MR. Allen Egbe & Anor V. Ayodeji Odu (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering The Leading Judgment)

This appeal is against the judgment of the High Court of the Federal Capital Territory (“Trial court” for short) delivered on 21st day of May, 2012 in suit No. FCT/HC/CV/959/10. In the judgment the trial court awarded the sum of Twelve Million Naira (N12,000,000:00) as professional fee in favour of the respondent (the plaintiff in the case) against the appellants (the defendants in the case).

The court also awarded interest at the rate of 10% per annum on the judgment sum from 1st day of August, 2000 till 21st day of May, 2012 as well as 10% per annum as post judgment interest.

Dissatisfied with the judgment, the appellants have appealed to this court by way of a notice of appeal containing five grounds of appeal. The facts of the case leading to this appeal in summary are as stated hereunder.

The respondent as a legal practitioner was briefed by the appellants to sue the Sokoto State Government and others at the Federal High Court, Sokoto Division. The respondent filed the case and after trial, the Federal High Court entered judgment in favour of the appellant to the tune of N335,400,000:00 (Three Hundred and Thirty Five Million, Four Hundred Thousand Naira).

The judgment debtors appealed against the judgment to the Court of Appeal, Kaduna Division. The parties in that appeal eventually settled the matter amicably and the appellants were eventually paid the sum of Two Hundred and Fifty Two Million Four Hundred and Twenty Three Thousand Naira (N252,423,000.00).

The respondent demanded in vain for the payment of his professional fees by the appellants. He served them his bill of charges and thereafter sued the appellants for his professional fees for the professional services rendered by him to the appellants in respect of the case at the Federal High Court and the Court of Appeal.

At the hearing of this appeal, counsel on both sides adopted and relied on their respective briefs earlier filed and exchanged, as their arguments for or against the appeal. In the appellants’ brief settled by Ali D. Zubairu, Esq; two issues are formulated for the court’s determination of the appeal, viz;

“1. Whether having regard to the pleadings and the evidence before the court, the learned trial judge was justified in making the award of N12,000,000.00 (Twelve Million Naira only) including 10% annual interest on same from 1st August, 2008 till 21st day of May, 2012 when the judgment sum was given and a further 10% annual interest on the whole sum with effect from 21st day of May, 2012 till judgment is liquidated on the basis of quantum meruit for the services allegedly rendered by the Appellants.

2. Whether the Respondent who incidented a criminal complaint to the inspector General of the Police (EXHIBIT K) alleging that the consent judgment of the Court of Appeal No.CA/K/31/04 was obtained by fraud was entitled to make a claim for professional fees based on the said judgment so as to entitle him (Respondent) to an award of N12,000,000.00 (Twelve Million Naira Only) including 10% annual interest on same from 1st August, 2008 till 21st day of May, 2012 when the judgment was given and a further 10% annual interest on the whole judgment sum with effect from 21st day of May, 2012 till the judgment is liquidated by the trial court”.

In the respondent’s brief settled by Sola Egbeyinka, Esq; three issues are distilled for the Court’s determination of the appeal. The issues are;

“1. Whether upon the preponderance of evidence in line with the provision of section 134 of the Evidence Act, 2011 the learned trial Judge rightly and properly evaluated fact and evidence as presented by parties before reaching a conclusion that the Respondent be paid the sum of N12,000,000.00 (Twelve Million Naira) with effect from the 1st day of August, 2008 till the 21st day of May, 2012?

2. Whether assuming without conceding that there exist no express agreement on professional fees payable by the appellant to the Respondent, the learned trial judge was right to hold that the Respondent being a Legal Practitioner of over 25 years standing at the bar is entitled to the payment of his professional fees.
3. Whether in the light of the fact that the Appellants having raised the fact that consent judgment in CA/K/31/2004 between SOKOTO STATE GOVERNMENT AND OTHERS V. VERALLEN NIGERIA LIMITED AND OTHERS was obtained by fraud would deny the Respondent from earning his professional fees from the said judgment the act of fraud not having been established beyond reasonable doubt in line with Section 135 (1) of the Evidence Act 2011?

I have considered issue one in the briefs of the parties in the light of the grounds of appeal. There is nowhere in grounds 1, 2, 3, and 4 of the grounds of appeal (from which the issue is said to be distilled) or in any other ground that the appellant complained against the award of interest by the Lower Court. The complaint of the appellant is against the award of the sum of Twelve Million Naira by the Lower Court.

The essence of formulation of issues for determination is to enable parties to narrow the issue in controversy in the ground of appeal filed. See AKEREDOLU V. MIMIKO (2014) 1 NWLR (1388) 402, 435. It follows therefore that formulation of issues cannot be used as a backdoor or subterfuge to expand the complaint in the grounds of appeal beyond what is contained therein. I shall therefore use the blue pencil rule to excise from issue one the point relating to award of interests by the Lower Court.

It is also my view and on this I agree with appellants’ counsel that issue 2 formulated by the respondent does arise from any of the grounds of appeal and since the respondent did not cross – appeal or file a respondent’s notice, he cannot formulate an issue that does not take its root from the appellants’ grounds of appeal. There are several authorities establishing this position. I shall cite only two as set out in the appellants’ reply brief, viz; CENTRAL BANK OF NIGERIA V. DINNEH (2010) 17 NWLR (1221) 125, 147 and NWAGU V. FADIPE (2012) 13 NWLR (1318) 547, 561. Consequently, I hereby strike out issue 2 in the respondent’s brief and the arguments relating thereto.