Barrister Gbenga Akingbehin V. Chief Mrs. Thompson (2007)
LawGlobal-Hub Lead Judgment Report
DALHATU ADAMU, J.C.A.
The appellant herein (as plaintiff) in suit No. ID/1145/2001 by a writ of summons dated 7/5/01 sued the respondent (as defendant) at the High Court of Lagos State (sitting at Ikeja) claiming the following reliefs:
(i) the sum of N450,000.00 (Four Hundred and Fifty Thousand Naira Only) being professional fees on legal documentation in respect of the purchase of the property at No. 17 Eric Moore Street Wema Board Estate, Ikeja Lagos State.
(ii) Interest on the sum aforesaid at the rate of 71/2% from the date of the writ of summons until judgment is delivered and at the rate of 2% from judgment till the judgment sum shall be liquidated.
(ii) The sum of N500,000.00 (Five Hundred Thousand Naira Only) being general damages on the series of inconveniences, expenses and losses incurred by the plaintiff and occasioned by the defendant in pursuit of this claim.- (See page 2 of the record of appeal).
On the above claim as per the writ of summons, the appellant also filed a 12 paragraphs statement of claim where the above claims (or reliefs) are repeated (See page 6 of the record supra). The respondents on her own part filed a 14 paragraphs statement of defence (dated 19/7/01) in answer to the appellants above claims.
At the close of pleadings, the matter went on trial. The plaintiff/appellant (hereinafter simply called “the appellant”) testified for himself and called no other witness while the defendants/respondent (also hereinafter called “the respondent”) chose not to call any witness but relied on the evidence adduced and the documents tendered by the appellant.
At the end of trial, the learned trial Judge B. O. Shitta Bey J, delivered the courts judgment whereby all the appellants’ claims against the respondent were dismissed. Being dissatisfied with the said judgment, the appellant appealed against it to this court in his notice of appeal dated 25/8/03 containing 4 (four) grounds of appeal. The respondent also sought and obtained the leave of this court to file a respondents notice, which was dated 23/11/04 but was eventually deemed filed on 9/2/06. The said respondents notice urges this court to affirm the decision of the trial court on only one (1) ground other than those relied upon by the trial Court. The only ground stated in the said respondent’s notice is that the appellant had failed to discharge the burden of proof cast upon him by section 135, 136 and 137 of the Evidence Act as to his entitlement to the reliefs claimed at the lower court. It is my humble view that the above ground corresponds with the general and omnibus ground of the appellant. (i.e. ground c) that the judgment was against the weight of evidence.
In the appellants briefs of arguments dated and filed on 21/5/04, the following three (3) issues for determination of the appeal are distilled:
“4.01. whether the learned Judge of the lower court misdirected himself by holding that exhibits GA4 and GA5 tendered by the plaintiff did not satisfy the requirements of section 16 Legal Practitioners Act Cap 207 Laws of the Federation of Nigeria such as to make him lack jurisdiction to entertain the suit. Ground 1.
4.02. whether the appropriate order to make by the trial court when it lacked jurisdiction to entertain the suit (for non compliance with condition precedent) was a dismissal order or a strike out order. (sic) Ground 2.
4.03 whether from the uncontroverted documentary and oral evidence led in this case by the plaintiff/appellant, the judgment of 4th of March 2003 was against the weight of evidence. Ground 3.”
In the respondents brief dated 23/11/04 and filed on 25/11/04, but deemed filed by this court on 9/2/06, the following two issues for determination of the appeal are formulated:
“3.01 From the grounds of appeal contained in the notice of appeal filed by the appellant, we submit that the following issues arose for determination in this appeal:
(i) whether having regard to the evidence before the lower court the learned trial Judge was right to hold that exhibits GA4 and GA5 did not satisfy the requirement of section 16 Legal Practitioners Act Cap 201 LFN such as to make the court lack jurisdiction to entertain the suit.
(ii) Whether the learned trial Judge was right to have dismissed the appellant’s suit having regard to the totality of evidence before the court.”
