Patigi Local Government V. I. K. Eleshin-nla, Esq & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the judgement of the High court of Justice, ilorin, delivered on 28th day of July, 2006, coram Folayan J, in which the sum of Two million, three hundred thousand Naira was awarded in favour of the plaintiffs as professional charges for legal services rendered by them on behalf of the defendant.
The respondent herein were the plaintiffs before the trial court. The appellant Patigi Local Government, was then the defendant. The plaintiffs’ sued the defendant for a claim of:-
(a) A sum of One Million Five hundred and Eight Thousand Naira (N1,580.000.00) being annual
retainership fee from year, 2000 – 2006 at the rate of N250,000.00 per annum. The respondents
conceded that the Appellant has actually paid a sum of N170,000 as part payment for the year 2000 and
(b) A sum of One Million Naira, being professional fee for defending the defendant/appellant in two snits’
namely,
(1) Alhaji Sule Tahir & Another v. Patigi Local Governent (defendant).
(2) Patigi Local Government Vs. Femi Akinwale.
The total claim of the respondents therefore was N2,300,000.00, (Two Million Three Hundred Thousand Naira. I refer to Exhibit ‘C’ at page 9 of the Record of Proceeding.
It is to be noted that the Suit was placed on the undefended list. It appears that the defendant was slightly out of time for filing a Notice of intention to defend the suit. On 03/4/2006 the appellant, as defendant, filed a motion for extension of time within which it can file its notice of Intention to defend and an order deeming the attached Notice of intention to defend as duly filed and served out of time. The trial court granted this application despite the fact that the respondents filed a Counter Affidavit against it.
In the lower court, the Affidavit evidence of the respondents was saying that they were able to establish, as a fact, legal retainership with the appellant i.e. between themselves. They averred that their claims are never statute-barred and finally were able to disclose that the appellant, as defendant, has no defence to the suit.
The defendant claimed that it was allowed by the trial court to file its Notice of intention to defend the suit in Exhibit ‘C’ which did not comply with Section 16 of the Legal Practitioner Act the thereby rendered the claims of the plaintiff incompetent. That being the case, the trial court lacked jurisdiction to try the suit. The suit was said to be statute barred.
After considering the claims and the Notice of intention to defend the learned trial judge held that the suit shall be placed on the undefended list and entered judgment in favour of the plaintiff in the sum of N2,300.000.00. The trial court on page 38 has this to say:
” ….. There is nothing substantial in the affidavit in support of notice of intention to defend challenging the facts in the affidavits in support of the claim and against affidavit in support of notice of intention An
unchallenged evidence should be acted upon by court, and ill this case I hold that there is no facts challenging (sic) the facts in the affidavits of the claimant to warrant my transferring the case to the general cause list. I therefore enter judgment in favour of the claimant as per his claim of N2,300,000.00 as per the bill of charge be claimed to have sent to the defendant Vide Exhibit D”
Dissatisfied with the decision of the trial court the plaintiff appealed to this court and flied a Notice of appeal containing three (3) grounds of appeal as follows. (See p. 39 – 40). I reproduce the said grounds of appeal without their particulars thus:-
GROUNDS OF APPEAL
GROUND 1
“The learned trial judge erred in law in giving judgment Claimant when the claimant did not comply with the Provisions of section 16 of Legal Practitioners’ Act, 1990 as amended in preparing his professional, charges.
GROUND 2.
The learned trial judge ought to have transferred the suit to the general cause list after granting the Defendant an unconditional leave to Defend.
GROUND 3
The learned trial judge erred in law by assuming jurisdiction over the suit when the suit was statute – barred, by the provisions of Local Government Law of Kwara State, Cap. 92 of 1994.
Later on the appellant tiled a motion dated and filed on 30/10/2006 seeking to amend Ground 2 of the grounds of appeal. This court on 9/11/2006 granted the application of the appellant and
the amendment was effected. The amended ground two now reads thus:
“The learned trial Judge erred in law for her refusal to transfer the case to the general or ordinary cause
list in view of affidavit evidence before her.”
The parties, in compliance with our rules filed and exchanged Briefs for the determination of the appeal. The appellant in his Brief of argument distilled five issues as follows:-
“1. Whether the learned trial judge was right to have given judgment to the claimants, the claimants’ bill of charges, Exhibit c, having not, complied with section 16 of the Legal Practitioner’s Act?
