Arguing against grant of cost for Litigation Fees? This might be your line...

The Claim for Litigation cost is quite a recurring fact in most court processes. I do not intend to bring the argument here. In certain circumstances, courts have granted these sort of claims. In others, the court would refuse them. The court of Appeal in the case of  GUINNESS (NIG) PLC v.NWOKE (2000) LPELR-6845(CA) refused the claim for solicitor's fees. As a matter of fact, the court found that placing the burden of litigation on another party would go against public policy. The Court held as follows:

I agree with the observation of the learned trial Judge who held, inter alia, that the cross-appellant's claim of his Solicitor's fees of N500,000.00 is in the nature of 'special damages'. The rule that special damages must be strictly proved applies to cases of tort. The rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This, however, does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required of proof of special damages is that the person claiming should establish his entitlement to that type of special damages by credible evidence that would convince the Judge that he is entitled to an award under that head. In other words, the evidence must be of such a quality that a reasonable Tribunal would accept. See Oshinjinrin & Ors. v. Alhaji Elias & Ors. (1970) 1 All NWLR 153 at 161; Odunlaja v. Haddad (supra) 839; Osuji v. Isiocha (supra) 638 and Kosile v. Folarin (supra) 12 and 13.

The antecedent of this head of claim is that it arose as fees payable to the cross-appellant's Solicitor. In other words, the fees in point are sequel to the damages suffered by the cross-appellant for which the said Solicitor was briefed. It is not in doubt that the head of claim was pleaded with some particularity and was strictly proved. The crucial question is; Did this head of claim arise as a result of damage suffered by the cross-appellant in the course of any transaction between him and the cross-appellant? This is the question that ought to preoccupy the mind of any reasonable Tribunal dealing with the circumstances of the instant head of claim. A reasonable Tribunal, such as this Court, will definitely opine that the quality of evidence adduced by the cross-appellant on this score fell below the standard of acceptability because the circumstances making up the so-called 'special damages' occurred after the cause of action in this case had arisen. The seemingly financial inconvenience of the Solicitor's fees of staggering N500,000.00 to the cross-appellant did not form part of the basis of the tort of detinue on which the cross-appellant pivoted his cause of action. 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.

In addition, the character of the act forming the said Solicitor's fees of N500,000.00 made as a head of claim by the cross-appellant is obviously not cumulative to the tort of detinue committed by the cross-respondent. It is outside it. 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 improper to allow the cross-appellant to pass his financial responsibility couched as 'special damages' to the cross-respondent. I accordingly resolve issue No.3 in favor of the cross-respondent.

The sanctity of Terms of Employment and Requirement of Proof for Claims

Cases are won and lost on proof. The position of evidence cannot be underestimated, particularly in claims for declarations. This same proposition works with labour disputes and where a court is called upon to pronounce on the employer / employee relationship, the scope has to be defined by the terms of employment as contained in the contract of employment. In SUIT NO: NICN/LA/52/2015 MR. OBINNA NKWONTA V. MULTICHEM INDUSTRIES LTD the National Industrial Court found as follows:

In any employment relationship especially where there is a written contract, the contract document defines the terms and conditions of the relationship. The same written contract outlines the rights, obligations and liabilities of the parties under and in relation to same. In event of dispute arising between the parties therefore and judicial intervention is sought, the duty of the Court is limited simply to the construction of the contract document existing between the parties. See Okogie & Ors. Epoyun (2010) LPELR-9145 (CA).It is not for the Court to re-write contract for the parties, see Nwaolisa v. Nwabufo (2011) LPELR-2115 (CA)' and neither is it within the power of the Court to give to a party rights or benefits not available to it under the contractual terms and conditions applicable to the parties.

In that case, the claimant (employee) had sought to prove his entitlement to bonuses but which the court found unsuccessful. The court further held thus regarding the claims:

 

 In the instant case, Exh. D1 is the evidence of contract entered into by the parties in this case. I examined the 4-page document. There is nothing in that exhibit either directly or indirectly touching on the entitlement of the Claimant to Bonus in whatever form of guise. I so find and so hold. Now, the Claimant had urged the Court to hold that there exists an implied term of his entitlement to Bonus in the contract between him and  the Defendant. Usually the need to resort to any implied terms of contract will arise where there is a lacunae in the contract document and the terms and conditions contained in it. In much the same vein, the facts of the case and the surrounding circumstances will be of immense assistance in finding what any implied term may be. The facts of this case and its surrounding circumstances do not convey any intention on the part of the parties for any implied terms to be imputed into their contract. Exh. D1 - letter of Contract contains detailed provisions respecting commencement and validity of contract, Place of work, Remuneration as well as Responsibilities. If Bonus were to be an issue it would no doubt have been contained in the contract. Interestingly, aside from assertions of the Claimant and the diverse e-mail messages sent by him to the Defendant's officers, there is no other evidence in support of the existence of oral promise respecting Bonus to be paid to the Claimant. Indeed, the Claimant attested to this in the course of cross examination. 

Lastly, it is always important to place the right pieces of evidence before the court. Although the National Industrial Court would seem to have a bit of room to avoid strict principles of the rules of Evidence as contained under the Evidence Act, 2011, the court still has the inherent jurisdiction to refuse inadmissible evidence. In the same case under review, the court held as follows regarding inadmissible piece of evidence:

Now, as part of the evidence in proof of his claim for bonus, the Claimant tendered Exh. C8. That exhibit is headed ''Overall Outstanding To: Obinna Nkwonta Micheal By Multichem Industries Limited (Nigeria)'', it states the entitlement of the Claimant to =N=40,000.00 as salary for August 2014 and ''overall total sales bonuses being owned to me is =N=2,305,227.1''. That exhibit has no name as the author. It carries no date. It also has no signature. It is apparent from the content that it was prepared by the Claimant. Although the Court already admitted this exhibit, the Court is in no way precluded from expunging it if the need arises or refuse to place any reliance on it. See Bayode Afolabi v. Chief Samuel Fehintola Alaremu (2011) LPELR-8894 (CA). The law is settled that an unsigned and undated document has no probative value. See  Udo v. Essien & Ors. (2014) LPELR-22684 (CA). I therefore hold that  Exh. C8 is of no probative value and is thus expunged from record. I note that Exh. C1 is the foundation upon which the success or failure of Relief 1 rests. Thus, having found and held that there nothing in that exhibit supporting the Relief 1, I refuse the claim for the alleged Claimant's bonus entitlement from 2012 to 2014 as claimed.

Thanks for reading!