From the above setting out of issues in the two briefs, it is clear that the parties in the appeal (and in their briefs) are in agreement on the issues for the determination of the appeal. For the purpose of this judgment, I will adopt the appellant’s three (3) issues as above reproduced.
Under his issue No.1, the appellant’s main contention is that he stated in both his evidence and pleadings that he served the two demand notices containing his bill of charges on the respondent who did not deny being served with his said notices as per GA 4 and GA5 tendered and admitted at the lower court. It is argued in the brief that facts that are not controverted or denied are deemed admitted – See Sunday Modupe v. The State (1988) 4 NWLR (Pt.87) 130; (1988) ANLR 371 cited in support of the principle. It is also argued that the decision in the case of Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 clearly spelt out what should be the contents of a bill of charges. This is said to be sufficient if it contain a summarized statement of the work done which is sufficient to tell the client of what he is required to pay for. It is finally submitted by the appellant that the failure to itemize the charges or cost of each item in exhibits GA4 and GA5 in the present case will not render the said bills as a nullity or did not amount to non-compliance with section 16 of the Legal Practitioners Act (LPA) supra.
The 2nd issue of the appellant and the submission canvassed thereat also relate to those under their 1st issue as set up above. This is because the two issues both arise or are predicated on the jurisdiction of the trial court to entertain the appellants suit and the appropriate order it should make upon its finding (albeit wrongly) that it lacked the required jurisdiction in the case. Consequently the two issues, which are related or akin to each other by virtue of the jurisdictional question raised in them, can be conveniently considered together. I intend to do so in this judgment. The resume of the appellant’s argument under his 2nd issue is that the learned trial Judge after finding that he lacked jurisdiction to entertain the appellant’s suit should have struck it out instead of dismissing it as he wrongly did in his judgment at page 101 of the record of appeal.
The appellant relies for his submission on the cases of Atuegbu v. Awka South Local Government (2002) 15 NWLR (Pt. 791) 635 at 640; Johnson v. Lufadeju (2002) 8 NWLR (Pt. 768) 192 at 2002; and Onyeabuchi v. INEC (2002) 8 NWLR (Pt.769) 417 at 419. It is finally submitted under the 2nd issue of the appellant that the lower court erred in making an order dismissing the appellant’s case.
In the respondents brief, the two issues formulated and argued thereat correspond with and aptly meet or cover the appellant’s 1st and 2nd issues as discussed above. They can also be conveniently considered together. It should however be noted that the 3rd issue formulated by the appellant is based on his omnibus ground 3 of the appeal. It therefore follows from the omnibus nature of the ground which affects the issue that it transcends through and is a mere repetition of his 1st issue in so far as it is based on or is related to the weight of evidence adduced by the appellant in the case. It is the respondent’s submission under her twin issues that in both exhibits GA4 and GA5, the appellant only gave the respondent 7 days notice to pay his professional fees as demanded or to face a legal action for its recovery. This is said to be contrary to the requirement in section 16(2)(a) and (b) of the Legal Practitioners Act (supra), which prescribe for full particulars of the solicitor’s charges to be given in the bill of charges and for a one-month notice before an action to recover the fees can or will be commenced. It is consequently argued that there was a non-compliance (by the appellants) with section 16(2)(a) and (b) of the legal Practitioners Act (supra) by the appellants as to the contents required in the bill of charges and also as to the period of notice required before the present suit for the recovery of his fees or charges was instituted. The respondent relies on her above submissions on the authorities of S.B.N. Plc v. Opanubi (2004) 15 NWLR (Pt. 896) 437 at 457-458; and Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414 at 437. It is finally further argued that as the appellant failed to fulfill the condition precedent before instituting his case against the respondent, the trial court lacked jurisdiction to hear the said suit. Thus where a stipulated precondition is prescribed before setting a legal process in motion as in the present case and there is a non compliance with the statutory precondition, the court lacks the competence or jurisdictional power to entertain the suit – See United Bank For Africa v. Barrister Eyo Osa Ekpo (2003) 12 NWLR (Pt. 834) 332 at 336; and Nnonye v. Anyichie (2000) 1 NWLR (Pt.639) 66 cited on the above submission of the respondent.
