P. A. Otaigbe V. Bendel Cement Company Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The appellant, a legal practitioner was engaged by Gamla (Nig) Ltd to draft an agreement between her and the respondent, for the refurbishment of Kiln II Machine at the respondent’s factory at kilometer 34, Auchi-Okene Road, Okpela, Edo State. Gamla (Nig) Ltd was the contractor to carry out the refurbishment and it shall hereinafter be referred to simply as the contractor.

The appellant duly prepared an agreement (Exhibit A) between the contractor and the respondent and was paid his professional fees, accordingly.

The claim of the appellant at the Edo state High court of Justice, holden at Auchi, was that he also prepared and registered a legal charge/mortgage (Exhibit B) on the assets of the respondent in order to safe guard or guarantee the continued payment for the investment of the contractor in refurbishing Kiln II Machine at the respondent’s factory and that it was the latter who was to pay him his professional fees with respect to the said Exhibit B. There were exchange of correspondences between the appellant demanding for the payment of the said professional fees of N1,478,643.00 (One Million, Four Hundred and Seventy-Eight Thousand, Six Hundred and Forty Three Naira) and the respondent who refuted the demand.

The appellant’s claim was hotly contested on pleadings. Both parties led evidence at the trial court. Documentary exhibits were tendered and received into evidence. Thereafter, both counsel to the parties addressed the court below. The learned trial judge – C. O. Idahosa, J., on 23rd October, 2003, entered judgment against the appellant by dismissing the claim as having been unproved.

This appeal against the judgment of the court below is anchored on four grounds of appeal vide the notice of appeal filed on 19th January, 2004. In prosecuting the appeal, and pursuant to the order of this court made on 13th November, 2012, the appellant’s brief of argument dated 4th December, 2012 was filed on the same date.

The sole issue for determination distilled from the four grounds of appeal, by the appellant is:

“Whether or not the learned trial judge was right in dismissing the suit of the appellant for failure to establish his case on balance of probability.”

The respondent’s brief of argument dated 15th August, 2013 and filed on 16th August, 2013 was deemed by this court as properly filed and served on 6th November, 2013. A sole issue for determination was formulated therein for determination, inter alia:

“Whether the court below was right in finding that there was no consensus that the appellant’s fees was to be paid by the respondent and that the appellant was not entitled to claim interest on his claim for professional fees.”

In my consideration and determination of this appeal, I adopt the sole issue for determination formulated by the appellant as it is more concise and encompassing.

The thrust of the contention by appellant’s learned counsel is that, the appellant having drafted/prepared the legal charge/mortgage – Exhibit B, which he equally registered at the Corporate Affairs Commission, Abuja, was entitled to his professional fees as stipulated in clause 20.2 of the main agreement – Exhibit A. that, Exhibits A and B are interwoven pursuant to clauses 20.1 and 20.2 of Exhibit A. He relied on Texaco (Nig) Plc v. Kehinde (2001) 6 NWLR (Pt. 798) 224 at 240.

Learned appellant’s counsel submitted that Exhibits A and B are to be read conjunctively and should be given their ordinary meaning. He placed reliance on Olatunde v. O.A.U. (1998) 5 NWLR (Pt. 549) 178 at 191. And that the appellant having expended “his time, professional skill, physical presence and mental alertness” was entitled to the payment to him of his professional fees with respect to the preparation of Exhibit B. He relied on Akingbehin v. Thompson (2008) 6 NWLR (Pt. 1083) 270 at 294.

Furthermore, learned appellant’s counsel referred to pages 89 and 90 of the record of appeal, whereat, the learned trial judge, according to the learned counsel, made inconsistent and contradictory conclusions, which was tantamount to a judicial parody. He referred to Nwosu v. The State (1996) N.S.C.C. Vol. 17 (Pt. 2) 1029 at 1038.