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IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT MAITAMA – ABUJA

BEFORE HIS LORDSHIP: JUSTICE SALISU GARBA

COURT CLERKS: JIMOH I. SALAWU & OTHERS

COURT NUMBER: HIGH COURT TWO (2)

CASE NUMBER: FCT/HC/CV/1411/2013

DATE: 27TH NOVEMBER, 2017

BETWEEN:

CHIEF S.P.A. AJIBADE

DR. B.A.M. AJIBADE, SAN

(Trading under the name and Style - PLAINTIFFS

(S.P.A. AJIBADE & CO.)

AND

1. POWER HOLDING CO. NIG. LTD

2. NIG. ELECTRICITY LIABILITY - DEFENDANTS

MANAGEMENT COMPANY LTD

Parties absent.

Bolaji Gabari (Mrs) appearing with Ayodele Adeniyi (Mrs) for the

Plaintiff.

Emeka Mozie for the 1st Defendant.

Uche Uwazuruonye appearing with Esther Egoche (Miss) for the

2nd Defendant.

J U D G M E N T

By a writ of summons dated 7/1/2013, the Plaintiffs instituted this

suit against the Defendants and by an amended statement of

claim dated 22/3/2016, the Plaintiff claim against the Defendants

jointly and severally as follows:

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1. A Declaration that the 1st and 2nd Defendants are jointly and

severally liable to pay to the Plaintiffs any sums found due

and outstanding from the 1st Defendant to the Plaintiffs.

2. The sum of N30,492,616.61 (Thirty Million, Four Hundred and

Ninety Two Thousand, Six Hundred and Sixteen Naira, Sixty

One Kobo) being outstanding professional fees, VAT and

expenses due from the 1st Defendants to the Plaintiffs which

the 1st Defendant has refused to pay.

3. Interest on the said sum owed to the Plaintiffs at the rate of

21% (Twenty One Percent) per annum from 9th November

2012 up till the date judgment is granted and at the rate of

10% (Ten percent) per annum till final liquidation of the

judgment debt.

4. Cost of instituting this action.

In prove of this claim, the Plaintiffs filed a 46-paragraph amended

statement of claim, a 25-paragraph Plaintiff’s consequential

amended reply to 2nd Defendant’s amended statement of

defence; the said amended reply is dated 14/5/15 and called two

witnesses.

The 2nd Plaintiff Dr. B.A.M. Ajibade (SAN) testified as the PW1. In his

evidence-in-chief, he adopted a 47-paragraph witness statement

on oath dated 7/1/13 and a 49-paragraph Further additional

witness statement on oath dated 14/5/15 as his evidence. The

two PW1’s statement on oath is accordingly adopted as forming

part of this judgment.

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The gist of the Plaintiff’s case is that by a letter dated 7/4/2009, the

1st Defendant instructed them to defend it and other persons in

Suit No. FAC/L/CS/206/2009 instituted against them by the Lagos

State Government.

Upon the Plaintiff’s acceptance, a negotiation was made and it

was agreed that the Plaintiff’s professional fees would be the sum

of N16 Million exclusive of VAT and out of pocket expenses and

the 1st Defendant made a part payment of the sum of N10 Million,

leaving the sum of N6 Million plus VAT and accumulated out of

pocket expenses of N1,080,266.61 outstanding.

It is also the case of the Plaintiffs that the 1st Defendant further

instructed them for representation in Appeal No. CA/L/335/2010

and in the Arbitral Proceedings between it and the Lagos

Statement Government.

The PW1 avers in paragraph 16 of statement on oath of 7/1/13

that the agreed professional fees for conducting the 1st

Defendant’s defence at the Arbitral Tribunal would be the sum of

N30 Million, excluding out of pocket expenses; that the 1st

Defendant made a part payment of the sum of N24 Million

leaving the sum of N6 Million outstanding as the balance for

professional fees and N18,600.00 as out of pocket expenses yet to

be paid.

It is the testimony of PW1 that the 1st Defendant did again

instructed the Plaintiff to represent it in Suit No. M/367/2012 before

the Lagos State High Court vide a letter dated 23/5/12. The

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professional fees was agreed to be N20 Million, but the 1st

Defendant advised that it would only be willing to recommend

about 50 – 60% of the professional fees of the N20 Million.

In paragraph 28, PW1’s statement on oath under consideration,

he stated that the 1st Defendant being dissatisfied with the

decision of the Lagos State High Court in Suit No. M/367/2012

instructed the Plaintiff to file an appeal on its behalf against the

decision. The Plaintiffs made an offer of N20 Million to prosecute

the said appeal, by a letter dated 10/7/2012. The 1st Defendant

accepted the said offer but advised that it would only be willing

to recommend payment of the sum of N13,500,000.00 as

professional fees in respect of the appeal.

It is the evidence of PW1 that yet again the 1st Defendant

instructed the Plaintiffs to institute a fresh suit on its behalf before

the F.H.C. against Lagos State Government in Suit No.

FHC/L/CS/741/2012. The Plaintiffs made an offer of N20 Million to

prosecute the case which was agreed to by the 1st Defendant.

However, the issue of payment of fees and VAT would be

discussed at a later date.

In paragraph 35, the PW1 stated that at a meeting called by the

1st Defendant in Abuja on 8/8/12, the Plaintiffs received oral

instructions from the 1st Defendant’s Legal Department that the

Hon. Minister of Power had instructed that the law firm of Paul

Usoro & Co be appointed to jointly represent the 1st Defendant in

all its pending suits with the Lagos State Government.

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As a result of the above oral instruction, the Plaintiffs made

available all necessary court processes and documents to Paul

Usoro & Co and attend several meetings jointly with Legal

Practitioners from Paul Usoru & Co.

It is the evidence of PW1 in paragraph 38 that the 1st Defendant

by a letter dated 31/8/12 the 1st Defendant informed the Plaintiffs

that it has debrief the Plaintiffs from representing the 1st Defendant

in all the pending suits with the Lagos State Government and

further requested that the Plaintiffs should forward all their

outstanding bills and invoices with respect to these suits to it for

settlement.

The PW1 also stated that in forwarding their invoices for settlement

as requested by the 1st Defendant, the Plaintiffs on their own

violation applied substantial discounts to the fees due for

representing the 1st Defendant’s interest in the cases they

handled; that the amount due and outstanding to the Plaintiffs

from 1st Defendant is N94,292,161.61 inclusive of VAT and out of

pocket expenses.

In paragraph 46, the PW1 stated that the Plaintiffs claim against

the 1st Defendant is one of the stranded liabilities the 2nd

Defendant will inherit, if the 1st Defendant is dissolved before the

conclusion of this suit.

As stated earlier in this judgment, the PW1 also adopted a 49-

paragraph Further additional witness on oath dated 14/5/15.

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The gist of the said testimony is that there was no agreement

between the Plaintiff and the 1st Defendant that the fees agreed

upon for the conduct of the defence in the suit would only be

paid if the suit pursued a particular cause or pattern or lasted for a

specific period. The fees agreed upon were professional fees for

handling the matter, net of expenses and the plaintiffs provided

the services bargained for.

That since it was the 1st Defendant that chooses to debrief the

Plaintiffs and thus prevent them from conducting the case with

respect to arbitration to conclusion, it cannot rely on this non

conduct to deprive the plaintiff of the fees that had been agreed

for the services rendered.

