Abia State Government v Hon. Nwoko (CA/A/19/2012)[2016] NGCA 93 (23 March 2016) (CA/A/19/2012) [2016] NGCA 93 (22 March 2016);

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  • Abia State Government v Hon. Nwoko (CA/A/19/2012)[2016] NGCA 93 (23 March 2016) (CA/A/19/2012) [2016] NGCA 93 (22 March 2016);

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Contract Law – payment of money – specific performance Civil procedure – jurisdiction - ratio decidendi

Headnote and Holding:

This appeal emanated from a dismissal by the lower court of a motion by the appellant in which he alleged that the respondent presented himself as legal practitioner. The appellant had raised this as defense to a claim of sum of money by the respondent.

In the appeal, the appellant argued that lower court erred in law by holding that the Legal Practitioners Act (the act) does not apply to deny the court jurisdiction over the suit. The respondent opposed the appeal by pointing out that the ground of appeal did not arise from the ruling of the lower court and does not challenge the main reason of the judgment. The appellant responded by pointing out that appellant's sole ground of appeal related to the ruling of the lower court on the non-applicability of the act, and so was valid and competent.

In deciding the matter, the court held that the trial judge never held that the act does not apply to deny the court jurisdiction over the suit. It held that where a ground of appeal does not emanate from the ratio decidendi (determinative rule of law) of the lower court’s decision, it will be incompetent.

The appeal was dismissed for incompetence.

 

 

 

In the Court of Appeal
Holden at Abuja

Between

Appellant

ABIA STATE GOVENMENT

and

Respondent

HON. NED MUNIR NWOKO

 

Judgement

ABUBAKAR DATTI YAHAYA. JCA: This appeal has arisen from the Ruling of the High Court of the FCT, delivered on the 29th day of November, 2011.

The respondent herein, was the plaintiff at the trial court, whilst the appellant was the 1st defendant. The plaintiff took out the action claiming from the 1st defendant, a declaration, various sums of money and interest on the said sums. The 1st defendant then filed a Motion dated the 28th of February 2011, praying the court to strike out the plaintiff's Suit, on the grounds that -

(a) The plaintiff is not a legal practitioner under the Legal Practitioners Act CAP L11 LFN 2004 and cannot practice as a legal practitioner in Nigeria.

(b) The plaintiff's claims are for remuneration arising from a purported contract between the plaintiff and the 1st Defendant for the provision of legal services.

(c) In the alternative, assuming the plaintiff is a legal practitioner in Nigeria, no bill of charges was presented to the 1st Defendant before the institution of this Suit. (Page 33 of the record).

The plaintiff/respondent opposed the application and filed a counter affidavit (page 39 of the record) essentially stating that he never represented to the 1st defendant, that he was enrolled as a solicitor in Nigeria and that the contract between them (Exhibit 1} was not entered into on the belief that he is a solicitor in Nigeria. He deposed that the 1st defendant was merely employing tactics to frustrate his claim as he had earlier, filed and challenged unsuccessfully, the Suit in a Preliminary Objection.

Having taken arguments, the trial court delivered its Ruling on the 29/11/11, dismissing the Motion with costs. This Appeal emanates from that Ruling.

The Appellant's Amended brief was filed on the 3/12/12 and one Issue was raised -

Does the Legal Practitioners Act apply to the Circumstances of this Suit to deny the Court jurisdiction?

The Respondent's Amended brief was filed on the 9th of January 2013 and the lone issue raised, is

Whether the Legal Practitioners Act deprives the Court below of jurisdiction to entertain the Respondent's Suit.

The Amended Appellant's Reply brief was deemed filed on 15/4/15. I adopt the Issue raised by the appellant, in resolving this Appeal.

The respondent filed a Notice of Preliminary Objection to the hearing of the appeal on the 21/2/12. The grounds are -

(i)   The sole ground of the Notice of Appeal does not emanate from the Ruling of the Court below of the 29th of Number, 2011.

(jj) The Appellant's purported ground of appeal does not raise any challenge to the ratio decidendi of the ruling of the Court below dated the 29th November, 2011.

In his submission on the Preliminary Objection, learned counsel for the respondent, Mr. Njikonye argued that the lone ground of appeal does not arise from the Ruling of the trial court and has not challenged the ratio decidendi of the Ruling, which he said, are that the Suit is on simple contract with the appellant knowing that the respondent is a London-based Solicitor and that the appellant did not make a case that the respondent practiced as a legal Practitioner in Nigeria. He referred to TURAKI VS. DALHATU (2003) 38 WRN 54 AT 69 - 70, to submit that a ground of appeal which has not emanated from the decision of the court or from the ratio decidendi, is incompetent and the appeal  is  also  incompetent.  M.  B  NIGERIA  LTD VS. NWOBODO (2005) 40 WRN 1 at 9 and 11 and KOABUCHIE VS. ILOABUCHIE (2000) 5 NWLR (Pt, 651) 178 at 203. He therefore urged us to strike out the appeal for being incompetent.

