Thompson v. Akingbehin(Esq.): Lawyers are Entitled to Their Fees
“While an itemized bill of costs, as required by section 16(2) (a) of the Legal Practitioners Act is desirable, the fact that a legal practitioner’s bill of charges with particulars are not itemized will not amount to non-compliance with the law or render it a nullity for non-conformity with the provisions of the Act. In other words, the court looks to the substance rather than the form. This is because the requirement of the statute is to give information to the client.” KEKERE-EKUN, J.S.C
Citation: (2021) 16 N.W.L.R PART. 195 AT 283- 294.
COURTESY: Moruff O. Balogun, FIMC, CMC, CMS
Summary of facts:The respondent is a legal practitioner. He rendered professional services to the original defendant, one of which was for legal documentation on her purchase of the property at No. 17, Eric Moore Street, Wemabod Estate, Ikeja, Lagos State for which he charged her N450, 000 representing 5% of the transaction. Upon the original defendant’s failure to pay the fee, the respondent served her a demand letter dated 1st March 2001 in which the respondent threatened a law suit if the money was not paid within seven days of receipt of the letter, and a reminder dated 23rd April 2001 in which the respondent again threatened a law suit if the money was not paid within seven days of receipt of the letter.
Subsequently, by a writ of summons dated 7th May 2001, the respondent sued the original defendant, and sought the following reliefs:
(a) N450,000 being the professional fees on legal documentation in respect of the purchase of the property at 17 Eric Moore Street, Wemabod Estate in Ikeja, Lagos State.
(b) 71/2% interest on N450,000 from the date of the writ of summons until judgment is delivered and at the rate of 21% from judgment till the judgment sum was paid.
(c) N500,000 as being general damages on the series of inconveniences, expenses and losses incurred by the respondent and occasioned by the original defendant in pursuit of the claim.
Upon being served with the processes, the original defendant filed a statement of defence and the case was set down for hearing. The respondent testified in support of his pleadings and tendered documents including the letters of demand as exhibits GA4 and GA5. He was cross-examined by the original defendant’s counsel. But the original defendant did not testify and did not lead any evidence in support of her pleadings.
At the end of hearing, counsel on either side submitted written addresses. It was contended on behalf of the original defendant that the trial court lacked jurisdiction to entertain the suit because the respondent failed to fulfill the condition precedent to the institution of the suit. Relying on section 16(1) and (2) of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990 (hereinafter referred to as the LPA), it was argued that no bill of charges containing the particulars stipulated in the LPA was served on the original defendant, and that the period of notice stated in the LPA was not given to her before the suit was commenced.
Therefore, the original defendant argued that the documents relied upon by the respondent did not meet the requirements of a bill of charges and that the trial court lacked jurisdiction to entertain the suit.
The trial court upheld the original defendant’s argument and dismissed the suit.
On the respondent’s appeal, the Court of Appeal held that there was substantial compliance with the provisions of section 16 of the LPA. The Court of Appeal allowed the appeal and set aside the judgment of the trial court. The Court of Appeal also granted reliefs (a) and (b) sought by the respondent, and awarded N300,000 to the respondent as general damages under relief (c).
The original defendant at the trial court was aggrieved and she appealed to the Supreme Court. Before the appeal could be heard, she died and was substituted with the appellants.In determining the appeal, the Supreme Court, KEKERE-EKUN, J.S.C ( delivering the leading judgment ) considered sections 16(2) (a) and (b) and 19(1) of the Legal Practitioners Act, which provide:“16(2) Subject as aforesaid, a legal practitioner shall not be entitled to begin an action to recover his charges unless:
(a) a bill for the charges containing particulars of the principal items included in the bill and signed by him or in the case of a firm by one of the partners or in the name of the firm has been served on the client personally or left for him at his last address as known to the legal practitioner or sent by post addressed to the client at that address.
(b) the period of one month beginning with the date of delivery of the bill has expired.
19(1) ‘bill of charges’ means such a bill as is mentioned in paragraph (a) of subsection (2) of section 16 of this Act ‘charges’ means any charges (whether by way of fees/disbursements/expenses or otherwise) in respect of anything done by a legal practitioner in his capacity as a legal practitioner.”
Held: Unanimously allowing the appeal in part.
1. On whether failure to itemize bill of charges renders it a nullity for non-conformity with provisions of the Legal Practitioners Act -While an itemized bill of costs, as required by section 16(2) (a) of the Legal Practitioners Act is desirable, the fact that a legal practitioner’s bill of charges with particulars are not itemized will not amount to non-compliance with the law or render it a nullity for non-conformity with the provisions of the Act. In other words, the court looks to the substance rather than the form. This is because the requirement of the statute is to give information to the client. In this case, the Court of Appeal rightly held that though exhibits GA4 and GAS are headed as demand letters, their contents fully particularized the nature of the assignments undertaken by the respondent on behalf of the appellant and the fees charged, and that there is no evidence of any reply to either letter disputing the work done or the fees charged. Furthermore, the letters were explicit as to the work done on the appellant’s behalf and the fees charged. The fact that they were not headed “bill of charges” is not sufficient to render them a nullity. Considering it otherwise would amount to promoting form over substantial justice. In the circumstance, the Court of Appeal was right that there was sufficient compliance with section 16(2) (a) of the Legal Practitioner Act as regards the preparation and service of a bill of charges for services rendered by the respondent on the original appellant.
