWLR (pt 52) 633 at 643, Mohammed Olawuni (1993) 4 NWLR (pt 287) 254 at 272 and Gbadebo & 1or vs. Fadiora & 1or (1974) 4 WSCA Vol iv 164 and Ibrahim v. JSC (1998) 14 NWLR (PT 584) 1 at 80. He urged that the issues be resolved in Appellant’s favour and the appeal allowed.
On his part, Learned Respondent Counsel submits that Section 16(1) of the Legal Practitioners Act entitles a legal practitioner to recover his professional charges by instituting action in court. The section also provides the steps the legal practitioner takes in realizing this objective. Counsel, who concedes that the lower court had found that the Respondent’s bills of cost did not comply with the provision of Section 16(1) of the Legal Practitioners Act, asserts that the professional services the Respondent rendered was never in doubt as same had also been admitted by the Appellant. This admission that Respondent had rendered the Appellant some services made it impossible for the Respondent’s bill of costs to be rendered a nullity. Learned Respondent counsel submits further that the Supreme Court has, in Oyekanmi vs. NEPA (supra), held at 445 of the report that though itemizing bill of costs is under Section 16(1) of the Legal Practitioners Act desirable, failure to do same does not render the bill a nullity. The Act, learned counsel contends, does not state what particulars the bill of costs should contain. The law only required that the bill shall provide particulars of principal items. The case of Cobbett vs. Wood (supra) referred to by Appellant’s counsel, it is submitted by Respondent’s counsel, is not relevant to the instant case. Also, the issue of inadequacy of the bill of costs was never raised in Oyekanmi v. NEPA (supra) as has been done in the instant case. The decision in the case, therefore, does not help Appellant’s case. It should be discountenanced.
Under his 2nd issue, Respondent defined the phrase obiter dictum by reference to Osborn’s concise Law Dictionary Sixth Edition page 238. He submits that the lower court’s remarks about his bill of costs in suit 1/681/95 is obiter dictim and does not constitute estoppel against Respondent in the instant action.
On the whole, Learned Respondent Counsel urges that the appeal be dismissed.
Now, the resolution of this appeal must invariably turn upon the lower court’s jurisdiction as affected, if at all, firstly by the non-fulfillment of the condition precedent imposed by Section 16 (2) of the Legal Practitioners Act on the Respondent who relies on his bill of costs to claim charges for the professional services he rendered to Appellant. There is the further question as to whether the Respondent, whose bill of costs had been pronounced upon in an earlier suit No. 1/681/95, is estopped from claiming on the basis of the very bill of costs.
Determining the first issue squarely depends on the interpretation we place on Section 16 (2) of the Legal Practitioner’s Act which Provides:
“S. 16(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 one of the partners or in the name of the firm, has been served on the client personally or left for him of 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 golden rule of interpretation of statutes requires that where words that make up the statute are clear and unamiiguous the intention of the law maker flows naturally from these words. All the court does is to ascribe to the words constituting the statute their ordinary and natural meaning and, except absurdity results, discover the meaning of the statute it seeks to interpret. See Ndoma-Egba v. Chukwuogor (2004) 6 NWLR (Pt. 869) 382 SC and Ibrahim v. Ojomo (2004) 14 NWLR (Pt. 862) 89 SC and Egbe v. Belgore (2004) 8 NWLR (Pt. 875) 336 at 356. Where a lower court in the judicial hierarchy is called to interpret the provision of a statute which provision had already been interpreted by a higher court in the hierarchy, the former’s task is made easier since by the doctrine of stare-decisis the lower court must abide by the interpretation given by the superior court in the earlier case. In particular, the persisting decision of the Supreme Court even where reached per incuriam, binds not only the Supreme Court itself but also the court of Appeal and other courts in the lower hierarchy of the judicial system until the Appeal Court has overruled itself by setting the decision aside. See Odugbo v. Abu (2001) 14 NWLR (Pt. 732) 45; S.E.S. Ltd. v. Maersk (Nit.) Ltd. (2001) 17 NWLR (Pt.743) 517 and Egbe v. Belgore (supra).
