Chief Antigha William Andem V. Chief Asuquo Effiong Etim (2009)
LawGlobal-Hub Lead Judgment Report
MOJEED ADEKUNLE OWOADE, J.C.A
This is an appeal against the judgment of E.E. Ita J. sitting at the Calabar Division of the Cross River State, High Court in Suit No. HC/319/2001 delivered on 29th July 2005.
By a writ of summons dated 23rd September, 2004 and placed under the undefended list by order of court on 10/1/2005 the Appellant as plaintiff claimed against the Defendant/Respondent the sum of N82,500 (Eighty two thousand five hundred naira) being substantive debt owed to the plaintiff by reason of the defendant’s failure to pay the 10% legal fees on the MTN Limited booster station lease agreement negotiated by the plaintiff on defendant’s behalf which said money has been received by the defendant.
On 24th January 2005, the defendant/respondent filed an affidavit disclosing a defence to the suit on the merit after which the learned trial judge in a ruling delivered on 28/1/2005 transferred the suit to the general cause list for trial and determination and ordered that the affidavits herein shall serve as pleadings.
The parties gave evidence in support of their respective cases including the defendant’s counter claim.
The case of the appellant as plaintiff was that the respondent had been his long standing client before the transaction which gave rise to this action. That respondent approached him and informed him that he had directed a representative of MTN to the Appellant.
That when the representative comes the Appellant should negotiate on his (Respondent’s) behalf with MTN to lease Respondent land to erect a booster mast therein. The Appellant said he informed the Respondent that he will charge 10% of agreed rents and the Respondent did not argue. The representative of MTN went to the Respondent and they negotiated to finality whereupon the Appellant signed a draft document Exhibit C on behalf of the Respondent.
Later that same day, at about 5pm, the Respondent went to Appellant and collected his file containing Exhibit C.
When the Appellant learnt that the Respondent had been paid the sum agreed on Exhibit C he forwarded his bill Exhibit A to the Respondent. That upon receipt of Exhibit A. the Respondent sent people to him to negotiate his charges downward but he (Appellant) refused. He then sent a demand notice Exhibit B to the Respondent.
The Respondent, on the other hand said he never briefed the Appellant on this MTN lease. That it was when MTN representatives visited his house in his absence that one Bassey in his house who knew the Appellant as Respondent’s lawyer took the MTN representatives to the Appellant as the Respondent’s lawyer. That immediately he returned and was so informed he quickly went to the Appellant and retrieved the document Appellant signed on his behalf – Exhibit C. He (Respondent) instructed MTN and MTN stopped forthwith to deal with the Appellant on his behalf. Therefore, he never instructed the Appellant and owes him nothing.
In a considered judgment delivered on 29th July 2005 the learned trial judge dismissed the plaintiff’s/Appellant’s case as well as the Defendant’s/Respondent’s counter claim.
At page 65 of the printed record, the learned trial Judge had this to say:
‘The plaintiff asserts in the affirmative that defendant instructed him on the brief in issue and agreed to pay him 10% of the agreed sum. The law is that he who asserts must prove.
As this case turned out now, it is the word of the plaintiff against that of the defendant. There is nothing to tilt one way or the other. Plaintiff did not call those who negotiated fees with him as witnesses; neither did the defendant call the Bassey who took the MTN Representatives to the plaintiff in the absence of the defendant. None of the MTN representatives was called to testify.
The plaintiff has woefully failed to prove that he was instructed by the defendant. His claim for fees arising there from must therefore fail and is hereby dismissed.”
Dissatisfied with this judgment the Appellant filed a Notice of Appeal containing three (3) grounds of appeal before this court on 26/8/05.
Appellant’s brief of argument dated 29/5/07 was filed on 24/10/07.
Respondent’s brief of argument dated 16/4/08 was filed on 12/8/08. Appellant’s Reply brief was filed on 9/5/08.
The sale issue formulated by the Appellant for determination is:
Whether the trial judge was right to reject the evidence of the plaintiff that he had the authority of the defendant to negotiate lease on behalf of the defendant with MTN representatives for the simple reason that the defendant has denied the authority and MTN representatives were not called as witnesses.
The Respondent on the other hand raised a preliminary objection and in the alternative formulated the following lone issue for determination.