On the final order of dismissal of the appellants suit (instead of striking it out) by the trial court, the respondents submits that the said appellant did not establish or prove his claims for his legal charges, interest and damages before the said lower court. This is said to be in accordance with section 135, 136 and 137 of the Evidence Act, which enjoins a party who asserts a particular fact to prove same. It is said that the appellant did not prove his entitlement to the claim, which were denied by the respondent in paragraphs 10, 11, 12 and 13(a) and (b) of the statement of defence. It is argued that the said appellant was not briefed to prepare any legal documentation on the sale of the land to the respondent, which was already done by her banker’s solicitors, but rather to attend the meetings with her bankers and depend her interest in the purchase of the property. It is denied that any agreement on the fees to be charged or paid was ever reached with the appellants for his services. Finally, the respondent’s submissions and authorities cited under their 1st issue are also adopted and relied upon on their 2nd issue and it is submitted that the learned trial Judge was right to have dismissed the appellants’ suit rather than, or instead of, striking it out.
From the above submissions the 1st point raised is hinged on the competence of the appellant’s suit before the trial Court. In other words, the submissions on the 1st point (or issue) are predicated or bordered on the lack of jurisdiction of the trial court to hear or entertain the appellants suit for failure to comply with the condition precedent as stipulated under section 16(2)(a) and (b) of the Legal Practitioner Acts (L.P.A) (Cap 207) Laws of the Federation of Nigeria (L.F.N) 1990. My stalling point in the resolution of the 1st issue therefore is to consider closely the provision in the two subsections (or paragraphs of section 16(2)(a) and (b) of the LPA (supra). Even though the provisions are reproduced in the respondents brief (at paragraph 404 thereof) there is a need to reproduce them again in this judgment even at the risk of repetition. Section 16 of the LPA (supra) provides in a mandatory tone as follows:
“Section 16(1) subject to the provision of this Act, a Legal Practitioner shall be entitled to recover his charges by action in any court of competent jurisdiction.
(2) Subject to the 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 item included in the bill and signed by him, or in the case of a 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 date of delivery of the bill has expired.”
The above mandatory and statutory provisions of the LPA have been interpreted and applied by our superior court (i.e. the Supreme Court and the Court of Appeal) in a number of decided cases which culminated in the trite and settled principle of law in the area regulating the entitlement or otherwise of a legal practitioner to recover his professional remuneration or fees for his services rendered to the client through or by means of an action in a court of law. It is therefore pertinent to begin with subsection (1) of section 16 LPA (supra) which provides for the right or entitlement of the legal practitioner to sue or claim to recover his fees or charges against his client in an action in the court of law. However in doing so, it is the duty of such legal practitioner making such claim to comply with the statutory and mandatory provision as stipulated in the LPA (subsection (2) thereof) and also to prove that the fees or charges demanded are not unreasonable or objectionable. When the bill of charges or fees (as they are called) are properly brought by the legal practitioner in compliance with the provision of the Act (supra) the court will normally give judgment for the amount of fees so claimed unless there are other factors preventing it from doing so such as the absence or non-existence of any agreement for the payment of the fees by the client or an attempt by the legal practitioner to illegally enrich himself at the expense of his client (by way of champerty). See Aburime v. NPA (1978) 4 SC 111; and Oyo v. Mercantile Bank (Nig) Ltd. (1989) 3 NWLR (Pt. 108) 213. In some cases even where the charges or fees were not agreed upon or fixed by a contract between the parties (i.e. the lawyer and his client) the court can award a reasonable fees or remuneration to the legal practitioner for his services actually rendered or admitted to have been rendered by him at the request or instruction of his client on the basis of quantum merit or a quasi-contract. Aburime v. NPA (supra).
