RECOVERY OF SOLICITORS FEES IN LITIGATION IN NIGERIA: CHANGE IS UPON US! In the case of UNION BANK OF NIGERIA PLC. v. MR. N.M. OKPARA CHIMAEZE 1 the Supreme Court of Nigeria, in a decision that may have significantly altered the attitude of the courts on this subject, decided on the issue of a successful party in a litigation recovering his solicitor’s fees from the other party to the proceedings. FACTS The Respondent/Cross-Appellant as Plaintiff, took out a Writ at the Edo State High Court (“the trial court”) against the Appellant/Cross-Respondent claiming the sum of N30,000,000 (Thirty Million Naira) as general and special damages for the wrongful dishonour of the cheque he drew on the Appellant/Cross-Respondent bank in favour of Lever Brothers Nigeria Plc. The Respondent/Cross-Appellant claimed that he had enough credit in the account which he operated as a general trader and major distributor of the Lever Brothers Nigeria Plc for the Appellant/Cross-Respondent to honour the cheque. As part of his claims against the bank, the Plaintiff claimed the sum of N250,000 as special damages for his solicitor’s professional fees for representing him in the suit. On its part, the Appellant/Cross-Respondent contended that the lodgement of N206,000 into Respondent/Cross-Appellant's account was fictitious and that the purported documentary evidence that one Miss. D. Nwakaeze had deposited the amount is fraudulent. The bank further contended that a conspiracy between one of its staff and the Respondent/Cross-Appellant's staff was behind the fictitious entry in the latter's account. The Respondent/Cross-Appellant therefore, never had the required credit in his account to warrant the payment of the cheque he issued and same was duly dishonoured.
DECISIONS OF THE LOWER COURTS In the High Court, the trial Judge, Omage J., having found that the Respondent/CrossAppellant had sufficient money in his account and the Appellant/Cross-Respondent had wrongly dishonoured his cheque for the sum of N205,936.00k issued in favour of the Lever 1 (2014) LPELR-22699(SC)
Brothers Nig Plc, awarded the Respondent/Cross-Appellant N100,000 and N250,000.00k general and special damages respectively. The N250,000 awarded to the Plaintiff as special damages represented the cost of his solicitor’s professional fees for legal representation in the suit. Dissatisfied with the trial court's judgment, the Appellant/Cross-Respondent appealed to the Court of Appeal on an amended Notice of Appeal containing five Grounds of Appeal. The Respondent/Cross-Appellant also appealed against the trial court's judgment. The Court of Appeal in its judgment dismissed Appellant's appeal in its entirety, allowed in part the Respondent's Cross-Appeal and consequentially increased the general damages awarded the latter from N100,000.00 (One Hundred Thousand Naira) by N1,000,000.00 (One Million Naira). Aggrieved, both parties appealed against the judgment of the Court of Appeal with the Appellant/Cross-Respondent complaining that the increase of the general damages of N100,000.00 (One Hundred Thousand Naira) awarded to the Respondent/Cross-Appellant by the trial court to N1,100,000.00 (One Million One Hundred Thousand Naira) by the Court of Appeal is excessive. On his part, the Respondent/Cross-Appellant's grudge in his appeal was that the lower court's increase is still insufficient.
DECISION OF THE SUPREME COURT One of the issues formulated for determination by the Supreme Court was: "Whether or not the court below was right in affirming the award of the sum of N250,000 (solicitor's costs) as special damages to the Respondent in the circumstances of this suit.� In reaching its decision, the Supreme Court considered the averment of the Respondent/Cross-Appellant in his pleadings where he, at paragraphs 21 and 22 of his amended statement of claim, averred as follows:"21. Plaintiff avers that he ran and briefed his solicitors Messrs G.C. Igbokwe & Co who charged him N250,000 (Two Hundred And Fifty Thousand Naira) only to prosecute this action.
