COURT OF APPEAL (ILORIN DIVISION)

(GALINJE; MBABA; OGBUINYA, JJ.CA)

The Appellant engaged the legal services of the Respondent to defend its interests in a case which was instituted against it. The Respondent accepted the brief and communicated his professional fee of N2,500,000.00 (Two Million Five Hundred Thousand Naira) to the chairman of the Appellant with an invoice. The Appellant did not indicate that it would not pay the professional fees stated in the invoice.

Parties to the suit that was referred to the Respondent settled their dispute out of court and the case was subsequently struck out from the cause list. The Respondent thereafter demanded payment of the professional fees for the services he rendered to the Appellant. The Appellant however refused to pay despite a conditional offer from the Respondent to accept a reduced sum of N1,500,000.00 (One Million Five Hundred Thousand Naira). When payment was not forthcoming, the Respondent sued the Appellant under the undefended list procedure at the Kwara State High Court claiming the sum of N2,500,000.00 and interest on the sum at the rate of 10% per annum from the date of judgment until liquidation.

The Appellant entered an appearance and filed a notice of intention to defend the action. The trial judge found that the Appellant had no defence to the suit and accordingly entered Judgment for the respondent as per his claim. In addition the Appellant was ordered to pay N7,180 (Seven Thousand One Hundred and Eighty Naira) as filing fees and N10,000 as cost of prosecuting the case in favour of the Respondent.

The Appellant, dissatisfied with the judgment, appealed against it raising the following issues for determination:

"1. Whether the learned trial judge was not in error for failing to consider the appellant's notice of intention to defend and the affidavit in support by holding that it was filed out of time without leave of court extending the time.

2. Whether the affidavit evidence of both parties at the trial court disclosed triable issues which ought to make the trial court transfer the suit to general cause list rather than holding that the respondent's claim remained undefended."

The court was however of the view that the only issue for determination was "whether the appellant filed a notice of intention to defend the suit at the lower court in accordance with the provision of Order 23 of the Kwara State High Court (Civil Procedure) Rules, 2005, and if so, did he disclose any defence on the merit".

Learned counsel for the Appellant submitted that the notice of intention to defend an action placed on the undefended list can only be filed after the court that is seised with that action enters same on the undefended list and fixes a date for hearing. The court however found that at the time the originating processes were served on the Appellant, the suit had not been placed on the undefended list as the summons were not so marked, yet the Appellant proceeded to file a notice of intention to defend the action. It was therefore held that the notice of intention to defend the action was not filed within the time prescribed by the Rules of the Kwara State High Court.

Even though the trial court had found that notice of intention to defend the suit was filed outside the prescribed period, the learned trial judge considered the notice and held that there was no defence disclosed. The Court of Appeal also considered the affidavit evidence as contained in the Record of Appeal and also held that the Appellant was bound to pay the Respondent his professional fees for work done. The court further stated that as the fees were never in dispute, there was no valid defence to the claim. In dismissing the appeal, the court stated as follows:

"I have read the affidavit in support of the purported notice of intention to defend the suit at the lower court. Paragraphs 3 and 4 of the affidavit which is at page 17 of the record of this appeal read thus:

'3. That I know as a fact that on 12th January, 2010, I was directed by the defendant to write a letter in respect of the suit No KWS/OF/1/2 010, between MR ABDULGANIYU ADEDIRAN & 2 ORS v. OFFA LOCAL GOVERNMENT.

4. That I know as a fact that there was no consensus ad idem between the claimant and the defendant as to the fee to be charged or paid the claimant.'

The letter which was written by Mr. O. Salako on behalf of the appellant as deposed to in paragraph 3 of the affidavit at page 17 of the record of appeal is at page 6 of the record of appeal. Particulars of the case against the appellant were submitted to the respondent to prepare papers for defence of the suit. It is therefore an admission that the appellant had engaged the professional services of the respondent, and was duty bound to settle the respondent's professional fees as reflected in the respondent's letter dated 21st January, 2010 and addressed to the chairman of the appellant.

Having admitted that the professional services of the respondent was obtained and there is clear evidence that the respondent had forwarded to the appellant his professional fee in writing, the appellant's argument that there was no agreement on the fee payable to the respondent is baseless and amount to a sham defence as it is not competent to dictate the respondent's professional fees. I therefore agree with the learned trial judge that the appellant's affidavit in support of the purported notice of intention to defend the action disclosed no defence on the merit.

The Apex Court has held that a defendant who has no real defence to an action should not be allowed to dribble and frustrate the plaintiff and cheat him out of judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. See Okoli v. Morecab Finance (Nig) Ltd (2007) 30 NSCQLR 453 @ 474.

The desire of the appellant to negotiate with the respondent on the appropriate fees in the circumstance of the case, does not in any way excuse it from the liability to settle the respondent's professional fees.

I am therefore of the total conviction that the lower court was right when it refused to transfer the suit to the general cause list.

The sole issue identified by me is therefore resolved in favour of the respondent and against the appellant. The appeal therefore lacks merit and it is therefore dismissed."

Counsel:
A.A Bello for the appellant
Teju Adigun with him Amaka Nwosu for the respondent
This summary is fully reported at (2012) 10 CLRN

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