Chief Antigha William Andem V. Chief Asuquo Effiong Etim (2009)

LawGlobal-Hub Lead Judgment Report

MOJEED ADEKUNLE OWOADE, J.C.A

This is an appeal against the judgment of E.E. Ita J. sitting at the Calabar Division of the Cross River State, High Court in Suit No. HC/319/2001 delivered on 29th July 2005.

By a writ of summons dated 23rd September, 2004 and placed under the undefended list by order of court on 10/1/2005 the Appellant as plaintiff claimed against the Defendant/Respondent the sum of N82,500 (Eighty two thousand five hundred naira) being substantive debt owed to the plaintiff by reason of the defendant’s failure to pay the 10% legal fees on the MTN Limited booster station lease agreement negotiated by the plaintiff on defendant’s behalf which said money has been received by the defendant.

On 24th January 2005, the defendant/respondent filed an affidavit disclosing a defence to the suit on the merit after which the learned trial judge in a ruling delivered on 28/1/2005 transferred the suit to the general cause list for trial and determination and ordered that the affidavits herein shall serve as pleadings.

The parties gave evidence in support of their respective cases including the defendant’s counter claim.

The case of the appellant as plaintiff was that the respondent had been his long standing client before the transaction which gave rise to this action. That respondent approached him and informed him that he had directed a representative of MTN to the Appellant.

That when the representative comes the Appellant should negotiate on his (Respondent’s) behalf with MTN to lease Respondent land to erect a booster mast therein. The Appellant said he informed the Respondent that he will charge 10% of agreed rents and the Respondent did not argue. The representative of MTN went to the Respondent and they negotiated to finality whereupon the Appellant signed a draft document Exhibit C on behalf of the Respondent.

Later that same day, at about 5pm, the Respondent went to Appellant and collected his file containing Exhibit C.

When the Appellant learnt that the Respondent had been paid the sum agreed on Exhibit C he forwarded his bill Exhibit A to the Respondent. That upon receipt of Exhibit A. the Respondent sent people to him to negotiate his charges downward but he (Appellant) refused. He then sent a demand notice Exhibit B to the Respondent.

The Respondent, on the other hand said he never briefed the Appellant on this MTN lease. That it was when MTN representatives visited his house in his absence that one Bassey in his house who knew the Appellant as Respondent’s lawyer took the MTN representatives to the Appellant as the Respondent’s lawyer. That immediately he returned and was so informed he quickly went to the Appellant and retrieved the document Appellant signed on his behalf – Exhibit C. He (Respondent) instructed MTN and MTN stopped forthwith to deal with the Appellant on his behalf. Therefore, he never instructed the Appellant and owes him nothing.

In a considered judgment delivered on 29th July 2005 the learned trial judge dismissed the plaintiff’s/Appellant’s case as well as the Defendant’s/Respondent’s counter claim.

At page 65 of the printed record, the learned trial Judge had this to say:

‘The plaintiff asserts in the affirmative that defendant instructed him on the brief in issue and agreed to pay him 10% of the agreed sum. The law is that he who asserts must prove.

As this case turned out now, it is the word of the plaintiff against that of the defendant. There is nothing to tilt one way or the other. Plaintiff did not call those who negotiated fees with him as witnesses; neither did the defendant call the Bassey who took the MTN Representatives to the plaintiff in the absence of the defendant. None of the MTN representatives was called to testify.