In the Amended Appellant's Reply brief, learned counsel for the appellant argued that since all the reasons given by the trial court, were to determine if the Legal Practitioners Act applies to the Suit or not, the appellant's sole ground of appeal relates to the Ruling of the trial court on the non-applicability of the Legal Practitioners Act, and so is valid and competent. He submitted also, that the particulars in support of the ground of appeal have elucidated the complaint of the Appellant He urged us to dismiss the Preliminary Objection, especially as the appeal was against the whole decisions and not just a part of it.

Now, paragraphs 1 and 4 of the statement of claim state –

1. The plaintiff is a natural person. He is a Legal Practitioner and a Solicitor of the Supreme Court of England and Wales, doing business in the name and style of Ned Nwoko. Solicitor at 2 Beaufort Road, Ealing, London.

(4) The subject matter of this Suit instituted by the plaintiff against the Defendants deals with simple contract which performance took place in Abuja within the Federal Capital Territory, within the jurisdiction of the High Court of the FCT.

The sole ground of appeal reads -

'The trial court erred in law by holding that the Legal Practitioners Act does not apply to deny the court jurisdiction over the Suit"

I have gone through the Ruling of the trial court, and the following extracts from it, show the correct position of things. At page 62 of the record of appeal, lines 5 - 12 it stated -

"I hold the view that what the plaintiff has brought to this Court is a case for determination of his rights and entitlements under a contract he had with the 1st Defendant in which he discharged his obligation. It does appear to me that the plaintiffs suit cannot strictly be classified as one for recovery of professional fees which has to be guided by the provisions of the Legal Practitioners Act, but one for enforcement of his rights...."

At page 65, lines 16 - 18, the trial judge said -

"They (i.e. the duties assigned to the appellant) do not involve exercise of legal expertise by way of practice of law as a Barrister and Solicitor within the context and contemplation of Section 2 of the Legal Practitioners Act.

He went on at lines 21 to state -

“…….the court cannot at this interlocutory stage of the case when evidence has not been led conclude for certain these duties performed by the plaintiff (sic) as Barrister and Solicitor in Nigeria."

At pages 66 - 67 he held -

"Finally, the court having found that it cannot at this interlocutory stage make a finding that the plaintiff practiced law as a Barrister and Solicitor in Nigeria, it becomes needless inquiring into whether or not he served the 1st Defendant with a bill of charges before commencing the action as required by section 16 of the Legal Practitioners Act. The section, no doubt can only be invoked when it is clear that the person involved is a Legal Practitioner who practiced law and in pursuit of recovery of fees due to him, institutes or seeks to institute an action against his debtor. In any event, the section cannot be invoked against the plaintiff as he, by the state of evidence and submissions of his counsel, never pretended that he is a Solicitor and Advocate of the Supreme Court of Nigeria who is bound by the provisions of the Legal Practitioners Act."

It is therefore clear, that the trial judge, never held that the Legal Practitioners Act does not apply to deny the Court jurisdiction over the Suit, as the sole ground of appeal had stated. Not only was this not held by the trial court, whatever statement was made in passing, regarding the issue was Obiter and not the ratio of Ruling. I agree with learned counsel for the respondent/objector, that the ratio of the Ruling is that the appellant knew and dealt with the respondent as a Solicitor based in London and there was no case made out by the appellant, that the respondent practiced as a legal practitioner in Nigeria. Once a ground of appeal does not emanate from the decision of a court, whether it is a judgment or Ruling, and the ratio decidendi of that decision, then it is incompetent - TURAKI VS. DALHATU (Supra) at pages 69 - 70 and MB. NIG. LTD VS. NWOBODO (Supra); BHOJSONS PLC VS. DANIEL-KALIO (2006) 5 NWLR (Pt. 973) 330 and CHAMI VS. U.B.A PLC (2010) 6 NWLR (Pt. 1191) 474.

I hold therefore, that the sole ground of appeal filed is incompetent.

The appellant has argued that the particulars of the ground of appeal, are an elucidation of the complaint of the appellant.

Particular (a) to the sole ground of appeal is that –

"The 1st Respondent claimed to be a legal practitioner."

The impression created thereby, is that the 1st respondent claimed to be a legal practitioner in Nigeria. This is patently untrue as he never claimed to be a legal practitioner in Nigeria. His statement of claim clearly avers that he is a "legal practitioner and a solicitor of the Supreme Court of England and Wales," The particular of the ground ought to have stated this and not misrepresent the fact.

