Oil & Gas Export Free Zone Authority V. Dr. T.C. Osanakpo (San) (2009)
LawGlobal-Hub Lead Judgment Report
EJEMBI EKO, J.C.A.
This is an appeal filed by the Defendant/Appellant against the decision of the Rivers State High court (per Hon Justice S.O Iragunima) entered on 19th July 2005 in favour of the Plaintiff/Respondent in the sum of N21, 000,000.00 being legal fees owed the Plaintiff/Respondent by the Defendant/Appellant. The Plaintiff/Respondent, by the writ of summons on the undefended list taken out on 28th April 2005, claimed against the Defendant/Appellant for –
i. The sum of N18, 000,000 00 (Eighteen Million Naira) which represent unpaid legal Fees owed by the Defendant to the Plaintiff from instructions of the Defendant contained in the letter dated April 30th, 2003 in respect of the contract for infrastructure at the Defendant’s heliport project at Onne.
ii. The sum of N13, 000,000,00 [Three Million Naira] being the balance of legal fees owed the Plaintiff from the Defendant’s instruction contained in another letter dated April 3oth, 2003 to act as the legal consultants in respect of the Build, Operate and Transfer (BOT) Agreement of the Defendant’s Heliport Project at Onne.
iii. 10% interest on the judgment sum from date of judgment until the judgment is fully liquidated.
On the application of the Plaintiff/Respondent on 31.5.2005 the suit was placed on the undefended list for hearing. Upon being served the Defendant/Appellant applied by motion on notice for extension of time lo file their notice of Intention to defend. In the affidavit in support of the notice of Intention to defend the Defendant/Appellant raised the following defences
i. that the Rivers State High Court lacked jurisdiction over the matter;
ii. that the Plaintiff/Respondents legal fee was subject to negotiation and discoing and
iii. that the project for which the Plaintiff/Respondent rendered legal services to the Defendant/Appellant had not been concluded.
The trial court on 14/6/2005 heard and granted the application for extension of time their notice of intention to defend. On the same 14/6/2005 the trial court took notice of intention to defend. The matter was further adjourned to 30/6/2005 for Defendant/Appellant counsel to reply on points on law, which he did. The trial court on 19/7/2005 dismissed the Defendant/Appellant’s preliminary objection as misconceived and held that the notice of intention to defend did not disclose defence on the merits. Thereafter, judgment was entered for the Plaintiff/Respondent as follows –
a. Judgment is therefore entered for the Plaintiff against the Defendant in the total sum of N21, 000,000.00 Twenty one million Naira being legal fees owed the Plaintiff by the Defendant from instructions of the Defendant contained in two letters. Both dated 30/4/2003.
b. Defendant/Appellant interest on the said rate of 3% from the date of judgment until the judgment debt is liquidated.
c. Cost of N5, 000.00 (Five Thousand Naira) was also awarded in favour of the Plaintiff/Respondent.
Aggrieved, the Defendant/Appellant on 13/10/2005 filed the notice of appeal on three grounds of appeal. The grounds shorn of their particulars are –
Ground One
The learned trial Judge erred in law when she overruled the Defendant’s objection and assumed jurisdiction in a matter in which an agency of the Federal Government of Nigeria was a party on the ground that that in ascertaining whether the High court of Rivers state had jurisdiction to entertain Plaintiff’s claim, the parties to the suit and the subject matter of the litigation must be considered jointly.
Ground Two
The learned trial Judge erred in law by hearing the Plaintiff’s claim summarily under the undefended list even in the face of obvious conflicting affidavit evidence.
Ground Three
The learned trial Judge erred in law when she held that the failure of the Defendant to react to the Plaintiff’s final demand letter dated 29/3/2005 and attached to his writ as Exhibit G amounted to an admission of the debt claimed.
