Legalpedia Citation: (2023-07) Legalpedia 22371 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Thu Jul 6, 2023

Suit Number: CA/A/793/2017

CORAM

PETER OLABISI IGE JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU JCA

PARTIES

1. HOMER PROPERTIES LIMITED
2. AIR MARSHAL ISAAC M. ALFA (RTD)

APPELLANTS

IKECHUKWU IKOGWE, ESQ

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Respondent (claimant at the trial court) sued the Appellants to recover his professional fees for services he rendered to them in respect of tenancy contractual obligations for the Appellants’ properties situate at Plot No. 14 Lord Lugard Street (Formerly Plot 187 Deeper Life Street) Asokoro, Abuja, Plot 90B Nelson Mandela Street, Asokoro, Abuja and Plot 90A Nelson Mandela Street, Asokoro, Abuja, respectively. He sued before the High Court of the Federal Capital Territory, Abuja where he commenced the action on the undefended list, but upon the Appellants making out a defence on the merit, the case was transmitted to the General Cause List.

The lower Court found and held that the Respondent rendered the services on which he predicated his demand for payment of his earned professional fees and conclusively entered judgment in favour of the Respondent as follows:

The Appellants, piqued by the judgment of the lower Court, appealed against the same hence the instant appeal.

 

HELD

Appeal dismissed

 

ISSUES

Did the Respondent serve a valid bill of charges on the Appellants and thereby trigger the jurisdiction of the trial Court to hear the matter?

Whether the Respondent was entitled to any legal fees outside the purview of Exhibit 6, the retainership agreement between him and DW2?

Whether the trial Court was right in dismissing the counterclaim of the Appellants on the state of the pleadings and evidence before the Court?

 

RATIONES DECIDENDI

PRELIMINARY OBJECTION – THE METHOD OF RAISING PRELIMINARY OBJECTIONS

The Respondent incorporated a preliminary objection in his brief of argument, which was argued on pages 4-5 of the said brief. The Respondent did not seek leave of the Court to move the objection at the hearing of the appeal before the Appellants argued the appeal. Indeed, the Respondent’s counsel did not even in adopting the Respondent’s brief allude to any preliminary objection having been incorporated and argued in the Respondent’s brief. The legal effect of this is that the preliminary objection is deemed to have been waived and therefore abandoned.

In THE REGD TRUSTEES OF AIRLINE OPERATORS OF NIGERIA vs. NAMA (2014) LPELR (22372) 1 at 67-68 Kekere-Ekun, JSC stated:

“I think it is fair to say that the method of raising a preliminary objection, apart from giving the appellant three clear days notice from the date of hearing, is now firmly settled. The respondent may file a separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authorities on the issue are to the effect that there is the need for the respondent or his counsel to seek the leave of the Court to move the objection before the hearing of the appeal. The effect of failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned. See: Tiza & Anor. vs. Begha (2005) 15 NWLR (949) 616; (2005) 5 SC (Pt. II) 1 at 7 where His Lordship Musdapher, JSC stated thus:

‘By virtue of Order 3 Rule 15(1) of the Court of Appeal Rules, a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of the objection. Notice of preliminary objection can also be given in the respondent’s brief, but a party filing it in the brief must ask the Court for leave to move the objection [when] the oral hearing of the appeal commences… ‘”

See also NIGERIAN LABORATORY CORPORATION vs. PACIFIC MERCHANT BANK LIMITED (2012) LPELR (7859) 1 at 16, NSEFIK vs. MUNA (2013) LPELR (21862) 1 at 36-37 and MARAM vs. BOKKOS LOCAL GOVT COUNCIL (2022) LPELR (58274) 1 at 4-6.  – Per U. A. Ogakwu, JCA

 

APPEAL – WHEN A FINDING IS NOT APPEALED AGAINST

I iterate that there is no appeal against the finding that the Respondent rendered the services on which he sued for his professional fees. The said finding not having been appealed against remains subsisting and binding: DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 7-8, ABBA vs. ABBA AJI (2022) LPELR (56592) 1 at 61 and CHUDI VERDICAL CO. LTD vs. IFESINACHI IND NIG LTD (2018) LPELR (44701) 1 at 16 – Per U. A. Ogakwu, JCA

 

PLEADINGS – ESSENCE OF PLEADINGS

It is hornbook law that the essence of pleadings is to enable the Court and the parties in the case to know from the joinder of issues, the exact case the parties are to meet at the hearing of the dispute between them. See NOIBI vs. FIKOLATI (1987) 3 SC 105 at 119, KUBOR vs. DICKSON (2012) LPELR (9817) 1 at 68 and SANI vs. AYE (2022) LPELR (58096) 1 at 44. – Per U. A. Ogakwu, JCA

PARTIES – DUTY OF PARTIES IN STATING AND PROVING THEIR CASES

The law as I learnt it and know it, is that a party must be consistent in stating his case and proving the case. Justice is not a game of hide and seek. A party cannot maintain on appeal, a case different from that which was presented at the lower Court. See AJIDE vs. KELANI (1985) LPELR (302) 1 at 35 or (1985) 3 NWLR (PT 12) 248 at 269, NYAKO vs. ADAMAWA STATE HOUSE OF ASSEMBLY (2016) LPELR (41822) 1 at 70-72, NWOSU vs. PDP (2018) LPELR (44386) 1 at 58-63 and OLIYIDE & SONS LTD vs. OAU ILE-IFE (2018) LPELR (43711) 1 at 15. – Per U. A. Ogakwu, JCA