- Whether the non-compliance of the claimants’ bill of charges with section 16 of the Legal Practitioners’ Act rendered the claimants’ suit incompetent and the Hon. Court lack jurisdiction to entertain same?
- Whether the claimant’s suit falls under liquidated debt or money demand that could be heard under the undefended list cause?
- Whether the trial Court ought to have transferred the case to the ordinary cause list in view of the
filing of Counter-affidavit by the Respondents, which counter-affidavit was used for dual purposes?
- Whether the Hon. Court has jurisdiction to (entertain) the Claimants’ suit since the suit is statute-barred under the Local Government Law, 1994 Laws of Kwara State?”.
While the respondents in turn formulated three issues thus:-
“1. Whether the respondent claims which are purely civil contracts were caught by statute of limitation in view of the provision of section 18 of the Kwara State Limitation Edict of 1987 and section 178 of the Local Government Law of Kwara State, 1967?
- Whether the bill of charge of the respondents to the appellant was in compliance with relevant law and practice?
- Whether the claims of the respondents can be brought under ORDER 23 RULE 1 of the Kwara State high court (Civil procedure) Rules, 2005?
The appellant indicated his willingness to argue issues 1 and 2 together, this court would do the same. Under both issues the learned counsel on page 2 of their Brief submitted thus:-
‘That the claimants cannot be entitled to judgment for the sum of N1,000.000. being the claimants’ professional charges for the 2 cases. For each of the cases, the claimants purported to have charged the Local Government the sum of N500,000. Without giving sufficient particular of their charges. I refer to the claimants’ letter Exhibit ‘C’ and ‘D’ which was titled “Bill of Charge” and the Notice of intention to commence suit against the Local government, where the legal charges were listed.’ His complaint also under this issue is that the claimants’ legal charges in respect of the cases conducted for the Local Government did not comply with the provisions of Section 16 of the Legal Practitioners’ Act 1990, as amended. The position taken by the appellant is that where a legal practitioner’s charges did not comply with the Provisions of the Act, any action commenced by him to recover such charges will be incompetent action. The condition precedent which a legal practitioner’s bill of charges must comply with
are set out in Section 16(2)(a) i.e. it requires the legal practitioner’s Bill to contain particulars of the principal items included in the Bill and also must be signed by him. He contended that the Section was interpreted by the apex court of the land in the following cases, namely:
(i). OYEKANMI V. NEPA [2000] 12 SCNJ 75; and
(ii) SAVANNAH BANK V. OPANUBI [2004] 19 NSCQR 29 AT 297.
He then concluded that the averment in the claimants paragraph 7 merely averred that the defendant was charged N500,000 on each of the suits. He submitted that this averment did not meet the requirements of
the Provisions of S.16 of the Legal Practitioners Act as interpreted by the Supreme Court on the above two cases supra. The trial court, according to the learned counsel, cannot claim ignorance of these facts since they were raised before it. He referred us to page 31 of the Record. The , claimants, by their failure to comply with the Provisions of the above Act, could not be entitled to judgment. It would therefore be un-necessary for the trial court to require the defendant to challenge an unproved assertion, this is because the burden of proof clearly lies ‘on the claimants.
On issues 3 and 4 the learned appellant’s counsel Submitted that claimants’ suit did not fall under the classes of cases that could be heard under the undefended list, under Order 23 of the Kwara State High Court (Civil Procedure) Rules, 2005, and it ought to be transferred to the general or ordinary cause list. This is because under the above Rules, the learned trial Judge was bound to look at the affidavit in support of the writ of Summons to satisfy himself or herself that the claimants’ case could be supported. However, in the case at hand, the trial court merely gloss over the affidavit in support of the claim without considering its lack of adequate materials.
Learned counsel contended that the defendant’s affidavit in support of Notice of intention to defend the suit actually disclosed defence on the merit otherwise why the claimants found it necessary to file a counter affidavit? He then submitted that the filing of the counter affidavit against the Notice of intention to defend means that there are areas where the defendant would need to cross-examine claimants and the case ought to be transferred to the general cause list; The trial court ought to have carefully examined both affidavits to see whether there are triable issues rather than considering the nature of the defence disclosed by the affidavit of the defence.
