PAT Onegbedan, Esq V. Unity Bank PLC (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 retained as an external solicitor by the respondent. He was engaged to defend an appeal for the respondent in this court in CA/B/91/94 – Jessica Trading Co. Ltd V. New Nigeria Bank Plc. The agreed and approved professional fee for the said handling of the aforementioned appeal by the appellant was N35,000.00. This was in 1992. The appellant was paid 50% of the said fee, that is, the sum of N17,500.00, at the onset of the agreement.

The said appeal lasted at this court for upwards of twelve years and the appellant had made thirty one (31) appearances in it. The appellant in May, 2004, wrote to the respondent, requesting for a review of his professional fee. The respondent in response, intimated the appellant that his request for a review of the professional fee would be considered at the conclusion of the appeal and upon the issuance of a final invoice by the appellant.

Judgment on the said appeal was delivered on 19th October, 2006, in favour of the respondent. Prior to that date, upon conclusion of arguments by counsel on the appeal which was adjourned for judgment, the appellant had on 4th October, 2006 forwarded a letter incorporating the Bill of Charges or Professional Fee, to the tune of N2,500,000.= (Two million, five hundred thousand Naira) only, to the respondent, for payment/settlement.

Thereafter, on 21st November, 2006, the appellant gave a one month statutory notice to the respondent for the payment of his professional fee or Bill of Charges on or before 22nd December, 2006.

It was the failure of the respondent to settle the appellant’s professional fee as at 22nd December, 2006 which led to the filing of the suit No. B/41/07 on 22nd January, 2007 by the appellant claiming the said N2.5m against the respondent.

The claim was vide a writ of summons. Upon an application by the appellant, the suit was placed under the Undefended List. The respondent in response to it, filed a Notice of Intention to defend the action, with an affidavit of 21 paragraphs in support thereof.

Pleadings were filed and exchanged between the parties. The appellant gave evidence for himself and tendered in evidence some documentary exhibits. So also, a witness testified for the respondent and tendered in evidence, some documentary exhibits too. Learned counsel for the parties, submitted written addresses to the trial court.

In his judgment, the learned trial judge, found against the appellant and dismissed his claim, “except as to the extent of liability admitted by the Defendant”; which was N17,500.00 the balance of the agreed fee of N35,000.00 plus N654,000.00 filing fees. The appellant, not unnaturally, felt dissatisfied with the judgment of the learned trial judge. Hence, the appeal to this court, which was anchored on three grounds of appeal.

In order to effectively prosecute the appeal and in compliance with the rules of this court, the appellant prepared his brief of argument dated and filed on 7th April, 2011. He identified three issues for determination, therein as follows:

“1. Whether or not the learned Trial Court did not misdirect itself in the evaluation of the evidence placed before it and thereby erred in law.

2. Whether or not the learned Trial Court was right in its interpretation of Exhibits B and C respectively by concluding that “there is no novation in the contract entered by the parties.”
3. Whether or not the eighteen (18) months delay in delivering the judgment did not occasion a miscarriage of justice detrimental to the Appellant.”

The respondent’s brief of argument settled by Ogaga Ovrawah, Esq., was dated and filed on 20th April, 2011. He adopted the issues distilled for determination of the appeal by the appellant.

The appeal was argued on 19th November, 2013 and each counsel adopted his brief of argument and urged us to allow or dismiss the appeal, respectively.

Arguing issue 1, the appellant, appearing for himself, submitted that the learned trial judge did not properly evaluate Exhibits D and F when he came to the conclusion that,