NARD N18Million GARNISHED BY MAXIMUS; AND THE ALLEGED JUDICIAL RASCALITIES

At the tail end of last year in 2017, the NARD lawyer, Mr Maximus, took out a Writ against NARD to recover what he said was debt owed him by NARD. The suit was brought on pursuant to Order 11 of Enugu state High Court Civil Procedure Rules. This was the Order on Summary Judgment. Maximus story was that pursuant to a purported Memorandum of Understanding between NARD and himself, he was owed an outstanding sum of over N18Million by NARD in his legal duties for NARD. It was this debt that grounded the said N18Million suit. Later on this year 2018, judgement was given to Maximus to the tune of over N18Million. This judgement debt was executed against NARD by Maximus using the garnishee proceedings. NARD account and accounts of some of the branch ARDs were garnished to recover the judgment debt. NARD and branches thereby lost the whooping sum of over N18Million to Maximus.

The issues raised by the above development, for analysis and determination, are the high points of this article. We shall be tearing apart this legal events and processes, so as to ascertain the propriety, validity and ethico-legal status and circumstances of this judicial process that led to the judgment and execution of same. In doing this, we shall be exposing the oddity, recklessness and illegalities perpetrated by the relevant parties involved in this suit. We shall be showing that the judgment and execution are not only reversible with immediate effect or on appeal, but that there are ethical breaches that will result in probable professional sanctions of those involved in the ethico-legal breaches.

The following issues shall be resolved in this article:

1. Whether NARD legally engaged Maximus at all in line with NARD Constitution

2. Whether NARD disengaged Maximus if, or after being, engaged before the commencement of Maximus suit

3. Whether NARD signed the purported Memorandum of Understanding with Maximus in the first place

4. Whether NARD was owing Maximus some debt as alleged in the suit, whether liquidated or not

5. Whether Maximus had a liquidated money demand before instituting his suit under Order 11

6. Whether Maximus competently sued NARD, a non amorphous organization, in representative capacity, when he included the NARD-accused Mr Onyebueze, as party representing NARD in the suit.

7. Whether Mr Onyebueze, as NARD representative in a representative suit, had the legal capacity to engage a different lawyer to defend him in that suit,  at variance with NARD position and interests

8. Whether the Court had the powers to adjudicate the suit under the Undefended List procedure of Order 11, and give judgement and Garnishee Order in favour of Maximus

9. Whether Maximus and Court, in line with the NARD Constitution, had the legal capacity to have garnished the branch ARD accounts when the branches were not joined in the main suit.

10. Whether the parties and the judge have a case to answer at the various professional disciplinary committees as regards any professional ethical breaches.

The above ten issues shall be lumped together, and some of the issues presumed to be true in favour of Mr Maximus, though without conceding them to be true in reality. This will enable us resolve the issues as presented by Maximus, and not as presented by NARD. In doing it this way, we shall have made it obvious that all the Maximus defence has been put into consideration, leaving him with no other defence at the Appeal Court. We shall have shown that Mr Maximus had no cause of action at the time he instituted the suit. We shall have shown that the judgment was obtained by fraud. We shall have shown that the suit was incompetent. We shall have shown that the trial Court had no jurisdiction to entertain the matter when it did. We shall have shown that the judgment and Orders were default judgements and Orders. We shall have exposed the height of perjury, fabrications and collusions unexpected of lawyers and doctors practising medicine and law, to warrant their deserving of retaining of their professional licenses to practice medicine or law.

We can now take apart the issues and ratio in the suit and the trial Court decision one after the other below:

Issue one is resolved in favour of Maximus. It is hereby resolved, without conceding, that NARD engaged Maximus. According to Maximus, in sworn affidavit, the process of engaging him started and ended in 2017. NARD has no information on the time Maximus was engaged.

Issue two is resolved in favour of Maximus. As at the time of instituting the recovery of fee suit, Maximus was still the NARD lawyer. The implication is that the purported Memorandum of Understanding was still operative at the time Maximus instituted the suit.

Issue three is without conceding, resolved in favour of Maximus. There are two versions of the Memorandum of Understanding. We shall without conceding, resolve in favour of the Memorandum of Understanding filed by Mr Maximus at the trial Court as the operational Memorandum. Therefore, all the discussions involving the issue of Memorandum of Understanding shall be done in light of the provisions of the Memorandum of Understanding filed by Maximus at the trial High Court. Those provisions shall be presumed without concession to be true.

