Azubuike Nwuke V. Union Bank of Nigeria Plc (2009)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A,
This is an appeal against the judgment of Adebiyi, J. of the Lagos High Court delivered on the 24th of September, 2004.
The brief background facts leading to this appeal are as follows:-
The Plaintiff a legal practitioner and solicitor of the Supreme Court of Nigeria (hereinafter) referred to as the appellant was instructed by the defendant now respondent to demand and recover from Rio Food Supply Company Limited the sum of N47,278,263.00 by commencing legal action. The appellant commenced legal proceedings before the Lagos High Court by his writ of summons and statement of claim dated 25th day of September 2001 for the recovery of the said sum owed the respondent by the debtor company. At the conclusion of trial the Lagos High Court Coram Segun, J. on the 6th day of October, 1997, gave judgment in favour of the Respondent against the debtor company Rio Foods, in the sum of N50,704,280.27 in addition to a 21% interest from 24th November, 1995, until final liquidation of the whole debt. The appellant did demand for his 10% commission on the recovered sum but respondent persistently refused to pay the appellant his due commission.
As a result of the default, appellant took out a writ of summons against the respondent and claimed as per paragraph 29 of his statement of claim dated 24th September, 2001 as follows:
“WHEREUPON the Plaintiff claims against the Defendant the sum of N3,535,000.00 being legal commission due him from the Defendant for instituting legal action against Rio Foods Supply Limited & ors, obtaining judgment against the said debtor and thereafter recovering for the Defendant a total sum of N50,350.00 from the debtor company.”
Pleadings of both parties were concluded and the suit was set down for trial and eventually concluded on the 3rd day of February, 2004. Addresses of both counsel in the suit were taken and on the 24th day of September 2004, the learned trial Judge Adebiyi, J. gave judgment against the Plaintiff/appellant, dismissing as it were, the claim of the Plaintiff/appellant. See pages 145 – 160 of the record. Being dissatisfied with the judgment the appellant appealed to this court by filing his Notice and Grounds of Appeal on 15th day of November, 2004 containing seven grounds of appeal.
In accordance with the practice and procedure of this court, counsel exchanged briefs of argument. Pursuant to an order of court made on the 19th February, 2007 appellant’s brief of argument was filed within 15 days as granted by the court. A reply brief dated 26/4/08 was also filed by the appellant on 01/07/08. Pursuant to court order made on 2/6/08, respondent’s brief dated 12/6/08 was filed on same date. When the appeal came up for hearing on 21/01/09, Appellant’s counsel Mr. Imoh and respondent’s counsel Mrs. Ufot adopted their respective briefs of argument. Mr. Imoh urged the court to allow the appeal while Mrs. Ufot urged the court to dismiss the appeal and affirm the decision of the lower court.
From the seven grounds of appeal, appellant distilled two issues for determination. The issues are:-
(1) Whether on the evidence – oral and documentary – before the lower court, the plaintiff/appellant discharged the responsibilities contained in the respondent letter of instruction dated 20th September, 1995.
(2) If issue one is answered in the affirmative, whether the plaintiff/appellant was entitled to the agreed percent commission on the recovered sum of N50,704,280.27 from Rio Foods Supply Limited in favour of the respondent?
Respondent on the other hand formulated two issues for determination as follows:-
- Whether there was binding agreement between the Appellant and the respondent that the Appellant will be entitled to 10% commission of the sum recovered from the debtor company, Rio Foods Supply Co. Ltd (distilled from grounds 1, 5 and 6 of the Grounds of Appeal).
- Whether the lower court was right to have dismissed the Appellant’s claim on the ground that he was not able to prove that he was entitled to N3,535,000.00. Commission from the Respondent (Distilled from Grounds 2, 3, 4 and 7 of the Grounds of Appeal).
