(Vol.9 No.34) OKUBULE V. ADENIYI

IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO. 2, LAGOS
BEFORE THE HON. JUSTICE INUMIDUN E. AKANDE - J
TODAY TUESDAY THE 4TH DAY OF NOVEMBER 2008

SUIT NO ID/2989/96
BETWEEN:
MR. O. ADEWALE OKUBULE ...... CLAIMANT

AND
PRINCE JIDE ADENIYI ……………. DEFENDANT

JUDGMENT

This action commenced by a Writ of Summons dated 9 October 1996. The Claimant then known as the Plaintiff claims as follows against the Defendant
"(i) N=400,000: = being sum due to the Plaintiff as agency commission and professional fees from the sale on behalf of the Defendant of the Defendant's property at Saji Ayangade street, Anthony Village, Lagos and for services rendered by the Plaintiff to retrieve the original documents of the said property from the custody of Messr-s ACB Plc sometimes in May 1996 upon the Defendant's instruction thereat.
(ii) Interest at the rate of 15% per annum on the said sum of N4OO,OOO: = from 3rd July 1996 until judgment or payment of Judgment sum.
(iii) Cost of this action."
The Statement of Claim dated 9th October 1996 was duly filed along with the Writ of Summons. It sets out the full particularity of the claims in the Writ of Summons and Statement of Claim were served on the Defendant who entered appearance and filed Statement of Defence contesting the Claimant's claims against him in the Writ of Summons.
At the trial of the substantive suit the Claimant called one witness, CW1 (i.e. the Claimant) and 23 Exhibits were tendered through CW1. The Defendant called only one witness, DW1 (i.e. the Defendant himself). No documents were tendered as Exhibits through DW1 in evidence to establish his averments in the Statement of Defence.
At the trial which commenced on the 3rd October 2001, Mr. K. E. Osaji appeared for the Claimant. Mr. Wole Ajayi appeared for the Defendant. Mr. Osaji led the Claimant (CW1) in evidence in chief in proof of the facts in the Statement of Claim. Mr. Ajayi cross-examined CW1 on the evidence in chief he gave. The Court proceedings state the names of other Counsel who appeared for the Claimant and Defendant on the relevant adjourned dates in the proceedings. DW1 was led in evidence in chief by Mr. Ajayi. No documents were tendered through him. DW1 was cross-examined by the Claimant's Counsel on the evidence in chief he gave.
On the 20th February 2007 the Defendant closed his case and the Court ordered Written Addresses to be filed and served and adjourned matter for final Address. Mr. Ajayi in his submission adopted the Written Address he filed and served dated lO1 April 2007. He informed the Court that there were 2 issues for determination. He stated that by the nature of the claim which was for special damages it needed strict proof to entitle the Claimant judgment by this Court. He stated that the evidence of the Claimant showed that the Defendant was no longer indebted to the Claimant in the sum he claimed in the Writ of Summons since he had already been settled by the Defendant as agreed. He told the Court that the Claimant did not under cross-examination of the Defendant at the trial contradict the DW1 as to the fact that the Claimant was paid by the Defendant to retrieve the title documents of the 2 plots of land, from ACB Plc, that were sold. He submitted that failure of the Claimant to call Barrister Andy Igbokwe to testify on behalf of the Claimant to prove the material facts in the Statement of Claim amounted to his withholding evidence from the Court. He submitted that the evidence before the Court did not establish that the Claimant was entitled to the amount he was claiming in the Writ of Summons. He cited and relied on the cases stated in his Written Address. He pointed out to the Court that the provision of Section 15 of the Legal Practitioners Act 2004 has not been complied with, by the Claimant in instituting this suit. He finally urged the Court to dismiss this suit against the Defendant. Mr. A. A. Adewale who appeared for the Claimant at the final Address relied on the Written Address he filed and served. He adopted same which is dated 23rd May 2007. He stated that the Claimant was instructed both orally and in writing to sell the Defendant's property. That the Claimant carried out the instruction and found one Engineer Aina as the buyer. That Engineer Aina paid N=4m to the Defendant and also the sum of N=200,000: = as professional fee which sum was shared amongst 3 lawyers, himself, Mr. Andy Igbokwe and Mr. Rotimi Aladesamni- That the Claimant also retrieved the Defendant's titled documents for the property from ACB Plc on the instruction of the Defendant as per Exhibit A. He stated that the Claimant served on the Defendant bills of charges to demand for the sum of N=400,000: = his agency commission and professional fees when the Defendant refused to pay the Claimant as per Exhibit M in line with Section 15 of the Legal Practitioners' Act 2004. He stated that the Claimant only had N=70,000: = out of N=200,000: = paid by Engineer Aina. That the evidence before the Court established that the Claimant performed his professional services and as such the Defendant has to pay him his fees. He relied on the cases stated in the Written Address in paragraphs 4.1, 4.4, 4.6 and 4.10. He submitted that Section 149(d) of the Evidence Act the Defendant's Counsel relied upon in his submission was misconceived as it was not applicable. He submitted that the evidence to establish the averment had been tendered in evidence. That Mr. Andy Igbokwe needed not to be called as a witness by the Claimant. That the Claimant, not calling him as his witness to confirm the payment of N=70,000: = he received from the Claimant was not to be regarded as withholding vital evidence. That Exhibit N established that Mr. Andy Igbokwe received the money. He submitted that since it was established that the Defendant's property was sold for N=4m the Court should order the Defendant to pay the professional fees charged. He finally urged the Court to enter Judgment in favour of the Claimant.