In the brief of argument of the Appellant settled by Patrick O. Ekeanyanwu, Esq. three issues were identified from the three grounds of appeal. The three issues were adopted by the Respondent in the Respondent’s Brief of Argument. The Issues are –
- whether the High Court of Rivers State had jurisdiction to entertain the Respondents claim against the Appellant having regard to the Appellant’s undisputed status as an agency of the Federal government of Nigeria.
- whether the learned trial Judge was right in hearing the respondent’s claim summarily under the “undefended list in the face of obvious unresolved conflicts in the Affidavits filed by the Respondent and the Appellant.
- whether the Appellant’s failure to contest the sum of money claimed as professional fee by the Respondent in his Exhibit “G” amounted to an admission of the purported debt.
ISSUE NO 1
Appellant’s counsel had rightly submitted that in our jurisprudence, a court of law must have the requisite jurisdiction before it can entertain a claim before it, and that where a court lacks jurisdiction, it also lack the competence to adjudicate over the suit.
See MADUKOLU V. NKEMDILIIM [1962] 1 ALL NLR [Pt.4] 587 At 595 where Bairamian, FJ further stated that any defect in competence is fatal and renders the proceeding a nullity however well the proceeding was conducted or decided, and that the defect is quite extrinsic to the adjudication. See also A-G, ANAMBRA STATE v. CHIEF CHRIS UBA [2005] ALL FWLR [pt.277] 909 at page 920. The jurisdiction being the pivot and foundation on which the adjudication rests is very fundamental.
Appellant’s objection to the jurisdiction of the High Court of Rivers state was founded on the fact it was/is an agency of the Federal Government of Nigeria and therefore by virtue of section 251[1] [q], [p] and [r] of the 1999 Constitution exclusive jurisdiction is vested only on the Federal High Court in any matter in which it, i.e. the agency of the Federal Government of Nigeria is a party. Reliance was heavily placed on the interpretation of section 230 [1] [q], [r], [s] of the 1979 constitution, in pari materia with section 251 [1] [p], [q], [r], in NATIONAL ELECTRIC POWER AUTHORITY v. MR. B. EDEGBERO & ORS [2003]1 FWLR [p9139 1556 at pages 1569, and 1571 where Ogundare JSC stated –
From what I have said earlier in this judgment the aim of paragraphs [q], [r] and [s] of subsection [1] of section 230 [of 1979 Constitution] was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was a party, A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.
Appellant’s counsel further submitted that in view of this judgment of the Supreme Court t is no longer necessary to consider both the status of the party and the subject matter of the suit, as the trial court did, in deciding whether section 251 [1], [p], [r] and [s] or the 1999 Constitution has ousted the jurisdiction of the State High Court once an agency of the Federal Government is a party. It was pointed out that the Court of Appeal has conflicting judgments on the issue and that while in MINISTER OF WORKS & HOUSING v. TOMAS NIGERIA LIMITED [2002 FWLR [pt. 124] 456 at 478 – 480 this court [Bulkachuwa. JCA] interpreted section 251 [1] [q], [r] and [s] of the 1999 Constitution as conferring jurisdiction on “any other court” other than the Federal High Court: the subsequent decision of this court in LOWER NIGER RIVER BASIN & RURAL DEVELOPMENT AUTHORITY V. MR. SAMUEL OLAGBEGI [2005] ALL FWLR [pt. 254] 835 is to the effect that in view of NEPA v. EDEGBERO this court’s decision in TOMAS case is no longer good law, He also drew our attention to CHIEF EMMANUEL NWUDE v. CHAIRMAN, EFCC [2005] ALL FWLR [pt. 2761 740 where at page 755 this court [Odili, JCA] held that –
By virtue of section 251 [1] of the 1999 Constitutions, where the Federal Government of Nigeria or any of its agencies is a party to a suit, it is no longer necessary to examine the nature of the reliefs or claims sought in the case in order to determine the jurisdiction of the court. It is sufficient agencies, only the Federal High Court has jurisdiction to determine the matter – see NEPA v. EDEGBERO [2002 18 NWLR [pt. 789] 79, [2003] FWLR [PT.139] 1556 referred to and followed. Parties cannot by consent or collusion vests a court with jurisdiction or waive constitutional provisions.