Issue four is not readily resolved. This is because issues were joined by NARD and Maximus on this particular head of issue. NARD says and he says. NARD maintained that the former president, Mr Onyebueze, collected a levy of N32Million to offset all legal indebtedness during his reign. Onyebueze claimed that he did not pay Maximus the over N18Million in debt as levied and collected. Maximus maintained that he was owed this amount of money. Whoever is telling the truth may not actually be important in this case, however. This is because the purported Memorandum of Understanding did not include bulk payment or payment before conclusion of the suits in its terms and conditions. And because most of the suits were still pending in court at the time of instituting this suit, the issue of compulsory and immediate payment had not arisen. The suit was therefore premature and incompetent, as there was no demand for quantum merruit entitlements in the suit. We therefore consider Issue four of no purpose in resolving the gravamen of this article.

Issue five: Whether Maximus had a liquidated money demand before instituting his suit. In other, was the cause of action and the suit competent.

This issue is the gravamen of this article. Resolving this particular issue will resolve the competence and validity and legality of the suit and its consequential judgement and execution. The suit was brought pursuant to Order 11. Order 11 is specifically for Liquidated Money Demand. Any suit not of liquidated money demand cannot be litigated under Order 11. A suit wrongly brought under this Order is incompetent; any trial is a mistrial; and any judgement is a miscarriage of justice.

Therefore, we shall now turn to the meaning of Liquidated Money Demand to know if Maximus Suit fell under this Order 11 that he brought the suit.

In the case of Zenick Global Star Ltd v The Hon Min of Science & Tech (CV/2313/11), Judgement delivered by Ashi, J on 21/05/12; Ashi J stated the law on Liquidated Money Demand thus:


"It should be kept in mind that proceedings for summary judgment on the undefended list are designed to secure expeditious determination of claims for the recovery of debts or liquidated money demand. A debt has been defined as a sum of money owed by one person to another under a contract or otherwise whilst a liquidated money demand is defined as a specified amount which has accrued in favour of the plaintiff from the defendant. Whichever way one looks at it the content of both ideas is the same, in that what the plaintiff claims from the defendant, ultimately, is a sum of money. In order to succeed the plaintiff must, in his affidavit in support of the writ, convince the court that there are good grounds for believing that there is no defence to the claim made out. In doing so the affidavit must contain such materials, including photocopies of documents, if any, which show that until the contrary is proved, the defendant is, indeed, indebted to theplaintiff or is otherwise liable to pay a definite amount to the plaintiff at a given time and in a particular way but that the defendant has defaulted in doing so without cause shown.


 A liquidated sum must be ascertained and ascertainable as a mere matter of arithmetic calculation and must have accrued to the plaintiff at the time of filing the action in such a way that if two separate trial courts were to sit at the same time over the same claims, they will award exactly the same sum. In contradistinction an unliquidated sum is such that cannot be determined at the time of filing the claim. As such it could not have accrued to the plaintiff at that moment but is expected to be determined by the court at the end of trial, on a balance of probabilities, dictated by evidential proof".

See also the following cases: Nortex (Nig) Ltd. v. Frang Tools Co. Ltd (1997) 4 NWLR (Pt. 501); Savannah Bank v. Kyentu (1998) 2 NWLR (Pt. 536(41); Okeke v. NICON Hotels Plc (1999) 1 NWLR (pt. 586); See Odume & ors v. Nnachi & ors (1964) ALL NLR 324; and Olubusola Stores v. Standard Bank (1975) ALL NLR 123.

From the foregoing exposition, it is abundantly clear that the cause of action presented to the trial Court by Maximus was not a liquidated money demand. This is because the purported Memorandum of Understanding did not include bulk payment or payment before conclusion of the suits in the terms and conditions. And because most of the suits were still pending in court at the time of instituting this suit, Mr Maximus was therefore not entitled to full and immediate payment as he prayed and sued under Order 11, at the time of instituting the suit. The cause of action was thus not a liquidated money demand.

The existence of Memorandum of Understanding between contracting parties is not in itself a cause of action under Order 11. In fact a Memorandum of Understanding is not a cause for the recovery of debt in any suit whatsoever. The relevant cause derives from the full performance of the contract under the Memorandum of Understanding. It is only the full performance of the contract under the Memorandum of Understanding that will entitle the promisee to a debt recoverable in a suit for debt.

Furthermore, the recovery of a lawyer's debt is absolutely predicated upon a mandatory precondition to be fulfilled by the lawyer. This is statutorily provided in section 16 of the Legal Practitioners Act. Thus, a lawyer's debt is not recovered like any other form of debt.

The cause of action for the institution of a suit to recover a lawyer's properly prepared and served professional fees, which are liquidated money demand, is statutorily provided to be as contained in the Bill of Charges. The Bill of Charges is a document containing the amount of fees owed a lawyer after the performance of his legal services to a client. It is a bill of services rendered, and not a proposal of the financial implications of what is expected to be done by the lawyer for his client. It must state clearly what was performed and the cost of each service. The total sum, if not disputed, is a liquidated money demand, which all the same is taxable.