In particular (c), it is stated that the It respondent

"instituted this Suit to recover monies allegedly due to him as the solicitor to the Appellant"

This is contrary to the averment at paragraph 4 of the statement of claim which is that the Suit was instituted based on a "simple contract which performance took place in Abuja." Again the finding of the trial judge at page 62 of the record, belies the particular,

"I hold the view that what the plaintiff has brought to this Court is a case for determination of his rights and entitlements under a contract.....the plaintiffs Suit cannot strictly be classified as  one for recovery of professional fees......:”

Likewise, , particular (e) to the effect that the trial court held that the legal practitioners Act did not apply as "the 1st Respondent who is not on the roll of legal practitioners at the Supreme Court, is practicing as a solicitor in Nigeria", is totally incorrect, as the trial court never held that the 1st respondent "is practicing as a solicitor in Nigeria." It infact held that there was no sufficient evidence, at the interlocutory stage, for it to hold, when no evidence was led, that the duties performed by the 1st respondent was as a "Barrister and Solicitor in Nigeria/' The appellant has misconceived the issues which has led to inaccurate statements.

It seems to me, that the appellant is clutching at straws in order to delay the hearing of the Suit. The points he raised in his Motion, could conveniently be raised in his defence to the Suit instituted. The Motion, which was akin to a Preliminary Objection, after the one he had filed earlier had been dismissed, amounts to a defence to the Suit, disguised as a Preliminary Objection. There was no need for that - ROBERTS (NIG) LTD. VS. ANI (2009) 13 NWLR (Pt. 1159) 522.

The Preliminary Objection filed has merit and it succeeds. The sole ground of appeal filed is incompetent, having not arisen from the Ruling of the trial court, and from its ratio decidendi. The appeal therefore also is incompetent and it is hereby struck out with N50,000 cost to the respondent against the appellant.

As regards the appeal itself, and in case I am wrong in the Preliminary Objection, I will state the Issue raised for determination by the appellant, i.e. does the Legal Practitioners Act apply to the circumstances of this Suit to deny the court jurisdiction?

In it, learned counsel for the appellant submitted that the respondent's monetary claims at the trial court are based on a contract wherein he was appointed as a Solicitor, and are for work done as a Solicitor. Hence, the provisions of section 16(2) of the Legal Practitioners Act bars the respondent from instituting the action without first submitting a bill of charges, which had not been done in this case.

The learned trial judge at page 65 had opined that the duties assigned to the respondent do not ordinarily

"involve exercise of legal expertise by way of practice of law as a Barrister and Solicitor within the context and contemplation of section 2 of the Legal practitioners Act."

But specifically, the trial judge went on to hold that –

".....the court cannot at this interlocutory stage of the case when evidence has not been led conclude for certain these duties (were) performed by the plaintiff as Barrister and Solicitor in Nigeria. The 1st Defendant on his part has not identified these for the benefit of the court."
..... In the light of the foregoing, I hold the view that the 1st Defendant has not been able to make out a case showing to the satisfaction of the Court that the plaintiff practiced as a Legal Practitioner in Nigeria when his name is not on the roll of Legal Practitioners at the Supreme Court and accordingly forbidden from practicing the profession in Nigeria.

The findings of the trial court are clear and correct that there is no evidence as yet, to establish that the respondent performed the duties he carried out, as a legal practitioner in Nigeria. This is what would have been decided one way or another after evidence had been adduced, but the appellant wanted to truncate the hearing, by filing a Preliminary Objection as a Motion, but indirectly seeking to defend the action. There is no appeal from the finding of the trial court in this regard. The finding therefore binds the parties as well as this Court - ZAKARI VS. ALHASSAN (2002) 14 NWLR (Pt. 786) 52; UKIRI VS. GEO-PRAKLA (NIG) LTD (2010) (Pt. 1220) 544. Once a party fails to appeal against a finding of a court, that is treated as acceptance of the finding -GAMBOMI VS. BINTUMI (2010) 15 NWLR (Pt. 1217) 463.

This being the case, the appellant cannot be heard to submit here, that the respondent performed his duties as a legal practitioner in Nigeria and must submit a bill of charges before instituting the action. The Issue is resolved against the appellant.

In sum, the appeal lacks merit and it is dismissed.

TANI YUSUF HASSAN, (JCA): I had the privilege of reading the lead judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA.

He has quite comprehensively dealt with the matter. I have nothing useful to add. I also dismiss the appeal

JOSEPH E, EKANEM. JCA: I read in advance the judgment which has just been delivered by my learned brother, A. D. Yahaya, JCA. I agree with the reasoning and conclusion therein. The sole ground of appeal does not arise from the ratio of the judgment of the trial court. That being so, the sole ground of appeal is incompetent. This in turn renders the appeal incompetent.

It is for the above reason and the more comprehensive reasons contained in the lead judgment that I also strike out the appeal and abide by the order as to costs in the lead judgment.

Counsel

Vantine Offia and Barth Okedu for the Appellant.
J. C.  Njikonye with A. Arotiowa and I. A. Nnana for the Respondent.