In paragraph 17 of the said additional statement of PW1, he

stated that the 1st Defendant accepted the terms of engagement

by its letter of 10/7/12 and recommended the sum of N13,500,000

as the plaintiff’s professional fees. The Defendants cannot seek to

evade payment for these services on the basis that it required the

approval of the Attorney General of the Federation.

It is the evidence of PW1 in paragraph 26 that the question of

taxation of the Plaintiff’s bill of charges does not arise as there was

a binding contract between the parties in which the Plaintiff’s fees

had been agreed; that at no time did the Plaintiffs abandon the

1st Defendant’s matters as they were debriefed in all the matters

regarding to 1st Defendant and the Lagos State Government

wherein they were representing the interest of the 1st Defendant

as clearly stated in the 1st Defendant’s letter of 31/8/12.

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In the cause of PW1’s evidence-in-chief, the following documents

were admitted in evidence:

1. Copy of the Certificate of Registration – Exhibit A

2. Letter dated 7/4/09 – Exhibit B.

3. Letter dated 3/7/09 – Exhibit C.

4. Letter dated 22/3/10 – Exhibit D.

5. Copy of letter dated 7/4/10 – Exhibit E.

6. Letter dated 21/4/10 – Exhibit F.

7. Copy of letter dated 10/5/10 – Exhibit G.

8. Letter dated 6/10/11 – Exhibit H.

9. Letter dated 23/5/12 – Exhibit I.

10. Letter dated 23/5/12 – Exhibit J.

11. Letter dated 14/6/12 – Exhibit K.

12. Letter dated 6/8/12 – Exhibit L.

13. Letter dated 2/7/12 – Exhibit M.

14. Letter dated 10/7/12 – Exhibit N.

15. Letter dated 28/6/12 – Exhibit O.

16. Letter dated 31/8/12 – Exhibit P.

17. Letter dated 19/9/12 – Exhibit Q.

18. Letter dated 19/9/12 addressed to the 1st Defendant by the

Plaintiff – Exhibit R.

19. Letter dated 19/9/12 titled Suit No. M/376/2012 – Exhibit S.

20. Letter dated 19/9/12 titled Appeal No. CA/L/347/2012 –

Exhibit T.

21. Letter dated 22/9/12 – Exhibit U.

22. Letter dated 25/9/12 – Exhibit V.

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23. Copy of This Day Newspaper of Monday Dec. 7, 2012 –

Exhibit W.

24. Copy of Page 6 of the Guardian Newspaper, Monday 17,

2012 – Exhibit X.

25. Document Titled Power Holding Company of Nigeria Plc v

Lagos State Government – Exhibit Y.

26. The 18 Evidences in the 7 SPA Ajibade & Co Petty

Cash/Cheque Voucher booklets – Exhibit Y1 – Y18

respectively.

27. Internal Memo of 22/7/09 – Exhibit Z1.

28. Arik Airline Ticket – Exhibit Z2.

29. Rockview Hotel Accommodation Receipt – Exhibit Z3.

30. Car Hire Receipt dated 8/7/09 – Exhibit Z4.

31. Feeding Receipt – Exhibit Z5.

32. Internal Memorandum – Exhibit Z6.

33. Arik Airline Return Ticket – Exhibit Z7.

34. Car Hire Receipt – Exhibit Z8.

35. Internal Memorandum – Exhibit Z9.

36. CTC of Court Order – Exhibit Z10.

37. CTC of Notice of Appeal – Exhibi9t Z11.

38. File copy of Application for Extension of Time – Exhibit Z12.

39. CTC of 2 Notices of Appeal- Exhibit Z13.

40. Compiled Record of Appeal – Exhibit Z14.

41. Internal Memorandum – Exhibit Z15.

42. Originating Motion – Exhibit Z16.

The PW1 urged the court to enter judgment in favour of the

Plaintiffs.

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Under cross-examination by the 2nd Defendant’s counsel, the PW1

stated that from the statement of claim, the 2nd Defendant was

established in 2006. The brief was giving to the Plaintiffs in 2009;

that in one or two of the cases the Plaintiffs bills was referred to the

Attorney General of the Federation for settlement.

It is the evidence of the witness that as at the time the Plaintiffs

instituted this suit the 1st Defendant had not been liquidated; that

the Plaintiffs understanding with the 1st Defendant in respect of Suit

No. 206/09 was to conduct their case to conclusion. It was on that

basis that the Plaintiff sent a bill of N16 Million.

The matter 206/09 was stayed after the ruling of the preliminary

objections. The Plaintiffs did not file a statement of defence in the

said suit.

The witness further stated that payment for Suit No. 437/M was

subject to the recommendation by the 1st Defendant to the

Attorney General of the Federation and his approval.

That the understanding the Plaintiffs had with the 1st Defendant

was that they were going to handle the matter to conclusion.

Each of these matters was ongoing before the plaintiffs were

debriefed.

By Exhibit P, the Plaintiff were debriefed in respect of Suit M/376/12

only but all matters relating to the suit.

The PW1 further stated that it is wrong to deny the fact that the

Plaintiff were debrief in respect of only one suit.

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Und3er re-examination, the PW1 stated that Suit No. 208/09 is not

against the suit that their fee is not been paid.

Under cross-examination by the 1st Defendant’s counsel, the PW1

stated that the Plaintiffs were not aware that their fees were

subject to approval by the Attorney General of the Federation.

That apart from Suit No. M/376/12 the Plaintiff have completed

some while others were in progress.

The witness also stated that by the time the Plaintiffs received

Exhibit P; they had already concluded the matter in Suit No.

M/376/12.

No re-examination, PW1 was discharged.

Mr. Basawuno Mohammed Laddo, a subpoenaed witness testified

as PW2. He introduced himself as a staff of Bureau for Pu8blic

Enterprise (B.P.E.) as an Assistant Director.

The PW2 thereafter submitted the documents he was

subpoenaed to produce. The documents were admitted in

evidence as follows:

1. CTC of Federal Republic of Nigeria Official Gazette No. 85,

Vol. 97 dated 20/8/10 – Exhibit Z17.

2. CTC of the Transfer Instrument dated September, 2011 –

Exhibit Z18.

The PW2 being a subpoenaed witness just to produce document

was accordingly discharged and that was the case for the

Plaintiff.

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In defence of this case, the 1st Defendant filed 12-paragraph

statement of defence dated 16/4/13. However, in its wisdom

elected not to adduce any evidence to give life to its pleadings;

the said 1st Defendant’s statement of defence is accordingly

deemed abandoned.

The 2nd Defendant on its part filed a 57-paragraph statement of

defence/counter claim dated 29/4/15 and called a sole witness.

Mr. Bennie Chigbue testified for the 2nd Defendant as its sole

witness DW1.

In his evidence-in-chief, the DW1 adopted a 60-paragraph witness

statement on oath dated 30/4/15 as his evidence; the said 6-

paragraph DW1’s statement on oath is accordingly adopted as

forming part of this judgment.

In paragraph 5 of the said statement, the DW1 stated that the

agreed fees the Plaintiffs had with the 1st Defendant were fo4r the

conduct of the suit from beginning to the end of the suit.

It is the averment of DW1 in paragraph 7 that the out of pocket

expenses claimed by the Plaintiffs were not real expenses but

imaginary costs which were not part of the agreement and were

never incurred by the Plaintiff in respect of the suit.

In paragraph 10, the witness stated that by the terms of the

engagement, the Plaintiffs are entitled to payment of fees based

on the stage of the arbitration proceedings and that the sum of

N24 Million paid out of the N30 Million fees are for above the

quantum of services rendered by the Plaintiffs.

