Guaranty Trust Bank Plc. & Anor V. Udoka Anyanwu, Esq. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment)

The Respondent is a legal practitioner, and this appeal has to do with the action he filed at the High Court, Enugu, wherein he claimed the sum of N12.5 Million Naira representing his professional fees and consultancy fees for securing the financing of a proposed Enugu International Market Project for the 1st Appellant. Pleadings were filed, and later amended.

In his Amended Statement of Claim, the Respondent averred that he was approached by Mr. Nduka Ikeyi, a Consultant in the Economic Affairs Unit, Office of the Secretary to the Government of Enugu State, who asked him to explore the possibility of securing a Bank to finance the said proposed Market the Government was interested in developing. He requested the Economic Consultant to write three letters to – Citizens International Bank, Hallmark Bank Plc and Guaranty Trust Bank Plc. (the 1st Appellant) to enable him approach, and discuss the project with them. The letters (Exhibits A, B, and C) were then written by Mr. Nduka Ikeyi. Armed with these letters, he set out to find a reputable bank to finance the project, and was referred to the 2nd Appellant who works for the 1st Appellant by Dr. K.E. Wokemba, who said the bank might be interested.

Consequently, he met with the 2nd Appellant, who took him to the Manager of the 1st Appellant; Mr. Ikenna Ezechukwu (now deceased), who was the original 2nd Defendant in the suit, and expressing interest in the project, the said Manager (now deceased) asked him to arrange a meeting with the Economic Consultant, and also assured him of his fees.

He then arranged several meetings with the 1st Appellant’s Officials, and Mr. Nduka Ikeyi at the Government House Enugu, and Mr. Nduka Ikeyi’s Residence at Savage Crescent, GRA Enugu, the outcome of which was the acceptance of the 1st Appellant Bank to finance the Market project. However, when he demanded his fees from them, having discharged his own part of the transaction, they flatly ignored his demands, and the one made through his counsel, so he filed the action that led to this appeal.

The Respondent, who was the Plaintiff, testified at the trial, and called three other witnesses. The Appellants’ case is that the parties did not agree on the professional and consultancy fees at the inception; that that no fees were agreed upon; and that the financing project between the Enugu State Government and the 1st Appellant Bank did not materialize since the State Government could not meet the conditions. To make their case, the Appellants testified through the 2nd Appellant.

After the adoption of written addresses, the learned trial Judge, Udeh, J., delivered his Judgment on 25th October 2004, wherein he held-

I have carefully gone through the Act, Cap 207 and I am unable to find where to fit the charge for the finder’s fees in the Act. I therefore decline to make an order on that head. The Plaintiff claims N8 Million for legal advice, opinion, strategy and meetings. It is common knowledge that the said Enugu International Market eventually did not take-off the ground – the fact remains that the Plaintiff secured the project for the 1st Defendant. As such he is entitled to – a reasonable sum for his legal services, which included advice, opinion, strategy and meetings which necessarily included finding the project for the 1st Defendant. It is my considered view that the Plaintiff has proved his case on the balance of probabilities and is entitled to Judgment. In the result this case succeeds. The following orders are hereby made –

(1) The Plaintiff shall recover from the Defendants jointly and severally the sum of N3.5 Million Naira representing his professional fees for services rendered to the Defendant in legal advice, opinion, strategy, meetings”.

Dissatisfied, the Appellants filed an appeal in this Court with a Notice of Appeal containing six Grounds of Appeal. Brief of arguments were duly filed and exchanged, and in the Appellants’ Amended Brief of Argument settled by Chief Charles C. Ogbo, the following issues were formulated –

1. Was there a valid contract between the Plaintiff/Respondent and the Defendants/Appellants?
2. Is the Plaintiff/Respondent entitled to the N3.5 million awarded to him by the Court?
3. Is the Plaintiff/Respondent entitled to the N10, 000 costs awarded to him by the Court?

However, in the Respondent’s brief prepared by Nnamdi Otukwu, Esq., it was submitted that the Issues that call for determination are as follows –

1. Was there a contract between the Appellants and the Respondent?
2. Whether the Respondent discharged his obligation under the contract to entitle him to his fees.
3. Was the costs awarded to the Respondent excessive?

Any difference in the Issues formulated by both parties is like saying there is a difference between six and half a dozen; there is no difference, and from my perspective, Issues 1 and 2 should be considered together.

To this end, the Appellants submitted that the Respondent failed to prove that his services was engaged by Mr. Nduka Ikeyi; that they joined issues with him on the three letters generated by Mr. Nduka Ikeyi, and he ought to have called Mr. Nduka Ikeyi to prove the assertion; that in civil cases the burden of proving a particular fact lies on the party who asserts the affirmative of the issue, citing Aguda on Law of Evidence, 4th Ed., Odukwe V. Ogumbiyi (1995) 6 SCNJ 102, Jalgo Ltd. V. Owoniboys Tech. Ltd. (1995) 4 SCNJ 256, Alhaji Dawodu V. NNPC & Ors (1998) 1 SCNJ 95, Okonkwo V. Okonkwo (1998) 7 SC 246, Chindo World Wide Ltd. V. Total Nig. Plc. (2001) 16 NWLR (Pt. 739) 291, G. Chitex Ind. Ltd V. Oceanic Bank Int. (Nig.) Ltd. (2005) 14 NWLR (Pt. 945) 392 and that the Respondent failed to call Nduka Ikeyi to testify in respect of the said letters, and even though they raised the issue, the lower Court did not consider same, and used the letters to hold there was a valid contract.

It was further argued that he never pleaded that the parties agreed on a fee of N12.5 Million Naira and never said so in his evidence; that to constitute a binding contract, there must be an agreement, and there must be a complete and concluded bargain, which has settled all essential conditions that leaves no vital term or condition unsettled, citing Alfoterin Ltd. V. A.G. Fed. & Anor (1966) 12 SCNJ 236, S.A. Adebanjo V. A. A. Brown (1990) 3 NWLR (Pt 141) 661; that even if the Court believes that the Respondent secured the contract, there is still no contract between the parties since there was no agreement as to fees; that the lower Court erred in holding that he was entitled to N3.5 million on guantum meruit when there was no valid contract between them; that claims on quantum meruit presupposes the existence of a contractual obligation, and if there is no valid contract then the Court cannot make any award on guantum meruit, citing NNPC V. A.I.C. Ltd (2003) 2 NWLR (Pt. 805) 560, and in this case, since there was no contract between the parties the award of N3.5 million to him is baseless and invalid.