By Amala Umeike and Kehinde Adedoyin
Initiating or defending a legal action, no doubt comes with legal costs and expenses. These expenses would usually include official fees and expenses to be made in Court and the fees for hiring a legal Counsel to initiate or defend an action in Court by a party.
Typically, one of the concerns which parties raise at the commencement or during the pendency of a legal action is whether they will be able to recover the cost of prosecuting or defending legal actions. This is particularly so where a party is defending an action which the party deems frivolous or amounts to an abuse of Court process.
It has now become the practice in legal proceedings to include a claim for Solicitor’s fees often conveyed as legal fees. The Claimant in this instance seeks, in addition to any other reliefs, to be reimbursed for the cost of prosecuting the legal action.
This paper briefly examines the possibility, under the current jurisprudence in Nigeria, of recovering cost of prosecuting a legal action. Particularly, the paper examines the previous and recent position of the law of the subject matter and explains how a party can recover the cost of prosecuting a legal action as special damages.
*Is it against public policy to request for the award of Cost for Prosecuting a Legal Action?*
In Nigeria, it appears from previous authorities that the prevailing view was that a request to the Court to award the fees paid by a winning party to his Legal Counsel for prosecuting a legal action, was against public policy and indeed unethical.
This notion was stated by the Court of Appeal in Guinness Nig. Plc. v. Emmanuel Nwoke  15 NWLR [Pt. 689] 135. In that case, one of the issues that was raised in the appeal was proof of claim of the solicitor’s fees, the Learned Trial Judge in the matter had dismissed the claim of the N500,000 as cost of Solicitor’s fees by the Cross-Appellant (Emmanuel Nwoke) who was the Claimant at the High Court (Lower/Trial Court).
The Counsel for the Cross-appellant in the Appeal sought to convince the Court that the legal fees of N500,000 paid by his Client to his Firm fell within the realm of special damages which could be recoverable since he has proved same. This line of argument was rebuffed by Counsel to the Cross-respondent who stated that the Trial Judge was right when he dismissed the said claim for N500,000 on the grounds of remoteness and enforceability.
The Court in resolving this issue agreed with the Trial Court in dismissing the claim for Solicitor’s fee by the Cross-Appellant on the grounds inter alia that it is “unethical and an affront to public policy to pass on the burden of solicitor’s fee to the other party”.
However, in our humble view, the Court in that case failed to further explain the immorality in seeking to recover the cost of Solicitor’s fee by a successful party, especially where the party has also shown unconscionable conduct by the losing party leading to the action and the Solicitor’s fee is shown to be reasonable.
However, this position appeared to be the law as decisions in Ihekwoaba v. African Continental Bank Ltd (1998) 10 NWLR (Pt 571) 590 at 610-611 and Nwanji v. Coastal Services (Nig) Ltd (2004) 11 NWLR (Pt 885) 552 all towed with the principle that a claim by a Claimant for legal fees he paid to his Solicitor is not one that is ordinarily granted by a Court.
However, the view that a request for the award of the cost of Solicitor’s fees is unethical and immoral appears to have now been jettisoned by the Court. A more liberal, and in our opinion apposite position is that a party can recover the cost of prosecuting an action/solicitor’s fees as special damages, if the party is able to prove the such cost of prosecuting an action.
In CHIEF JOSEPH AGBALUGO & ANOR v. MR. ISAAC IZUAKOR. (2017) LCN/9870(CA), the Court stated that:
*The law is that a claim by a claimant for legal fees he paid to his Solicitor is not one that is ordinarily granted by a Court – Ihekwoaba Vs African Continental Bank Ltd (1998) 10 NWLR (Pt 571) 590 at 610-611, Nwanji Vs Coastal Services (Nig) Ltd (2004) 11 NWLR (Pt 885) 552. It is correct that in Guinness (Nig) Plc Vs Nwoke (2000) 15 NWLR (Pt 689) 135 it was suggested that such a claim was unknown to our law. The correct position of the law, however, is that solicitor’s fees is claimable, and to succeed on such a claim it must be specifically pleaded as special damages and must be proved by credible and cogent evidence -.”*
Furthermore, in Ajibola v Anisere & Anor (2019) LPELR-48204(CA) where the Plaintiff/Appellant claimed the sum of N2,000,000 as Solicitor’s fees for the prosecution of the case, the Court awarded the said sum as claimed and held that:
“ *It is progressive to note that our law has moved from GUINNESS (NIG) PLC V NWOKE (2000) 15 NWLR, PT 689, 135 when such a claim was said to be unknown to law to the more dynamic posture of our Courts in the more recent cases of LONESTAR DRILLING NIG LTD V NEW GENESIS EXECUTIVE SECURITY LTD (2011) LPELR – 4437 (CA) and NAUDE & ORS V SIMON (2013) LPELR – 20491 (CA) where such claims are granted if properly pleaded and proved. The instant case falls into this latter category of legal dynamism. I therefore award N2, 000, 000 in favor of the plaintiff/appellant for money paid to his solicitors for the prosecution of this case as claimed”.*
From the position of the Court in the two latter cases cited above, one can submit that the position of the law has shifted from the dictum that a claim for Solicitor’s fee was immoral and unethical as held in GUINNESS (NIG) PLC V NWOKE (Supra) to a more progressive view that a claim for Solicitor’s fees can succeed insofar as such fees can be proven by evidence.
*How a Party can recover the Cost of Prosecuting a Legal Action*
Given that the present position of the law supports the view that a successful party can recover the cost of prosecuting a legal action, it is now pertinent to determine how to successfully make an application for an award of the cost of prosecuting an action in Court.
From a review of the authorities on this issue, it is stated that the Solicitor’s fee or cost of prosecuting a legal action will fall under the category of special damages which means it has to be pleaded specially and evidence adduced to prove it. This was specifically emphasized in KLM ROYAL DUTCH AIRLINES v. IDEHEN (2017) LPELR-43575(CA) where the Court noted that:
” *The last aspect is the Appellant’s complaint about the award by the trial Court, the sum of N500,000.00 was awarded to the Respondent. The Appellant contends that costs fall within the category of special damages which must be strictly proved. Cost of the action is different from the cost of prosecuting the action which is in the form of special damages* .”
To satisfy the standard of proof required for special damages, it is opined that the Claimant should particularise the claim for cost of prosecuting the legal action and back same up with at least the instruction letter engaging the Legal Counsel to prosecute the matter stipulating the legal fees, a receipt or invoice from the Counsel to the party in respect of the fees and evidence of payment of the said fees by the party to the Counsel.
We submit that where a successful party has proven that the said fees were paid to the Counsel and same is reasonable under the circumstances, the Court should hold the progressive and prevailing view that claims for recovery of cost of prosecuting an action should be granted if properly pleaded and proved.