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It is the testimony of the DW1 that there was no agreement as to

the fees payable in respect of Suit No. M/367/2012 and that the

fees payable was to be determined by the Attorney General of

the Federation. See paragraph 17. He further stated that at all

times material the fees agreed on covered the prosecution of the

Defendant’s interest to the conclusion of the matter but that in

most cases the Plaintiff stopped at very infant stages and thus not

entitled to full payment of the contemplated fees. See paragraph

22 of the witness statement on oath; that the bills sent by the

Plaintiffs to the 1st Defendant were not agreed upon; that the

Plaintiffs did not earn the huge sums already paid to them as the

anticipated works for which payments were made were not done.

It is further stated that the Bill of Charges of the Plaintiffs does not

disclose the detailed particulars of work done and their respective

costs.

The DW1 further led evidence to the fact that the various

agreements for payment of fees between the Plaintiffs and the 1st

Defendant were made under duress and suspicious

circumstances of undue influence.

In paragraph 56 the DW1 stated that the 1st Defendant debriefed

the Plaintiffs in respect of only one of the several suits being Suit

No. M/376/2012 (LAGOS STATE GOVERNMENT v PHCN & 2 ORS but

the Plaintiffs abandoned the rest of the 1st Defendant’s briefs

despite the huge sums already paid to the Plaintiffs. Court is

urged to dismiss the Plaintiff’s claim.

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The 2nd Defendant did not tender any document in evidence.

Under cross-examination by the Plaintiff’s counsel, the DW1 stated

that Case No. FHC/C/CS/206/09 was for the claim of

N16,327,762.16k; that Lagos State Government discontinued with

the case. But that he was not aware that it was the Motion on

Notice field by the Plaintiff in this suit that led to the

discountenance of Suit No. CS/206/09 against the 2nd – 5th

Defendants.

The witness further stated that Exhibit P referred to Suit No.

M/376/2012 and that his understanding is that the Plaintiffs were

not asked to withdraw from the remaining suit.

Under cross examination by the 1st Defendant’s counsel, the DW1

stated that he cannot remember all the briefs handled by the

Plaintiffs on behalf of the 1st Defendant.

The witness restated that the Plaintiffs were debriefed only in

respect of Suit No. M/376/2012 LAGOS STATE GOVT. V PHCN & 2

ORS and were allowed to continue with the other briefs, but that

the Plaintiffs did not conclude the other briefs.

No re-examination, the DW1 was discharged and that is the case

of the 2nd Defendant. Counsel on both sides accordingly

addressed the court.

The 1st Defendant’s counsel filed 9-page final written address

dated 19/4/2017 wherein counsel submitted two issues for

determination, namely:

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1. Whether the present suit instituted by the Plaintiffs is

maintainable and enforceable against the 1st Defendant

having due regard to Exhibit Z17 and Z18 and the Electric

Power Sector Reform Act, 2005.

2. Whether the Plaintiffs have proved their case against the 1st

Defendant and therefore entitled to the reliefs in paragraph

46 of the Amended Statement of Claim.

On Issue 1, it is the submission that this suit filed by the Plaintiff is not

maintainable and enforceable against the 1st Defendant in view

of the transfer of the assets, liabilities, employees, rights,

proceedings and obligations of the 1st Defendant (PHCN PLC) to

the 2nd Defendant vide Exhibits Z17 (FGN Official Gazette dated

20/08/2010) and Exhibit Z18; a Transfer Instrument dated 23/9/2010

made pursuant to the Supplementary Regulations to Part 1 of the

Electric Power Sector Reform Act Order No. 46 and 47 of 2010.

It is submitted that Exhibit Z18 having successfully transferred all the

1st Defendant’s liabilities and obligations to the 2nd Defendant on

23/09/2011 and due regard being placed on Exhibit Z17 and

Exhibit Z18 and Section 10(6) and 12 of the Electric Power Sector

Reform Act 2005, the suit instituted by the Plaintiff on 7/1/2013 is

clearly not maintainable and enforceable against the 1st

Defendant and any order made by the Honourable Court against

the 1st Defendant shall be an order made in vain. A court of law

does not make an order in vain or an order that cannot be

carried out or enforced in law. See UNIV. OF JOS v DR. M.C.

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IKEGWUOHA (2013) 9 NWLR (Pt 1360) 478. Court is urged to dismiss

this suit filed against the 1st Defendant.

On Issue 2, it is the submission that the standard of proof in civil

cases is on the preponderance of evidence or the balance of

probabilities. See OKUABUME v OBABOKOR (1965) All NLR 36.

It is submitted that relying on the state of the pleadings of the

parties, the Plaintiffs have not discharged the burden placed on

them in law. The case of the 1st Defendant is that the Plaintiffs

were briefed to represent the 1st Defendant in different matters

pending before the Lagos State High Court. However, by Exhibit P

dated 31/08/2012, the Plaintiff were debriefed only in respect of

Suit No. M/376/2012. The Plaintiffs were allowed to continue with

the other cases.

It is submitted that by Exhibit K, it was clearly stated that the fees

payable to the Plaintiffs by the 1st Defendant are subject to the

express approval of the Honourable Attorney General of the

Federation and the Plaintiff consented to the arrangement.

It is the contention that it was a total abdication of its obligation to

prosecute the other cases, when Plaintiffs decided unilaterally

and without any cause to refuse to continue the prosecution of

the defence of 1st Defendant in the other suits and instead

submitted claims for professional fees in respect of suits not

concluded.

By virtue of Section 133 and 136 of the Evidence Act the burden

rests on the Plaintiffs to show or prove that they were debriefed in

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other suits apart from Suit No. M/376/2012 – LAGOS STATE GOVT. V

POWER HOLDING CO. OF NIG (PHCN) PLC & ORS.

It is submitted that the only professional fees to which the Plaintiffs

are entitled to is as contained in Exhibit S subject to the approval

of the Honourable Attorney General of the Federation. Therefore

the requests in Exhibit Q, R, T, U and V are totally unwarranted.

It is the contention that it was premature for the Plaintiffs to bring

this action as they are aware that the Honourable Attorney

General of the Federation is yet to give his approval to Exhibit S as

agreed upon by the Plaintiffs and the 1st Defendant.

It is submitted that the Plaintiffs have failed to discharge the

burden cast on them under the law as enshrined in Sections 133

and 136 of the Evidence Act. The Plaintiffs have led no credible

evidence for the burden to shift to the 1st Defendant and which

would have required the 1st Defendant to lead evidence and

therefore Plaintiffs are not entitled to the reliefs sought. Court is

urged to dismiss this suit.

The Plaintiff filed a 17-page final written address dated 16/6/17

wherein counsel submitted a lone issue for determination, thus:

“Whether the Plaintiffs have proved their case on the

preponderance of evidence led in this suit and are entitled to

the judgment of this Honourable Court in terms of their

claims?”

On this singular issue, it is the submission that the Plaintiffs have via

their amended statement of claim, the evidence adduced

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through the witness statement on oath of PW1 and exhibits

tendered established that the 1st Defendant is indebted to the

Plaintiffs for outstanding payments of professional fees for legal

services rendered to it and that the Defendants are jointly and

severally liable for this indebtedness.

It is submitted that the Plaintiffs claims against the Defendants are

for a specific sum of money – N30,492,616.61 which is due and

payable by reason of having provided professional legal services

to the 1st Defendant. Court is referred to the case of DANGE

SHUNI L.G.C. v OKONKWO (2008) All FWLR (Pt 415) 1772 Para E,

1757 at 1772 Paras F – H.