In the instant case Section 16 (2) of the Legal Practitioner’s Act the lower court was asked to apply to the facts in issue had been pronounced upon by the Supreme Court in Oyakanmi v. NEPA (2000) 15 NWLR (Pt.690) 414, a case appositely referred to by both Counsel at the court below as well as in parties brief in this Appeal. The court at first seem to be conscious of the duty it had to discharge in the task of interpretation asked of it when in its ruling at page 131 of the record of Appeal it made a significant finding thus;-
“In the instant case there are two bills issued to the Defendant. Each of them is dated 1st November, 1995. I have examined the two bills in question. I note that they are bills of fees for professional service.
Each was signed by the Plaintiff and this action taken out in respect of the bills was filed on 2/7/98 but issued on 8/12/98. However I agree with the submission of Learned Counsel for the Applicant that the bills issued by the Plaintiff do not contain details of the particulars at (sic) the work done as required by the Legal Practitioners Act”.
(Underlining supplied for emphasis)
The court gave reasons for the foregoing finding on the following words:-
“The need for Legal Practitioner’s to draw out bill of charges carefully and properly as emphasized by the Supreme Court in Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414. Therein the apex court spelt out the conditions precedent to action by Legal Practitioner to recover his fees. The court also set out the general guidelines as to the form, contents and purpose of a bill of charge viz:-
(1) The bill should be headed to reflect the subject matter;
(2) The bill should contain all the charges, fees and professional disbursement ‘for which the Legal Practitioner is making a claim. Professional disbursements include payments which are necessarily made by the Legal Practitioner in pursuance of his professional duty such as court fees, witness fees etc.;
(3) Charges and fees should be particularized e.g:-
(a) perusing documents and giving professional Advice;
(b) conducting (sic) necessary inquires;
(c) drawing up the writ of summons and statement of claim or defence;
(d) number of attendance in court and dates and
(e) summarized statement of the work done”.
(Underlining supplied for emphasis)
The lower court stressed its earlier I finding on the basis of the foregoing reason as followings-
” As I have held earlier the bills instant case fell below and do not meet the guidelines that were set out in Oyekanmi’s case”.
(Underlining supplied for emphasis)
So far so good. It is however in the trial court’s determination of the effect of the Respondent failure to fulfill the condition precedent to his claim as is required by Section 16 (2) of the Legal Practitioners Act that the court got derailed. The court decided, and wrongly in my humble and considered view, that inspite of the non fulfillment of the condition precedent the law required Respondent’s bill of charge to be fulfill to enable the Respondent prosecute his claim, that it could assume jurisdiction. I agree with Learned Appellant’s Counsel that since Appellant had objected to the court’s exercise of jurisdiction because of those defects which the court itself found had manifested themselves in the bill, the court’s jurisdiction had been put on hold until the condition precedent to its being exercised are fulfilled by the Respondent. In the instant case since the Respondent did not fulfill this condition precedent. The Appellant who objected to Respondent’s non fulfillment of the pre-condition the statute required him to, cannot be said to have waived his right of insisting that Respondent fulfills the condition.
Respondent’s action had become incompetent voiding the court’s jurisdiction to hear and determine it.
In Madukolu v. Nkendlim (1962) 1 ALL NLR (Pt. 4) 587 at 595 the Apex court has held that a court is said to be competent when, among others, the case comes before it has been initiated by due process of law and upon fulfillment of any condition to the exercise of jurisdiction. As opined earlier in this judgment, section 16(1) and (2) of the Legal Practitioners Act that is made up of ordinary words must be constructed from the natural and ordinary meaning of its constitutive words. It is very clear from the wording of the Section that the Respondent herein, who is a legal practitioner, shall not be entitled to begin an action to recover his charges unless his bill of charges has satisfied Section 16 (2) (a) and ‘(b) of the Legal Practitioners Act. The lower court had found that respondent’s bill of charges on which the instant action is predicated did not satisfy these requirements. These findings as Learned Appellant Counsel submitted has not been appealed against and necessarily endures see N.I.W.A. v. S.P.D.C. (Nig.) Ltd. (2007) ALL FWLR (Pt. 361) 1727 at 1746. Having correctly found that Respondent’s bill of charges had not satisfied the requirement of the law the only option open to the lower court, unless a decision of a superior court has held to the contrary in a similar situation, is to decline jurisdiction since non avails. The lower court’s reason for assumption of jurisdiction inspite of its finding that Respondent’s bill of charges does not comply with Section 16(1) and (2) of the Legal Practitioners Act is found at the tail end of its ruling.