I have examined the issues formulated by both parties. The issues for determination as formulated by appellant are not elegantly so couched as rightly observed by respondents counsel but they relate to the grounds of appeal filed by the appellant. I will therefore adopt appellant’s issues in resolving this appeal. For convenience I will take the two issues together. While arguing issue No 1 appellant’s counsel Mr. Imoh contended that appellant discharged the responsibilities enjoined him by the respondent as contained in the respondent’s letter Exhibit ‘PW2’ dated 20th September, 1995. Learned counsel contended that there exists a legal and or contractual relationship with the respondent in the form of solicitor – client relationship. This fact respondent admitted in the pleadings and the uncontroverted evidence of the appellant. Learned counsel referred to paragraphs 5, 6 and 7 of the statement of claim. The appellant’s legal relationship with the Respondent was confirmatory and unequivocally corroborated by the Respondent’s sole witness Venatius Chidumaga Opara. It is trite law that once evidence led in support of facts pleaded is admissible, relevant and uncontradicted and not discredited by cross-examination, a court can rely on it as facts admitted, require no evidential proof. See Obmiami Brick & Stone (Nig) Ltd Vs A.C.B. Ltd (1992) 3 NWLR (Pt 229)294 paras, A & F. Appellant’s counsel further contended that upon the vivid adumbration of the factual and evidential circumstances enumerated above, it is safer for this court to hold that there existed a legal and contractual relationship between the appellant and the respondent, the breach of which entitled the appellant to his claim as contained in his statement of claim. The appellant based his claim on contractual rights as evidenced in Exhibit PW2, pleaded same in his statement of claim and led evidence on the terms which gave him the right to be paid his due 10% commission for acting satisfactorily to the requirements of Exhibit PW2, thereby creating the obligation on the Respondent to pay failure on the part of the Respondent which constituted the breach which redress the appellant is seeking. See Shell Petroleum Development Co. of Nig. Ltd & ors Vs Nwauka (2003) FWLR (Pt 144) 506 at 523 paras E – F. Learned counsel further contended that appellant discharged the respondent’s instructions contained in Exhibit PW2. Appellant’s counsel submitted that appellant complied with the instructions and issued letter of demand on debtor company. After debtor company refused to settle the debt, he then took out writ of summons by filing suit against the debtor company. Subsequently judgment was given in favour of the respondent to the tune of N50,704,280.27 with interest at 21% till final payment. See paragraphs 5, 6, & 7 of the statement of claim. Learned counsel contended that this factual situation was never denied by the respondent both in its statement of defence and from the evidence of the respondent sole witness. See page 157 of the record. It is trite that facts admitted need no further proof. See Mosheshe General Merchant Ltd Vs Nig Steel Products Ltd (1986) 1 NWLR (Pt 55) 110 at 120 and PAS (Nig) Ltd Vs N.N.S. Co Ltd (1990) 6 NWLR (Pt 159) 764 at 771 paras C – D.
Learned counsel further submitted that the appellant’s diligent satisfaction of his contractual obligation towards the Respondent as demanded by Exhibit PW2 was unequivocally reaffirmed by the Respondent’s sole witness in his evidence at page 27 of the record.
Learned counsel submitted that the lower court merely opted to refuse the claim of the appellant on a non existing and unexplained principles which has no basis neither in law or in any known equitable principle. This court is enjoined at law to set aside this fallacious conclusion by the lower court. Appellant’s counsel also contended that appellant’s demand letter depicted in Exhibit PW3 at page 97B of the record, the appellant, satisfactorily carried out the 1st limb of the Respondent’s instructions as contained in Exhibit PW2, and is entitled to his agreed 10% commission. He urged the court to so hold. This piece of evidence was neither challenged nor controverted by the Respondent. He urged the court to accept it as true. See Towoeni Vs Towoeni (2001) 12 NWLR (Pt 727) 445 at 463, paras C – D; Nwabnokn Vs Ohih (1961) 2 SC NLR 232; Okupe Vs Ifemembi (1974) 3 SC 97 and Ajomale vs Yadnat (No 2)(1991) 7 NWLR (Pt 191) 266. Replying on the case of Arjay Ltd vs Airline Management Support Ltd (2003) FWLR (Pt 156) 943 at 990 paras A – C. Appellant’s counsel contended that appellant having satisfied the conditions in Exhibit PW2 is entitled to his commission as claimed. Learned counsel contended that the institution and obtaining a judgment in favour of the Defendant/respondent and the final liquidation of the judgment sum, concession or not by the judgment debtor were the exclusive efforts and professional endeavours of the appellant. Therefore he is entitled to the customary 10% commission on same. Learned counsel further submitted that having stated without any penumbra of un-equivocation that the Bank went to court to recover the debt” ….. the Bank appointed a solicitor who represented the Bank in the court. The Plaintiff is the solicitor appointed by the legal Department…..” The question is what other evidence did the learned trial judge need to come to a reasonable and sustainable conclusion that the Appellant painstakingly and adroitly recovered the debt, for the Respondent from Rio Foods Appellant’s counsel urged the court to allow the appeal of the appellant, by granting him his claims.
As regards issue No 2 Learned counsel contended that appellant having professionally satisfied the expectations of the Respondent as contained in Exhibit PW2 is duly entitled to the agreed 10% commission of the recovered N50,704,280.27 from Rio Foods Supply Co. Limited in favour of the Respondent. Learned counsel submitted that where parties have entered into a contract or an agreement they are bound by the provisions of the contract or agreement. The court is bound to construe the terms of the contract or agreement and the terms only in event of an action arising therefrom. See Arjay Ltd Vs Airline Management Support Ltd supra page 990, paras A – C; Northern Assurance Co. Ltd Vs Wuraola (1969) NSCC 22, and Niger Dams Authority Vs Lajide (1973) 5 SC 207. The learned trial Judges findings was neither founded on the pleadings of the parties nor was same predicated on any led evidence before the court. Counsel contended that the learned trial Judge suo motu imported the issue of actual recovery by the appellant and adversely ruled against the appellant. There was no basis for the trial Judge’s assumption that because the appellant was not directly involved in the actual collection of the cheques or cash paid by the debtor company, as such did not recover money. Learned counsel submitted that judgment must be confined to the issues raised by the parties. It was incompetent for the learned trial judge to suo motu make a case different from that of the parties. This position should be reversed by the court. See Chin do World Wide Ltd Vs Total Nigeria Plc (2002) FWLR (Pt 115) 750 at 761 – 762, paras G – A; Commissioner for Works Benue State Vs Dev Con Development Consultants Ltd (1988) 3 NWLR (Pt 83) 407 and Nigerian Housing Development Society Vs Mumuni (1977) 2 SC 57.