Since this action is a claim by the Claimant from the Defendant for the sum of N=400,000: = being sum due as Agency Commission and professional fees for services rendered as alleged by the Claimant to the Defendant the said action will succeed if it is ascertained that all the conditions that must be complied with under Section 16(1) and (2)(a) and (b) of the Legal Practitioners Act 2004 Laws of the Federation before filing this action have been so complied with. The Claimant from the averment in paragraph 1 of the Statement of Claim described himself as a Legal Practitioner and claims to be practising as such under the name and style of O. Adewale Okubule & Co. at No. 36A, Cow Lane, ADIL HOUSE, 1st Floor, Off Bamgbose Street, Lagos Island, Lagos. Therefore the provisions of the Legal Practitioners Act 2004 apply to this case. See 16(1) provides: -
"Recovery of charges etc.
16(1) Subject to the provision of this Act, a legal practitioner shall be entitled to recover his charges by action in any Court of competent jurisdiction.
(2) Subject as aforesaid a legal practitioner shall not be entitled to begin an action to recover his charges unless: -
(a) a bill for the charges containing particulars of the principal items included in the bill and signed by
him, or in this case of a firm, has been served on the client personally or left for him at his last address as known to the practitioner or sent by post addressed to the client at that address; and
(b) the period of one month beginning with the date of the bill has expired.
(3) Etc. .......................,......................"
Looking at Exhibit M attached which is the bill of professional fee which was purportedly addressed to the Defendant it was in fact drawn up by the Claimant to demand for payment of his professional fee. There is no doubt that the Claimant has prepared the said bill as specified by Section 16(2)(a) of the Legal Practitioners Act 2004, Laws of the Federation. But the conditions precedent for the action to be competent and to enable the Court to be in a position to entertain this action have not been completely fulfilled by the Claimant.
As it is there is no evidence before the Court establishing that the said Exhibit M was properly served on the Defendant in the manner prescribed more so as the Defendant's Counsel has submitted that the provision of Section 16(2)(a) of the Legal Practitioners Act 2004 has not been complied with.
What is endorsed on Exhibit M can not be taken as the required fulfilment of the conditions precedent therein. For Exhibit M to have probative value and the Court to rely on it in this judgment it must contain a proper endorsement showing that the Defendant was served personally at his known address or it was left for him at his last known address or sent to him by registered post addressed to the Defendant at that address. The Claimant has to lead evidence to establish the mode of service he used to serve the Defendant with Exhibit M. As it is, the endorsement on page 2 of Exhibit M recorded no service, and this did not satisfy the provision of the law. Even where it is stated that the Defendant refused service, sufficient evidence must exist to establish the date the service was refused and the Address at which Exhibit M was taken to when its service was refused. An Affidavit ought to be sworn to stating all these facts to give it credibility and the said Affidavit must be tendered in Court as an Exhibit. This is why I have submitted that Exhibit M has no probative value. Since the probative value of Exhibit M will determine the success of this case and it is now established that Exhibit M has no probative value, all the other Exhibits tendered by the Claimant to establish his claim will be established not to have " probative value as well.
It is my view that the submission of Mr. Adewale that the Claimant complied with Section 16 of the Legal Practitioner's Act 2004 is misconceived- He has also misinterpreted the law to suit his purpose. This Court is also of the view that the cases of Oyekanmi Vs NEPA (2000) 12 SC (Part 1) 20, Aburime Vs NPA (1978) 4 SC III and Savannah Bank Vs Opanubi (2004) 7 SC (Part II) relied heavily upon by him are not applicable and relevant to this case. They would have been relevant and applicable if Exhibit M has probative value and Section 16(2)(a) of the Legal Practitioners' Act 2004 has been fully complied with.
As a matter of fact this Court has no jurisdiction to entertain this case in view of the fact that Exhibit M has been established to lack probative value. See the case of NNPC Vs Fawehinmi (1998) 7 NWLR (Part 559) 605. The requirements of a preaction notice are not ornamental merely but go to the root of what will make the institution of such an action in Court valid and would enable the Court to exercise its jurisdiction so conferred on it.
Once a Defendant raises an objection as to non-compliance with the condition precedent to exercise of Court's jurisdiction it is for the Court seised of the proceeding to examine the objection to ascertain whether it could adjudicate.
The Court can not side track or waive aside such an objection. This Court hereby on the authority of the NNPC Vs Fawehinmi (Supra) upholds Mr. Ajayi's submission on this issue for being meritorious. Since this matter has gone to trial with the parties calling evidence the Court has the duty to determine the case on the merit as it is.
This is why the Court will dismiss this case. It is the duty of every Plaintiff or Claimant to prove his case. The Court does not make a case for the parties. If a party does not establish his case at the end of the trial he fails and the Court shall dismiss it. See the case of Acme Buildos Ltd. Vs K.S.W.B. (1999) 2 NWLR (Part 590) 288 Supreme Court Decision.
In the instant case. Exhibit M the Claimant relied upon to institute this action is established to lack probative value. The case will never succeed with Exhibit M" having no probative value.
I am therefore discountenancing Mr. Adewale's submission for not been meritorious. It is hereby ignored. The case hereby fails.
The judgment of this Court shall be an Order dismissing this case in its entirety for lack of merit.
I award no cost.

INUMIDUN E. AKANDE
JUDGE