Learned counsel further contended that the purported counter affidavit filed before the court ruled on the application for leave to tile the Notice of Intention to defend out of time was incompetent as it was presumptions and meant to serve dual purpose since leave was hot yet been granted to the defendant when the claimant filed their counter affidavit. The claimant’s counsel anticipated that leaved would be granted as a matter of course even though the motion by the defendant was vehemently opposed by the claimants. This should be the case. He relied on the case of OLUMESAN VS OGUDEPO (1996) 2 MAC 226 AT 237. This supreme court held in that case that arguments in a brief of argument which incorporates both argument arising from the original ground of appeal and those arising from the additional ground of appeal, which brief was filed before leave was granted to file additional grounds of appeal would be competent. This is a good analogy of the above scenario in the case at hand.
He then urged this this court hold that the counter affidavit filed by the claimants and all the attached Exhibit E, F and G be declared incompetent. If this court accedes to his argument then the court, out of necessity, would that there is no evidence of purported retainership between the claimants and the defendant. He also argud that this argument was canvassed before the learned trail in the defendant’s address filled 5/7/2006.
On the argument on whether or not a single affidavit could serve dual purpose, the appellant did not accept that a single affidavit could serve dual purpose. The learned trial judge seemed to hold otherwise. The appellant’s counsel argued that on 7/4/06 when the motion for leave to file notice of intention to defend was argue, the claimants, represented by Mr .I.K.Imam Eleshin-Nla, who is also a party to the suit, vehemently opposed the motion by relying on the counter-affidavit filed on 05/04.06. (see page 33 of the record, especially paragraph 2) the trial court ruled on the 19/06/06 and granted the motion to file notion of intention to defend and deemed same properly and served. Then case was then adjourned to 6/7/06 for hearing parties exchanged. Learned trial judge then relied on the averments in the said counter affidavit and the argument in their support were accepted and ruled against the defendant . see pp.38-38a of the record. He finally submitted that the reference made by the learned trail judge to “E”, “F” and “9” in her ruling were unjustified since they were attached to the counter-affidavit, which should have been struck out for being incompetent.
On issue No. 5 the gist of the appellant was that the suit commenced by the claimants was statuette having not been filed within six months period. He referred to S.178 of the local government law of kwara state 1994 and the claims in Exhibit “B” attached to the affidavit in support of the claims. He drew our attention to the effect that the cause of action arose on 4/2/05 but action was filed on 8/3/06 almost a period of 14 months had elapsed before the action was filed. He also referred us to our decision in MORO LOCAL GOVERNMENT, KWARA STATE VS. CHIEF THEOPHILUS A. S.OYEBIYI & ORS in Appeal No CA/IL/30/05 the judgment was delivered on 27/02/05. In that case the action was declared statute-barred and an order for retrial was said to be un-necessary. Learned counsel then urged this court to allow the appeal and to dismiss the claims for being incompetent. Or in the alternative an order transferring the suit to the general or ordinary cause list for hearing before another judge.
The respondents filed a notice of a preliminary objection to the competence of grounds 1 and 2 of the Notice of appeal. He contended that there is no where in the Notice of intention to defend and its affidavit in support issue of non-compliance with section 16(a) of the legal practitioners Act, was raised by the appellant at the court below therefore they cannot raise it without the leave of this court. He insisted that even the trial court did not make any finding on the issue. He then submitted that a ground of appeal against a decision must related to the decision and should constitute a challenge to the ratio of the decision relying on the following case:-
(i) IKWEKI V. EBELE, (2005) 2 S.C. [PT. ii] 96/108;
(ii) EGBE V. ALHA.JI (1990) 1 NWLR [PT. 128] 546/590
(iii) SARAHI V. KOYOYE (1992) 11 – 12 SCNJ 26/42 AND 43
(iv) F.M.B.N. VS. N.D.I.C. (1992) 2 SCN.I, 57 AT 78.
Learned counsel then contended that he concedes that the appellants’ counsel made mention of Exhibit ‘C’ which deals with non-compliance with the Provisions or the Legal Practitioners Act, he only did that in the address stage and never in the evidence. Mere mention of this in the course of tile counsel address is never a substitute for the Affidavit evidence that has not been led.