In reply Respondent referred us to the concurring judgment of Tobi, JSC in NEPA v. EDEGBERO [supra] wherein it was stated that – in construing section 230 [1] of the 1979 Constitution as amended, two important matters arise, They are the parties in the litigation as well as the subject matter of the litigation. The court must consider both.
Respondent further submitted, rightly, on the authority of NWANA v. FCDA [2004] 13 NWLR [pt. 889] 128 at 140 G – H, that “a concurrent judgment has equal weight with or as a leading judgment”. Respondent drew attention to ONUORAH v. KADUNA REFINING & PETRO CHEMICAL COMPANY [2005] 6 NWLR [pt. 921] 393 at 395 in which the Supreme Court held hat section 230 [1] of the 1979 Constitution as amended by Decree 107 of 1993, did not confer the Federal High court with jurisdiction over matters of simple contract.
The Kaduna Refining & Petro-chemical Company, he posited, is a subsidiary of Nigerian National Petroleum Company [NNPC], a parastatal of the Federal Government established by NNPC Act Cap. No 123 of the Laws of the Federal Republic of Nigeria, 2004.
Confronted with ONUORAH’S case [supra] Appellants contend that ONUORAH’S case was based on the 1979 Constitution under which the State High Court had unlimited jurisdiction; that it was decided 27 months after NEPA v. EDEGBERO [supra] and that in event of us finding that the cases conflict we should follow NEPA v. EDEGBEOR since that course will be consistent with NWUDE v. EFCC and other decisions of this court. I think I should point out right away that NEPA v. EDEGBERO [supra], like ONUORAH’S case [supra], was a decision of the Supreme Court based on the interpretation of section 230 [1] of the 1979 Constitution, as amended. ONUORAH’S case is a decision of the full court [seven justices] of the Supreme Court. The earlier decision of the same court in NEPA v. EDEGBERO had a regular panel of five [5] Justices of the court. S.O. Onu. JSC and Niki Tobi JSC Participated in both cases.
NEPA v. EDEGBERO and ONUORAH cases are distinguishable on facts and the issues for determination. In NEPA v. EDEGBERO the respondents were employees of NEPA, an agency of the Federal Government, whose appointments were terminated for participating in an industrial action. They challenged the termination of their appointments with the Appellant, NEPA, at the High Court of Niger Slate. The Supreme Court held that since the action was challenging the validity of the executive or administrative action or decision of an agency of the Federal Government, the State High Court had no jurisdiction in the matter. The issue in ONUORAH’S case was a claim for damages for breach of a simple contract. The Plaintiff/Appellant commenced the action at the Federal High Court. It was the unanimous decision of the full court of the Supreme court that –
In the instant case, since disputes founded on simple contracts are not among those included in the jurisdiction conferred on the trial court federal High Court that court had no jurisdiction to entertain the appellant’s claims which are based on simple contract.
It was further held in ONUORAH’S case [supra] that although it is sometimes necessary for the court to hear some evidence for the purpose of determining the issue of jurisdiction where however pleadings are filed in the suit, the issue of jurisdiction ought to be determined on the Plaintiff’s pleadings, that is his statement of claim and not on the Defendant’s statement of defence.
The claims of the Plaintiff/Respondent in the instant case, which I earlier reproduced, are very clear. The action was for recovery of a simple debt or arrears of professional fee due and payable to the Plaintiff For services he had rendered to the Defendant/Appellant.
Claim “for payment of professional fees over a contract of valuation of assets of the appellant by the respondent” was also, like in this case, the issue in FEDEML COLLEGE OF EDUCATION [SPECIAL], OYO v. AKINYET4E [2008] 15 NWLR [PT.1109] 21. The suit in FCE, OYO V. AKINYEME [supra] was commenced at the Federal High Court, Ibadan.
