M N I Emori Esq V. Abitrans Company Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

The Appellant, a legal practitioner with the firm of M. N. I. Emori & Co. Nkanu Emori Chambers was retained by the Respondent as its legal adviser, solicitor and counsel. By virtue of that status, he was briefed and his services retained to defend the Respondent which was sued under the ‘Undefended List’ in a Suit No. C/137/98: Okorafor Dan (Nig) Motors vs. Abitran Co. Ltd and Abi Local Government Council before High Court, Calabar.

The Appellant filed the Respondent’s Notice of Intention to Defend and an Affidavit disclosing a defence on the merit dated June 29, 1998. No process was filed for the 2nd Defendant. Persuaded by the depositions in the affidavit that the Respondent has a defence on the merit, the learned trial Judge transferred the matter from the ‘Undefended List’ to the ‘General Cause List’ on July 27, 1998 for trial. The Appellant filed a motion on notice dated November 23, 1998, raising a preliminary objection to the competence of the suit and sought to have same dismissed on points of law. The motion was opposed. The learned trial Judge delivered a considered

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Ruling on May 2, 2000, in which the submissions of the Appellant were upheld and the suit was dismissed; with costs of N2, 000.00 in favour of the Respondent.

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The Appellant by letter dated May 2, 2000, notified the Respondent of the Ruling and demanded for his professional fees as well as out-of-pocket expenses, amounting to N300, 000.00. The Respondent failed to pay the fees, or any part thereof. The Appellant wrote a follow-up letter on June 12, 2000, giving the Respondent notice of his intention to proceed against it in recovery of his professional fees. The Respondent again failed to react to the letter, causing the Appellant to institute: Suit No. HC/257/2000: M. N. I. Emori vs. Abitrans Nig. Ltd on the Undefended List for the recovery of his fee and incidental charges. The Respondent never defended the suit. Judgment was entered against the Respondent on July 24, 2000, in favour of the Appellant for the sum of N300, 000.00 with 5% interest on the said sum per annum and a cost of N5, 000.00. The total judgment sum was N327, 814.00. Upon failure of the Respondent to satisfy the judgment debt, the Appellant applied for the execution of the judgment,

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which was carried out. The proceedings were now before Emilia Ibok, J. Upon the execution levied on its vehicle, the Respondent applied for instalmental payment of the debt, which was granted. By order of the trial Court, the Respondent was ordered to pay the judgment sum in four instalments, broken down as N50,000.00 as first instalment and the remaining N277, 844.00 to be liquidated in three monthly instalments of N92, 604.66 commencing in January, 2001. The Respondent paid part of the judgment debt in instalments, leaving an outstanding sum of N95, 000.00. The Respondent, through its counsel, E. E. Osim, Esq., delivered the sum of N60, 000.00 to the Appellant and informed him that 8% of the judgment debt being N35, 000.00 had been withheld by Abi Local Government as income tax charged by the Local Government on the earnings of the Appellant. The Appellant challenged the action of the Respondent in withholding the sum of N35, 000.00, contending that neither the Respondent nor Abi Local Government which was a stranger to the proceedings had such power, mandate or duty to do so. Arguments were taken by the learned trial Judge who in a considered Ruling

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on October 22, 2002 held inter alia that the issue of taxation of the Appellant’s fees being the subject matter of a judgment debt was not governed by the Legal Practitioners Act and so directed that the said balance be paid to the High Court Registrar for taxation with the charge not to adopt the provisions of the Legal Practitioners Act in taxing the judgment debt because the proceedings were commenced under the Undefended List of the High Court of Cross River Rules and not the Legal Practitioners Act. Aggrieved by the Ruling, the Appellant lodged this appeal by a Notice of Appeal filed on November 22, 2002 on three grounds of appeal. The order sought from this Court is:

That the decision of the learned trial Judge be reversed and the Judgment Debtor ordered to pay the last instalment to the Judgment Creditor.

The Appellant’s Brief of Argument was filed on 3/12/2013. The Respondent was served but it did not appear, filed no brief and was not represented. On 4/2/2015, the Court granted an application by the Appellant who appeared in person to have the appeal heard on the Appellant’s Brief alone.

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