Learned counsel contended that Respondent’s sole witness in evidence maintained that 10% (percent) commission are paid to solicitors for recovery efforts and most mendaciously somersaulted later to state that the Appellant was merely retained to obtain judgment though he confessed that the case went on appeal without volunteering important information as to who handled the appeal and the execution effort at Kano. See page 50 of the record. It was contended that the learned trial Judge was in grave error when it denied the Appellant his 10% commission upon the unproved case of the Respondent. See Emos Kwada Vs Yakubu Zira & Ors (2002) FWLR (Pt 112) 113 at 128, para C and Adesanya Vs Otuewu (1993) 1 NWLR (Pt 270) 414.
Furthermore, appellant’s counsel submitted that by sheer calculation and on the strength of the admission of the Respondent’s counsel in paragraph 12 of their amended statement of defence, the trial judge ought to have awarded judgment in favour of the appellant on that alone. Having recovered N28,500,000.00 by the imagination of the Respondent, and the trial judge also found as a fact that the Appellant was paid N2 million as his professional fees, appellant’s counsel contended that was it not by sheer common sense proper for the trial court to have awarded 10% commission to the appellant On N28,500,000.00 on that admission. Moreso, when there was no evidence whatsoever before the court below that the Appellant was paid the 10% commission on their admitted N28,5000,000.00 recovery. See PAS (Nig) Ltd Vs N.N.S Co. Ltd (1990) 6 NWLR (Pt 159) 764 at 771 paras C – D and Mosheshe General Merchant Ltd Vs Nigeria Steel Products Ltd (1987) 1 NWLR (Pt 55) 110 at 120. Learned counsel submitted that at law, where a whole or a part of an ascertained sum is admitted, the issue is concluded as to the amount. The Appellant claimed against the Respondent, the sum of N3,535,000.00 and the Respondent by their pleadings admitted the sum of N2,850,000.00 being 10% commission on N28,5000,000.00 admittedly recovered by the Appellant for the Respondent. See the case of Emmanuel T. Ayeni & ors Vs Sowemimo (1982) All NLR 52 at 53. Learned counsel submitted that appellant’s claim is centered around Exhibit ‘PW2’ as such the use of the phraseology “actual recovery” should be discountenanced as oral evidence cannot be used to contradict or vary the contents of Exhibit PW2. See section 13 2(1) Evidence Act and Olanleye Vs Afro Continental (Nig) Ltd (1996) 7 NWLR (Pt 458) 28 at 40 paras B – C. Learned counsel urged the court to use Exhibit PW2 as a hanger to assess the oral testimony of DW1 with a view to empowering the appellant with the much desired compensation upon satisfactory completion of his assignment contained in Exhibit PW2. See Kindey Vs Military Governor, Gongola State (1988) 2 NWLR (Pt 77) 445 at 473 paras B – C. It was submitted that appellant’s entitlement to the recovered judgment sum for the respondent was proved and overwhelmingly substantiated, admitted and reaffirmed by the Respondent. It is trite that where a piece of evidence remains unchallenged uncontradicted, supported by the pleading and by its very nature incredible, the trial Judge has no option but to accept it. See Nwabuolu Vs Ottih (1961) 2 SCNLR 32 and M.I.A. & Sons Vs F.H.A. (1991) 8 NWLR (Pt 209) 205. Learned counsel urged the court to invoke its supervisory powers over the trial court and interfere with this apparent perversed, unsound, judicially inconsistent decision of the trial court. See Cbief Frank Ebba Vs Wasbi Ogodo (1984) 1 SCNLR 372 at 373.
On the whole appellant’s counsel urged the court to give judgment in favour of the appellant as contained in his writ of summons and statement of claim. See Sommer Vs F.B.A. (1992) NWLR (Pt 219) 548 at 562 para C and Ohiaeri Vs Akabeze (1992) 2 NWLR (Pt 221) 1 at 27 paras D – E, 28 – 29 paras H- I.
