AJONYE & ORS v. APC & ANOR (2021)LCN/15174(CA)
In The Court Of Appeal (MAKURDI JUDICIAL DIVISION)
On Thursday, June 03, 2021
CA/MK/202/2019
Before Our Lordships:
Ignatius Igwe Agube – Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo – Justice of the Court of Appeal
Yargata Byenchit Nimpar – Justice of the Court of Appeal
Between
- O.M. AJONYE, ESQ 2. SAM ADAMA, ESQ
- S.O. OKPALE, ESQ – Appellants)
And
ALL PROGRESSIVE CONGRESS (APC)
- HON. JOHNSON BABA ODEH – Respondent(s)
Appearances:
A.O. ATUBU – For Appellant(s)
and
J.T. USMAN WITH HIM, O.M. OMALE, ISIAKA KADIRI
and A.A. OSENI – For 1st Respondent)
M.M. NGORNGOR – For 2nd Respondent) – For Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering The Leading Judgment):
This Appeal is against the decision of the High Court of Benue State sitting in Makurdi delivered by HON. JUSTICE S. O. ITODO on the 31st July, 2019 wherein the lower Court dismissed the claim of the Appellants. The Appellants dissatisfied with the decision, filed a Notice of Appeal dated 9th September, 2019 setting out 8 grounds of Appeal.
The matter went to full trial. The Appellants called the following witnesses: PW1: OMALE MIKE AND PW2: ATUBU AUSTIN and the Appellants tendered the following Exhibits:
- EXHIBIT 1: Letter dated 02/12/15 demanding for payment of balance of Professional Charges
- EXHIBIT 2: Letter dated 02/12/15 Bill of Professional Charges
- EXHIBIT 3: Letter dated 19/08/15 Re: Bill of Professional Charges
- EXHIBIT 4: Letter dated 9/12/15 Re: demanding for payment of balance of Professional Charges
- EXHIBIT 5: Letter dated 31/12/15 Re: Bill of Professional Charges
- EXHIBIT 6: Certified True Copy of Judgment with Petition No.: EPT/BEN/HR/14/2015
- EXHIBIT 7: The receipt issued by Sauma Suites Hotels of Mararaba, Nasarawa State
The 1st Respondent’s Brief settled by SHUAIBU ENEHOH ARUWA, ESQ., dated on the 18th March, 2020 and filed on the 19th March, 2020 but deemed on the 17th day of November, 2020. It formulated 1 issue for determination thus:
Whether in view of the evidence led at the trial Court by the Appellants, the trial Court was right to have held that there was no foundation to sustain the claim of the Appellant as contained in the Writ of summons.
The 2nd Respondent’s Brief settled by A. A. ONOJA, ESQ., dated on the 26th March, 2020 and filed on the 3rd April, 2020 but deemed on the 17th day of November, 2020. He condensed the three issues formulated by the Appellants into 1 issue for determination thus:
Whether in the light of the pleadings, the evidence adduced at the trial, with particular reference to Exhibit 1, 2 and 3 admitted without objection, and by which evidence, in the light of the fact that the Respondents did not adduce evidence in support of their defence, the Court below held to the effect that the claims/case of the Appellants was admitted and need no further proof… the Court ordinarily should encounter no obstacle or difficulty in finding in favour of the claim of the Appellants, the trial Court was right in dismissing the case of the Appellants”.
Thereafter, the Appellants filed a Reply brief to the 1st Respondent’s Brief of Argument dated 30th March, 2020 and filed on the 3rd April, 2020. The Appellants also filed a Reply to the 2nd Respondent’s Brief of Argument dated 28th April, 2020 and filed on the 4th May, 2020.
1ST RESPONDENT’S BRIEF OF ARGUMENT
ISSUE ONE
The 1st Respondent in arguing its sole issue avers that he who asserts must prove and the burden of proof as provided by Section 133 of the Evidence Act, 2011 is on the party who will fail if no evidence is given on either side, citing OYOVBIARE V. OMAMURHOMU (1999) 10 NWLR (PT. 621) 23. Continuing, the 1st Respondent restated extensively the principle of proving civil cases before the trial Court and the principle of law that a party must not rely on the weakness of his opponent in order to succeed as encapsulated in AGBI V. OGBEH (2006) 11 NWLR (PT. 990) 65 (SC); ALH. OTARU & SONS LTD. V. IDRIS (1999) 6 NWLR (PT. 606) 330; ATANE V. AMU (1970) 10 SC; IMAM V. SHERIFF (2005) 5 NWLR (PT. 914) 80. The 1st Respondent reproduced the claim of the Appellants at the lower Court which is contained at page 6 of the Record of Appeal to submit that the law regulating an action for recovery of professional fees such as the one instituted by the Appellants before the trial Court is the Legal Practitioners Act, especially Section 16(2) of the Act which provides for the Trinitarian precondition which must be satisfied by the party seeking to recover his professional fees and they are: (i) Preparing a Bill of Charges; (ii) Serving his client with the said bill of charges; and (iii) Allowing a period of one month from the date of such service before instituting a case in Court as held in OYEKANMI V. NEPA (2000) NWLR (PT. 690) 414 and REBOLD INDUSTRIES LTD V. MAGREOLA & ORS (2015) LPELR-24612 (SC). Continuing, the 1st Respondent submits that in satisfying the first condition, the party preparing the Bill of Charges must ensure that he particularized each item on the bill which form the total sum of the fees as held by the Supreme Court in S.B.N V. OPANUBI (2004) LPELR-3023; OYEKANMI V. NEPA (SUPRA) and the Court of Appeal in AKINGBEHIN V. THOMPSON (2008) 6 NWLR (PT. 1083) 270. The 1st Respondent avers that the Appellant tendered Exhibit P1-P3 which is the purported Bill of Charges in proving of the amount the Respondents are allegedly indebted to them, however, Exhibit P1-P3 was revealed to have fallen short of the requirements enunciated by the Supreme Court in S.B.N V. OPANUBI (SUPRA) and the Court of Appeal in AZUASONOGO V. BENUE STATE GOVERNMENT (2019) LPELR-47270(CA).