Whether the Appellant discharged the burden of proof to call evidence in support of the claim that he had the Respondent’s instructions to act on his behalf.
In this appeal, I will first deal with the Respondent’s preliminary objection to the Appellant’s appeal before a determination if any of the substantive issue.
Learned counsel to the Respondent submitted that the Appellant’s issue for determination is incompetent because it does not stem from and is at variance with, the said Ground 1 of the Appellant’s Notice of Appeal.
Respondent’s counsel submitted that issues for determination in an appeal are formulated from the grounds of appeal filed – Gom Walk v. Okwosa (1999) 1 NWLR (pt. 586) 225, and Nwana v. FCDA (2207) 11 NWLR (pt 1044) 59 at 83 and that an appeal court will not entertain any argument or submission on an issue not covered by a ground of appeal – Akpan v. The State (1992) 6 NWLR (pt. 248) 439.
He urged the court to strike out the Appellant’s issue for determination and the supporting arguments as incompetent. In reply, the Appellant said a careful perusal of ground 1 of the Notice of Appeal will show that the lone issue stems from ground 1 of the Notice of Appeal and it is competent. He referred to the cases of Stirling v. Mahmood Yahaya (2005) 22 NSCR 1 at 20-21, Chief Agbaisi & 3 ors v. Ebikurete & 6 ors (1997) 4 NWLR (pt. 502) 630 at 650 amongst others and urged the court to discountenance the Respondent’s preliminary objection and strike it out accordingly. Ground 1 of the Appellant’s Notice and Grounds of Appeal on which in relation to the issue the Respondent’s preliminary objection was based is reproduced below along with the particulars.
Ground 1
The learned Trial Judge erred or misdirected himself in law and in fact when he held that in the circumstances of this case, the plaintiff/Appellant failed woefully to prove that he was entitled to the claim sought.
Particulars of Error
(a) Evidence of one witness supported by corroborative evidence is credible and sufficient to ground a judgment.
(b) The court failed to draw inference from exhibit 81 (sic) negotiated instrument, negotiated and endorsed by the plaintiff/Appellant with MTN Limited representatives Mr. Nwachukwu and Mr. Bassey for the Defendant/Respondent as evidence of Plaintiff/Appellant authority to act for the Defendant/Respondent.
When the sole issue formulated by the Appellant is construed vis-a-vis ground 1 of the Notice and Grounds of Appeal taken together with the particulars, I do not have any hesitation to conclude that the issue as well as the said ground 1 is an attack on the sufficiency and or quantum of proof and the evaluation of evidence by the learned trial Judge. I hold that the issue arose from and encompasses the Appellant’s grounds of appeal.
I do agree with the Appellant that the Respondent’s preliminary objection is unfounded and it is accordingly dismissed.
I will however proceed to determine this appeal with the lone issue formulated by the Respondent. This is because, having perused the record of appeal, I do not find any place in the judgment of the trial court where in terms of the issue formulated by the Appellant the learned trial judge ”rejected the evidence of the plaintiff that he had the authority of the defendant to negotiate lease on behalf of the defendant with MTN representatives and also because the respondent’s formulation appears more appropriate to the issues canvassed and decided by the trial court.
On the sole issue for determination, Appellant contends that the trial court did not properly evaluate the evidence adduced by the parties. Appellant submitted on the authority of Adeleke v. Iyanda & sons (2001) 6 NSCQR 799 at 816 that civil cases are generally decided on the balance of probability. What from the evidence is not disputable in spite of the Respondent’s denial of the donation of authority is that the Appellant negotiated the lease with MTN Limited on behalf of the Respondent upon which the Respondent was paid a total sum of N825,000. Appellant furthered that MTN representatives could not have dealt with him without respondent’s authority.
Appellant contends that assuming without conceding that he never had respondent’s authority to act for him in respect of the negotiation he had with MTN representatives, the fact that Respondent acted on the negotiated sum of N825,000 which was the amount agreed between the Appellant and the MTN representatives for the benefit of the respondent; makes it unconscionable and in absolute bad faith to deny Appellant the benefit of his professional services.
On this, appellant referred to the provision of section 151 of the Evidence Act, and the cases of Ukaegbu v. Ugoji (1995) 5 LRCN 1427 and Okechuckwu v. Onuorah (2000) 82 LRCN 3300 OF 3304.
