IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 20TH JULY, 2018.
SUIT NO.: NICN/EN/01/2016
BETWEEN:
BARR. COSMAS C. OKORO CLAIMANT
AND
UZO-UWANI LOCAL GOVERNMENT COUNCIL DEFENDANTS
REPRESENTATION:
Nnaemeka Onubuleze Esq. with L. C. Chukwu Esq. holding the brief of O. U. Ozol Esq. for the Counter Claimant
- M. UzomahEsq. for the defendant to counter claim holding the brief of C. C. Okoro Esq. for the Claimant.
JUDGMENT
By a complaint dated 15th January, 2016 and filed on 20th January, 2016, the claimant sought the following relieves from the court.
- a)An order of the court that the defendant should pay to the claimant forthwith his monthly salaries unlawfully withhold from November, 2014 to the month of judgment at the rate of N44,350.20.
- b)Injunction restraining the defendant by herself, agents or servants from further withholding or stopping the claimant’s monthly salaries.
- c)N50 million general damages for mental and psychological torture and anguish.
- d)10% interest on the judgment sum from date of judgment until the judgment sum is liquidated.
The claimant filed his particulars of claim and a witness deposition along with the origination process.
The defendant filed a defence on the 9th February, 2016 in the defence they counter claimed the sum of N1 Million naira as damages against the claimant as legal expenses expected to be incurred by the defendant/counter claimant’s suit.
The claimant filed a defence to the counter claim on the 2nd March, 2016.
The claimant in this suit filed a notice of discontinuance of his suit on the 15th February, 2016 and on the 2nd March, 2018 the suit of the claimant was struck out, thus leaving the counter claim of the defendant/counter claimant as the only suit for determination in this suit. The counter claim of the defendant/counter claimant was served on the claimant on the 24th February, 2016.
Hearing in this suit commenced on the 11th April, 2018. The counter claimant called one witness CCW-1 who adopted his witness deposition of 23rd February, 2018 and 5th March, 2018 and tendered Exhibit C1 (the letter detailing the cost implication for defending the defendant/counter – claimant by their retained counsel, dated 2nd February, 2016.
The defendant to the counter claim also opened and closed his case. He testified as the only witness. He tendered Exhibit D1 (ie an order Nisi in suit No – N/68M/2014. He adopted his witness deposition of 2nd March, 2016. Counsels filed their respective addresses.
From the facts and circumstances of this case the only issue for determination is whether the defendant counter claimant has been able to prove his entitlement to the sum of N1 million naira as cost of engaging a counsel to defend them in the withdrawn claims against the defendant counter – claimant.
The counter claimant is founding his claim on Exhibit C1 the letter dated 1st February, 2016 written by the law firm “Fountain Nominees Chamber” addressed to the chairman Uzo-Uwani Local Government Area giving a breakdown of the cost implication for representing the defendant in Suit No NICN/EN/01/2016 in the letter he itemizes the cost thus:
1) Transport fare on each court sitting N10,000.00.
2) Deposit on account for filing fee N250,000.00.
3) Professional Fees N500,000.
This makes a total of N760,000. In his pleadings in paragraph 3 he they pleaded this
“The counter claimant has by reason of the defendant to the counter claim’s main suit been exposed to an obligation to pay its lawyers the sum of N10,000 as appearance fee for every court sitting, N250,000 as deposit on account for filing and service of processes and the sum of N500,000.00 only as professional fees.
The counter claims in the view of this court is in the nature of special damages. The law is that special damages must be strictly proved by a party who claims same from the court. See Okunzua V. Amosu & Anor [1992] LPELR – 2531 (SC)
See also Osuji & Anor V. Isiochi [1989] LPELR – 2815 )SC).
The counter claimant in his paragraph 4 of the counter claim is claiming N1 million naira as damages. The counter claimant led no evidence and or provided particulars of how he was entitled to the sum of N 1 million as claimed. Apart from Exhibit C1, there is no evidence before this court showing that the defendant paid or released any of the amount mentioned in Exhibit C1 to their solicitor which would have been the real evidence of expenditure incurred in the defence of this suit by the defendant. The law is settled and it is that this court cannot engage in speculation in a claim that requires strict proof. In the case of Alh. Otaru & Sons Ltd. V. Idiris & Anor [1999] 6 NWLR (pt. 606) p. 330. The Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded.
See LCC V. Unachukwu [1978] 3 SC 199.
On the strength of the above authority. It is the decision of this court that the counter claimant has failed to proof his entitlement to the sum of N1 million naira as solicitors fees.
This notwithstanding the counter claimant’s claim of the sum of N1 million is for the cost of the defence of the claims of the claimant against the counter claimant. It would be recall that the claims of the claimant was withdraw and struck out on the 2nd March, 2018. The claims never proceeded to judgment. It becomes very doubtful if the counter claim of N1 million naira as damages for cost of defence of a withdrawn suit can be granted by a court in this country. Probably if the claimant’s suit had proceeded to judgment and failed, it would have swayed the mind of the court to consider that the claimant has pushed the defendant into incurring litigation expenses which ordinarily he would have not, but for the frivolous action of the claimant.
The above not withstanding it does appear that the claim of solicitor’s fees by a party in a litigation has not received any favourable judicial blessing by the courts in this country.
In the case of Nwanji V. Coastal Services Nig. Ltd. The Supreme Court had this to say.
It is an usual claim and difficult to accept in this country as things stand today. The issue of damages as an aspect of solicitor’s fee is not one that lends itself to support in this country. There is not system of costs taxation to get a realistic figure. Cost are awarded arbitrary and certainly usually minimally I do not therefore see why the appellants will be entitled to general or any damages against the auctioneer or against the mortgagee who engaged him, in the present case on the grounds of solicitor’s cost paid by them.
Per Uwaifo JSC (P.18 – para B –E)
Also the court Appeal in Obasanjo Farms Nig. Ltd. V. Tijjani Ado Muhammed [2016] LPELR – 40199.
The court held:
Now, a claim by a claimant for legal fees he paid to his solicitors is not one that is ordinarily granted by a court. In fact there is a decision that suggest that such a claim was unknown to our law.
See Guinness Nig. Plc. Vs. Nwoke [2000] 15 NWLR (pt. 689) at 132, where the court held:
To succeed on such a claim it must be specifically pleaded as special damages and must be proved by credible and congent evidence.
See. Divine Ideas Ltd. V. Umaru [2007] All FWLR (pt 1091) at 85. And for this reason, there are case law authorities that say that legal fees unless previously agreed upon and in a particular sum, cannot be claimed under the undefended list.
On the strength of the above adumbrated authorities also I therefore hold that the counter claimant is not entitled to the sum of N1 million naira being alleged solicitor’s fee paid in defence of suit No: NICN/EN/01/2016.
The counter claims in this suit fails and is hereby accordingly dismissed.