The 2nd Respondent submitted that, having exercised his right to concede, he must now support the judgment by giving reason why this appeal must be dismissed. The 2nd Respondent argued that the trial Court held that the Claim of the Appellants is not an ordinary claim, but one that is regulated by the provisions of the Legal Practitioners Act, which the Appellant did not comply with, he refer the Court to the authority in ALPHA PROPERTIES INT’L LTD V. NDIC & ORS and urge the Court to dismiss the claims of the Appellants having failed to comply with Rules of Legal Practitioners Act.
Concluding, the 2nd Respondent urged the Court to dismiss the appeal and to uphold the judgment of the lower Court.
The Appellants’ further submission, assuming without conceding, that even if the Bill of Charges did not conform with any of the requirements of the provisions Section 16(2) of the Legal Practitioners Act, with particular reference to particularization/itemization, same cannot operate to nullify or render the bills of charges incompetent so as to deprive the Appellant from claiming their charges with respect thereof without an objection from the Respondents either before or at the trial, this is because, without any such objection the Respondents must be deemed to have waived her right to any defect in bills of charges. They referred OYEKANMI V. N.E.P.A (2000) LPELR-2873; AKINGBEHIN V. THOMPSON (2007) LPELR-8168 (CA) and GUINNESS (NIG.) PLC V. ONEGBEDAN (2013) ALL FWLR (PT. 682) 1741. The Appellant avers that the 1st Respondent relied on paragraph 12 of her Statement of Defence and a letter dated 21st day of August, 2015, to argue that it never briefed the Appellants to handle any matter for them, however, the Appellants submits that they cannot validly demand for professional fees from the 1st Respondent where it is evident that the 1st Respondent did not brief the Appellants, they have pleaded these facts in paragraphs 5-13 of their further Amended Statement of Claims which was unchallenged and uncontradicted by the 1st Respondent, thereby, the trial Court held that, the case of the Appellants was admitted and needs no further proof. They referred the Court to FIRST BANK OF NIGERIA PLC V. NDOMA EGBA (2005) ALL FWLR (PT. 307) 1012. The Appellants further argued that the 1st Respondent contends that, by not briefing the Appellants to handle any matter for them, therefore, there was no contract between the parties to entitle the Appellants to claim their professional fees from the 1st Respondent, however, the Appellants submitted that, it is trite that where a party to suit did not adduce evidence in support of his pleading and did not tender a particular document pleaded in evidence, the pleading is deemed abandoned and the untendered documents cannot be used by the Court in the determination of the dispute between the parties, consequently, the situation in the instance case is such as the Court cannot look at her records to utilize a process or document to determine the dispute between the parties. They relied on RAJCO INT’L LTD V. LE CAVALIER MOTELS & RESTUARANTS LTD & ORS (2016) LPELR-40082; ADDEH V. ONAKOMAIYA (2016) LPELR-41644 (CA); MATHEW V. STATE (2019) LPELR-46930 (SC); NITT & ORS V. SHITTU (2015) LPELR-25926 (CA) and OROGUN & ANOR V. FIDELITY BANK (2018) LPELR-46601(CA).The Appellants urge the Court to discountenance the arguments of the Respondent in her brief of argument, uphold the appeal and enter judgment for the Appellants in the terms of their claims before the lower Court, same having been held admitted and against which finding there is no appeal.
In the light of above and in view of the judgment in the sister appeal, this appeal is hereby struck out. Parties are returning to the trial Court therefore, each party to bear his cost.
On the whole, I also strike out the Appeal for want of jurisdiction and remit the substantive matter to the lower Court for the continuation of hearing and determination of the subject-matter on the merit. I also abide by the order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now, the lead judgment just delivered by my learned brother NIMPAR, JCA., and I agree with the reasoning and conclusions reached therein.
The appeal is struck out.
I abide by the consequential order as made in the leading judgment.