Appellant furthered that the effect of the Respondent acting on the content of Exhibit ‘C’ is a ratification of the Appellant’s transaction. Therefore, said Appellant, the parties concerned are put in the same position as that in which they would have been if the act ratified had been previously authorized.
He referred to the case of Vulcan Gases ltd v. Gesellchaft FUR IND 2001 6 NSCQR 481 at 2661 and submitted that the learned trial Judge did not properly avail himself of the evidence of the parties when he held at page 65 of the record that:
” As this case has turn out now it is the word of the plaintiff against that of the defendant. There is
nothing to tilt it one way or the other. Plaintiff did not call those who negotiated fees with him as witnesses ”
By the above finding, Appellant submitted that the learned trial Judge failed to advert his mind to the fact that the client-solicitor relationship is a contractual relationship which like any other could come into existence by an oral agreement.
On this Appellant referred to the case of Adeniran v. Olagunju (2002) FWLR(pt 87) 825 at 827.
On the failure to call MTN representatives appellant submitted that the Supreme Court in the cases of Bello v. Kassim (1969) MNLR 148 AND Alonge v. I.G.P (1959) 4 FSC203 has held that a party is not bound to call a particular witness if he can prove his case otherwise. And that it was needless to have invited MTN representatives to testify in a matter which they did not have any particular interest or to testify against the defendant who is their landlord.
Appellant further submitted that in any case it is the respondent who ought to have produced the MTN representatives who are his tenants and within his control or Bassey whom he (Respondent) alleged brought MTN representatives to Appellant’s office to debunk appellant’s assertion that he had his authority to act.
Moreover, said Appellant, Exhibit ‘C’ was a sacrosanct document which did not require any oral testimony in support or against it not being a disputed document and that the failure of the learned trial Judge to evaluate Appellant’s professional service on Exhibit ‘C’ and ‘G’, which were beneficial to the Respondent occasioned a miscarriage of justice.
He referred to the cases of Salako v. Dosunmu (1997) 51 LRCN 1870 at 1872 Fashanu v. Agboola (1974) 10 S.C. 111 and Egba v. Ogodo (1984) 4 SC84 at 90. He urged us to hold hat the learned trial Judge made faulty inferences from the evidence before him which amounted to perverse finding of fact.
In response, learned counsel to the Respondent submitted that, apart from vehemently denying ever instructing the Appellant on this matter either orally or in writing, the Appellant was obliged under law to produce the said MTN official Mr. Bassey Etim, before the trial court to give evidence in support of his assertion that the Respondent directed him to the Appellant’s office.
Respondent’s counsel submitted that the Appellant asserted and he failed to prove. In addition that the provisions of Section 149(d) Evidence Act should be invoked against the Appellant for failing to call the said MTN official as his witness. And that contrary to the Appellant’s assertion, an inference cannot be drawn from the Appellant’s testimony.
The Respondent further submitted that the fact that someone in his household took the MTN official to the Appellant’s office does not in effect amount to instructing the Appellant or hiring his professional services as a lawyer. Learned counsel to the Respondent submitted that the issue of benefiting from the Appellant’s ‘negotiation’ with the MTN in his professional capacity for the lease of the property for booster station does not arise. Thus, the issue of estoppel cannot also arise where there were no instructions to the appellant from the Respondent in the first place. The Appellant, said counsel sought to benefit from an act that was entirely unwholesome by entering a signature in Exhibit C so as to pass it off as the Respondent’s signature.
In the instant case, said Respondent’s counsel, the appellant purported to enter the signature of the Respondent on Exhibit C when the Respondent did not sign it. Exhibit C, said counsel was a false document in that the purported signature of the Respondent was calculated to disarm MTN. this, counsel said is contrary to the provisions of Sections 464(b) 465 and 467(2) (d) of the Criminal Code. For good effect, said counsel, the Respondent wanted to report the matter of forgery against the Appellant but the Appellant begged him not to do so.
The Appellant said Respondent’s counsel cannot now urge this court to allow him take advantage of a condemnable, unethical act bordering on crime and/or an illegal act of entering Respondent’s signature on Exhibit C.