CONTRACT – PRIVITY OF CONTRACT

It is abecedarian law that a contract confers rights and obligations on the parties to it. It binds only the parties and not third parties. This settled legal position is based on the doctrine of privity of contract which is about the sanctity of contracts. See ELUFIOYE vs. HALILU (1993) LPELR (1120) 1 at 32, MAKWE vs. NWUKOR (2001) LPELR (1830) 1 at 16-17, AGBAREH vs. MIMRA (2008) LPELR (43211) 1 at 23, BASINCO MOTORS LTD vs. WOERMANN-LINE (2009) LPELR (756) 1 at 30 and THE VESSEL LEONA II vs. FIRST FUELS LTD (2002) LPELR (1284) 1 at 26. – Per U. A. Ogakwu, JCA

DOCUMENT – THE CONTENT OF A DOCUMENT CANNOT BE VARIED BY ORAL EVIDENCE

The general principle of law is that the content of a document cannot be varied or altered by the oral evidence of a party. See Section 128 (1) of the Evidence Act, UNION BANK vs. OZIGI (1994) 3 NWLR (PT 333) 385, KOIKI vs. MAGNUSSON (1999) 8 NWLR (PT 615) 492 and AYORINDE vs. KUFORIJI (2022) LPELR (56600) 1 at 91. – Per U. A. Ogakwu, JCA

EVIDENCE – WHEN ORAL EVIDENCE WILL BE ADMISSIBLE IN RELATION TO A DOCUMENT

Section 128 (3) of the Evidence Act provides as follows:

“(3) Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on.” The above stipulation is limpid that oral evidence will be admissible “when the fact to be proved is the existence of the relationship itself”. – Per U. A. Ogakwu, JCA

REMUNERATION – REMUNERATION OF A LEGAL PRACTITIONER

“Section 1 (b) of the Remuneration Order provides as follows:

“The remuneration of a legal practitioner in respect of business connected with any sale, purchase, lease, mortgage and other matter of legal documentation and in respect of other business not otherwise regulated and not being business in any action or transaction in any Court, shall be regulated as follows –

(b) in respect of a lease and agreement for lease, in which the transactions have been completed, the remuneration of the legal practitioner having conduct of the business shall be as prescribed in Scale II set out in the Schedule to this Order;”

Section 7 of the Remuneration Order then stipulates as follows:

“(1) The fees prescribed in the Scales set out in the Schedule to this Order shall be the fees chargeable for the matters stated in the Scales and they shall not be negotiable.

(2) Any legal practitioner who contravenes the provisions of subsection (1) of this section shall be guilty of a professional misconduct and shall for that purpose appear before the Legal Practitioners Disciplinary Committee.”

The Respondent was therefore correct in issuing his bill of charges under Scale II of the Remuneration Order; and being fees stipulated under an enactment for the service rendered, there was no obligation to pre-inform the Appellants on what the charges will be for purposes of negotiation of the bill. More so, by Section 7 (1) and (2) of the Remuneration Order, which I have reproduced above, the prescribed fees are not negotiable, and a sanction attaches where a legal practitioner fails to charge in accordance with the Scales set out in the Schedule to the Remuneration Order. Therefore, it would have been inutile to pre-inform the Appellants on what the charges would be. – Per U. A. Ogakwu, JCA”

COURTS – PRIMARY DUTY OF A JUDGE AT NISI PRIUS AND THE CONDUCT OF APPELLATE COURTS IN RELATION TO THE FINDINGS OF A TRIAL COURT

“The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27.

It is hornbook law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48.

The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. – Per U. A. Ogakwu, JCA”

EVIDENCE – CONDUCT OF APPELLATE COURT IN RELATION TO EVIDENCE

“For the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47, AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98.

The evaluation of evidence and the findings made by the lower Court in this matter are not perverse; therefore, an appellate Court will not lightly interfere with the same unless for compelling reasons. See OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT 47) 370, MAKINDE vs. AKINWALE (2000) 1 SC 89 and AGBOMEJI vs. BAKARE (1998) 9 NWLR (PT 564) 1. – Per U. A. Ogakwu, JCA”

APPEAL – DUTY OF THE APPELLANT

The onus is on an appellant to satisfy the appellate Court that the decision on appeal is wrong. Where this is not done, the decision appealed against will be allowed to stand:MACAULAY vs. TUKURU (1881-1911) 1 NLR 35 at 40, AKINLOYE vs. EYIYOLA (1968) NMLR 92 at 95, OBISANYA vs. NWOKO (1974) 6 SC 69 at 80, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 326-330 and OBODO vs. OGBA (1987) 1 NSCC (VOL. 18) 416 at 421. – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

1. Legal Practitioners Act 
2. Legal Practitioners Remuneration Rules
3. Legal Practitioners (Remuneration for Legal Documentation and Other Land Matters) Order, 1991
4. Evidence Act, 2011

 

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