The cases of SALAWU YOYE V. LAWANI OLUBODE & 4 ORS. (l974) 10 S.C. 20 AT 275 and IY ALA (2004) 4.S.C. [PT. J] 20/31 were cited. He maintained that the rational behind this principles is
that, litigation must follow some restrictive order and not open-ended in order to save the time of both the court and the parties. He referred to case of OKOLO V. UNION BANK (2004) I S.C. [PT.1] [1 AT
- He then Submitted that ground 1of the appeal is incompetent and be struck out along with issues No.1 and 2 formulated on ground No. 1 thereto.
Learned respondents’ counsel argued that ground 2 has not challenged any decision or finding by the trial court. That ground 2 of the Notice or appeal alleged that the learned trial judge granted the defendant an unconditional leave to defend the suit. However, on perusal of the record no where can one find a condition leave granted the defendant to defend the action, Leave was only granted the appellant by the lower court for extension of time to file notice of intention to defend and leave to defend the suit. Learned counsel then submitted that if is trite that a ground of appeal must concisely challenge the ratio of the trial court. He relies on the four cases earlier on referred. Above are the reasons adduced by the learn3ed counsel for the respondent in urging us to uphold his preliminary objection and to declared the ground 1 and 2 incompetent.
In his reply to the preliminary objection learned appellant counsel contended that the taken by the respondents is mis-conceived, this is because the issue of non-compliance was reside before the lower court paragraph 1.2 of the pages 30,the appellant’s counsel contended that paragraph 1-15 of the affidavit in support of the claimants specially indorsed writ did not reveal or contain sufficient facts and particulars to sustain their claims and that, Exhibit “C” did not comply with section 16 of legal practitioners Act, He then submitted that the appellant did officially, or properly raise ground one before the trail court.
The appellant’s counsel argued that on the day of hearing the substantive written address at p.36 of the learned respondent’s counsel relied as follows:-
At paragraph 7 of page 2, my learned friend refer to section 16 and 19 of legal practitioners Act. I urge the court to discountenance with the 2 sections because they are not relevant. The last paragraph of page 2, be attacks our Exhibit “C” that is not sufficient. We rely on the Exhibits as being sufficient for our case(underlining supplied)
It is clear that the respondents’ counsel has every opportunity to raise objection but failed to do so, he cannot now complain. He cites the Supreme Court’s case of INPINLAIYI VS. OLUKOTUN (1996) 6 MAC 146 AT 147 (holding 5).
Counsel then submitted that the procedure adopted in raising the issue of Section 16 of the Legal practitioners Act was neither unconstitutional nor a nullity. The respondents therefore consent to the procedure which they now complain of at the appeal stage. They have waived their right to complain, he added.
Learned counsel for the appellants, Manzuma Issa Esq, the urged this court to hold that preliminary objection of appeal is unfounded and should be overruled.
Having read and considered the preliminary objection and having read all the submissions of both counsel for and against I am of the firm view that the preliminary objection is baseless and it was a calculated attempt to mislead us and to waste the precious time of this court. It was glaringly clear that the appellant has promptly and raised the issue of non-compliance of Exhibit “C” with the provision of the leal practitioners Act cap, 1990(as amended) section 16 thereof. The respondent’s counsel on page 36 line 25 of the record clearly referred to the affidavit evidence of the appellant and specifically referred to Exhibit “C” which violates section 16 of the legal practitioners Act and the same counsel urged the trail court to discountenance sections 16 and 19 of the legal practitioners Act as they are irrelevant. Learned counsel again mentioned that the attack on their Exhibit “C” is not sufficient. How on earth, learned counsel would come to this court and complain on what he acceded to in the lower court.Can he do that? No, the law would not allow him to do so, says the Supreme Court. The Supreme Court held thus:-
“Generally, when a party in a Civil Proceeding has consented to a procedure at the trial which is neither un-constitutional nor a nullity but merely wrong or irregular and in fact suffers no in Justice, It would be too late to complain on appeal that the wrong procedure was adopted … the court further refers to AKIWIWU VS. THE PRINCIPAL LOTTERIES OFFICER MID-WEST AND ANOR (1972) ALL NLR 154 (PARA D)”. See INPINLAIYE Vs. OLUKOTUN Supra at p. 147. ” .’