Learned counsel for the respondent in response contended that when a party freely entered into a written contract with another, that party is bound by the terms of the said written contract. See UBN Plc Vs Akinrinmade (2000) 2 NWLR (Pt 645) 495 at 476. He is not allowed to introduce extrinsic evidence to alter, add or vary its contents. See Section 132 (I) of the evidence Act Cap E14 LFN 2004. Where a party alleges custom or an oral agreement beside the written contract, the onus is on him to prove that such custom or separate oral agreement is intended to be part of the terms of the written contract. See Sections 8, 14, 135 and 136 Evidence Act. Learned counsel submitted that Exhibit PW2 is the letter of instruction and served as the written contract between the Appellant and the Respondent. Exhibit PW2 did not provide any fee payable for the work to be done either as professional fee or commission. It was contended that appellant did not call any witness or tender document to prove the alleged custom that respondent pay 10% commission for every recovery made. The presumption is that evidence of this fact if produced will be unfavourable to the Appellant and as such there was no such custom that was previously applied to him. See Section 149(d) Evidence Act and FMF Vs Ekpo (2004) 2 NWLR (Pt 856) 108. Learned counsel submitted that where contract between the Appellant and Respondent did not specify legal fee let alone 10% commission upon recovery of debt, any custom alleged to be part of the written contract must not be inconsistent with its content and must be shown that such custom shall be applicable to him in the circumstance. Learned counsel submitted that the evidence of DW1 and PWI including defendant’s statement of defence tend to show that the bank has a policy of paying 10% to solicitors specially appointed to recover debt and who have been involved in the actual recovery of the whole or part of the debt. Learned counsel maintained that there was no agreement as to 10% commission to be paid to the appellant. It was further contended that the respondent’s letter of 19th December, 1997 which made reference to the appellant’s letter of 18th November, 1997 shows that the Respondent never intended that the 10% commission was applicable to the appellant, hence there was no agreement or consensus to payment of commission to the appellant.
As to whether the lower court was right to have dismissed the appellant’s claim on the ground that he failed to prove that he was entitled to commission, Respondent’s counsel contended that assuming, though not conceding that the payment of 10% commission was contemplated by both parties in the agreement, the question is did the appellant satisfy the conditions for payment of 10% commission aside his professional fees? Learned counsel contended that the trial court was correct when it held that the appellant failed to prove that he was instrumental to the recovery of the total sum of N40,350,000.00 paid by the debtor company to the Respondent. Furthermore, learned counsel relied on the letter dated 2/10/98 written by appellant to the respondent and contended that the contents clearly confirm that appellant was not part of the efforts that led to the recovery of the debt. It was submitted that obtaining paper judgment does not give the respondent anything but actual recovery of the debt which was carried out by the respondent itself. Respondent’s counsel submitted that appellant’s argument at paragraph 6.17 and 6.18 of pages 24 and 25 of the appellant’s brief does not hold water. Appellant’s argument that the court would have given him judgment based on the sum of N28,500,000.00 alleged to have been admitted by the Respondent cannot be supported. It was also submitted that the authorities cannot avail him because those cases are on clear admission. Every admission must be unequivocal and must lead to the irresistible conclusion that the respondent admitted the fact and that the admission (if any) was made in his favour. See Coker Vs Olukoya (1994) 2 NWLR (Pt 329) page 648 at 662. Learned counsel contended that respondent’s case does not suggest any admission whatsoever and howsoever. See PAS Nig Ltd Vs New Nig Salt Co Ltd (1990) 6 NWLR (Pt 159) 764 cited by appellant’s counsel in his brief. Learned counsel submitted in line with the decision of the trial court that the appellant was not instrumental or actually involved in the recovery of the concessionary sum of N40,350,000.00 recovered from the debtor company. The recovery was made through the effort of international recovery agent Gololo International agent and the Special Assets Department of the respondent as such appellant was not entitled to 10% commission. Learned counsel submitted that where a solicitor cannot justify or establish the things he carried out for his client on the basis of which he is charging the said client, the court will refuse to assist such a solicitor in recovering such charges by court action, which a legal practitioner has a right to do by virtue of section 16(1) of the legal Practitioners, Act 1975. See Oyekanmi Vs NEPA (2000) 15 NWLR (Pt 690) 414 at para D. See also S.B.N. Vs Opanubi (2004) 15 NWLR (Pt 896) 437. Respondents counsel urged the court to give force to the decision of the Supreme Court in the case of S.B.N Vs Opanubi supra. Respondents counsel contended that appellant’s counsel failed to raise proper issues for determination in this appeal and urged the court to discountenance the issues and the argument canvassed therein. It was also contended that the grounds of appeal do not reveal either a misunderstanding or a misconception of the law by the Judge. Learned counsel urged the court to strike out grounds 1, 2, 3, 4, 5 and 6 on the ground that they are misleading, repetitive, inelegant and vague.
In the reply brief appellant’s counsel submitted that the practice of paying 10% commission to solicitors was admitted by the respondent. On the issue of whether there existed an agreement between the respondent to pay both professional fees and 10% commission to the appellant in view of exhibit PW2, appellant’s counsel contended that the reasoning of the trial Judge at page 157 of the record suffice. As to whether the appellant’s issues for determination as formulated are not elegantly so couched, learned counsel submitted that this court can suo motu formulate issues from the appellants grounds of appeal for the proper and judicious determination of the appeal. It is trite law that upon examination of the issues raised by parties for determination in their briefs, the court has a duty to either adopt them or formulate issues it believes would adequately determine the complaints or grievance in the appeal. See Aduku Vs Adejoh (1994) 5 NWLR (Pt 346) 582; Ikegwuoha Vs Owawuchi (1996) 3 NWLR (Pt 435) 146; FRN Vs Obegolu (2006) 18 NWLR (Pt 1010) 188 at 223 paras C – D. Learned counsel urged the court to adopt the two issues formulated for determination by the appellant as being proper, decisive and related to the grounds so filed by the appellant. In response to the submission of respondent’s counsel that grounds 1, 2, 3, 4, 5 and 6 are misleading, repetitive, inelegant and vague, appellant’s counsel reviewed all the grounds and contended that the complaint raised in the grounds of appeal reveal error of law and not facts. Learned counsel relied on the cases of Ogbechie vs Onochie (1986) 2 NWLR (Pt 26) 484 at 491; Nwadike Vs Ibekwe (1987) 4 NWLR (Pt 67) 718 at 774 – 775 and Arjay Ltd Vs Airline Mgt Support Ltd (2003) FWLR (Pt 156) 943 at 980 paras A – C to buttress his submission. Appellant’s counsel still urged the court to discountenance the arguments of respondents counsel and allow the appeal.