It is the submission that the 2nd Defendant in its defence and the 1st

Defendant in the cross-examination of PW1 failed to establish any

credible defence, to their liability to the Plaintiff. The averments of

the Defendants that the Plaintiffs abandoned the 1st Defendant’s

remaining briefs upon being debriefed could not be substantiated

as the Defendants did not lead any evidence to show that upon

receipt of the Plaintiff’s Exhibits Q, R, S, T, U and V requesting

payment of the 1st Defendant’s outstanding indebtedness.

It is submitted that the Plaintiffs were not only debriefed in Suit No.

M/376/2012 as averred by the Defendants, but were debriefed in

all matters relating to the above.

Learned counsel for the Plaintiffs further submitted that a legal

practitioner is entitled to legal fees for services rendered. Court is

referred to Section 16(2) of the Legal Practitioner’s Act Cap L11

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LFN 2004 which provides for the condition precedent and that the

Plaintiffs fully complied with the conditions therein.

On the issue of taxation, it is submitted that the 2nd Defendant

cannot seek taxation of the Plaintiffs bills of charges as it was not

the client to whom these bills were submitted from payment as

required by the provision of Section 17 of the Legal Practitioner’s

Act. See OYEKANMI v NEPA (2000) NWLR (Pt 690) 414.

It is the submission that the 2nd Defendant prayers seeking to set

aside the agreements between the Plaintiffs and the 1st

Defendant cannot stand as it is the law that a person who is not a

party or privy to a contract cannot sue on that contract. See

UNITED BANK OF AFRICA PLC v HON. SUNDAY JOHNSON & ANOR

(2008) LPELR – 5062 (CA). Court is urged to enter judgment for the

Plaintiffs.

The 2nd Defendant’s Counsel filed a 32-pages final written address

dated 21/9/2017 wherein counsel submitted the following issues

for determination:

1. Whether there was agreement for fees between the Plaintiffs

and the 1st Defendant; and if so

2. Whether the purported agreements are fair and not hurried

by undue pressure or influence?

3. Whether the bill of charges relied on by the Plaintiffs in this

case are not in contempt?

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4. Whether the bills of the Plaintiffs are not excessive and

contrary to Rules 48 and 52 of the rules of Professional

Conduct of Legal Practitioners?

5. Whether the Legal fees paid were earned by the Plaintiffs.

6. Whether the Plaintiffs were debriefed in respect of Suit No.

FHC/L/CS/2002, CA/C/347/2012, FHC/L/CS/741/2012 and the

Arbitral proceeding and if so, what remedy is available to

the Plaintiffs in the circumstances?

7. Whether the 2nd Defendant is entitled to her counter claim?.

On Issue 1 and 2, it is the submission that the Plaintiffs have failed

to prove that there was a written agreement as to the fees

payable by the 1st Defendant. The law requires agreement as it

relates to the charges such that the distinction must be drawn

between a written letter engaging a legal practitioner and a

written agreement for the charges. See Section 15(3) (d) of the

Legal Practitioners Act and Section 16 to 19 of the same Act; Case

of OYEKANMI v NEPA (2000) 4 NSCQR 1755.

It is further submitted that if the court finds that there was an

agreement reached between the Plaintiffs and the 1st Defendant,

the said agreements are marred by reasonable suspicion of

undue pressure from the Plaintiff.

It is further submitted that the letters of engagement does not

constitute an agreement and that the bills by the Plaintiffs cannot

take the place of an agreement because an agreement

envisaged in Section 15(3) (d) of the Legal Practitioners Act must

precede part payment and bill.

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It is the contention of the 2nd Defendant that there is no evidence

to show that the 1st Defendant ever accepted to pay N16 Million

to the Plaintiffs. The law is that there must be shown an

agreement which creates reciprocal obligation with a mutuality of

purpose. See YASHE v UMAR (2003) 13 NWLR (Pt 838) 465.

Therefore the failure of the Plaintiffs to show any written

agreement between them and the 1st Defendant with respect to

their charges is fatal to their claim before this court.

The 2nd Defendant submitted that from Exhibits F, G and H, the

Plaintiffs and the 1st Defendant never made any agreement as to

charges for the arbitral proceedings. Exhibit G is best an offer

which was countered by Exhibit H. To sustain a claim for

agreement of charges, the Plaintiffs are required to prove the

acceptance of the counter offer made through Exhibit H. See

BILANTE INTERNATIONAL LTD v NDIC (2011) LPELR – 781 (SC). Court

is urged to hold that there was no written agreement as to

charges between parties on the arbitral proceedings.

With respect to Plaintiff’s agreement on fees in Suits M/376/2012,

CA/347/2012, and FHC/L/CS/741/2012, it is submitted that the 1st

Defendant stated clearly that the fee payable will be dependent

on the approval of the Attorney General of the Federation (AGF);

that the obligation of the 1st Defendant in respect of Suits

M/376/2012 and CA/347/2012 was only to make a

recommendation of the stated percentage of the requested fee

to the A.G.F. Therefore the 1st Defendant had no obligation to

pay fee based on the state of fact.

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It is submitted that at best the correspondences in Exhibits I, J, K, L,

M, N and O created a conditional contract which is not

operational and or enforceable unless and until the condition

precedent has crystallized or been fulfilled. See SUBERU v ATIBA

IYALAMU SAVINGS LOANS LTD & ANOR (2007) LPELR – 8264 (CA);

BEST NIGERIA LTD v BLACKWOOD HODGE NIG. LTD (2011) LPELR –

776 (SC).

With respect to Issue 2, it is the submission that if the court finds

that there were agreements between the Plaintiffs and the

Defendants as to charges, it is the contention that the said

agreements must be set aside for being marred by undue pressure

or influence.

That the Plaintiffs have failed to justify that the agreement with the

1st Defendant was not marred by suspicion of undue pressure or

influence. Court is referred to the case of OYEKANMI v NEPA

(Supra), OFOEGBU v ONWUKA (2008) All FWLR (Pt 412) 1141 at

1148, P. 1161 Paras C – D. Court is also referred to the testimony of

DW1 and the court is urged to hold that the agreements entered

with the 1st Defendant were marred by suspicion of undue

pressure and influence.

On Issue 3, it is the submission that Exhibits B, C, D, E, F, G, H, I, J, K,

L, M, N and O have been discredited as not qualifying as

agreement as to charges. Exhibits Q, R, S, T, U and V are the

Plaintiff’s erroneous response to their misunderstanding of the 1st

Defendant’s letter dated 31/8/12, by which the Plaintiffs were

debriefed in one of the suit.

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It is submitted that Exhibits Q, R, S, T, U and V are neither

agreements as to charges nor bills of charges and therefore

cannot be the basis of any claim before this court. See GTB PLC &

ANOR v ANYANWU, ESQ (2011) LPELR – 4220 (CA).

It is submitted that the failure of the Plaintiff to submit a proper bill

of charges as required is fatal to their case. See AKINGBEHIN v

THOMPSON (2008) 6 NWLR (Pt 1083) 270.

On Issue 4, it is the submission that the bills for services rendered to

the 1st Defendant by the Plaintiffs are excessive and contrary to

Rules 48 and 52 of the Rules of Professional Conduct of Legal

Practitioner.

Exhibit D clearly shows that the Plaintiffs were paid N750,000.00

only for defending the 1st Defendant in Suit No. FHC/L/308/2009

without more.