In the instant case, the suit was brought pursuant to a memorandum of Understanding rather than pursuant to an undisputed, well prepared and served Bill of Charges prepared and served on NARD after the delivery of the services. This originating process, coming from a person called to the Nigerian Barr and practicing under the Legal Practitioners Act, and canvassed as he did in his brief of arguments, was therefore misleading to the judge, fraudulent, incompetent and void, and thus fatal to the entire suit. The judgement obtained using this incompetent process is also completely void for want of jurisdiction.

Issues six, seven and eight are resolved against Maximus. The Nigerian Supreme Court has recently and also in the past, made direct and definitive statements on similar issues of representative suits. These Supreme Court ratio Decidendi have binding effect on all courts including the Supreme Court and Enugu state High Court. Below are the clear positions of the apex Court on this type of representative suit:

"Generally, the rule as to representative actions is said to have been derived, a long time ago, from the Court of Chancery, which required the presence of all parties to an action, so as to put an end to the matters in controversy. However, the practice was relaxed in due course since 1876 in Commissioner of Sewers of the City of London Vs. Gellantly (1876) 3 Ch.D 610 at 615, where the Court held as follows:
"Where one multitude of persons were interested in a right, and another of persons interested in contesting that right, and that right was a general right and it was utterly impossible to try the question of the existence of the right between that two multitudes on account of their number - some individuals out of the one multitude might be selected to represent one set of claimants and another set of persons to present the parties resisting the claim and the right might be finally decided as between all parties in a suit so constituted."

"This Court held that by the provisions of Order 13 Rule 14 of the High Court (supra) the persons being represented and the persons representing them must have the same interest in the cause or matter. Not only that, the grievance which they all have must be common grievance. The same view was held in Adefulu vs Oyesile (1989) 5 NWLR (Pt.122') 377 at 396. In that case, this Court held, inter alia, as follows:


"...........to bring a representative action....... It is essential that the representative in the action must have the same interest as the persons that he claims to represent. lf the interests as well as the grievance are common, a representative action would be in order, provided that the relief sought in the action is in its nature beneficial to those whom the plaintiff represents."


"Where, however, he falls out with the unnamed or represented parties for any reason, the Court has power to add or substitute any person represented, though unnamed in the representative action, and to bring him in as at the date of the original writ, Otapo v Sunmonu, (supra) approvingly, adopting Moon v. Atherton (1972) 2 QB 435; (1972) 3 WLR 57; (1972) 3 All ER 145. The powers that inhere on the named plaintiff are hedged around with limitations. For instance, he can only represent those who have given him authority to do so, and in respect of a claim in which his interest in the subject matter is common with that of those he represents. He cannot, without their authority and order of Court authorising him to do so, defend counter claims made against him in the principal action , Smith and Ors v. Cardiff Corporation (1953) 2 AII ER. 1373.


"After judgment, he cannot deprive other persons of the same class of the benefit of the judgment if they think fit to prosecute it, Handford v. Storie (1825) 2 Sim. and St. 196, Re, Alpha Co (1903) 1 Ch 203; Re Calgary etc. (1908) 2 ch 652, Watson v. Cave (No.1) 17 Ch. D. 19 Cotton L. J, approvingly, adopted in Otapo v Sunmonu.


"What crystallises from the earlier exposition on the point is that the jurisprudential postulate underlying suits in representative capacity is that the person or persons suing or defending in a representative capacity must have the same interest in the proceeding , Ogamioba and Ors v. Chief Oghene and Ors [1961] All NLR 59 at 62; (1991) 1SCNLR 115. This means that the parties on record [and those they represent] must have common interest.


"Put differently, the subject matter must evince a common interest as opposed to diverse interests, Ukpong and Anor v Commissioner for Finance and Economic Development (2006) LPELR -3349 (sc); common grievance and the reliefs sought must, in their nature, be beneficial to all the representatives and those represented. The cases on this point are many, Market and Co Ltd. v. Smith and Ors v. Cardiff Corporation (1954) 1 QB 210; Nsima v. Nnaji and Ors (1961) NLR 441; Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) 614; Idise v. Williams Int. Ltd. [1995] 1 SCNJ 120; [1995] 1 NWLR (pt. 370) 142; Ukatta v. Ndinaeze [1997] 4 SCNJ 137, 139; [1997] 4 NWLR (pt. 499) 251. Others include Oragbaide v Onitiju (1962) 1 All NLR 32, 37 citing Mark and Co. Ltd v Knight S.S. Co. Ltd. (1910) K.B, 1021, per Fletcher - Moulton L J; , Charter v Rigby and Co (1896) QB 113; Amachree v Newington 14 WACA 97; Ayinde and Ors v Akanji and Ors [1988] 1 NWLR (pt. 68) 70; Akporue v Okei (1973) 12 SC 137; Ukpong and Anor v Commissioner for Finance and Economic Development and Anor (2006) LPELR -3349 (SC). From the above survey of binding authorities, it is obvious that similarity of interests would not suffice in the absence of a commonality of interests, Ukpong and Anor v Commissioner for Finance and Economic Development and Anor (supra); Obiode v Orewere [1982] 1-2 SC 170, 175 -177; Wiri v Wuche [1980] 1-2 SC 1, 42-43; Afolabi v Adekunle [1983] 2 SCNLR 141, 54; Atane v Amu [1974] 10 SC 237, 243-244.