The above discussed principles are based on or are related to the interpretation of the main provision in section 16(1) LPA (supra) on the entitlement or light of the legal practitioner to claim or recover his fees or charges from his client for the farmer’s professional services rendered to the latter upon an agreed (or deemed agreed) payment. The 2nd arm of section 16 (section 16(2)(a) and (b) on the other hand deals with the procedure for claiming such right or entitlement by the legal practitioner against his client. As the dispute in the present case deal; with both segments of section 16 LPA it is necessary to pause for a while and to apply the principles on the 1st segment to the facts and circumstance of the present case to see whether the appellant herein has rendered to the respondent any professional service for which he is entitled to payment whether on a contractual agreement quasi-contractual or on a quantum merit. It is pertinent on this point to note and recall that the appellant in the instant case pleaded the facts giving him the right to claim his professional fees from the respondent. He also described the services he rendered to the said respondent upon her request or brief to assist and represent her in the purchase of a landed property at No 7, Eric Moore Street Wema Board Estate, Ikeja, Lagos. He was also asked to prepare a deed of assignment in respect of the purchase and he carried out all that he was briefed to do. It was the deed of assignment prepared by the appellant that was executed by the parties under the sale agreement (see pages 102-104 of the record). All the above facts are averred in paragraphs 3 -11 of the statement of claim (at pages 4-6 of the record). In the statement of defence, the relevant paragraphs that answer the appellant’s claims are paragraphs 11- 13 (a) and (b) of the statement of defence. They can be reproduced as follows: –
“(11) the defendant avers that although she agreed that the plaintiff could liase with the banks solicitor during the period of negotiation for the purchase of the house in question, there was no agreement as to how much she would pay to the plaintiff. In fact the plaintiff asked the defendant to give him just anything she liked.
- the defendant denies paragraph 5 of the statement of claim that she ever agreed with the plaintiff either in writing or orally to pay him 5% of the costs of purchase of the house or any amount whatsoever.
13(a) the defendant avers that when the plaintiff was going with the banks solicitor to discuss the matter with the vendor… He went to the banks solicitor (sic).
13(b) there was no occasion when she and the plaintiff discussed about fees or remuneration before, during or after the purchase of the house in question (the defendant shall rely on the relevant provisions of the legal practitioners Act available and other legal or equitable defences at the trial of this suit).”
From the above averments in the parties pleadings, it is clear that the respondent admitted the appellants claims that she instructed him to represent her or defend her interest in the house purchase transaction which was to be financed by her bankers and that in the process, he attended the negotiation meetings and prepared the deed of assignment which was ultimately executed by the parties to the house purchase transaction. I do not believe the respondent’s averment that it was the Bankers solicitors who prepared the deed of assignment (at pages 102 – 104 of the records) since the bank is not a party to the said deed of assignment (exhibit GA1) which is also specifically indented to have been prepared by the appellant (as clearly shown at the end of the deed).
In addition to the above pleadings, in which the issues are joined and which also contains an admission (though tacit) by the respondent, the appellant gave evidence in support of his pleadings (see pages 68 -78 of the records). It is relevant to note the appellant’s testimony on the legal representation and documentation or deed of assignment (at page 71 of the records), which is as follows: –
“Yes, I carry (sic) out the brief given to me by the defendant. I represented the defendant’s interest etc in the purchase of the property in question … I also prepared the legal documentation in respect of the transaction.
I can recognize the said legal documents. Yes, this is it.
Mr. Sanni: I humbly wish to tender this legal documentation in evidence.
Mr. Taiwo: No objection.
Court: legal documentation is admitted in evidence and marked exhibit “GAI.”