On the other hand, the Plaintiffs charged the 1st Defendant the

sum of N16 Million only for Suit No. FHC/L/CS/206/2009. There is

nothing peculiar in this suit that justifies that the same counsel can

accept N750,000:000 as professional fee in a matter pending at

the High Court and turn around to bill the same client the sum of

N16 Million for a similar matter at the same court at the same

time.

It is further submitted that the fee for the arbitration proceedings is

clearly excessive. This is because by the state of pleadings, the

arbitration is a fall out of the proceedings in Suit Number

23

FHC/CS/L/2006/2009 in which the Plaintiff represented the 1st

Defendant.

It is the submission that with regard to Suit M/376/2012,

CA/L/437/M/2012 and FHC/L/CS/741/2012 there was no

agreement and or competent bills for the services rendered by

the Plaintiffs as was earlier argued by the 2nd Defendant’s counsel

in his address.

However, if the court is of the view that the bills were based on the

agreement of parties, it is submitted that the bills are excessive

and the court should so hold; that the essence of the provisions of

Rule 48 and 52 of the Rules of Professional Conduct is to protect

clients against the oppressive conduct of Legal Practitioners. It is

therefore against public policy to allow a legal practitioner

recover fees which are excessive through this court.

On Issue 5, it is the submission that the fees paid to the Plaintiffs

and the ones being sought in this suit are not earned by the

plaintiffs.

It is submitted that from the state of pleadings, the Plaintiffs are not

consistent on the basis of their claim from the Defendants. In the

first breadth, the Plaintiffs contest that they are entitled to their fee

based on the agreement between them and the 1st Defendant.

At another breadth the Plaintiffs claim fees based on the quantum

of work done.

That being the case, the onus is on the Plaintiffs to prove that the

claimed fees are earned based on the agreement or the

24

quantum and value of services rendered. The Plaintiffs have failed

to do so in this suit.

On Issue 6, it is the submission that the Plaintiffs were only

debriefed in respect of one out of the five suits, that is in Suit No.

M/376/2012 and that the Plaintiffs abandoned their briefs in

respect of the other four matters. Court is referred to Exhibit P and

the case of AGUOCHA v AGUOCHA (2004) LPELR – 7357 or (2005)

1 NWLR (Pt 906) 165.

It is further submitted that the Plaintiffs have failed to prove that

the 1st Defendant debrief them in all the six cases they were

conducting for the 1st Defendant and that being the case, the

Plaintiffs cannot claim fee on the briefs they undertook to conduct

to the end, after abandoning them without justification. Court is

urged to dismiss the Plaintiff’s suit.

With respect to claim against the 2nd Defendant, it is submitted

that the 2nd Defendant had been in existence before 2016, it was

not made a party and was not served with any bill of charges of

the Plaintiffs and as such cannot be liable for the acts of the 1st

Defendant. The law is that a non party to a contract cannot be

dragged to court as a scape-goat when it appears that the liable

party has lost capacity to fulfil his obligations under the contract.

See the case of UNITED BANK FOR AFRICA & ANOR v ALH.

BABANGIDA JARGABA (2007) 5 SC 5 at 17 Paras 10 – 35; REBOLD

INDUSTRIES LTD v MAGREOLA & ORS (2015) LPELR – 24612 (SC).

25

On Issue 7, I am of the considered view that it is an issue to be

considered in the counter claim. Court is finally urged to dismiss

the Plaintiffs’ suit.

The Plaintiffs counsel filed a 20-page reply on points of law to the

2nd Defendant’s address. The said reply is dated 3/10/17 wherein

counsel formulated the following issues for determination:

1. Whether there was agreement for fees between the Plaintiffs

and the 1st Defendant and if so

2. Whether the purported agreements are fair and not marred

by undue pressure or influence?

3. Whether the bill of charges relied on by the Plaintiffs in this

case are not incompetent?

4. Whether the bills of the Plaintiffs are not excessive and

contrary to Rule 48 and 52 of the Rules of Professional

Conduct for Legal Practitioners.

5. Whether the Legal fees paid were earned by the Plaintiffs.

6. Whether the Plaintiffs were debrief in respect of Suit No.

FHC/L/CS/2009, CA/C/347/2012, FHC/CS/741/2012 and the

Arbitral proceeding and if so what remedy is available to the

Plaintiffs in the circumstances.

7. Whether the 2nd Defendant is entitled to her counter claim?

On Issue 1, it is submitted that several letters of instructions, terms of

engagement and invoices exchanged between the Plaintiffs and

the 1st Defendant which are tendered and marked as Exhibits B,

C, D, E, F, G, H, I, J, K, L, M, N and O are clear written agreements

between the Plaintiffs and the 1st Defendant and are therefore

26

binding on both parties. See DRAGETANCES CONST (NIG) LTD v

F.M.V. LTD (2011) 16 NWLR (Pt 1273) Pg 308 at 353 Paras C – D;

A.I.B. LTD v I.D.S. LTD (2012) 17 NWLR (Pt 1328) Pg 1 at 50 Paras E –

F.

It is further submitted that it is indisputable that the 1st Defendant

agreed to the terms of engagement voluntarily and as a sign of its

acceptance made deposits on account and continued to

exchange correspondence with the Plaintiffs in respect of the

matters.

On the issue of counter offer as raised by the 2nd Defendant, it is

submitted that it does not arise and the cases of BILANTE

INTERNATIONAL LTD v NDIC (Supra) and .F.I. GROUP v BUREAU OF

PUBLIC ENTERPRISES (Supra) relied upon by the 2nd Defendant are

not applicable in the instant case on the ground that the Plaintiffs

performed their obligations under the contract and the 1st

Defendant made part payments in line with the agreements.

It is submitted that it does not lie in the mouth of the 2nd Defendant

to contend that there was no agreement in relation to fees

between the Plaintiffs and the 1st Defendant. The 1st Defendant

who is a party to the said agreements has not disputed the fact

that it entered into the agreements for the payment of fees.

On Issue 2, it is the submission that the 2nd Defendant has failed to

discharge the burden imposed on it by law and that its assertion

of undue influence is an issue of mere speculation and nothing

27

more. The case of OYEKANMI v NEPA (Supra) relied upon by the

2nd Defendant is not on all fall with the instant case.

It is submitted that from the facts and evidence before the court,

the 1st Defendant accepted the terms of engagement voluntarily

without prompting as it had a full-fledged legal department that

considered their options before these agreements were entered

into.

On Issue 3, it is submitted that from the case of GTB PLC & ANOR v

ANYANWU (Supra) a bill of charges is only required when there is

no agreement as to fees. In the instant case, where the existence

of an agreement for fees has been established by credible

evidence, the competence or otherwise of the bill of charges is a

non-issue and cannot affect the plaintiffs claims.

It is submitted that in the unlikely event that the court finds that

there was no agreement as to fees in respect of the charges to be

subjected to the approval of the Attorney General, the Plaintiffs

are nevertheless entitled to be remunerated. Court is urged to so

hold.

On Issue 4, it is the submission that Rule 52(2) of the Rules of

Professional Conduct for Legal Practitioner set out the factors to

be considered in fixing the amount of fees. Among the factors

enumerated are the time and labour required, the novelty and

difficulty of the question involved and the skill required to conduct

the case properly, the amount involved or controversy and the

benefits resulting to the client from the services.

28

In the instant case, the dispute involved a sum in excess of N16

Billion and the Plaintiffs who were instructed in these matters are

very senior members of the bar. The Plaintiffs applied industry and

skill in handling the 1st Defendant’s matters and the fees they

charged for handing these matters, which were agreed by the 1st

Defendant were not excessive nor were they inconsistent with fees

that would be charged by numbers of the Bar of equivalent

seniority or standing to the Plaintiffs for the handling of matters of

similar complexity; more so this fees were agreed by the parties

and the 1st Defendant never complained but made deposits in

line with the terms of engagement.

