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!

 

The Ground of Appeal that Needs not Arise from the Decision of the Lower Court

 Most times when we are confronted with this rather knotty area of law, the conclusion is quite straight forward. It goes thus: "The Ground of Appeal is incompetent, having not arose from the decision of the Lower Court." This position is replete from decisions of our courts and it is in keeping with another similar principle of law that a party should not be allowed to change his case on appeal. The case must be the same. Otherwise, litigants would clearly turn courts to play grounds where theories and fantasies could be entertained.

More often than not however, and under the particular instance that I wish to restate in this post, that salient position might not be regarded as an altruism. The Rules of Court in clear terms do not restrict the Court to a particular number of Grounds of Appeal, as the Courts are allowed to raise such grounds in resolving an appeal. This is also clearly made not to stifle or bind the hands of the court and prevent it from doing justice. However, courts seldom make recourse to this principle. The one stated above remains sacrosanct and almost like they say, the rock of Gibraltar.

Perhaps I should go straight to that point. Well, in direct terms, this principle relates to issues of jurisdiction of a court. Once a ground of appeal exists which challenges the jurisdiction of a court to entertain a suit, such ground of appeal need not arise from the decision of the lower court for it to enjoy the validity of being treated at the appellate court. It would, in the circumstances, not be clogged by that principle in the first paragraph above, nor would it be referred to as being outside the decision of the court. It is merely in keeping with the position of the law that the issue of jurisdiction can be raised at any particular time, and in any particular manner. 

Finally, the Supreme Court restated this position of the law in the case of AGWU & ORS V. JULIUS BERGER (NIG) PLC (2019) LPELR-47625(SC) where the Court held as follows:

 "The first arm of the argument of the Learned Counsel for the appellant is based on the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. This is a well settled proposition of Law in respect of which there can hardly be a departure. See Egbe v Alhaji (1989)1 NWLR (Pt.128) 546, Saraki v Kotoye (1992)9 NWLR (Pt.264)156. For every general rule there is an exception, in order to accommodate certain unforeseen circumstances. Where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision and constitute a challenge to its ratio decidendi. In Kalejaiye v LPDC & 1 Or  (unreported Appeal No.SC.429/2015) delivered on 15th March, 2019 the issue of change in the quorum of the LPDC was not the ratio of the decision of the LPDC, yet it was the only ground upon which the appeal was determined by this Court.

The ground of appeal against which the Appellants hinge their argument complained that the lower Court had no jurisdiction to decide substantive matter at interlocutory stage. This Court in a number of decisions has held that Courts are not allowed to delve into or decide the main complaint at an interlocutory stage. See FSB International Bank Nig. Ltd v Imam Nig. Ltd (2000)11 NWLR (Pt.678) 620 at 639, A.G. Kwara State & Anor. v Lawal & Ors (2017) LPELR-4234 (SC); Egbe v Onogun (1972) 1 All NLR (Pt.1)95, Ojukwu v Governor of Lagos State (1986)3 NWLR (Pt.26)35, Olaniyi v Aroyehun (1991)5 NWLR (Pt.194)652, Madubuike v Madubuike (2001)9 NWLR (Pt.719)698 at 707.

Before the trial Court were substantive suit initiated by writ of summons and a motion on notice which were filed on the 1st of July 1999. Both processes prayed for injunctive orders restraining the Respondent from declaring the Appellants redundant and ejecting them from their official quarters. The motion of 4th of October, 2000 sought for reinstating the Appellants and deeming them as employees of the Respondent. Clearly the writ of summons, and the motion of 1st July 1999 as well as the motion of 4th October 2000 sought to perpetuate the Appellants on their jobs. The language used in the three process is a matter of semantics, as there does not seen to be so much difference in the prayers. It is therefore not out of place if any of the parties complained that the trial Court decided the claims endorse on the writ when it ruled on the application of 4th October, 2000. As I have stated elsewhere in this judgment, the first ground of appeal at the lower Court being a jurisdictional question, or issue, same can be raised at any stage of proceedings including the appellate Court for the first time. See Nwankwo & Ors v. Yar'adua & Ors (2010)12 NWLR (Pt.1209) 518. In FHA v Kalejaiye (2010)19 NWLR (Pt.1226)149 at 164 para b, this Court, per Rhodes Vivour JCS said:-

"The issue of jurisdiction can be raised for the first time in any Court and at any stage of the proceedings and in the Supreme Court for the first time."

Jurisdiction is a threshold issue and it is so fundamental in that where a Court has no jurisdiction to determine an issue, the entire proceedings and judgment will be an exercise in futility. Once the issue of jurisdiction is raised, the Court is bound to examine whether it is spurious or genuine ground. In the instant case, the lower Court was right when it overruled the preliminary objection in order to consider the complaint embedded in the first ground of appeal."  Per GALUMJE ,J.S.C (Pp. 11-14 paras. D-D)

Again, I'll leave you with this quote. I hope you enjoyed reading it half as much as I enjoyed typing this.

Life Chairman of the Board of Directors or Managing Director? Give it a second thought!

 The decision in U.O.O. NIG PLC V. OKAFOR & ORS (2020) LPELR - 49570 (SC) has handed down another perspective to the way we see corporate governance. Just about a day before, a colleague had hinted on why not have a life managing director of a company, it protects the those with high stakes in the company and prevents future mishaps that could arise in corporate governance. 

Well, that was what happened in the case, the Articles of Association made provisions for it, giving a life position to the Managing Director of the company. Unfortunately, that choice of having it in the Articles of Association of the Company could not save the position. As held by the Supreme Court, only 'Director for Life' is allowed, who can still be removed from office. The Supreme Court concluded in the following words:

"It needs be stated that any clause in the Memorandum and Articles of Association which purported to make a person a Managing Director for Life or Board Chairman for Life contrary to the express provisions of the law, is an illegal contract and therefore unenforceable. Such clause is ab initio illegal and does not require a formal amendment to deprive it of the force of law. The court does not enforce an illegal contract and one cannot place something upon nothing or rely on an illegality"

It needs be stated therefore that the position of the law is quite clear. Do you have such provisions in your Articles of Association? What's the way out? 

NOTES ON REMOTE COURT HEARINGS, PRACTICE DIRECTIONS AND GUIDELINES

All practice Directions mentioned in the post can be downloaded at the end of the post. Please all opinions are those of the writer of the post

Welcome to my new post. The COVID-19 pandemic has literally affected every part of our lives and the Courts and access to justice is not spared. There are quite a lot of literature online on the next thing to happen with law practice, particularly litigation. Access to court as guaranteed by Section 6 of the Constitution has been hit with a challenge – the pandemic and the antecedent lockdown of courts and public gatherings. The use of the word ‘public’ in my last sentence has a sort of tone to denote physical presence, and would fall right in place with those who believe virtual proceedings cannot be situated in Section 36 (3) of the Constitution. They therefore call for an amendment before we go on. Afterall, cases like ALIMI & ORS v. KOSEBINU & ORS (2016) LPELR-42557(SC) among other cases of such nature have shown us the bitter part of it.

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Must hearing notices be served on each date of adjournment?

It is perhaps one of the core aspects of litigation for hearing notices to be served on the other party. It is indeed rooted in the principle of fair hearing which is the guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 ( as amended). The plaintiff / claimant / Appellant / Applicant who is to move the court may however be faced with situations where non-service of hearing notices would stall the proceedings.