2. On meaning of “bill of charges”-A bill of charges is a document that sets out the fees, disbursements, expenses or otherwise in respect of anything done by a legal practitioner in his capacity as a legal practitioner on behalf of his client.
3. On when legal practitioner can commence action for recovery of fee after delivering bill of charges – By the provisions of section 16(2) (b) of the Legal Practitioners Act, a legal practitioner must allow a period of one month beginning with the date of delivery of his bill of charges to expire before commencing an action to recover the charges. In this case, exhibit GA4 was written on 1st March2001, and the writ of summons sealed on 16th May 2001. The period between the delivery of exhibit GA4 and the date of issuance of the writ of summons is clearly more than one month. Precisely, more than 2 months elapsed between the date of the bill of charges or letter of demand and the commencement of the respondent’s action. Therefore, the stipulation in the section 16(2) (b) of the Legal Practitioners Act was met.
4. On conditions precedent to action by legal practitioner to recover fees- The three conditions that must be met before a legal practitioner can commence an action for his fees are:
(a) he must prepare a bill of charges or a bill for the charges which must particularize the principal items of his claim;
(b) he must serve his client with the bill; and
(c)he must allow a period of one month to elapse from the date the bill was served.
5. On effect of non-compliance with statutory condition precedent to commencement of action – Where a statute provides for the fulfillment of a condition before an action is commenced, the failure of the plaintiff to fulfill the condition renders the entire action and subsequent trial a nullity, no matter how well conducted..
6. On attitude of court to double compensation in award of damages – The law frowns on double compensation. Where a party has been sufficiently compensated for a wrong under one head of claim, it would amount to double compensation to grant an award for the same injury under a different head. In this case, the Court of Appeal not only granted the amount claimed, it granted pre-judgment interest on the amount at the rate of 71/2% from 7th May 2001 until the date of judgment and post-judgment interest at the rate of 21% until the judgment sum is liquidatedas well as N300,000 general damages. By the award of post-judgment interest on the judgment sum from the date of judgment until final payment, the respondent had been fully compensated for the loss occasioned by the appellants’ failure to pay his professional fees. The award of N300, 000 as general damages amounts to double compensation.
Therefore, the Supreme Court had to interfere with the exercise of discretion by the Court of Appeal.
7. On principles guiding claim and award of pre-judgment interest – The two circumstances in which interest may be awarded on a debt are:
(a) as of right, and
(b)where there is a power conferred by statute to do so in exercise of the court’s discretion.
Interest may be claimed as of right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is being claimed as of right, entitlement to it must be claimed on the writ and facts supporting such entitlement must be pleaded in the statement of claim. A determination of the claimant’s right to interest will depend on the evidence placed before the court. It is not for the court to speculate or conjecture or assume the facts relevant to the claim. In this case, there was no pleading in the respondent’s statement of claim in support of the claim for 71/2% pre-judgment interest. Even if evidence had been led to substantiate the relief, which is not conceded, it would have had no evidential value. Thus, the Court of Appeal erred when it awarded interestof 71/2% on the sum claimed by the respondent from 7th May 2001 until judgment in favour of the respondent.
8. On treatment of unchallenged evidence – Facts which are not controverted are deemed admitted. In this case, the appellant did not controvert or deny the contents of the respondent’s letters of demand presented in evidence as exhibits GA4 and GA5.
9. On interpretation of statutes – In interpreting a statute, the court looks at the intention of the legislature, and interprets a statutory provision in a way that would not frustrate the provision. In this case, the Court of Appeal did both and rightly construed the provisions of section 16(2) (a) of the Legal Practitioner Act in such a way that did not frustrate the provision as the court looked at the intention of the legislator, which is to ensure a legal practitioner clearly states the charges in the bill so that it is very clear to the client what he or she is being charged for.
10. On nature of general damages and principles guiding claim and award of same – General damages are such as the law will presume to be the natural or probable consequence of the defendant’s act. It is awarded to assuage the measure of the loss which flows naturally or logically from the act of the defendant. It need not be specifically pleaded, as it arises by inference of law and need not be proved by evidence. This is in contradistinction to special damages, which must be specifically pleaded and strictly proved.
11. On whether pleadings or address of counsel constitutes evidence – The averments in pleadings do not constitute evidence. Also, the address of counsel cannot be a substitute for evidence. In this case, although the appellant filed a statement of defence, she did not testify in support of her pleadings. She did not adduce evidence of any reply to the respondent’s letters of demand either disputing the work done or the fees charged.
12. On treatment of evidence on facts not pleaded or at variance with pleadings – Evidence led on facts not pleaded or which is at variance with pleaded facts goes to no issue. In this case, there was no pleading in the respondent’s statement of claim in support of the claim for 71/2% pre-judgment interest. Even if evidence had been led to substantiate the relief, it would have had no evidential value.
COURTESY: MORUFF O. BALOGUN, FIMC, CMC, CMSFORMER VICE CHAIRMAN, NBA IJEBU ODE BRANCH,IJEBU ODE, OGUN STATE.
08052871414
09121207712 [WHATSAPP]