On Issue 5, it is the submission that the fees claimed were earned

by the Plaintiffs. The Plaintiffs had applied industry and skill in

handling of the 1st Defendant’s matters and this was also

acknowledged in the 2nd paragraph of Exhibit H and paragraph 3

of Exhibit P and uncontroverted by the Defendants.

It is further submitted that the Defendant did not provide or lead

evidence of a pro-rata agreement between the Plaintiff and 1st

Defendant.

On Issue 6, it is the submission that during the 1st and 2nd

Defendant’s cross-examination of PW1, the evidence led

established the fact that Suit No. M/376/2012 had already been

concluded and was on appeal before the issuance of the letter

debriefing the Plaintiffs.

29

It is submitted therefore, that the Plaintiff were not only debriefed

in Suit No. M/376/2012 as averred by Defendants but were

debriefed in all matters relating to the above suit.

On the contention that the bill of charges was not served on the

2nd Defendant, it is submitted that the Plaintiff were not engaged

by the 2nd Defendant and the bills of charges is only meant for

delivery to a client and the 2nd Defendant at all material time was

never the Plaintiff’s client. Court is urged to enter judgment for the

plaintiffs.

Issue 7 is for the counter claim and will be considered accordingly.

I have carefully considered the processes filed, evidence of

witnesses and submission of learned counsel on both sides, I do

adopt the issues formulated by the 2nd Defendant’s counsel as the

issues for determination:

1. Whether there was agreement for the fees between the

Plaintiffs and the 1st Defendant; and if so

2. Whether the agreement are fair and not marred by undue

pressure or influence?

3. Whether the Bill of Charges relied on by the Plaintiffs in this

case are not incompetent.

4. Whether the bill of the Plaintiffs are not excessive and

contrary to Rules 48 and 52 of the Rules of Professional

Conduct of Legal Practitioners.

5. Whether the legal fees paid were earned by the Plaintiffs.

30

6. Whether the Plaintiffs were debriefed in respect of Suit No.

FHC/L/CS/2009, CA/C/347/2013, FHC/L/CS/741/2012 and the

Arbitral proceedings.

On Issue 1, it is the contention of the 2nd Defendant that there are

two principal ways by which a legal practitioner can secure the

payment for the services he rendered to his client. They are: by

written agreement pursuant to Section 15(3) (d) of the Legal

Practitioners Act or by Bill of Charges as provided by Section 16

and 19 of the same Act.

In the first instance, the legal practitioner who makes a claim

based on agreement must prove the existence of the said

agreement.

In the instant case with respect to the 1st Defendant’s instruction

for representation in Suit No. FHC/L/CS/206/2009; ATTORNEY

GENERAL OF LAGOS STATE v PHCN PLC & 4 ORS, it is clear that by

virtue of paragraph 2 and 5 of Page 2 in Exhibit B and paragraph

2 and 3 of Exhibit C and Exhibit E there was agreement between

the Plaintiffs and the 1st Defendant with respect to fees.

It is trite law that parties are bound by the contract they voluntarily

entered into and cannot act outside the terms and conditions

contained in the contract. See the case of A.I.B. LTD v I.D.S. LTD

(Supra).

It is indisputable that the 1st Defendant agreed to the terms of

engagement voluntarily and as a sign of its acceptance made

31

deposits on account and continued to exchange

correspondence with the Plaintiffs in respect of the matter.

With respect to the 1st Defendant’s instruction for representation in

other matters, it is clear from the contents of Exhibits D, F, G, H, I, J,

K, L, M, N and O there were agreement between the parties for

the Plaintiffs to represent the 1st Defendant accordingly. However,

with respect to the fee with regard to the representation in the

arbitral proceedings. The totality of the Plaintiff’s evidence in this

regard is that the 1st Defendant instructed them, by Exhibit F, to

represent it in the arbitration proceedings which the Defendant

accepted by Exhibit G. A careful consideration of the said

exhibits shows that Exhibit F is a mere letter of engagement

regarding the fee payable, the 1st Defendant stated in paragraph

4 of Page 2 as follows:

“Your bill for professional services should be forwarded to this

office for examination and settlement on conclusion the

matter. However, as discussed, the final bill payable will be

dependent on the continuance or otherwise of a similar case

before the Lagos High Court by the Lagos State Government”

In Exhibit G, the Plaintiffs accepted their engagement to represent

the 1st Defendant and made an offer of N35 Million and requested

for a 60% immediate payment and for the balance to be paid at

the conclusion of the arbitral proceedings.

By Exhibit H, the 1st Defendant informed the Plaintiffs of the

payment of N18 Million out of N30 Million which if approved as fee

32

for the Plaintiffs; leaving a balance of N12 Million to be paid at the

conclusion of the case.

In the light of the above, I hold that there was written agreement

with respect to fees in the arbitration proceedings.

With respect to the Plaintiff’s instruction in Suit Nos. M/376/2012,

CA/347/2012 and FHC/L/CS/741/2012. The relevant exhibits are

Exhibits I, J, K, L, M, N and O respectively.

In the above mentioned cases, the Plaintiffs’ position is that they

were engaged to handle these cases upon which they sent their

bills to the 1st Defendant. The 1st Defendant stated clearly that the

fee payable will be dependent on the approval of the Attorney

General of the Federation.

In paragraph 3 of Exhibit K, the 1st Defendant stated as follows:

“We wish to state further that whatever fee payable to you is

dependent on the approval of the Honourable Attorney

General of the Federation and Minister of Justice. However,

we will make recommendation for about 50 – 60% of the

amount being requested for his approval”.

In paragraph 2 of Exhibit L, the Plaintiff accepted the contents of

Exhibit K to the effect that payment of fee was subject to the

amount approved by the Attorney General of the Federation.

Exhibits M and N are couched in similar terms with regards to

Appeal No. CA/347/2012 which emanated from Suit Number

M/376/2012.

33

In the light of the above it is without doubt that there is no specific

agreement as to fees by the parties with respect to Suit No.

M/376/2012, CA/347/2012 and FHC/L/CS/741/2012. The obligation

of the 1st Defendant was only to make a recommendation of the

stated percentage of the requested fee to the Attorney General

of the Federation.

I am of the considered view that the correspondences in Exhibits I,

J, K, L, M, N and O crated a conditional contract to the effect that

the 1st Defendant will pay fee which is approved by the Attorney

General of the Federation.

Under cross-examination of PW1 by the 1st Defendant’s counsel,

the witness stated that Exhibits K and N speaks for itself. However,

he claimed that the Plaintiffs were not aware that their fees were

subject to approval by the Attorney General of the Federation.

Yet in another breathe under cross-examination by the 2nd

Defendant’s counsel, the PW1 state thus:

“...Payment for Suit No. 437/M was subject to the

recommendation by the 1st Defendant to the Attorney

General of the Federation and his approval”

He further stated that in Exhibit K, he had nothing to show that

there was an approval by the Attorney General of the Federation

for payment. The law is trite that a conditional contract is not

operational and or enforceable unless and until the condition

precedent has been fulfilled. See SUBERU v ATIBA IYALAMU

SAVINGS LTD & ANOR (Supra).

