Barrister Gbenga Akingbehin V. Chief Mrs. Thompson (2007)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

The appellant herein (as plaintiff) in suit No. ID/1145/2001 by a writ of summons dated 7/5/01 sued the respondent (as defendant) at the High Court of Lagos State (sitting at Ikeja) claiming the following reliefs:

(i) the sum of N450,000.00 (Four Hundred and Fifty Thousand Naira Only) being professional fees on legal documentation in respect of the purchase of the property at No. 17 Eric Moore Street Wema Board Estate, Ikeja Lagos State.

(ii) Interest on the sum aforesaid at the rate of 71/2% from the date of the writ of summons until judgment is delivered and at the rate of 2% from judgment till the judgment sum shall be liquidated.

(ii) The sum of N500,000.00 (Five Hundred Thousand Naira Only) being general damages on the series of inconveniences, expenses and losses incurred by the plaintiff and occasioned by the defendant in pursuit of this claim.- (See page 2 of the record of appeal).

On the above claim as per the writ of summons, the appellant also filed a 12 paragraphs statement of claim where the above claims (or reliefs) are repeated (See page 6 of the record supra). The respondents on her own part filed a 14 paragraphs statement of defence (dated 19/7/01) in answer to the appellants above claims.

At the close of pleadings, the matter went on trial. The plaintiff/appellant (hereinafter simply called “the appellant”) testified for himself and called no other witness while the defendants/respondent (also hereinafter called “the respondent”) chose not to call any witness but relied on the evidence adduced and the documents tendered by the appellant.

At the end of trial, the learned trial Judge B. O. Shitta Bey J, delivered the courts judgment whereby all the appellants’ claims against the respondent were dismissed. Being dissatisfied with the said judgment, the appellant appealed against it to this court in his notice of appeal dated 25/8/03 containing 4 (four) grounds of appeal. The respondent also sought and obtained the leave of this court to file a respondents notice, which was dated 23/11/04 but was eventually deemed filed on 9/2/06. The said respondents notice urges this court to affirm the decision of the trial court on only one (1) ground other than those relied upon by the trial Court. The only ground stated in the said respondent’s notice is that the appellant had failed to discharge the burden of proof cast upon him by section 135, 136 and 137 of the Evidence Act as to his entitlement to the reliefs claimed at the lower court. It is my humble view that the above ground corresponds with the general and omnibus ground of the appellant. (i.e. ground c) that the judgment was against the weight of evidence.

In the appellants briefs of arguments dated and filed on 21/5/04, the following three (3) issues for determination of the appeal are distilled:

“4.01. whether the learned Judge of the lower court misdirected himself by holding that exhibits GA4 and GA5 tendered by the plaintiff did not satisfy the requirements of section 16 Legal Practitioners Act Cap 207 Laws of the Federation of Nigeria such as to make him lack jurisdiction to entertain the suit. Ground 1.

4.02. whether the appropriate order to make by the trial court when it lacked jurisdiction to entertain the suit (for non compliance with condition precedent) was a dismissal order or a strike out order. (sic) Ground 2.

4.03 whether from the uncontroverted documentary and oral evidence led in this case by the plaintiff/appellant, the judgment of 4th of March 2003 was against the weight of evidence. Ground 3.”

In the respondents brief dated 23/11/04 and filed on 25/11/04, but deemed filed by this court on 9/2/06, the following two issues for determination of the appeal are formulated:

“3.01 From the grounds of appeal contained in the notice of appeal filed by the appellant, we submit that the following issues arose for determination in this appeal: