Offa Local Government V. Toyin Oladipo Esq. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

The facts that gave rise to this appeal are simple and straight forward. The appellant herein caused a letter dated 12th January, 2010 to be written to the Respondent in which a suit No: KWS/OF/1/2010 which was instituted against it by one Abdulganiyu Adediran and two others was referred to the Respondent, a legal practitioner to appear in court and defend its interest.

By a letter dated 8th January, 2010, the Respondent accepted the brief and a subsequent letter dated 21st January, 2010, the Respondent communicated his professional fee of N2,500,000.00 to the chairman of the Appellant on an invoice No.016. The Appellant did not join issues with the Respondent on the professional fees.

Parties to the suit that was referred to the Respondent settled their dispute out of court and the case was subsequently struck out from the cause list on 13th April, 2011.

The Respondent thereafter demanded for payment of the professional fees as a result of the services he rendered to the Appellant. This demand was rebuffed by the Appellant despite an offer from the Respondent to accept N1,500,000.00 if the Appellant would pay within a specified period. The frustration that trailed the settlement of the fees culminated into taking out a writ of summons, by the Respondent at the Kwara State High Court against the Appellant in which he claimed the following reliefs:-

1. The sum of N2,500,000.00 being professional fees for defending the defendant in suit No. Kws/of/1/2010 between Abdulganiyu Adediran & 2 Ors vs Offa Local Government pursuant to written instruction of the defendant in its letter dated 12/1/2010.
2. Interest on said sum at the rate of 10% per annum from the date a judgment until the total sum is liquidated.

This claim was supported by an eighteen paragraphs affidavit in which the Respondent herein, who was the plaintiff at the lower court, averred that the Appellant had no defence to the claim and the lower Court was therefore asked to place the suit on the undefended list.

On the 17th October, 2011, Mr A. A Bello filed a memorandum of appearance on behalf of the Appellant and also delivered a notice of intention to defend the action in writing to the Registrar of the lower court together with an affidavit of eleven paragraphs. The suit came up for mention on the 18th October, 2011 before Akanbi (J) who placed it on the undefended list and adjourned same to 31st October, 2011 for hearing.

On the return date the learned trial Judge found that the Appellant herein had no defence to the suit and accordingly entered Judgment for the Respondent as per his claim. In addition the Appellant was ordered to pay N7,180 as filing fees and N10,000 as cost of prosecuting the case in favour of the Respondent.

The Appellant is dissatisfied with the Judgment. Being aggrieved it has brought this appeal. The notice of appeal at pages 33-36 of the record of this appeal contained four grounds of appeal.

Parties filed and exchanged briefs of argument. Mr A. A. Bello learned counsel for the Appellant, who also settled the Appellant’s brief of argument formulated two issues for determination of this appeal at page 5 of the Appellant’s brief of argument dated 11th May, 2012 and filed on the 15th May, 2012. These issues read as follows:-

7. Whether the learned trial judge was not in error for failing to consider the Appellant’s notice of intention to defend and the affidavit in support by holding that it was filed out of time without leave of court, extending the time.
8. Whether the affidavit evidence of both parties at the trial court disclosed triable issues which ought to make the trial court transfer the suit to general cause list rather than holding that the Respondents claim remained undefended.

On his part, Mr Teju Adigun, learned counsel for the Respondent issued a notice of preliminary objection to the competence of the 2nd, 3rd and 4th grounds of appeal. The argument in respect of the preliminary objection is incorporated at pages 2-4 of the Respondent’s brief of argument dated 22nd May, 2012 and filed on the 23rd May, 2012. Thereafter learned counsel proceeded to formulate three issues for determination of this appeal, a situation where he seems to be crying more than the bereaved. These three issues are hereunder reproduced as follows:-

I. “Did the lower court consider the Appellant’s notice of intention to defend before giving judgment to Respondent –

II. Was the Appellant’s notice of intention to defend filed within the time prescribed by the High Court Rules.

III. Did the Appellant’s affidavit in support of notice of intention to defend disclose any defence on the merit.”