34

In BEST NIG. LTD v BLACKWOOD HODGE NIG. LTD (Supra) the

Supreme Court held thus:

“A Conditional acceptance of an offer does not in law

constitute an acceptance of the offer in question. A qualified

acceptance of an offer cannot give rise to a binding

agreement between the parties”

In the light of the above, I hold that Issue 1 is resolved partly in

favour of the Plaintiff and partly in favour of the Defendants.

On Issue 2,l it is the contention by the 2nd Defendant that if there

was an agreement between the Plaintiffs and the 1st Defendant

such agreement must be set aside for being marred by undue

pressure or influence.

The law is settled that the burden of proving a particular fact is on

the party alleging that fact. See JALLO LTD v OWONIBOYS TECH.

SERV. LTD (1995) 4 NWLR (Pt 391) Pg 534 at 545 – 546 Paras H – B.

The 2nd Defendant had contended that the 1st Defendant was

unduly influenced when it engages the services of the Plaintiffs to

defend and prosecute the various matters.

I am of the view that the 2nd Defendant has failed to discharge

the burden imposed on it by the law. In fact in the 33-paragraph

2nd Defendant amended statement of defence dated 30/4/15

there was no mention of undue pressure or influence on the part

of the Plaintiff against the 1st defendant.

35

In the light of the above, I hold the considered view that the issue

of undue influence is not proved; this issue is accordingly resolved

in favour of the Plaintiffs.

On Issue 3, it is the contention of the 2nd Defendant that Exhibits Q,

R, S, T, U and V are neither agreement as to charges nor bills of

charges and therefore cannot be the basis of any claim before

this court.

The above exhibits are correspondences by the Plaintiffs to the 1st

Defendant forwarding their outstanding invoice for the agreed

fees for professional services rendered after the Plaintiffs were

debriefed.

In the case of GTB PLC & ANOR v ANYANWU (Supra) the court

held as follows:

“A legal practitioner has a right to be remunerated for his

services, he can either be paid in advance upon named fees

or rely on the terms of any agreement reached for his fees.

However, if he has not received his fees and no agreement

was reached as to what they would be, he must submit his

bills of charge”.

It is settled from the above authority that a bills of charges is only

required when there is no agreement as to fees.

In the instant case, I hold the firm view that Issue 1 above has

settled the issue of fees, I so hold.

36

On Issue 4, it is the contention of the 1st Defendant that the bills or

fees of the Plaintiffs are excessive and contrary to Rules 48 and 52

of the Rules of Professional Conduct of Legal Practitioner.

For clarity see Rule 48 as reproduced thus:

1. A lawyer is entitled to be paid adequate remuneration for

his service to the client.

2. A lawyer shall not enter into an agreement for, charge or

collect an illegal or clearly excessive fee.

3. For the purpose of this rule a fee is clearly excessive when,

after a review of the facts, it is clear that it does not take

into account the consideration set out in Rule (52).

Rule 52(1) state as follows:

“The professional fees charge by a lawyer for his service shall

be reasonable and commensurate with the service

rendered. Accordingly, the lawyer shall not charge fees

which are excessive or so low as to amount to

understanding?”

A combined reading of the above Rules shows that a lawyer can

only charge and be paid for actual service rendered and he is

prohibited from charging excessively for such service.

Now, to consider whether a bill is excessive, the court must

consider the peculiar facts and circumstances of each case.

Exhibit D shows that the Plaintiffs were paid N750,000:00 only for

defending the 1st Defendant in Suit Number FHC/L/308/2009

37

between Otunba Isola Adebanjo v PHCN Plc. It is worthy of note

that the suit was conducted at the Federal High Court Lagos

where most other suits were conducted and was filed in 2009.

On the other hand, the Plaintiff charged the 1st Defendant the

sum of N16 Million only for Suit No. FHC/L/CS/206/2009. This suit

was filed at the same Federal High Court in the same year 2009

against the same 1st Defendant. As rightly stated by learned

counsel to the 2nd Defendant, there is nothing peculiar in this suit

that justifies that the same counsel can accept N750,000 as

professional fee in a matter pending at the High Court and turn

around to bill the same client the sum of N16 Million for a similar

matter at the same court at the same time.

It is also on record that the Plaintiffs charged the 1st Defendant

N30 Million to handle the arbitration proceedings and charged

N16 Million to defend 5 Defendants in court as can be seen in

Exhibits B, C and D. By paragraph 9 of the statement of claim, the

suit was discontinued against the 2nd to 5th Defendants and only

the 1st Defendant was made a Respondent in the arbitral

proceedings. The poser is if N16 Million can be paid for defending

5 persons in court, is it not on the high side to charge only one out

of the 5 Defendants the sum of N30 Million?.

However, it is instructive to point out that these fees were agreed

by the parties and the 1st Defendant never complained but made

deposits in line with the terms of engagement. The law is that the

court cannot rewrite a contract or agreement for parties.

38

It is also worthy of note that the bills or fees presented by the

Plaintiffs to the 1st Defendant passed through the Legal

Department of the 1st Defendant.

It is settled law that if the parties have agreed between

themselves upon the conditions for the formation of a contract,

and these conditions were embodied in a document, then they

are bound by the terms and conditions set down in the

documents. Having so bound themselves it is not the duty of the

court to make a contract for the parties. See OWONIBOYS TECH

SERV. LTD v U.B.N. LTD (Supra).

On Issue 5, it is the contention of the 2nd Defendant that the fee

paid to the Plaintiffs and the ones being sought in this suit are not

earned by the Plaintiffs.

The law is settled that there are two ways to determine the fee

payable for the services rendered by a legal practitioner to his

client are determined. They are based on the agreement

between the legal practitioners or by an assessment of the work

done in all cases however, the law requires that such fee must be

earned in the sense that it must be a payment made for services

rendered. In other words, it has never been and will never be the

intention of the law for a legal practitioner to be paid for the

services he did not render. See BARRISTER GBENGA AKINGBEHIN v

CHIEF MRS. THOMPSON (2007) LPELR – 8168.

In the instant case, the Plaintiff contest that they are entitled to

their fee based on the agreement between them and the 1st

39

Defendant. In another breathe the Plaintiffs claim fee based on

the quantum of work done. It is on this basis for example, that the

Plaintiffs claim the sums of N3,543,750.00 for Appeal No.

CA/L/437/M/2012 against their perceived agreed fee of

N13,500,000:00. In Suit No. FHC/L/CS/741/2012 the Plaintiff claim

before this court the sum of N5,250,000:00 against their perceived

agreed fee of N20 Million. The onus is on the Plaintiffs to prove

that the claimed fees are earned based on the agreement or the

quantum and value of services rendered. This, the Plaintiffs have

failed to do in this suit.

Accordingly, this issue is resolved in favour of Defendants.

On Issue 6, it is the assertion of the Plaintiffs that the 1st Defendant

engaged them to represent her in five cases Suit Nos.

FHC/L/CS/2009, M/376/2012, CA/L/437/2012, FHC/L/CS/74/2012

and the arbitral proceeding. The Plaintiff’s claim is that the 1st

Defendant debriefed them from handling the afore-stated cases

by virtue of Exhibit P.

The Defendant’s position is that the Plaintiffs were only debriefed

in respect of one out of the five suits; that is Suit No. M/376/2012. I

am of the view that the only document to resolve this issue is

Exhibit P since document speaks for themselves. The said Exhibit P

is reproduced thus:

40

31st August, 2012

PHCN/0121/CF.1939/2012

SPA Ajibade & Co,

Suit 301 SPAACO House,

No. 27, Macarthy Street,

Onikan, P.O. Box 80373,

Lafiaji Lagos

Lagos State

Dar Sir,

RE: SUIT NO. M/376/2012

LAGOS STATE GOVERNMENT

V

POWER HOLDING COMPANY OF NIGERIA

(PHCN) PLC AND 2 ORS

The above captioned suit refers.