The court therein claims to be applying the Supreme Court’s decision in the Oyekanmi’s case supra when it stated as follows:-
“The question however is whether such failure renders that bill a nullity, At page 445 paras C to F of Oyekanmi ‘s case the supreme court further held as follows:-
” Thus whereas as itemized bill of costs as required by Section 16 (1) of the legal Practitioners Act is desirable, failure to itemize the bill of cost on the part of the Defendant with particularity would not in my view, render it a nullity for non conformity with the Act”.
In line with the authority I do not think it will be proper for me to strike out this case at this stage…… in my view this application does not succeed. The same is hereby accordingly dismissed.”
The lower court’s finding above is solid to the extent that same has truly and unmistakably drawn from the particular Supreme Court’s decision it is said to draw from. Has it? One thinks not.
The source of affliction in the lower court’s decision lies in its reliance on the relevant passage from the decision of the Apex Court after it had lifted the passage out of con. If the decision in Oyekanmi v. NPEA had been wholistically read and understood, the lower court’s decision would have been otherwise. Let us all read the decision, Oyekanmi v. NEPA (supra), in the manner the trial court ought to have done but failed to. We shall then find out whether the supreme court’s stand therein is that a bill of charge that had not conformed with the provision of Section 16 (2) of the Legal Practitioners Act could be proceeded upon by a Plaintiff inspite of an objection by the Defendant in the suit that the condition precedent imposed on the Plaintiff by the Act requiring particularization of the bill had not been met.
In Oyekanmi v. NEPA (supra) the Appellant who was a legal practitioner provided professional service to the Respondent in a suit against the Respondent by another. Appellant successfully defended the Respondent in that other action. He presented his bill of charges and demanded the payment of a lump sum, of N495,060:00k from the Respondent. The bill was not particularized., More than one month after delivering the bill, the Appellant instituted, an action at the High court claiming the sum of N495, 060:00k and interest. Pleadings were settled and the case was heard in a full trial. Pleadings and evidence showed that Respondent was willing to pay the Appellant N150, 000:00k. Evidence was also led by the Appellant as to the volume of work he undertook in defending the Appellant for which job he had, sued.
In awarding the Appellant the sum of N200, 000:00k, the trial court suo motu noted that Appellant’s bill did not contain particulars of the services provided. The issue was not pleaded, by both parties. Both parties were dissatisfied with the decision. They appealed to the Court of Appeal.
The Court of Appeal held that the Appellant’s bill that had not been properly drawn could not form the basis of awarding the Appellant’s fees even though that was not an issue at the trial court. Appellant’s claim as well as his Cross Appeal was dismissed by the Court of Appeal. NEPA’s appeal had earlier been allowed by the Court.
Aggrieved by the Court of Appeal decision, the Appellant appealed against same to the Supreme Court. Uwaifo JSC, in his lead judgment, while allowing the Appeal stated at page 434 of the report as follows:-
“In the present case, no objection of any kind was taken to the bill of charges. exhibit J. whether on a preliminary issue or in the statement of defenc, or in the course of hearing at the trial court, or even specifically on appeal. The Learned Judge adverted for the first time, and suo motu, to the question of the adequacy of the said bill of charges by his discussion of Re. A Solicitor (supra). The issue was not raised or canvassed by any of the parties, what the learned trial judge did was a digression which was unwarranted. He was in grave error in that regard. Civil cases are fought on the basis of issues joined on the pleadings and such other matters or objections regularly and properly raised and canvassed”. (Underlining supplied for emphasis)
His Lordship pronounced on the competence of Appellant’s bill of costs at page 436 of the report thus:-
“In view of the aspects discussed above in relation to the bill of charges. I will answer issue 1 in the negative and say that in the circumstances of the case the bill in question, not having been objected to by the Respondent nor did it apply for the taxation of the same, at worst remained litigable as to its quantum, unless it was considered proper to sign judgment for the entire sum. It accordingly became a matter falling within the exercise of the general jurisdiction of the court to resolve depending on the issues joined by parties and the evidence available”.
