By J.J. Onaolapo, Esq
Introduction
It is not uncommon for a legal practitioner, having rendered diligent professional service to a client, to find that the client is unwilling — or unable — to settle the fees due. The temptation, in such moments, is to seek the quickest route to vindication: a letter of demand followed swiftly by a writ, or worse, a public complaint.
The recent decision of the Court of Appeal in Kontagora v. Garba (2026) LPELR-84232(CA) is a timely reminder that the law does not permit a legal practitioner to proceed on impulse. Before a lawyer can properly invoke the jurisdiction of the court to recover professional fees, specific statutory conditions precedent must first be satisfied. Failure to do so renders the action — however meritorious the underlying claim may be — a nullity.
## The Statutory Framework: Section 16(2) of the Legal Practitioners Act
Section 16(2) of the Legal Practitioners Act provides that a legal practitioner shall not be entitled to commence an action to recover his charges unless two conditions are met:
1. A bill for the charges, containing particulars of the principal items included in it and signed by the practitioner (or, in the case of a firm, by one of the partners or in the name of the firm), must have been served on the client — either personally, or left at the client’s last known address, or sent by post to that address; and
2. A period of one month, beginning from the date of delivery of the bill, must have expired before the action is instituted.
As the Court of Appeal emphasised, the language of this provision is clear, mandatory, and admits of no discretion. The phrase “shall not be entitled to begin an action” is not aspirational — it is an obligatory condition precedent that must be satisfied before the court’s jurisdiction can validly be invoked.
## Proof of Preparation Is Not Proof of Service
The central lesson from Kontagora v. Garba is the distinction between preparing a bill of charges and serving it. In that case, the claimant tendered a bill of charges before the trial court, which found that the document clearly set out the services rendered. The trial court proceeded to award fees on that basis, notwithstanding the defendant’s denial of ever having been served.
The Court of Appeal held that this was an error. The existence of a bill of charges as an exhibit before the court does not, without more, establish that the bill was served on the client in any of the three modes prescribed by the statute. A legal practitioner seeking to recover fees must lead affirmative evidence establishing:
– Where personal service is alleged — that the bill was actually delivered to and received by the client;
– Where service at the client’s last known address is alleged — evidence identifying that address and confirming the bill was left there; and
– Where postal service is relied upon — proof that the bill was dispatched through the postal system to the client’s address.
In the absence of an acknowledgment copy, a witness who effected service, a postal receipt, or any dispatch record, a court cannot properly find that service occurred merely because a bill exists in evidence.
## The Burden of Proof Rests Squarely on the Practitioner — and Cannot Be Shifted by the Client’s Silence
A point of particular importance for practice is the Court’s treatment of the burden of proof. It was argued that the client’s failure to cross-examine the practitioner on the question of service should be taken against him. The Court of Appeal rejected this. Compliance with a statutory condition precedent is a jurisdictional fact, and the burden of proving it rests affirmatively on the practitioner who seeks to invoke the court’s jurisdiction. That burden does not shift simply because the opposing party chose not to cross-examine on the point. Jurisdiction, the Court held, cannot be founded on acquiescence, waiver, omission, or silence.
This is consistent with the well-established authorities cited by the Court, including Thompson v. Akingbehin (2021) and Chief Sunday Evong v. Messrs Obono, Obono & Associates (2012), both of which affirm that service of the bill of charges and the expiration of the one-month period are indispensable — not merely procedural — requirements.
## Consequence of Non-Compliance: A Nullity, Not an Irregularity
Where these conditions are not satisfied, the consequence is not a mere technical defect capable of being cured. Tracing its roots to the celebrated case of Madukolu v. Nkemdilim (1962), the Court of Appeal reaffirmed that where a statute prescribes a condition precedent to the commencement of an action, non-compliance renders the entire action, and all subsequent proceedings, a nullity — no matter how well the trial itself may have been conducted. A lawyer may indeed be entitled to be paid for services rendered; but entitlement to fees and competence of the action to recover those fees are two entirely separate questions, and the trial court in Kontagora v. Garba was found to have conflated the two.
## Practical Takeaways for Practitioners
1. Always issue a proper bill of charges setting out particulars of the principal items of service rendered.
2. Preserve evidence of service — whether through a signed acknowledgment, a process server’s affidavit, or postal dispatch records. A bill of charges sitting in a file, unaccompanied by proof that it left the practitioner’s office and reached the client, is of no evidential value on the question of service.
3. Compute and observe the one-month window from the date of delivery — not the date of preparation — before filing suit.
4. Do not rely on the client’s silence or failure to cross-examine as a substitute for affirmative proof. The burden never shifts.
## A Word on Professional Conduct: The Courtroom, Not Social Media, Is the Forum
Beyond the strict legal analysis, this decision offers an occasion to restate a broader point of professional propriety. Where a client defaults in the payment of professional fees, the legal practitioner’s remedy lies in a properly constituted action before a court of competent jurisdiction — commenced only after the statutory preconditions have been satisfied — and not in public denunciation of the client on social media or elsewhere.
Legal practitioners are, by the nature of the profession, bound by standards of confidentiality, decorum, and restraint that are simply not consistent with airing client disputes on Facebook, X (formerly Twitter), Instagram, or WhatsApp status updates, whether framed as a plea for public sympathy or as an outright attack on the defaulting client. Such conduct not only risks breaching the duty of confidentiality owed to the client, but also undermines the dignity of the profession and the sanctity of the client-lawyer relationship. A lawyer aggrieved by non-payment of fees has a clear, lawful, and dignified path: comply with Section 16(2) of the Legal Practitioners Act, and let the court — not the court of public opinion — determine the matter. Lawyers are, by every measure, not among those who should run to social media for sympathy or resort to public hate campaigns against defaulting clients.
CONCLUSION
Kontagora v. Garba is a salutary reminder that the recovery of professional fees, however justly earned, is not a matter of course. It is a right hedged about by statutory conditions precedent which must be strictly proved — not merely asserted — before the court’s jurisdiction can be invoked. Practitioners would do well to treat compliance with Section 16(2) of the Legal Practitioners Act as a routine part of file management, and to resist any temptation to seek vindication for unpaid fees outside the due process of law.
This article is for general informational purposes and does not constitute legal advice. For advice on any specific matter, please consult J.J. Onaolapo & Co. Onaolapojeremiah@nigerianbar.ng 07064506533
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