Sterling Bank Plc V. P.A Oyoyo (2016)

LawGlobal-Hub Lead Judgment Report

ISAIAH OLUFEMI AKEJU, J.C.A. 

 The Respondent was the plaintiff in suit No. K/324/2011 at the High Court of Kano State holden at Kano. The action was commenced through the writ of summons dated 12th June, 2011 as well as the statement of claim of the same date. The Respondent had claimed against the Appellant being the defendant as follows in the statement of claim.
1. The sum of N13,500,000.00 (Thirteen Million five hundred thousand Naira only) being 5 professional fees of the sum of N 270,000,000.00 (Two Hundred and seventy Million Naira only) being the consideration plaintiff sold the defendants property to Sani Brothers Ltd.
2. The sum of N5,000,000.00 (Five Million Naira only) being general damages for the series of inconveniences, negotiations, expenses incurred by the plaintiff occasioned by the defendant in pursuance of this claim and for breach of contract.
3. Interest on the sums afore mentioned at Court rate interest at 110 from the judgment date till the judgment debt is fully liquidated.
4. The sum of N500,000.00 (Five Hundred thousand Naira only) being plaintiff solicitor’s professional fees for

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prosecuting this action.

The plaintiff a Legal Practitioner practicing under the name and style of P.K, OYOYO Co. had instituted the action against the defendant a banking concern that carries on the business of banking in Nigeria. The plaintiffs case is that his law firm, P.A. OYOYO & Co. was appointed as external solicitor to the defendant, and in January 2009, the defendant briefed him to find buyers for its property at Tafawa Balewa Road, Kano popularly called NMI property and covered by Certificate of Occupancy No. LKN/COM/82/443. He eventually sold the property to Sani Brothers Ltd. that paid the amount of N270,000,000.00 as agreed by the defendant, but the defendant refused to honour his bill for the agreed professional fees of 5%. The plaintiff said he was initially persuaded by the defendant?s officers to drop the bill upon promise to compensate him with other work under the retainership arrangement. However when the defendant refused to honour that promise he represented the bill which the defendant failed to pay, hence this action.
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Upon the motion of the plaintiff for leave to serve the Originating Process on the defendant

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out of jurisdiction, the trial Court so ordered and processes were duly served. The case came up in Court on 17/11/11 when it was adjourned to 6/12/11 and further to 11/1/12 for mention and eventually came up for hearing 2/9/12 at which proceedings the parties were represented by their respective Counsel but was adjourned at the instance of the learned defence Counsel because he was making moves to settle the matter. The hearing of the case eventually took off on 23/10/12 in the presence of the plaintiff and his Counsel while Mr. Mukhtar Musa was the defence Counsel. Although the learned defence Counsel, Mr. Mukhtar cross examined the plaintiff, Mr. P.A. OYOYO who testified as PWl, there was no statement of defence filed. The plaintiff closed his case with evidence of the sole witness and the case was adjourned to 31/12/12 for judgment obviously without taking or calling for addresses of Counsel to the parties.
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In the judgment delivered on 31/12/12, the learned trial judge entered judgment in favour of the plaintiff and ordered the defendant to pay N13,500,000.00 to the plaintiff being the 5% professional fees of the sum of N270,000,000.00, and

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N5,000.000.00 general damages for the inconveniences negotiations, letter issued to the defendant in respect of the negotiation, expenses and losses incurred by the plaintiff, as well as 10% Court interest on the sums awarded from the date of judgment until full payment of the entire judgment sum.

Meanwhile the defendant had filed a motion on 24/12/12 for enlargement of time to file and serve statement of defence, the learned trial Judge heard the motion and in the ruling delivered on same 31/12/12, the motion was dismissed.

Against the judgment of the trial Court delivered on 31/12/12, the defendant (hereinafter called the appellant) gave notice of appeal dated 2nd January 2013 with two grounds of appeal as a mark of dissatisfaction with the judgment. Additional grounds of appeal were subsequently filed with the leave of this Court to amend the Notice of appeal. By the Amended Notice of appeal filed on 27/3/14, the Appellant has now filed five grounds of appeal and has distilled four issues from these five grounds of appeal as set out in the Appellant’s Brief of Argument prepared by Victor O. Odjemu of Counsel and filed on 3/4/14.
1. Whether in

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the circumstances of the case the trial Court ought to have allowed the Appellant to file its statement of defence out of time
2. Whether the non-adjournment of the suit for final addresses of counsel occasioned a miscarriage of justice, against the appellant.
3. Whether Exhibit 17A and other legally inadmissible evidence by virtue of Section 83 (3) of the Evidence Act 2011 ought to be expunged and discountenanced by this Honourable Court.
4. Whether from the facts of this case the Respondent was entitled to general damages.

The Respondent’s Brief of Argument was prepared by M.N. Duru Esq. and filed on 27/11/14 but deemed properly filed on 2/12/14. The Respondent reframed the issues formulated by the Appellant’s Counsel and set the issues as follows:-
1. Whether from the facts and circumstances of this matter, the learned trial judge rightly exercised his discretion by refusing to grant the Appellant’s application to file its statement of defence out of time.
2. Whether or not in the circumstances of this matter and in particular the provisions of Kano State High Court ought (Civil Procedure) Rules 1988 the Court ought to