This Court, unanimously, on the authority of ONUORAH’s case [supra], held that there is no where it is suggested or stated in section 251 [1] of the 1999 Constitution that –
The Federal High Court is empowered or has jurisdiction to entertain action on simple contract or debt recovery notwithstanding the fact that the appellant is an agency of the Federal Government.
The Supreme Court has given legal teeth to the stand I have taken in this case. The court held that section 230 [1] of the 1979 Constitution – which is in pari materia with section 251 [1] of the 1999 Constitution, does not confer the Federal High Court with jurisdiction over matters of simple contract. SEE FELIX ONUORAH V. KADUNA REFINTNG & PETRO-CHEN4ICAL CO, LTD [2005] 6 NWLR [pt.921] 393 at 405, SEVEN-UP BOTTLING CO. v. ABIOLA & SONS LTD [2001] 13 NWLR [pt. 730] 469; TRADE BANK PLC V. BENILUX [NIG] LTD [2003]19 NWLR [pt.825] 416.
Every court derives its authority or jurisdiction from the Constitution or its enabling law. The Federal High Court derives its jurisdiction from section 251 [1] of the 1999 Constitution. That is what ONUORAH’S case and FCE v. AKINYEMI are saying. NWUDE v. EFCC [supra] was not over a simple contract as in the instant case and ONUORAH’S case, like FCE, OYO v. AKINYEMI [supra], NEPA v. EDEGBERO was not also over a simple contract. The claim in that case was challenge to the validity of any executive or administrative action or decision by” an agency of the Federal Government.
From all I have been saying the test suggested by Niki Tobi JSC in NEPA EDEGBEROR [supra] that is that In construing section 230 [1] of 1979 Constitution, in pari materia with section 251 [1] of the 1999 Constitution, two matters arise. They are:
- the parties in the litigation., and
- the subject matter of the litigation.
The court must consider both. The trial court in this court considered both in dismissing the preliminary objection. The trial court can not be faulted on this. The Appellant is no doubt an agency of the Federal Government, The subject matter of the suit, recovery of simple debt or professional fees, is not a matter the Federal High Court by dint of section 251 (1) of the 1999 Constitution has jurisdiction over. The jurisdiction of the State High Court over simple contract is not in any way affected by Section 251 (1) of the 1999 Constitution.
In effect what the legal authorities, particularly ONUORAH’S case and FCE, OYO v. AKNYE 141, say is that every court derives its authority or jurisdiction from the Constitution or its enabling statue.
The Federal High Court derives its jurisdiction from section 251 (1) of the 1999 Constitution. It can not be abrogated more jurisdiction than the Constitution vests or confers on it, The High Court of the State has jurisdiction, “subject to the provisions of Section 251 and other provisions of the Constitution to heir and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue” See Section 272 (1) of the 1999 Constitution. It includes claim contract for recovery of debt or professional fee.
There is no substance in this issue. Accordingly, I hereby resolve it against the Appellant in favour of the Respondent
ISSUE NO 2.
As preliminary under this issue; the Appellant pointed out the objectives of undefended list procedure which are aimed at assisting the plaintiff to recover debt or liquidated money demand from the debtor where from the facts the defendant has no genuine defence.
Under the undefended list procedure the defendant is expected to file Notice of Intention to defend, accompanied by an affidavit, which discloses a defence on merit. The trial court, Appellant submitted on authority of EBONG v. IKPE (2002) 17 NWLR (pt. 797) 504 at pp 508, 521-522, is expected to consider the defendant’s affidavit “with a measure of liberality” with the view of determining whether the affidavit discloses any defence on merit, and that where it does, the suit ought to be transferred to the general cause list. Appellant further submitted that under the procedure the case is heard on affidavit evidence; that where there are irreconcilable conflicts in the affidavits of the parties such conflicts can only be reconciled by oral evidence.