(Underlining supplied for emphasis)
Having so opined, his Lordship held that the Court of Appeal’s decision which had set aside the trial court’s decision based on the pleadings and evidence of parties and arrived at without any objection to the sufficiency of Appellant’s bill had caused miscarriage of justice. He allowed the appeal.
The passage relied upon by the lower court is from the concurring opinion of Gnu JSC. It is clearly quoted out of con of his Lordship judgment. In its proper con this is what it says:
“On the point whether the failure of the Appellant to itemize his bill of costs was fatal or incurably bad as to make his claim irrecoverable, I am of the firm view that the decision in Re. A Solicitor (1955) 2 ALL E R 283 upon a correct and proper application would only be bad or incurably bad unless there are no redeeming features. This is because of the admissible made in paragraph 21 (1 bid) of the Respondent’s statement of defence hereinbefore referred to. This; whereas an itemized bill of costs as required by section 16 (1) of the Legal Practitioners Act is desirable; failure to itemize the bill of cost on the part of the Appellant with particularity would not, in my view render it a nullity for non-conformity with the law of Act. See Re. Vanlaun (1907) 1 KB 162 affirmed in (1970) KB 23 CA for the proposition that delivery of a bill of costs can in fact be waived”. (Underlining supplied for emphasis)
From the leading judgment of Uwaifo JSC as well as the concurring one of Gnu JSC relied upon by the trial court in the instant matter, the real decision in Oyekanmi’s case is firstly, that courts must decide cases only with respect to such issues that had been joined by parties including those other matter as to objections and the evidence led in proof of the issues as joined. Also, because parties in Oyekanmi’s case had not joined issue on the sufficiency of the Appellant’s bill of costs it was wrong of the trial court and the Court of Appeal to find the bill of cost the sufficiency of which had not been objected to by the Respondent non-litigable. Had the Respondent raised objection to the bill’s sufficiency, therefore, the pronouncements of the two courts as to its competence would have availed the Respondent in the Oyekanmi’s case. It follows, by parity of reasoning, that in the instant case where the Appellant had vehemently and at each opportunity questioned the bill of charges of the Respondent, it is wrong for the lower court to proceed on the otherwise litigable bill of charges. The insufficiently particularized bill of costs ceases to be litigable in the face of the persistent objections raised by the Appellant regarding the bill’s short falls. In Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) 623, one of the issues the Supreme Court had to contend with pertained the effect of the non fulfillment of a condition precedent by the Plaintiff in the face of the Defendant’s objection thereto. The Appeal Court per Akintan JSC in its majority decision addressed the issue in the following terms:-
“As has been shown earlier above, the objection to jurisdiction was founded on non-compliance with the requirement of a pre-action notice which does not abrogate the right of a Plaintiff to approach the court or Defeat his cause of action. i.e therefore, the subject matter is within the jurisdiction of the court, as in this case, failure of the Plaintiff to serve the pre-action notice on the Defendant gives the Defendant a right to insist on such notice before the Plaintiff may approach the court. In other words non service of a pre-action notice merely puts the jurisdiction of a court on hold pending compliance with the precondition…. it may be mentioned that the effect of non-service of a pre-action notice, where it is statutorily required, as in this case, is only an irregularity which, however” renders an action incompetent. It follows, therefore that the irregularity can be waived by a Defendant…. If therefore, a Defendant refuses to waive it and he raises it, then the issue becomes a condition precedent which must be met before the court could exercise its jurisdiction: See Madukolu v. Nkemidillion (supra)… once raised and it is shown that there has been non-service, as in the present case, the court is bound to hold that the Plaintiff has not fulfilled a pre-condition for instituting his action. (Underlining supplied for emphasis)
In the instant case Section 16 (1) and (2) of the Legal Practitioners Act has made the particularization of Respondent’s bill of charges mandatory. The lower court has found the bill devoid of the particulars which the section required as of necessity to be stated in the bill. This finding followed the objection raised by the Appellant that the bill of charges has not satisfied the condition precedent to its being invoked in litigation for the recovery of the fees it purportedly charges. The use of the bill having been objected to and found by the lower court that indeed the bill of charges has not fulfilled the mandatory pre-condition required by Section 16 (1) and (2) of the Legal Practitioners Act, the Plaintiff has not fulfilled a pre-condition for instituting his action. See Nnonye v. Anyichie (supra) and Ijebu-Ode Local Govt. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136. The lower court’s finding that such an incompetent bill, issued contrary to Section 16 (1) and (2) of the Legal Practitioners Act could be proceeded upon notwithstanding the right of the Appellant to oppose same, has caused miscarriage of justice and being perverse must not be allowed to endure. The lower court has no jurisdiction to try the instant suit see Oyekamni v. NEPA (supra); Imah v. Okoghe (1993) 9 NWLR (Pt. 316) 159 and Adegoke v. Adebi (1992) 5 NWLR (Pt. 242) 410.
