Azubuike Nwuke V. Union Bank of Nigeria Plc (2009)

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ADZIRA GANA MSHELIA, J.C.A,

This is an appeal against the judgment of Adebiyi, J. of the Lagos High Court delivered on the 24th of September, 2004.

The brief background facts leading to this appeal are as follows:-

The Plaintiff a legal practitioner and solicitor of the Supreme Court of Nigeria (hereinafter) referred to as the appellant was instructed by the defendant now respondent to demand and recover from Rio Food Supply Company Limited the sum of N47,278,263.00 by commencing legal action. The appellant commenced legal proceedings before the Lagos High Court by his writ of summons and statement of claim dated 25th day of September 2001 for the recovery of the said sum owed the respondent by the debtor company. At the conclusion of trial the Lagos High Court Coram Segun, J. on the 6th day of October, 1997, gave judgment in favour of the Respondent against the debtor company Rio Foods, in the sum of N50,704,280.27 in addition to a 21% interest from 24th November, 1995, until final liquidation of the whole debt. The appellant did demand for his 10% commission on the recovered sum but respondent persistently refused to pay the appellant his due commission.

As a result of the default, appellant took out a writ of summons against the respondent and claimed as per paragraph 29 of his statement of claim dated 24th September, 2001 as follows:

“WHEREUPON the Plaintiff claims against the Defendant the sum of N3,535,000.00 being legal commission due him from the Defendant for instituting legal action against Rio Foods Supply Limited & ors, obtaining judgment against the said debtor and thereafter recovering for the Defendant a total sum of N50,350.00 from the debtor company.”

Pleadings of both parties were concluded and the suit was set down for trial and eventually concluded on the 3rd day of February, 2004. Addresses of both counsel in the suit were taken and on the 24th day of September 2004, the learned trial Judge Adebiyi, J. gave judgment against the Plaintiff/appellant, dismissing as it were, the claim of the Plaintiff/appellant. See pages 145 – 160 of the record. Being dissatisfied with the judgment the appellant appealed to this court by filing his Notice and Grounds of Appeal on 15th day of November, 2004 containing seven grounds of appeal.

In accordance with the practice and procedure of this court, counsel exchanged briefs of argument. Pursuant to an order of court made on the 19th February, 2007 appellant’s brief of argument was filed within 15 days as granted by the court. A reply brief dated 26/4/08 was also filed by the appellant on 01/07/08. Pursuant to court order made on 2/6/08, respondent’s brief dated 12/6/08 was filed on same date. When the appeal came up for hearing on 21/01/09, Appellant’s counsel Mr. Imoh and respondent’s counsel Mrs. Ufot adopted their respective briefs of argument. Mr. Imoh urged the court to allow the appeal while Mrs. Ufot urged the court to dismiss the appeal and affirm the decision of the lower court.

From the seven grounds of appeal, appellant distilled two issues for determination. The issues are:-

(1) Whether on the evidence – oral and documentary – before the lower court, the plaintiff/appellant discharged the responsibilities contained in the respondent letter of instruction dated 20th September, 1995.

(2) If issue one is answered in the affirmative, whether the plaintiff/appellant was entitled to the agreed percent commission on the recovered sum of N50,704,280.27 from Rio Foods Supply Limited in favour of the respondent?

Respondent on the other hand formulated two issues for determination as follows:-

1. Whether there was binding agreement between the Appellant and the respondent that the Appellant will be entitled to 10% commission of the sum recovered from the debtor company, Rio Foods Supply Co. Ltd (distilled from grounds 1, 5 and 6 of the Grounds of Appeal).
2. Whether the lower court was right to have dismissed the Appellant’s claim on the ground that he was not able to prove that he was entitled to N3,535,000.00. Commission from the Respondent (Distilled from Grounds 2, 3, 4 and 7 of the Grounds of Appeal).

I have examined the issues formulated by both parties. The issues for determination as formulated by appellant are not elegantly so couched as rightly observed by respondents counsel but they relate to the grounds of appeal filed by the appellant. I will therefore adopt appellant’s issues in resolving this appeal. For convenience I will take the two issues together. While arguing issue No 1 appellant’s counsel Mr. Imoh contended that appellant discharged the responsibilities enjoined him by the respondent as contained in the respondent’s letter Exhibit ‘PW2’ dated 20th September, 1995. Learned counsel contended that there exists a legal and or contractual relationship with the respondent in the form of solicitor – client relationship. This fact respondent admitted in the pleadings and the uncontroverted evidence of the appellant. Learned counsel referred to paragraphs 5, 6 and 7 of the statement of claim. The appellant’s legal relationship with the Respondent was confirmatory and unequivocally corroborated by the Respondent’s sole witness Venatius Chidumaga Opara. It is trite law that once evidence led in support of facts pleaded is admissible, relevant and uncontradicted and not discredited by cross-examination, a court can rely on it as facts admitted, require no evidential proof. See Obmiami Brick & Stone (Nig) Ltd Vs A.C.B. Ltd (1992) 3 NWLR (Pt 229)294 paras, A & F. Appellant’s counsel further contended that upon the vivid adumbration of the factual and evidential circumstances enumerated above, it is safer for this court to hold that there existed a legal and contractual relationship between the appellant and the respondent, the breach of which entitled the appellant to his claim as contained in his statement of claim. The appellant based his claim on contractual rights as evidenced in Exhibit PW2, pleaded same in his statement of claim and led evidence on the terms which gave him the right to be paid his due 10% commission for acting satisfactorily to the requirements of Exhibit PW2, thereby creating the obligation on the Respondent to pay failure on the part of the Respondent which constituted the breach which redress the appellant is seeking. See Shell Petroleum Development Co. of Nig. Ltd & ors Vs Nwauka (2003) FWLR (Pt 144) 506 at 523 paras E – F. Learned counsel further contended that appellant discharged the respondent’s instructions contained in Exhibit PW2. Appellant’s counsel submitted that appellant complied with the instructions and issued letter of demand on debtor company. After debtor company refused to settle the debt, he then took out writ of summons by filing suit against the debtor company. Subsequently judgment was given in favour of the respondent to the tune of N50,704,280.27 with interest at 21% till final payment. See paragraphs 5, 6, & 7 of the statement of claim. Learned counsel contended that this factual situation was never denied by the respondent both in its statement of defence and from the evidence of the respondent sole witness. See page 157 of the record. It is trite that facts admitted need no further proof. See Mosheshe General Merchant Ltd Vs Nig Steel Products Ltd (1986) 1 NWLR (Pt 55) 110 at 120 and PAS (Nig) Ltd Vs N.N.S. Co Ltd (1990) 6 NWLR (Pt 159) 764 at 771 paras C – D.

Learned counsel further submitted that the appellant’s diligent satisfaction of his contractual obligation towards the Respondent as demanded by Exhibit PW2 was unequivocally reaffirmed by the Respondent’s sole witness in his evidence at page 27 of the record.