AGWUEIVIE v. EZE (1990) 3 NWLR (pt.137) 242 at 254 was cited. And that where the defendant joined issues with the plaintiff on substantial issues of facts he ought to be granted leave to defend.
I do not think there is any dispute that the terms of the agreement between the parties accepted by the Respondent are in Exhibit A. The Respondent, by his Exhibit B, accepted the terms in Exhibit A. The contention of the Appellant is that the fees payable to the Respondent for services rendered shall be negotiated and discounted,” I have carefully read and considered that Appellant’s brief. Paragraph 6.7 thereof, where it is stated-
Some of the reasons advanced by the Appellant for resisting the terminal invoices submitted by the Respondent was that, the Respondent was engaged to work from the beginning to the end of the 2 projects, his fees were to be negotiated and discounted, the Respondent did his job in part by preparing 2 draft agreements, the subject projects had not even taken off by the time the bills wee sent and that the N9 Million so far paid to the Respondent was more than the value of the services rendered, [sic]; appears to convey the crux of the Appellants grievance under this issue, Appellant further contended that since there was no evidence to support the agreement by the two parties on the sum payable to Respondent as professional fees oral evidence ought to have called to ascertain the quantum of work done and the fees payable accordingly.
The scope of services to be rendered by the Respondent to the Appellant, as conveyed by the Appellant in Exhibit A which the Respondent accepted in Exhibit B, does not enjoin the Respondent “to work from the beginning to the end of the 2 projects” nor does it say or provide that the Respondent would be paid for services rendered only after the 2 projects had taken off. Paragraph 2 and 3 of Exhibit A; State –
- The scope of your services shall include but not limited to -:
.drafting of legal documentations relating to the project
. vetting legal documentation,
.Offering legal opinions and to advise the Authority
- Your fees shall be negotiated and discounted.
It is quite trite that address of submission of counsel is no substitute for evidence. See OKON v. UBI [2006] ALL FWLR [pt, 328] 717.
It is also the law that it is not permitted in Interpretation or construction of contract document that the exercise is done by a party either placing a gloss on the document, or importing or imputing into the document terms neither agreed by the parties nor contained in the document. Where the letters of the document are plain and unambiguous they should be given the plain and ordinary meaning.
It was the contention of the Appellant that the fees submitted by the Respondent were not “negotiated and discounted”; that the N9 million they had so far paid to the Respondent “was more than the value of service rendered” by the Respondent, and that in the absence of the agreement of the parties on the fees submitted by the Respondent the trial court ought to have called for oral evidence to resolve the conflict in the affidavit evidence. There is no basis for the Appellant’s contention that the N9 million so far paid to the Respondent was far more than the services rendered by the Respondent. I agree with the Respondent that defence conveyed by paragraphs 11, 14, 18 and 19 of the Appellant’s Notice of Intention to defend, is a sham. Appellant had not stated what the quantum of the services rendered by the Respondent was worth. Their position is that there has been no agreement on that issue.
The final point on this issue raised by the Appellant is that the parties did not agree on the fees presented for payment by the Respondent; that the Respondent ought to have proffered evidence on the “agreement”, and that since there are conflicting affidavit evidence on the issue the trial court ought to have called for oral evidence to resolve the conflict. In paragraph 13 of the affidavit in support of the Notice of Intention to Defend the Appellant averred:
- That the Plaintiff did not render any other service but sent in 3 bills for
i. N42, 874,556.63 vide an invoice dated 8/071/003
ii.N12, 000,000.00 vide an invoice dated 21/07/2003
iii. N18, 000,000.00 vide an invoice dated 21/07/2003
The Appellant at the trial court did not join issues with the Respondent on the facts averred in paragraphs 8, 9, 10 and 11 of the Respondent’s affidavit in support of the suit. The summary of averments is that –
i. the Plaintiff prepared and vetted the BOT Agreement the Defendant/Appellant entered with the third party; submitted 6 engrossed copies of the same to the Defendant, and prepared and forwarded 4 engrossed copies of the agreement for constitution of infrastructures involving the defendant and Prudent Engineering Services Ltd.