I would first all wish to comment on the submission of respondent’s counsel regarding the issues formulated by the appellant as well as the grounds of appeal. As earlier stated I agree with the submission of respondent’s counsel that appellant’s issues are not elegantly couched but they relate to the grounds of appeal as such I am prepared to adopt same in determining the appeal. It is trite law that upon examination of the issues raised by parties for determination in their briefs, the court has a duty to either adopt them or formulate issues it believes would adequately determine the complaint or grievance in the appeal. See Aduku Vs Adejoh (1994) 5 NWLR (Pt 346) 582. Ikwegunocha Vs Owamichi (1996) 3 NWLR (Pt 435) 146 and FRN Vs Obegolu (2006) 18 NWLR (Pt 1010) 188 at 223. Where the issues formulated by parties are inadequate, inappropriate and wrong having regard to the grounds of Appeal filed the court may formulate issues that would determine the appeal at hand. See Fabiyi Vs Adeniyi (2000) FLWR (Pt 18) 196,210-211, paras A – B.
All that appellant is asking the court to resolve is whether he is entitled to 10% commission. As regards the complaint of respondent’s counsel that grounds 1, 2, 3, 4, 5 and 6 are misleading, repetitive, inelegant and vague, I wish to state that the complaint is not well founded. A ground is vague if it does not conclusively lead to a definite understanding of the complaint. On the other hand a ground is not vague or general in terms if it has disclosed reasonable ground of appeal and gives sufficient notice and information to the other side of the precise nature of the complaint of the appellant and consequently issues likely to arise in the appeal. See CBN Vs Okogie (2002) 8 NWLR (Pt 768) 48 and Ayinla Vs Adigun (1986) 1 CA (Pt 11) 31. A ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not comply with a particular form.
Having carefully examined the grounds of appeal, I do not share the view expressed by respondent’s counsel that they are vague and misleading. All the grounds contained particulars and had clearly given information to the respondent as to the nature of complaint raised in each ground. In the circumstances, I hold that ground 1, 2, 3, 5 and 6 are competent and so I would discountenance the submission of respondent’s counsel on this issue.
The first question to be resolved is whether the appellant carried out respondent’s instructions as per Exhibit ‘PW2’.
The plaintiff/appellant’s case as contained in his statement of claim is that he a Legal Practitioner was contracted as an external solicitor to the defendant/respondent to recover a debt of N47,278,263.00owed them from Rio Foods Supply Limited. He then filed an action against the debtor company following their refusal to honour his demand and obtained judgment against the debtor company on 6/10/97 to the tune of N52,704,280.27 with interest at 21% till final judgment.
For the avoidance of doubt the instruction of the appellant in Exhibit PW2 reads:-
“20th September, 1995
Union Bank of Nigeria Plc
Head Office
40, Marina, P.M. Bag 2027,
Lagos
A. Nwuke & Associates Telephone 2665439,
38/40 Strachan Street 2665441, 26645445
(6th Floor) Telephone UNION HEAD
OFF IGBOSERE ROAD Telex 21222
Lagos Fax 660/873
LEGAL DEPARTMENT
Dear Sir,
INDEBTEDNESS OF RIO FOODS SUPPLY COMPANY LIMITED TO WHART FOOD BRANCH IN THE SUM OF N47,278,263.00.
The above company is indebted to our Wharf Road Apapa branch in the sum of N47,278,263.00 (forty seven million two hundred and seventy-eight thousand two hundred and sixty-three naira only). The said debt was personally guaranteed by Alhaji Rabiu B. Rahiu director of the company and also secured by the legal mortgages
You are hereby instructed to make a demand on the company and to follow it up by commencing legal action to recover the debt. Kindly liase with our branch to obtain the information and documents necessary for a successful prosecution of the case.
Keep us regularly informed of progress made.
Yours faithfully
E.I. ODIKA NEKWU (MRS)
FOR: R/DEPUTY GENERAL MANAGER
(LEGAL SERVICES) ”
The appellant who testified as PW1 stated in his evidence in chief that he carried out the instruction given to him in Exhibit ‘PW2’. He issued a letter of demand to the debtor company and a copy of the letter was forwarded to the defendant/respondent. When the debtor failed to pay, he then took out a writ of summons and after 2 years of diligent work be obtained judgment against the debtor on the 10th of October, 1997 in the sum of N50 million and interest at 21% per annum. DW1 the sole witness who testified on behalf of Respondent in this case stated at page 22 of the record as follows:-
“—– Rio Foods was granted a facility which eventually got stuck, they were not able to service as a result the Bank went to court to recover the debt. I am aware the Bank appointed a solicitor who represents the bank in court. The solicitor was appointed by our legal team.