The respondent at the trial court, who filed her statement of defence as aforesaid, did not adduce any oral evidence but she relied solely on the evidence adduced by the appellant i.e. his own testimony. Thus while the appellant led or adduced evidence in support of his pleadings, the respondent on her own part did not support her pleadings with any evidence this is against or contrary to the elementary rule of pleadings that the mere averments therein do not constitute any credible evidence which the party is required by law to adduce to the satisfaction of the court before he will be entitled to a judgment in his favour. Thus, mere averments in the party’s pleadings do not constitute evidence and where a defendant as in the present case fails to support his pleadings with oral evidence, he will be regarded as not denying or controverting the appellants case because his mere averments in the statement of defence cannot stand on their own without any evidence to support them – see Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530; Yaktor v. Governor of Plateau State (1997) 4 NWLR (Pt. 498) 216, Adeloye v. Olona Motors (Nig) Ltd. (2002) 8 NWLR (Pt. 769) 445 at 460; Chime v. Chime (2001) 3 NWLR (Pt. 701) 527; and U.B.N. Ltd. v. Jimba (2001) 12 NWLR (Pt. 727) 505.
It is therefore my humble view that the appellant in the present case has established or proved before the trial court his right or entitlement to the legal charges or fees for his professional service rendered to the appellant. He has adequately pleaded and adduced sufficient or credible evidence which was accepted by the trial Court in proof of his claims against the respondent who not only admitted the services rendered at her instruction but also failed to adduce any evidence to the contrary and decided to rely on the evidence adduced by the said appellant. I will now turn to the 2nd arm of section 16(2) LPA (supra), which deals with the procedure of making such a claim by the legal practitioner in order to see whether the appellant has satisfied or complied with the requirements or condition therein stipulated.
It is settled that where there is non compliance with a stipulated precondition for the commencement of an action or for setting a legal process in motion, any suit or action instituted in contravention of such a precondition provision of the relevant law or statute is regarded as incompetent and as such, the court in which the action is instituted or sought to be instituted lacks the jurisdictional power to entertain the suit or action – See Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt.315) 1; U.B.A v. Ekpo (2003) 12 NWLR (Pt. 834) 332 at 342-343; Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (pt. 30) 617; and Udene v. Ugwu (1997) 3 NWLR (Pt. 491) 57.
It is also trite that where a condition precedent for the exercise of the courts jurisdiction has not been fulfilled, such a court lacks the requisite jurisdiction or competence to adjudicate in the matter or suit and where a court lacks jurisdiction to adjudicate in a proceeding, such a proceeding when conducted is or amounts to a nullity however well or beautifully conducted it might have been – see Madukolu v. Nkemdilim (1962) 2 SCNCR 341; (1962) 1All NLR (Pt.4) 887, and Attorney General Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; and Lawal v. Oke (2001) 7 NWLR (Pt. 711) 88.
In applying the above discussed principles on jurisdiction to the present case, the crucial question to be answered is whether or not the appellants action or suit before the trial court was brought in compliance with the statutory requirements or conditions stipulated in section 16(2)(a) and (b) of the L.P.A (supra). Accordingly and beginning with paragraph (a) of the said provision as reproduced above, we must consider the contents of exhibits GA 4 and GA 5 on which the appellant relies as his bill of charges, to see whether or not they qualify as such. It is pertinent to observe that the LPA (supra) does not provide any guideline as to the contents and forms of the bill of charges. It only requires the “particulars of the principal items” and the signature by the legal practitioner or his firm and ‘or the said bill to be served personally on the client or left at his last known address. Luckily however, there are some pronouncements by our superior court, which give us guidance on the contents and form of the bill of charges referred to under section 16(2)(a) of the LPA (supra).
In S.B.N. Plc v. Opanubi (supra) the Supreme Court held per Uwaifo JSC at pages 457-458 of the report as follows:-
“A bill of charges should, among other things, particularize the services rendered; and the fees and charges therefore, where the presenter is a legal practitioner the bill should state details of the services provided, for example:
(a) perusal of documents and giving professional advice;
(b) conduct of necessary (specific) inquiries
(c) drawing – up the writ of summons and statement of claim;
(d) number of appearances in court and the dates;
(e) summarized statement of the work done in court indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; and
(f) the standing of counsel at the bar in terms of years of experience and/or the rank with which he is invested in the profession.”