ii. the bill of charges in respect of these works, Exhibits D1 and E were forwarded to and received by the Defendant on 11/7/2003. The receipt of Exhibit D1 and forwarding of the same to Defendant’s Managing Director are all evidenced by the endorsement on Exhibit D1.
iii. Consequent on this the parties met in the Plaintiff’s office “to negotiate and discount the plaintiff’s legal fees in accordance with the Exhibits A and C” and there at the meeting it was agreed that
a. the Plaintiff be paid N12, 000,000.00 as Fees for vetting and the legal opinions in respect of the BOT agreement, and N9 million has been paid out of this sum leaving a balance of N3, 000,000.00.
b. the Plaintiff be also paid N18, 000,000.00 as his fee for the preparation of the infrastructural facility Agreement between the Defendant and Prudent Engineering Services. The Plaintiff submitted a bill of N42, 000,000 based on the scale of fees for legal Practitioners in Remuneration for legal Documentation and Order Land matters order 1991 which from the meeting it was agreed and scaled down to N18, 000,000.00.
The Defendant/Appellant in the affidavit in support of the Notice of Intention to Defend did not join issues on these averments in paragraphs 9, 10, 11, 12 and 13 of the Plaintiff’s affidavit verifying the suit on the undefended list. The defendant’s affidavit in support of the Notice of Intention to Defend was completely silent on they meeting at which it was mutually agreed that N2, 000,000.00 and N 118, 000,000.00 be paid respectively to the Plaintiff on the two bills submitted by the Plaintiff. The trial court believed the Plaintiff and held that there was a meeting at which the fees were negotiated, agreed or discounted in accordance with Exhibits A and C. It held particularly at pages 53 and 54 of the record.-
That it was following this meeting that the parties agreed on the legal fees as contained in Exhibits “F” and “F1”, being the subsequent bill of charges dated 27th July 2003 sent to the defendant by the Plaintiff.
It is the balance of Twenty one Million Naira, as a result of the said Exhibits “F” and “F1” that is the subject of this claim. See paragraphs 10 and 11 of the Affidavit of claim and Exhibits “F and “F1” These findings of fact by the trial court are unassailable. They are supported by uncontradicted affidavit evidence and the documentary evidence before it. The trial could was right when it held further that where there is oral evidence, as well as documentary evidence, documentary evidence should be used as a hanger from which to assess the oral evidence. See KEMDEY v. MILITARY GOVERNOR OF GONGOLA [1988] 2 NWLR [pt.77] 445. The Plaintiff/Respondent in my view, proved by the undisputed affidavit evidence that there was a meeting where at the fees of N12, 000,00.00 and N18, 000,000.00 were agreed to be paid to the Plaintiff for his services by the Defendant/Appellant.
I have considered the Defendant’s affidavit in support of the Notice of Intention to Defend at pages 54 – 56 of the record. I have also considered the Respondent’s brief on this issue together with his verifying affidavit at pages 5 – 22 of the record; I see no material conflicts in the two affidavits, particularly as regards the substance of the Plaintiff’s claims. The law is clear on this. Under the undefended list procedure sham defences intended to dribble and frustrate claim are no defence on the merits. See MACAULAY v. NAL MERCHANT BANK LTD [1990] 4 NWLR [pt.144] 283. The defences purportedly disclosed in the defendant’s affidavit are flimsy and fanciful. Their design was merely to distract the trial court. As I earlier stated the said affidavit did not join issues on the core issues that the Plaintiff had done some work for the defendant on the latter’s instructions, that he presented his bill of charges for his fees in terms of Legal Practitioners’ scale of fees that the parties met to negotiate the discount and they finally agreed on some figure acceptable to both, which figures the Defendant has not paid on demand. The Appellant made so much fuss out of the alleged conflict in the affidavit evidence and the desirability for resolution of the same by oral evidence.