I do not know the plaintiff personally but from correspondence from the letters they wrote to him are copied to my department. The plaintiff is the solicitor appointed by the legal department”.
The learned trial Judge stated in his judgment at page 154 of the record as follows:
“It is not in dispute that the plaintiff/appellant was appointed as external solicitor to the respondent in June, 1990 vide Exhibit ‘PW1’. The plaintiff was appointed specifically on the 20th September, 1995 vide Exhibit ‘PW2’ to recover debt at N47,278.263 owed to the Defendant by Rio Foods Supply Company Limited”.
The piece of evidence and observation of the trial court referred to supra supports the claim of the appellant that he carried out respondent’s instruction as stated in exhibit ‘PW2’. Respondent never denied the fact that appellant obtained judgment against the debtor company on their behalf.
The instruction given in the letter Exhibit ‘PW2’ was that appellant should make a demand on the company and follow it up by commencing legal action to recover the debt. Having regard to the evidence on record, I am in agreement with the submission of appellant’s counsel that the appellant carried out the instruction of the Respondent as contained in Exhibit ‘PW2’.
The next question is was the appellant entitled to be paid 10% commission on the judgment sum?
As both counsel submitted in their respective briefs of argument Exhibit ‘PW2’ the letter of instruction served as a written contract between the appellant and the respondent. Exhibit ‘PW2’ showed the extent of contractual relationship with the respondent in the form of solicitor – client relationship. Upon close examination of exhibit ‘PW2’ reproduced supra, I am in agreement with the submission of respondent’s counsel that it did not provide any fee payable for the work to be done either as professional fee or commission. But that does not mean that appellant is not entitled to be paid remuneration for work done on behalf of the respondent. The general rule is that where parties have embodied the terms of their agreement or contract in a written document extrinsic evidence is not admissible to add to, vary, subtract from contradict the terms of the said written agreement. See UBN PLC Vs Akinrinmade (2000) 2 NWLR (Pt 645) 466 at 476; Layade Vs Panalpina (1996) 6 NWLR (Pt 456) 544 at 558 and Section 132(1) of the Evidence Act Cap E14 LFN 2004.However, where a party alleges a custom or an oral agreement beside the written contract, the onus is on him to prove that such custom or separate oral agreement is intended to be part of the written contract. See Section 14(1) of the Evidence Act.
It has to be borne in mind that appellant’s complaint in this appeal has nothing to do with payment of professional fees. Appellant’s complaint relates to the payment of 10% commission only. As earlier stated exhibit ‘PW2’ is silent on this issue. It is necessary to consider the entire evidence adduced so as to determine whether the issue of custom or practice could be applied in the case at hand having regard to the circumstances.
Appellant admitted in his testimony under cross-examination that there is no where in the letter of appointment or correspondence that the issue of professional fee was raised. Appellant however, pleaded in paragraph 9 of his statement of claim that it is the practice of the Defendant to pay 10% commission apart from the professional legal fees for recovery of debt matters. The respondent in paragraphs 2 of its amended statement of defence denied that it is their practice to pay 10% commission but averred that such commission is only paid where a solicitor is proved to have been involved in the actual recovery of the debt. It is worthy of note the testimony of respondent’s sole witness appearing at page 45 of the record where he stated thus:-
“When the Bank is taken to court, normally the legal defendant (sic) negotiates with our handling solicitor on the professional fees to be paid to him till the end of the case. On the other hand if a solicitor is appointed or engaged purely on debt recovery process he is entitled to 10% communication (sic) commission on the amount recovered that is the Bank policy”.
What was the position taken by the trial court as regards the payment of 10% commission. The learned trial Judge had this to say at page 156 of the record:
“From the evidence before it, the court finds that there was no specific written agreement between the parties for payment of 10% commission for recovery of the debt. The plaintiff perhaps based on custom kept writing to the Defendants who never refuted this. It is the law that contracts may be written or oral. Terms in a contract whether commercial or not may be sanctioned by custom whether commercial or otherwise. See Hutton Vs Warren (1836) 1 EW 466 at 475 part B. Furthermore the court relying on both provisions of Section 149(c) of the Evidence Act Cap 112 LFN 1990 presumes the existence of a policy of payment of 10% commission on recoveries by the Defendants as is the practice amongst creditor for recovery efforts by legal practitioners, debt recovery agents and other professionals that might be involved in such efforts”.