Please be informed that you have been debriefed from

representing us in all matters relating to the above suit.

We wish to use this opportunity to sincerely appreciate the industry

and skills which you deployed in defending the interest of the

company in this matter.

Kindly arrange to hand over the case file and all other documents

relating to this matter to Messrs Paul Usoro & Co of Abia House, 1st

Floor, Left wing, Central Business District, Abuja.

Please let us have your outstanding bills (if any) to enable us

recommend same for payment.

Thank you for your understanding.

Yours faithfully,

Signed

P.U. Echesi

For: GM/Sec/Legal Adviser

41

It is settled law that where the provision of any document is clear

and unambiguous they shall be given their plain and natural or

literal meaning. The court cannot import its own interpretation

into clear and straight forward terms of an agreement as

contained in a document. See AGUOCHA v AGUOCHA (Supra).

Given the ordinary interpretation of the content of Exhibit P, the

Plaintiffs were debriefed from handing Suit No. M/376/2012 and

not all the suits being handled for the 1st Defendant.

It follows that the Plaintiffs simply abandoned the rest of the 1st

Defendant’s brief and that being the case, the Plaintiffs cannot

claim fee on the briefs they undertook to conduct to the end,

after abandoning them without justification.

Accordingly, I resolve this issue in favour of the Defendants.

The 1st Defendant made attempts to shy away from its liability to

the Plaintiff by trying to assert that this suit is not maintainable and

enforceable against it. It is on record that this court in its ruling

delivered on 14th October 2016 wherein the court dismissed the 1st

Defendant’s application seeking the striking out of it name from

the suit on the ground that it was no longer in existence and was

not a legal person capable of suing or being sued.

In the light of the above, the submission made by the Defence

counsel on this issue is of no moment.

42

In conclusion, I am of the considered view that the Plaintiff have

failed to proffer credible and material evidence to warrant

judgment in their favour. This case is accordingly dismissed.

(Sgd)

JUSTICE SALISU GARBA

(PRESIDING JUDGE)

27/11/2017

43

JUDGMENT IN THE COUNTER CLAIM

The 2nd Defendant counter claimed against the

Plaintiff/Defendant to the counter claim as follows:

1. A Declaration by the Honourable Court that the agreements

between the Plaintiffs and the 1st Defendant in respect of Suit

Numbers FHC/L/CS/206/2009, M/376/2012, CA/C/347/2012,

FHC/L/CS/741/2012 and the Arbitral proceedings were made

under duress and or circumstances of undue influence

asserted by the Plaintiffs on the 1st Defendant.

2. An Order of the Honourable Court setting aside the

agreement/bill of charges between the Plaintiffs and the 1st

Defendant in respect of Suit No. FHC/L/CS/206/2009,

M/376/2012, CA/C/347/2012, FHC/L/CS/741/2012 and the

Arbitral proceedings were made under duress and or

circumstances of undue influence against the 1st Defendant.

3. An Order of the Honourable Court setting aside the

agreement between the Plaintiffs and the 1st Defendant in

Suit No. M/376/2012 to discharge the Mareva injunction, as

illegal, unlawful and against public policy.

4. An Order setting aside the bill of charges in Suit Nos.

FHC/L/CS/206/2009, M/376/2012, CA/C/347/2012,

FHC/L/CS/741/2012 and the Arbitral proceedings for non-

compliance with the Legal Practitioner Act.

5. An Order setting aside the bill of charges of the Plaintiffs

against the 1st Defendant for being offensive to the Rules of

Professional Conduct for Legal Practitioner.

44

6. A Declaration that the fees charged by the Plaintiffs against

the 1st Defendant are excessive.

7. A Declaration that the abandonment of the 1st Defendant’s

briefs by the Plaintiffs is unethical.

8. A Declaration that payments already made to the Plaintiffs

are in excess of the actual services rendered to the 1st

Defendant.

9. The taxation of the Plaintiff’s bill of charges by the

Honourable court.

10. An Order of the refund of N10 Million already paid the

Plaintiffs in Suit No. FHC/L/206/2009 or any fraction thereof

after taxation of the bill of charges.

11. An Order of the refund of N24 Million paid the Plaintiff by the

1st Defendant in the botched arbitral proceedings or such

fraction thereof after taxation of the bill of charges.

12. An Order for the refund of N1,900,000:00 paid the Plaintiffs in

respect of Suit No. M/376/2012 or such fraction thereof after

taxation.

13. A Declaration that by the understanding of the Plaintiffs and

the 1st Defendant, the payment in respect of Suit No.

M/376/2012, CA/C/347/2012, FHC/L/CS/741/2012 are

payable by the Attorney General of the Federation and not

the Defendants.

14. 10% Interest on judgment sum from date of judgment till final

liquidation thereof.

15. General damages of N10 Million against the Plaintiffs jointly

and severally.

45

16. The cost of this suit.

In prove of this claim as against the Plaintiff, the 2nd

Defendant/Counter Claimant filed a 24—paragraph pleadings

captioned Counter Claim dated 30/4/15 and called a sole

witness.

Bennie Chigbue testified as the DW1; his statement on oath dated

30/4/15 is adopted as forming part of this judgment.

At this point it is pertinent to state that it is trite law that a person

who is not a party or privy to a contract cannot sue on the

contract. See U.B.A. PLC v HON. SUNDAY JOHNSON & ANOR

(Supra). Thus the 2nd Defendant’s prayers seeking to set aside the

agreement between the Plaintiffs and the 1st Defendant contest

the Plaintiffs invoices and seek refunds of professional fees paid by

the 1st Defendant to the plaintiff based on allegations that the

Plaintiffs arm twisted the 1st Defendant and capitalized on its

vulnerability must fail. The 2nd Defendant was not privy to these

agreements. Hence I hold the considered view that the 2nd

Defendant has no locus standi to contest the propriety of the

contract entered into between the Plaintiffs and the 1st Defendant

to which it was not a party.

It is also worthy of note that the 2nd Defendant did not lead any

oral or documentary evidence to prove its claim as contained in

its counter claim; more so, by the judgment of this court in the

substantive case it will amount to an academic exercise to delve

into the merit or demerit of this counter claim.

46

In the light of all the above stated, I am of the considered view

that this counter is liable to be dismissed on the premise that a

person who is not originally a party to a contract, cannot be

bound by its terms, only parties to a contract can claim any rights

or obligation under it. This is known as the doctrine of privity of

contract. See ATTORNEY GEN. OF FED. V A.I.C. LTD (2000) 6 SC (Pt

1) 175 at 183.

Similarly, only parties to a contract or persons who are privy to a

contract can sue and be sued on it. See the Supreme Court case

of LDPC v NIG. LAND & SEA FOOD CO. LTD (1992) 2 NWLR (Pt 244)

653.

In the light of the above, this counter claim stands dismissed.

(Sgd)

JUSTICE SALISU GARBA

(PRESIDING JUDGE)

27/11/2017

Plaintiff’s Counsel – We would like to thank the court for the

judgment.

1st Defendant’s Counsel – We thank the court for the judgment.

2nd Defendant’s Counsel – We would like to thank the court for the

judgment.

(Sgd)

JUSTICE SALISU GARBA

(PRESIDING JUDGE)

27/11/2017