Legalpedia Citation: (2024-12) Legalpedia 81589 (CA)

In the Court of Appeal

Holden at Ibadan

Wed Dec 4, 2024

Suit Number: CA/IB/101/2020

CORAM

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Binta Fatima Zubairu Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

PARTIES

OLADOYIN AWOYALE, ESQ. (Trading Under the name and style of Doyin Awoyale & Co)

APPELLANTS

DEKIT QUARRIES LIMITED (Under the RECEIVERSHIP OF MESSRS ADENIYI MOHAMMED UTHMAN)

RESPONDENTS

AREA(S) OF LAW

CIVIL PROCEDURE, SUMMARY JUDGMENT, LEGAL PRACTITIONERS' FEES, FAIR HEARING, COUNTER-CLAIMS

SUMMARY OF FACTS

The Appellant sought to recover professional fees from the Respondent for legal services

rendered in a Federal High Court case. He claimed N55.6 million as fees. The Appellant filed for summary judgment, which the trial court dismissed and proceeded to grant the Respondent's counter-claim for refund of N3 million without full trial.

HELD

Appeal allowed. The Court set aside the ruling of the lower court and remitted the case to the Chief Judge for reassignment to another judge.

ISSUES

1. Whether the lower court acted without jurisdiction in dismissing both the summary judgment application and the entire suit while granting the counter-claim summarily.?
2. Whether the Appellant was entitled to recover professional fees.?
3. Whether the lower court had legal basis to order refund of N3 million.?

RATIONES DECIDENDI

RIGHT TO FAIR HEARING – EFFECT OF BREACH

" The effect of breach of the right to fair hearing is trite in law. In other words once there is a breach of right of fair hearing the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court, becomes a nullity." – Per Binta Fatima Zubairu, J.C.A.

PURPOSE OF SUMMARY JUDGMENT – SCOPE

" From the above provisions of the law regarding summary judgment as applied by the Appellant before the lower Court it is very easy to see that the Plaintiff only resorts to summary judgment procedure when he believes the defendant has no defence to his claim to recover debt." – Per Binta Fatima Zubairu, J.C.A.

WRITTEN ADDRESS – NATURE AND PURPOSE

"Written Address no matter how elegant and brilliant cannot take place of or substitute evidence.

The purpose of a counsel's address is to sum up facts admitted, proved or deemed in the trial." –Per Binta Fatima Zubairu, J.C.A.

COUNTER-CLAIM – INDEPENDENT NATURE

" It is well known principle of law that counter-claim is a distinct action in its own right, it is separate action even though it is made part of the main claim therefore the Respondent counter claimant bears the burden of proving the counter claim to be entitled to judgment." – Per Binta Fatima Zubairu, J.C.A.

SUMMARY JUDGMENT – PROCEDURAL REQUIREMENTS

" Where the defendant feels he has a defence on the merit or there are triable issues the defendant would be granted leave to defend and the case is transferred to general cause list for trial." – Per Binta Fatima Zubairu, J.C.A.

HEARING RIGHT – BREACH EFFECT

" The trial judge not only descended into the arena but he equally shut the appellant out thereby breaching his fundamental right to fair hearing which occasioned a miscarriage of Justice." – Per Binta Fatima Zubairu, J.C.A.

PROFESSIONAL FEES – RECOVERY APPROACH

" Litigations instituted to recover professional fees of legal practitioners are often resorted to as a matter of last resort, it is better that they be avoided in order to preserve the special contractual relationship." – Per Gabriel Omoniyi Kolawole, J.C.A.

NULLITY OF PROCEEDINGS – FAIR HEARING

" The effect of denial of fair hearing is trite in law… once there is a breach of right of fair hearing the whole proceedings… becomes a nullity." – Per Binta Fatima Zubairu, J.C.A.

WRITTEN ADDRESS DEFECT – EFFECT

" Failure of the Respondent's counsel to file a Written Address (which is not an evidence) do not carry the weight of the Respondent's Counter-Affidavit and Defence contained therein liable to be dismissed." – Per Binta Fatima Zubairu, J.C.A.

JUDICIAL APPROACH – ARENA DESCENT

" The learned trial judge who appraised and evaluated the affidavit evidence of the parties having formed an opinion that the Respondents have a good defence to the Appellants' claim rather than simply transfer the case to general cause list for full blown trial." – Per Binta Fatima Zubairu, J.C.A.

AUDI ALTERAM PARTEM – BREACH EFFECT

" The effect of breach of the rule of audi alteram partem or of fair hearing is to render the hearing liable to be set aside or declared invalid by the Court." – Per Binta Fatima Zubairu, J.C.A.

PROOF REQUIREMENT – COUNTER-CLAIMS

" The Respondent counter claimant bears the burden of proving the counter claim to be entitled to judgment." – Per Binta Fatima Zubairu, J.C.A.

REMITTAL – APPROPRIATE ORDER

" The case is hereby remitted to the Hon. Chief Judge of Oyo State for re-assignment before another Judge." – Per Binta Fatima Zubairu, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. High Court (Civil Procedure) Rules of Oyo State, 2022
2. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
3. Legal Practitioners Act
   

   CLICK HERE TO READ FULL JUDGEMENT