This resolve determines Appellant’s 1st issue in his favour.
Appellant’s 2nd issue is a further complaint that because of a subsisting decision of a court of competent jurisdiction on Respondent’s bill of cost prior to the institution of the instant suit the earlier decision had constituted an issue estopped barring the Respondent from instituting the instant action. Appellant has argued that the trial court’s decision that the pronouncement pertaining the bill in the earlier suit being an obiter dictum did not render the bill incompetent is wrong. He has urged that we intervene.
Now, an obiter dictum is a judge’s passing remarks which have nothing to do with the live issues for determination. It is the judge’s statement uttered by the way, so to say, which unlike the ratio decidende has no binding force. See Nwana v. FCDA (2004) 13 NWLR (Pt. 889) 128 at 141 and Yusuf v. Egbe (1987) 2 NWLR (Pt. 56) 341. Because an estoppel enures only on the basis of a valid subsisting decision of a court of law, rather than that court’s obiter dictum which lacks the binding force inherent in a valid decision, Appellant succeeds in his second issue if indeed the lower court’s decision that the statement concerning Respondent’s bill in the earlier decision is obiter proves otherwise.
It must be recalled that in the earlier suit, wherein Respondent’s bill of costs is said to be pronounced upon, the Respondent against whom the suit was commenced under the undefended list procedure had presented the same bill as features in the instant suit by way of a counter claim. The court on that occasion categorically found in elation to the very bill of costs unequivocally at page 108 of the record of appeal as follows:-
“As for the bills which he exhibited as exhibit AK 3, these are bills raised in November 1995 about five months after this present action commenced. This is not only against the principle of Lis pendis it does not also conform with the Legal Practitioner’s Act on how to raise bills of costs”.
The court’s decision above is in respect of Respondent’s bill of costs sought to be relied upon in the earlier case as a set-off. The decision cannot be said to be the court’s passing remark which have nothing to do with the live issues for determination before that court. It is a decision in respect of a live issue before that court: whether or not, based on Respondent’s bill of costs, the Respondent had a defence of set-off on the basis of which a triable issue persisted to warrant transfer of the matter to the general cause list. This decision, whether illegal, persists and constitutes an issue estoppel. It constitutes a bar to the use of the same bill of costs in the instant suit commenced subsequently. The decisions cited and relied upon by the Learned Appellant Counsel Uche Akalugo Esq., inter alia Odjevwedje v. Echanokpe (1987) 1 NWLR (Pt. 52) 633 at 643, Mohammed v. Olawumi (1993) 3 NWLR (Pt. 287) 254 at 272, Gbadebo & 1 OR v. Fadora & 1 Or (1974) WSCA (vol. iv) 164 at 172 and Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1 at 80 are very apposite and helpful. Appellant’s 2nd issue also succeeds. In sum, the Appeal has merit. It is hereby allowed. The lower court lacks the jurisdiction to hear the suit commenced by the Respondent in breach of Section 16 (1) and (2) of the Legal Practitioner’s Act. The trial court’s decision to the contrary is hereby set-aside. The instant suit being incompetent is accordingly struck out.
Parties should bear their respective costs.
Other Citations: (2007)LCN/2380(CA)