Nnamemaka Agu JSC shared the same opinion as in the case of INPINLAIYE V. OLUKOTUN Supra and added in the case of NWOSU V.IMO STATE ENVIRONMENT SANITATION AUTHORITY AND 4 ORS (1990) 4 SCNJ 97 AT’ 112 where he says:-
“… The days when parties could pick their ways in this court through naked technical rules of procedure the breach of which does not occasion a miscarriage of Justice are fast sinking into the limbo of forgotten things”
I therefore hold in this appeal that the defendant now appellant has properly and timeously too raised the issue that Exhibit ‘C’ did not comply with the provisions of the Legal Practitioners’ Act, Section 16 thereof. I consider all the arguments and submissions of the respondents’ counsel and found them watery and misconceived” The grounds of appeal attacked are sound and proper and they remain valid grounds of appeal.
I have considered the issues as formulated by the respondents and the submissions thereof and all the authorities cited in support and I agree that there is evidence of contractual relationship between the
defendant and the claimants.
I did not agree however that Exhibit ‘C’ relies upon by the respondents dutifully comply with S. 16 of the Legal Practitioners’ Act.
I hold, with tremendous respect to the learned trail judge, that had that court calmly considered the Affidavit evidence before it, it could have arrived at a different conclusion. The trial court I believe, would have ordered that the matter shall be removed from undefended list and to be transferred general cause list for trail proper. I am of the opinion that there is, in the affidavit in support of the Notice of Intention to defend challenging the facts in the affidavit in support of the claim. That explains away why he respondents’ counsel filed a counter affidavit to explain their position further. I agree though that it is always the discretion of the trial court to decide for itself whether a triable issue has been disclosed or not in an affidavit of intention to defend a suit and not of any other court but that discretion must be carefully exercised based on the contents of such affidavit. The procedure is by its nature, designed to obtain a summary judgment without the necessity of going into full trial. However I will rather say,
on authority that the undefended list procedures were designed to achieve a speedy trial but it is not meant or intended to short circuit a defendant who has valid and provable facts that are clearly alleged. Consistently with the above, once a defendant’s affidavit casts some doubt on the plaintiff’s case (as it did to Exhibit ‘C’ the defendant should be let in to defend. See JOB CHARLES NIGERIA LIMITED V. OKWONKWO (2002) FWLR [PT. 117] 1067 AT 1071; FRANK MNOBIKE V. NWIGWE (2000) 1 NWLR [PT. 642] 620/638; AMIMOBI V. WEZOSO (2002) 12 NWLR [PART 835] 617 AT 636 AND 639; AND FESSO NIGERIA LIMITED V. N.R. AND C.P.O. LTD. (1998) 11 NWLR [PT. 573] 227/233.
In the case of A.C.B. LTD V. GWAGWALADA (1994) 5 NWLR [PART 342] 25, (1994) 4 SCNJ [PT. 11] 268/270 their Lordshio held inter alia, that the significance of the Notice of intention to defend is borne out of the affidavit accompanying the Notice showing that the ground for asking to b heard in defence are not frivolous, vague or designed to delay the trail of the action.
The relevant question to ask, in my view at the stage, is , did the said affidavit for intention to defend throw any doubt on the plaintiff/respondents entitlements by the court to ascertain the veracity or otherwise of the claim by the plaintiffs/respondent? I am not inclined to consider whether or not the action is statute barred or not.
The interpretation of the relevant provision of the legal practitioners Act by the supreme court became a standard mirror for any claimant to comply. I have already discussed the supreme courts cases of OYEKANMI V. NEPA and SAVANNAH BANK supra. Exhibit ‘C’ shall be closely complied with the requirement of section 16 of the legal pracctitioners Act Cap. 207, law of the federation of Nigeria, 1990 (as amended). I expected learned trial judged to have ordered the respondents herein to testify even though that court regard the claims as undefended. It is a good practice in undefended matters at least for the plaintiff or claimant to testify in court and tender some relevant exhibits if any before a judge in that proceedings delivers its ruling in favour of the plaintiff. This procedure was not followed by the trial court.
I will not say much on this point and other issues because of the nature of the order i will give anon.
Appeal is therefore pregnant with merits, same is hereby allowed. The decision of the lower court delivered by Folayan .J. is set aside. Without non-suiting the respondents, the matter is hereby transferred to the general cause list for trial by the High Court of Kwara State. The matter is, for the avoidance of any possible doubt, reverted back to Chief Judge for it to be tried by another Judge different from Hon. Justice M. A. Folayan. N5,000:00 costs to the appellant.
Other Citations: (2007)LCN/2240(CA)
