Savannah Bank of Nigeria Plc V. Oladipo Opanubi (1999)

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OGUNTADE, J.C.A.

The respondent had as plaintiff before Adeniji J. at the Lagos High Court sued the appellant applicant on the basis of quantum meruit upon a contract between the parties. By the contract, the respondent, a legal practitioner, was to employ his services to recover from a third party a sum of N99m which was owed to the appellant/applicant. The respondent’s fee was to be 10% of the amount collected for the appellant/applicant. The facts showed that the respondent had sued and got judgment for the appellant/applicant against the third party. But before the actual recovery of the Judgment debt the appellant/applicant de-briefed the respondent, whereupon the respondent sued in contract for quantum meruit.

Adeniji J. refused the claim. But this court in a unanimous judgment delivered 31st May, 1999 allowed the appeal by the respondent and awarded to him the sum of Five Million Naira on the basis of quantum meruit.

The appellant/applicant was dissatisfied with our judgment. He has since appealed to the Supreme Court on the following grounds of appeal.

“a. The Court of Appeal erred in the law when it held that the respondent is entitled to claim on quantum meruit from the appellant.

PARTICULARS

1. The contract between the appellant and the respondent clearly provided that respondent’s professional fees would be fixed to the actual amount recovered by the respondent.
2. The respondent did not establish that the sum upon which his claim on quantum meruit was based on and had infact been paid to the appellant by ICON LTD. (Merchant Bankers)
3. The court cannot make a contract for the parties.

(b) The Court of Appeal erred in law in awarding the sum of N5,000.00 (Five Million Naira) to the respondent on quantum meruit against the appellant.

PARTICULARS

1. There was no evidence on record upon which the Court of Appeal could have concluded that the sum upon which the respondent’s claim on quantum meruit has actually been received by the appellant From ICON LTD (Merchant Bankers) as to make the respondent entitled to any sum at all.

(c) The Court of Appeal gave undue weight to irrelevant consideration when in relating to the assessment of the respondent’s claim it held as per Oguntade, J.C.A. thus:

“It is obvious from what I have discussed so far that the plaintiff in the instant case ought to have succeeded in recovering a reasonable recompense for his services up to the stage where he got judgment against ICON LTD for the defendant. It is inequitable to deny him a fair remuneration for his services. It is also a situation which dishonest employers may employ against the interest of lawyers properly instructed. They agreed the remuneration to be paid. The lawyer puts to use his learning and skill to execute the instruction of the employer. When success was in prospect on the assignment, the employer, de-briefed the lawyer. When sued to pay the agreed remuneration, the employer argued that because success had not been achieved when the lawyer was de-briefed, the lawyer was not entitled to compensation. That would be an intolerable situation.”

The appellant/applicant has now brought this application for a stay of execution of the judgment of this court pending the determination of the appeal to the Supreme Court. In paragraphs 5, 6, 7, 8 and 9 of the affidavit in support the applicant deposed thus:

“5. That the respondent is likely to succeed on appeal as there are substantial grounds of appeal.

6. That in the likely event that the appeal succeeds, it is unlikely that the appellant will be able to refund any sums paid to him in execution of the judgment of this court.
7. That the respondent is willing to deposit in the name of the Deputy Registrar of the Court of Appeal the judgment sum of N5,000,000.00 (Five Million Naira) in an interest yielding account in a reputable bank as this Honourable Court may direct pending the determination of the appeal to the Supreme Court.
8. That it is in the interest of justice that this application for stay of execution be granted to secure the judgment debt pending the determination of the appeal to the Supreme Court.
9. That no injustice will occur to the plaintiff if this application is granted and I depose to this affidavit in good faith.”

The respondent filed a counter-affidavit. Paragraphs 6 to 12 of the said counter-affidavit read thus:

“6. That I am a legal practitioner of 26 years standing, a man of substantial means with good reputation and of high integrity.

7. That I am always in a position to refund any sum paid to me in execution of the said judgment in the unlikely event that the appeal succeeds.
8. That I have properties worth much than the judgment sum which properties are free from encumbrances.
9. That to grant this application will be oppressing and will deprive me of the fruit of my labour.
10. That this application is not genuine as same was not filed in good faith.
11. That there are no special circumstances requiring stay of execution of the judgment of this Honourable Court especially as I have enough assets to refund the entire judgment sum in the unlikely event of the appeal succeeding.
12. That I swear to this affidavit in good faith verily believing the contents.”

We took arguments on the application on 18/10/99. I have considered the affidavit evidence before the court and the argument of counsel. It is trite law that the court does not make a practice of depriving a successful litigant of the fruit of his judgment. Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; The Annot Lyle (1886) 11 P.D. 114 at 116. In order to succeed, an applicant must show special and ‘exceptional circumstances justifying the grant. Where the appeal involves substantial issues of law in an area where the law is to some extent recondite, the court may take this as special circumstances justifying the grant of an order staying execution. See Balogun v. Balogun (1969) 1 All NLR 349. It is always necessary even in cases where there are substantial issues of law to bear in mind the desirability of ensuring that justice is done to both parties. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627.

With respect to the grounds of appeal raised, I do not see that any of the grounds raises any substantial issue of law. The applicant has deposed that the respondent will be unable to refund the judgment debt if paid to the respondent in the event the appeal succeeds. The respondent on the other hand deposed that he is a man of substantial means and can refund the judgment debt if the appeal succeeds. Both parties would appear to have based their assessment of ability of respondent to refund the judgment debt on respondent’s means as at this time. It seems to me however that guided by the time frame within which appeals are disposed off at the Supreme Court, this appeal may, if it takes its normal turn cannot be determined earlier than five years from now. I cannot now speculate what respondent’s means will be by that time.

The applicant in paragraph 7 of the affidavit in support of the motion has deposed that he is willing to have the judgment debt deposited into an interest yielding account so that whoever wins on appeal can collect the money with accrued interest. This seems to be a reasonable middle road to steer.

I therefore grant a Stay of execution of the terms of the judgment of this court delivered on 31st May, 1999 on the condition that the applicant pays judgment debt of N5 Million to the Deputy Chief Registrar of this court within 7 days from today. The Deputy Chief Registrar is to cause the money to be placed in an interest yielding account with Union Bank Plc, Moloney Street Branch, Lagos. The money is to be paid over with the accrued interest to the party that wins on the appeal the Supreme Court.

Other Citations: (1999)LCN/0585(CA)