Respondent’s counsel distinguished the case of Vulcan Gases Ltd. v. G.F.I.G. (supra); (2001) F.W.L.R (pt.53) 1 from the instant case in that the principal in the Vulcan Gases ltd. case subsequently ratified the acts of the agent vide a Power of Attorney whereas in the present case the Respondent not only denied ever instructing the Appellant to act on his behalf but had also never put himself out as ratifying the acts of the Appellants. The collection of rent by the Respondent on the occupation of his property by MTN does not by any stretch of imagination, mean the ratification of whatever the Appellant purportedly did on Respondent’s behalf.
Finally, learned counsel for the Respondent relied on the provision of Section 15(3) of the Legal Practitioners Act and the case of Oyekanmi v. N.E.P.A (2001) F.W.L.R (pt 34) 404 at 419 per Uwaifo JSC to say that to succeed in this type of case, the Appellant was obliged to make a written agreement with the Respondent in respect of any business to be done for a sum, having failed to do so, the court cannot help the Appellant as it has to put the burden at justifying the bill on the Appellant.
The sole issue for determination in this appeal borders on the burden and the sufficiency of proof. It was the Appellant who asserted that the Respondent gave him the authority with a promise of 10% of the amount to be paid by the MTN as his professional fees. The Respondent vehemently denied this assertion, reminded the court that he retrieved his file containing Exhibit ‘C’ from the Appellant the same day that the Appellant claimed to have negotiated on his Respondent’s) behalf with the MTN and the Respondent had to beg him to stop reporting a case of forgery to the Police.
In those circumstances, neither the bare assertion of authority or agency by the Appellant or the purported reliance on Exhibit ‘C’ a document which technically was forged by the Appellant could have convinced a reasonable Tribunal of the donation of authority or the existence of an agency relationship between the Appellant and the Respondent. And the learned trial Judge was right to have held at page 65 of the record that:
“The plaintiff asserts in the affirmative, the defendant instructed him on the brief in issue and agreed to pay him 10% of the agreed sum. The law is that he who asserts must move. As this case has turned out now it is the word of the plaintiff against that of the defendant. There is nothing to tilt it one way or the other. Plaintiff did not call those who negotiated fees with him as witnesses; neither did the defendant call the Bassey who took the MTN representatives to the plaintiff in the absence of the defendant. None of the MTN representatives was called to testify”
This is because in the instant case, the Appellant had two species of burdens to discharge. The first is the burden of proving his affirmative or positive assertion that an agency relationship existed between the Respondent and himself and the other though related is the burden on the party who will lose if no evidence were adduced on either side.
The two species of the burden referred to above are adequately covered by the provisions of Sections 135 and 136 of the Evidence Act LFN 1990.
“135(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
And in Section 136, ‘the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
From the above provisions, it became clear as the learned trial judge suggested that in the face of the denial of authority to the Appellant by the Respondent, it was incumbent on the Appellant to have called the MTN representatives to testify as to the nature and scope of authority donated to him by the Respondent. This is not a case as the Appellant suggested of being compelled to call a number of witnesses to prove one’s case, but the lack of qualitative evidence to discharge the burden of asserting the affirmative.
In Elemo & others v. Omolade & others (1968) NMLR 359, the Supreme Court recognized that the burden of proof has two distinct and frequently confusing meanings
(a) the burden of proof in the sense of introducing evidence
(b) the burden of proof as a matter of law and pleadings, the burden as it has been called of establishing a case whether by preponderance of evidence or beyond reasonable doubt.
In the first sense, where a given allegation forms an essential part of a party’s case, the proof of such allegation rests on him. In the second sense, the onus probandi rests upon the party who would fail if no evidence at all or no more evidence were given on either side. See also, Baruwa v. Osoba (1997) 3 NWLR (pt 492) 164, Opigo v. Yukwe (1997) 6 NWLR (pt 509) 428. UBA LTD v. Ademuyiwa (1999) II NWLR (pt. 628) 570.
In the instant case, the learned trial Judge was right to have held that “the plaintiff has woefully failed to prove that he was instructed by the defendant. His claim for fees arising therefrom must therefore fail and is hereby dismissed”
I agree with the above findings of the learned trial Judge. This appeal lacks merit and it is accordingly dismissed.
The parties to the suit shall bear their respective costs.
Other Citations: (2009)LCN/3372(CA)