As could be deduced from the evidence and finding of the trial court referred to supra, the claim of the Appellant for the payment of the 10% commission was based on policy adopted by respondent. The contention of appellant’s counsel is that since he prosecuted the case and eventually obtained judgment against the debtor company, he was entitled to be paid 10% commission on the judgment sum even if the recovery was not made through his effort. Respondent on the other hand contended that they only pay 10% commission to a solicitor that made actual recovery of the judgment sum or debt owed. If the recovery of the debt was not attributed to the solicitors personal effort he would not be entitled to the 10% commission. Appellant in his testimony had stated that it was the custom of the Respondent Bank to pay 10% commission for every recovery made. He went further to say that in his previous dealings with the Bank he was paid 10% commission. Appellant did not call any witness and or tender any document in proof of the alleged custom which was applied to him in the past. In absence of contrary evidence adduced by the appellant, then the policy admitted by the respondent will prevail in the resolution of the question as to whether appellant was entitled to be paid the 10% commission. The admitted policy is that the 10% commission is only paid where a solicitor is proved to have been involved in the actual recovery and not where such recovery is due to its own effort. Respondent cannot deny the fact that Appellant was paid N500,000 as commission on sum of N5 million naira. It is pertinent at this stage to note the finding of the learned trial Judge at page 157 of the record. The trial Judge had this to say:-
“In this case both the plaintiff and 1st DW witness during the course of their testimonies had stated that the Defendant had a policy of paying 10% commission to solicitors for efforts directly attributable to their efforts. This has also been proved by the Defendants conduct in paying 10% commission on the N5,000,000 recovered by the plaintiff.
The court finds from the evidence before it that the Defendant appointed the plaintiff to recover the debt from the debtor based on a payment of professional fees for the plaintiff’s efforts in filing a court action and obtaining judgment against the debtor. The Defendants payment to the plaintiff interim fee note dated 10th October, 1997 (Exhibit PW5(1) is evidence of this. And that the Defendants were also willing to effect their usual policy of paying 10% commission for recovery efforts attributable to the plaintiff as evidenced by their payment of the plaintiffs bill of charge dated 18th November, 1997 for N500,000 being 10% commission on the sum of N5 million recovered. The Defendant’s payment of a total of N2.5 million professional fees to the plaintiff evidences the fact of operation of both policies of professional fees and 10% commission for recovery efforts in the contract between the parties”,
As rightly submitted by appellant’s counsel this finding was never challenged by the respondent by way of cross-appeal or respondent’s notice. Appellant’s counsel contended that the above finding of fact is not perverse and ought to be upheld by this court without any interference. If a finding or decision of a trial court whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such a finding or decision rightly or wrongly stands and must not be disturbed. See Bhojons Plc vs Daniel Kalio 2006 2 SC (Pt 11) 91 at 102; Nwabueze Vs Okoye (1988) 4 NWLR (Pt 91) 664; Oshodi Vs Eyifuemi (2000) 13 NWLR (Pt 684) 332; UBN Vs Akinrinmade (2000) 2 NWLR (Pt 645) 466 at 476 – 476; Uzoechi Vs Onyenme (1999) 1 NWLR (Pt 587) 339; Jov Vs Dom (1999) 8 NWLR (Pt 620) 538 and Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 552. Appellant’s counsel contended that on the issue of whether there existed an agreement between the respondent to pay both professional fees and 10% commission to the appellant in view of exhibit PW2, the reasoning of the trial court at page 157 of the record suffice. I wish to note that appellant’s counsel had argued in his brief that the use of the phraseology “actual recovery” should be discountenanced because it was introduced by the learned trial Judge and not parties but surprisingly the same appellant accepted the finding at page 157 of the reproduced supra that it is not perverse and should be upheld by this court. By paragraph 2 of the amended statement of defence respondent clearly averred that 10% commission is only paid where a solicitor is proved to have been involved in the actual recovery of the debt owed.
From the finding reproduced supra which both parties accepted, appellant was entitled to payment of professional fees and 10% commission on debt recovered. As stated earlier payment of professional fees is not an issue in this appeal. Having regard to the finding of the trial court, respondent’s argument that appellant was not entitled to commission cannot hold water. The case of SBN Vs Opanubi supra relied upon by respondent’s counsel is distinguishable from the case at hand. In that case respondent had in an earlier suit obtained judgment in respect of his 10% commission agreed by parties, being money actually recovered by him from the company. Thereafter Mr. Opanubi (respondent) sued the appellant claiming professional fees and balance of judgment sum collected by appellant after withdrawal of instruction. The trial Judge held that the agreement between respondent and appellant was for payment of agreed fees for actual amount recovered by respondent so the claim was dismissed. On appeal the Court of appeal granted the claim by setting aside trial court’s decision. On further appeal to the Supreme Court, appeal was allowed and claim of the respondent was dismissed on the ground that the respondent’s claim founded on quantum meruit was clearly unmaintainable. In the case at hand appellant’s complaint relates to the 10% commission and not professional fees. Appellant is therefore, limited to 10% commission in respect of debt recovered through his effort. The available evidence showed that appellant was paid N500,000. as 10% commission on N5 million recovered through his effort. A careful perusal of paragraph 12 of the amended statement of defence showed that respondent attributed recovery of N28,500,000.00 to appellant’s effort but claimed that appellant was paid the commission. For clarity, paragraph 12 read thus:-
“12. Defendant denies paragraphs 27, 28 and 29 of the statement of claim and repeats its averment in paragraph 8 above that it is not indebted to plaintiff in the sum of N3,535,000.00 or any other sum at all for that matter as it had paid the plaintiff in full for the professional services rendered by him to the Defendant. Defendant further avers that the total amount recovered from the debtor. through the effort of the plaintiff and on which plaintiff has been paid the agreed commission was N28,500,000.00. Defendant shall rely on the internal memo from its Deputy Manager, legal services, to the Executive Director, Management services dated 14/8/2000 buttressing this fact at the trial of this suit.”