See also Oyo v. Mercantile Bank (Nig) Ltd. (1989) 3 NWLR (Pt. 108) 213; and Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414. A more detailed guideline on the form; content and purpose of a bill of charges are given in the earlier decision of the Supreme Court (by the same Justice) in Oyekanmi v. NEPA (supra) at page 437 of the report). It was however held in that case (supra) that the failure of a legal practitioner to itemise the bill of charges or a bill of costs with particularity will or does not render the said bill a nullity and will not amount to non-compliance with the law provided that its purpose of giving sufficient information to the client on the duties performed or the services rendered by the legal practitioner and the amount of money earned or claimed in respect of such services are given or provided. The letters in exhibits GA4 and GA5 in the present case though not headed as “bills of charges” but rather as letters of demand for professional fees on legal documentation”, and also not itemized are in my view sufficient and detailed enough to give the respondent enough information of the services tendered by the appellant as well as the fees charged for such services. In any case there is no denial or objection of such services by the said respondent who has admitted them in her pleadings. Consequently, it is my humble view that the appellant’s letter of demand for professional fees (in exhibits GA4 and GA5) have satisfied the requirement of a bill of charges as described in section 16(2)(a) of the LPA (supra) and there is no contravention of the said provision by the appellant. The question of the personal service of the said letters on the respondent by the appellant’s does not also arise and is a non-sequitor as there was no complain by the respondent that she was not served with the said letters, which were tendered and admitted without objection. Also the appellant stated in his testimony (at page 73 of the record) that after making a series and futile of demands for professional fees he wrote and served her his formal letter of demand in February 2001. The writ of summons was filed and sealed 16/5/2001 – i.e. after the expiry of three (3) months from the service of the 2nd letter of demand or bill of charges (exhibit GA4). Even if the 2nd letter is conceded by its date (23/4/01) to be less than one month from the filing of the suit, at least the 1st letter whose date is given at page 110 of the records) as 1/3/01 has in my view satisfied the condition as to the period of service required in section 16(2) of the LPA (which is one month or 30 days).
From my above consideration of the appellant’s 1st and 3rd issues together which correspond with the respondent’s issue 1, the said issues as framed in the appellant’s brief must be answered in the positive and resolved in favour of the said appellant. They are hereby so resolved by me. I hold that there was no contravention by the said appellant of the provision of section 16(2)(a) and (b) of the Legal Practitioners Act in the preparation and service of his bill of charges for his professional services rendered to the respondent on the latter’s instruction. The lower court was therefore wrong in holding that it had no competence or jurisdiction to entertain the appellant’s suit and in consequently dismissing the said suit.
The appellants 2nd issue which is on the appropriate order to make by the trial court after its finding that it lacked the competence or jurisdiction to entertain the appellants action – whether to dismiss or strike it out, has been overtaken by my holding or resolution of his 1st and 3rd issues in which I found and held that the said trial court has the requisite jurisdiction to hear and determine the appellants action which was competent before it. With that resolution, it will be unnecessary or merely academic to consider the appellant 2nd issue, which will only arise when, the lower court is found to be lacking of jurisdiction. Consequently, in my final resolution of the present appeal, I find it as meritorious and hereby allow it. The judgment of the said lower court dated 4/3/03 is hereby set aside and in its place, I hereby invoke the power of this court under section 16 of Court of Appeal Act and enter judgment in favour of the appellant and against the respondent as per the former’s claims before the lower court (with modification on the general damages) as follows:
(1) the sum of N450,000.00 (Four Hundred and Fifty Thousand Naira Only) being professional fees on legal documentation in respect of the purchase of the property at No. 17 Eric Moore State, Wema Board Estate, Ikeja Lagos State;
(2) interest on the sum aforesaid at the rate of 7’bd% from 7/5/2001 until the date of this judgment and thereafter at the rate of 2% till the judgment sum is liquidated; and the sum of N300,000.00 (Three Hundred Thousand Naira Only) being general damages for the inconveniences, expenses and losses suffered or incurred by the appellant in pursuit of his claims against the respondent.
I assess the cost of this appeal at N10,000.00 which I also award in favour of the appellant and against the respondent.
Other Citations: (2007)LCN/2481(CA)