The law, agreed, is that where affidavits of the parties conflict on very crucial and important aspect of the dispute between them, the conflict should be resolved by oral or some other evidence.
There is exception to this general rule. Where the facts are flimsy and merely distractive the court can disregard them and evaluate the evidence on both sides In order to resolve them. It is only when the resolution of the conflict becomes impossible that it is necessary to call for oral evidence to resolve the conflict. See EZECHUKWU v. ONWUKA [2006] 2 NWLR [PT.963] 151 AT 196 – 197. Where there are documents which could be used to resolve the conflicts in the affidavits in respect of the disputed material facts oral evidence is unnecessary in such circumstance. See DANA IMPEX LTD v. AWUKAM [2006] 3 NWLR [PT.968] 544 at 563; ONAGORUWA v. ADENIJI [1993] 5 NWLR [pt.293] 317.
All I have laboured to say is that the trial court was right in hearing the Respondent claim under the undefended list procedure as there were no material conflict in the affidavit evidence on the substance of the dispute between the Respondent and the Appellant before it. I hereby resolve this issue in favour of the Respondent and against the Appellant.
ISSUE NO.3
The issue relates to the additional reason the trial court, at pages 54 – 55 of the record, gave for holding that the Defendant/Appellant had no defence to the claims of the Plaintiff/Respondent. The trial court found that the Appellant did not react to the Respondent’s demand Notice, Exhibit G, and held that in the ordinary course of business a party who receives a letter demanding payment for services rendered ought to have reacted to it, if he disputes, and that defendant’s failure to react to Exhibit G was an admission of their liability to pay the sums demanded, which lends credence to the Plaintiff’s side of the case. The trial court relied on GWANI v. EBULE [1990] 5 NWLR [pt. 149] 201 and VASWANI v. JOHNSON [2000] 11 NWLR [pt. 679] 582. The Respondent, relying also on the same authorities, has urged that the appeal on this issue be dismissed.
The Appellant submission on this is that they had averred that they did not agree on specific fees payable to the Respondent and that the sum of N21 Million charged by the Respondent was an imposition that was not binding on the Appellant and which they were not legally obliged to acknowledge of dispute. The submission completely ignores other letters the Respondent had sent to the Appellant before the letter of demand was finally issued. For instance the Respondent’s letter dated 8/2/2003, the receipt of which is not in dispute, not only forwarded “four [4] engrossed copies of the agreement between your Authority and Prudent Engineering Services Limited for your kind attention”, it had also enclosed therewith Plaintiffs “bill of charges for your kind attention”. By paragraphs 9 and 10 of the Plaintiffs affidavit verifying his claims it as averred that the meeting at which Plaintiffs fees were negotiated and discounted was necessitated by this letter. Thereafter two bills of charges dated 21/7/2003 for the sums of N12, 000,000.00 and N18, 000.000 were submitted to the Appellant for payment. The letter of demand dated 29/3/2005, Exhibit G was then issued. The Appellant did not react to any of this correspondence, Silence, in the circumstance, leads to an irrebuttable presumption of admission by conduct. See GWANI v. EBULE [supra] at 217 and I.O.E. IGA v. CHIEF EZEKEL AMAKRI [1970 11 SC ]. In VASWANI v. J0HNSON [supra] at page 589 this proposition of law was also upheld in the lead judgment of GALADMA JCA. This rule of law is prudent and rational, taking into consideration usual human conduct, particularly in the Nigerian con.
There is no substance in the issue. I hereby resolve the issue against the Appellant.
On the whole the appeal lacks merits and it is hereby dismissed in its entirety. The decision and orders hereby affirmed. Costs at N50, 000.00 are of the Respondent against the Appellant.
Other Citations: (2009)LCN/3098(CA)