By paragraph 12 of the amended statement of defence reproduced supra respondent admitted the fact that appellant recovered N28,500,000.00 through his effort. There is no evidence to show that appellant was paid 10% commission on N28,500,000.00 recovered by him. The internal memo relied upon by the respondent was not placed before the court. The only payment made to the appellant was his professional fees and 10% commission on N5 million recovered through his effort. The finding of the trial Judge at page 157 of the record established that appellant was entitled to be paid both professional fees and 10% commission in respect of the judgment sum recovered through his effort. I agree with the submission of appellant’s counsel that paragraph 12 of the amended statement of defence amounts to an admission. In the case of Cappa and D’alberto Ltd Vs Akintilo (2003) FWLR (Pt 160) 1565 at 1579 paras C – F the Supreme Court defined admission thus:-
“An admission is a statement, oral or written (expressed or implied) which is made by a party or his agent to a civil proceedings and which statement is adverse to his case. It is admissible against the maker as the truth of the fact asserted in the statement. In a civil case, admissions by a party are evidence of the facts asserted against but not in favour of such party”. See also sections 19 and 20(1) (2) and (3) of the Evidence Act 1990.
The appellant claimed against the respondent the sum of N3,535,000.00 as commission and the respondent by their pleadings admitted the sum of N2,850,000 being 10% commission of N28,500.00 admittedly recovered by the appellant. It is trite law that where a defendant admits a fact in dispute by his pleading, that fact is taken as established and forms one of the agreed facts in the case. See Okafor Vs Dumez (Nig) Plc (1998) 13 NWLR (Pt 580) 88 at 95; Abu Vs Ogli (1995) 8 NWLR (Pt 413) 357. It is trite that what is admitted or not disputed need not be proved. See Agbaueho Vs UBN LTD (2007) 7 NWLR (Pt.665) 550; Achichi Vs Ago (2003) FWLR (Pt 140) 1770 at 1775 paras A and Omorhiriu Vs Enatevwere (1988) 1 NWLR (PT 73) 746.
In order to determine what constitutes a binding admission the nature of the claim should be taken into account. Where the claim is for definite sum alleged and the defendant admits owing, part of this sum no difficulty should arise in the court entering judgment for the sum admitted leaving the balance to be contested. See Mosheshe General Merchant Ltd Vs Nigerian Steel Products Limited (1987) 1 NWLR (Pt.55) 110 at 120; In PAS (Nig) Ltd Vs NNS Co Ltd (1990) 6 NWLR (Pt 159) 764 at 772 the court re-affirmed the position of the law that where a whole or a part of an ascertained sum is admitted, the issue is concluded as to the amount. See also National Bank of Nigeria Vs Gulthree Limited and Anor (1982) 2 NWLR (Pt.56) 255 at 263.
Having made a finding the defendant’s payment of a total of N2.5 million professional fees to the plaintiff evidences the fact of the operation of professional fees and 10% commission for recovery efforts, the learned trial Judge ought to have entered judgment in favour of the appellant in respect of the admitted sum of N28,500,000.00 averred in paragraph 12 of the amended statement of defence. According to the respondent that amount was recovered through the effort of the appellant after obtaining the judgment. Parties are bound by their pleadings. See Olomosola vs. Olomawo (2002) (Pt 750) 172.
The submission of respondent’s counsel that appellant did not prove that he was entitled to 10% commission aside his professional fee of N2,550,00 already paid cannot be sustained. I agree with the submission of respondent’s counsel that the claim of the appellant is based on custom and not on breach of contract because the content of exhibit PW2 is clear and unambiguous to the extent that there was no agreement as to the payment of fee or commission. Exhibit DW10 clearly confirmed that respondent was paid N40.35 million as concession fee by the debtor company. The burden is on the appellant to prove his case as averred in his pleadings. See Balogun Vs Labiran (1988) 3 NWLR (Pt 80) 66 and Ebunike Vs A.C.B. Ltd (1995) 2 NWLR (Pt 375) 34. In other words appellant must prove by evidence that the whole judgment debt was actually recovered through his effort. Apart from the admitted sum appellant had failed to substantiate the remaining balance claimed in the statement of claim.
In the final analysis, this appeal in my humble view succeeds. It is allowed in part. The judgment of Adebiyi J. of the Lagos State High Court delivered on the 24th day of September, 2004 is set aside. In its, place, pursuant to section 15 of the Court of Appeal Act, Judgment is hereby entered for the appellant against the respondent in the sum of N2,850,000.00 (Two Million Eight Hundred and Fifty Thousand naira) being 10% commission of N28,500,000.00 part of judgment debt recovered by the appellant. I also award 10% post judgment interest until whole judgment is liquidated.
There shall be costs assessed at N50,000.00 against the respondent.
Other Citations: (2009)LCN/3205(CA)