"Even then, the burden is on the plaintiff [and with respect to this application, the applicants herein] to establish a commonality of interests, Atane v Amu (supra); Ogamioba v Oghene (1961) 1 All NLR 59, 60. In all, the applicants have a duty to satisfy this Court of the commonality of their interests. This must be evidenced in the following twin prerequisites, common grievance and a relief or reliefs beneficial to all of them, Ayinde and Ors v Akanji and Ors [1988] 1 NSCC 43, approvingly, adopting Ogamioba and Ors v. Oghene and Ors (1961) 1 All N.L.R 59, 60."Per NWEZE, J.S.C. (Pp. 58-64, Paras. F-D)"


" A fundamental principle underlying suits in representative capacity is that the person or persons suing or defending in a representative capacity must have the same interest in the proceeding - See Ogamioba & Ors v. Chief Ogene & Ors (1961) All NLR 59 at 62; (1991) 1SCNLR 115. This means that the parties on record and those they represent must have common interest (not similar interest) common grievance and the relief sought must in its nature be beneficial to all the representatives and those represented -See Market & Co Ltd. v. Smith & Ors v. Cardiff Corporation (1954) 1QB 210, Nsima v. Nnaji & Ors (1961) NLR 441 and Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) at 614. The principle was re-stated by the apex court in Idise v. Williams Int. Ltd. (1995) 1 SCNJ 120; (1995) 1 NWLR (Pt. 370) 142. See also Ukatta v. Ndinaeze (1997) 4 SCNJ 137 at 139; (1997) 4 NWLR (pt. 499) 251." Per NGWUTA J.C.A. (P. 22-23, paras. D-C)".

From the foregoing, the suit against an organization like NARD, with an existing Constitution, and with an interest different from the interest of its immediate past president, was not properly constituted when its immediate past president, who was under the suspicion of collusions with a lawyer he employed during his tenure to defraud the association; but allegedly did not pay him during his tenure; only to suddenly protest for the payment the lawyer after leaving office; is greatly circumspect. To make matters worse, the immediate past president did not hand over any documents to his successors on leaving office as regards any contractual agreement with the said lawyer. The successors became aware of the documents later on, long after the immediate past president had officially handed over and left office. In fact, some of the documents were seen for the first time in court, after the recovery suit had been instituted.

The said documents were dated back into the period of reign of the immediate past president, to the extent that the documents bore telltale signs of concoctions, fabrications, perjury and fraud, purportedly aimed at defrauding NARD. Thus, the Memorandum of Understanding was created after the Bill of Charges was prepared and served on NARD, while the Bill of Charges was prepared and served, not only before the engagement of the lawyer, but even before the purported contract was executed.

All the evidence of service of demand notice on NARD was evinced after the contract president had left office. No evidence of demand notice served on the contract president could be adduced because none existed. The contract lawyer was asleep when the contract president was in power; and suddenly woke from his slumber when the contract president left office. That was the summary of this alleged elaborate concerted scheme.

Issue nine is resolved against Maximus and the Court. A party that is not included in the main suit is incompetent of indiscriminate inclusion in the garnishee proceedings. The garnishee Orders are default judgements on the ARD branches so garnished. It is also a default on NARD stricto senso. Constitutionally and administratively, the different ARD branches that were garnished were clearly separate financial entities from NARD. NARD did not file pleadings in the suit before the judgment.

Issue ten is also resolved against Mr Maximus. This is because the RPC is clear on the nature of practice expected from a lawyer in Nigeria as an agent of court. The duties of a lawyer to client, court and other legal practitioners is spelt out in the Rules. The punishment for unethical conducts is also clearly stated in the Rules. The affidavit evidence deposed to by Maximus and Onyebueze, where a Bill of Charges was served on NARD in 2016, while NARD was also deposed to have first proposed and engaged the same Maximus in 2017 by the duo of Maximus and Onyebueze, raises a lot of perjury and unethical questions. The entering of judgement by the trial Court in favour of Maximus under Order 11, when in fact there was no liquidated money demand before the trial Court, also raises judicial rascality questions in the minds of the observers.

©Awkadigwe Fredrick Ikenna 2018