22. Plaintiff avers that he made a deposit of N150,000 to the said solicitors who issued him a receipt. The solicitor's receipt No. 045 of 2405/94 shall be funded upon at the trial of this action." The court also considered the oral evidence given by the Respondent/Cross-Appellant before the trial court to the effect that he had paid his solicitor professional fees to represent him in the suit and the fact that the only rebuttal of this fact by the Appellant/Cross-Respondent came in the form of a general traverse. The Supreme Court held that the Respondent/Cross-Appellant had shown that his solicitors charged him N250,000.00 to prosecute this case for him and also went further to claim the said sum as special damages in paragraph 25 of his amended statement of claim among his other heads of claim before the trial court. The court further held that even if paragraphs 21 and 22 of the Respondent/Cross-Appellant's Statement of Claim were denied by the Appellant/CrossRespondent, the Respondent/Cross-Appellant had established same by preponderance of evidence before the trial court. The decision of the Supreme Court to affirm the award of special damages to the Respondent was based on the principle that where a Claimant claims to have suffered special damages and goes on to prove the damages by laying concrete evidence demonstrating in no uncertain terms easily cognisable the loss or damages he has suffered, so that the opposing party and the Court as umpire would readily see and appreciate the nature of the special damages suffered and being claimed, such claimant is entitled to an award of the special damages in his favour. In this case the Respondent had fulfilled the legal requirement entitling him to special damages for his solicitor’s fees. Consequently the Supreme Court affirmed the decisions of both the trial court and the Court of Appeal in awarding the Respondent/Cross-Appellant the sum of N250,000 representing the cost of his solicitor’s fees for representing him in the suit, as special damages.
COMMENT
Generally, in Nigeria, the practice in litigation is for the parties to bear their respective costs of legal representation. Whilst there is authority for the proposition that solicitor’s fees are in the nature of special damages and have to be specifically pleaded and proved before they can be awarded by the court, the award of solicitor’s fees to the successful party in litigation is a rarity in Nigeria. In many cases, where a Claimant claims for the cost of legal representation or his solicitor’s fees in litigation, when judgment is given by the court, such claims are routinely roundly ignored by the court, or, costs, when awarded, are insubstantial, even where the Claimant may have succeeded in a substantial claim. In some other cases, where claims for solicitor’s fees have not been ignored by the court, but have been in issue, the attitude of the courts to the claims has been generally negative. In EMIRATES AIRLINE v. TOCHUKWU AFORKA & ANOR2 where at the trial court the Plaintiff claimed the sum of N2,500,000 as the cost of solicitor’s fees Court of Appeal per Iyizoba, JCA held thus: “Claims for both special and general damages or for solicitor's fees are not appropriate in an action for breach of contract except where there is an agreement by the parties to that effect. A decision which perhaps most encapsulates the attitude of the courts to the award of claims for solicitor’s fees is that of the Court of Appeal in GUINNESS (NIG) PLC V. NWOKE3. In that case, even after the Court of Appeal held that ‘it is not in doubt that the head of claim (of special damages for solicitor’s fees) was pleaded with some particularity and was strictly proved’, the court still went on to decide on the claim for special damages for solicitor’s fees that: “It is also unethical and an affront to public policy to pass on the burden of Solicitor's fees to the other party, in this case the cross-respondent…I am of the strong view that this type of claim is outlandish to the operation of the principle of special damages and it should not be allowed. It is absolutely 2 (2014) LPELR-22686(CA) 3 (2000) 15 NWLR (Pt. 689) 135
improper to allow the cross-appellant to pass his financial responsibility couched as 'special damages' to the crossrespondent.” Considering the fact that the foregoing, as evidenced in the above authorities, has been the attitude of the courts to claims for solicitor’s fees by successful parties to litigation, the decision of the Supreme Court in UNION BANK OF NIGERIA PLC v. MR. N.M. OKPARA CHIMAEZE is significant as it is the first decision of the Apex court on this particular issue, more importantly, as it represents a change in stance, on the award of claims for solicitor’s fees by parties to litigation.
MOFESOMO TAYO-OYETIBO4
4 Mofesomo Tayo-Oyetibo is a legal practitioner and in the Law firm of Tayo Oyetibo & Co and is a member of the Firm’s Dispute Resolution and Commercial Law Practice Groups.