IN THE SUPREME COURT OF NIGERIA
On Thursday, the 20th day of April, 1978
Before Their Lordships
GEORGE S. SOWEMIMO….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
KAYODE ESO….. Justice, Supreme Court
ANDREW O. ABURIME
NIGERIAN PORTS AUTHORITY
The appellant commenced these proceedings in the High Court of the Bendel (formerly, Mid-Western) State holden at Warri by a motion praying the court:
“that his bill of fees delivered to the Nigerian Ports Authority (hereinafter called the said claim) be taxed or referred to a taxing Master to be taxed, the said solicitor giving credit for all sums of money by him received from or on account of the said client, and refunding what (if anything) may on such taxation appear to have been overpaid; and that the court or Taxing Master tax the costs of the reference, and certify what shall be found due to or from either party in respect of the bill and demand, and of the costs of the reference, to be paid according to the evidence of the taxation and that the court enter judgment for the amount approved or to make such other order or orders as the court may deem proper.”
The facts which form the background to this application are as follows: The appellant accepted at the request and instructions of the respondents to defend them in an action preferred against the respondents by one P.I. Igueben in the High Court, holden at Warri (hereinafter referred to as “Suit W/32/72”); and for this service he stated in a letter (Exhibit “B”) to the respondents that his fee was 6000 guineas. Exhibit “B” reads;
“The Legal Officer,
Nigerian Ports Authority,
29th December, 1972
Re Suit W/32/72 P.I. Ordia (Alias P.I. Igueben) v. Nigerian Ports Authority
I refer to your letter ……………… dated 11th December, 1972 in which you instruct us to appear as junior counsel to C. Ikeazor, Esq., in the above suit pending in the Warri High Court.
As you rightly pointed out I have already made one appearance (on 20/11/72) on behalf of the N.P.A. Right now I have prepared (1) the counter-affidavit to a motion for judgment filed by the plaintiff and (2) a motion for striking out of the said suit, and I shall be proceeding to Warri tomorrow to file them.
The next adjourned date is the 3rd of January, 1973 and I shall be in court accordingly.
My fee for this matter is 6000 guineas. I should be glad for an early settlement.
Sgd. A.O. Aburime.”
There was no direct reply to this letter by the respondents but on the 27th January, 1973 they sent “Remittance Advice” addressed to the appellant at his business address – 7A Samuel Ogbemudia street, benin City. In the body of the letter to which was attached a cheque No. 364560/105745 for N4200 (Four thousand two hundred Naira), that is, 100 Pounds there appeared also the following endorsements:-
“Date Reference S. D
24/1/73 Suit W/32/72 4200
(Four thousand two hundred Naira)
Cheque No. 364560/105745 of 21/1/73 in settlement herewith.
Received by ………………………..Date………………..”
Upon receipt of the “Remittance Advice” the appellant collected the cheque which he subsequently paid into his personal account and signed, the “receipt space or column”, and entered therein the date of receipt – 6/2/73- also in the appropriate column (as shown above in blanks) in the said “Remittance Advice.”
After a number of appearances by the appellant and through other counsel on his behalf and instructions, for a number of interlocutory proceedings in the Warri High Court, in the said Suit W/32/72, the respondents terminated the services of the appellant; they asked him not to defend the case any longer. The appellant asked to be paid the balance of his fees (N8400 i.e. 4200 Pounds) but the respondents refused to do so stating that they were dissatisfied with his services and, in any event, that the 2000 guineas (4200 Pounds) already paid by them to the appellant should be regarded “as adequate compensation for the job already done in the said proceedings.”
Before the learned Judge in the court below, the appellant claimed to have brought these proceedings under Order 32 Rule 2 of the High Court (Civil Procedure) Rules of the Western Region, in Vol. II 1959 Edition of the Laws of Western Nigeria [then applicable in the Mid-Western (now Bendel) State] and Section 12 (2) of the Legal Practitioners Act 1962 (No. 33 of 1962). Learned counsel for the respondents contended that the appellant “was debriefed” because he failed to give his personal attention and service to the defence of the action in court (i.e. Suit W/32/72) and (2) that the respondents” did not at any time accept the appellant”s “offer to give service upon a fee of 6000 guineas”; the respondents counter-offer for payment of the N4200 as fee for the appellant”s services was accepted by the latter whom he signed the “receipt column” of the “Remittance Advice” (Exhibit C) in which the endorsement to the effect that the cheque for N4200 was “in settlement” had appeared.
In a reserved judgment the learned Judge in the court below held that the appellant whom he considered as having been overpaid should refund to the respondents the sum of N1,000.00; in passing the learned Judge made the following observations in parts of his judgment:-
“……. I am prepared to tax the bill at N150 for each appearance simpliciter inclusive of transport, that is, without his performing in court.
The applicant resides in Benin a distance of about 65 miles from Warri. For 14 appearances he is entitled to N2, 100. Paragraph 5 shows that in the course of 14 appearances, he disposed of two notices…..In respect of the motion filed by the plaintiff in the said suit the applicant is entitled to N200. For filing a motion and disposing of it on behalf of the respondents the bill is taxed at N500.
Paragraph 12 (of the affidavit?) reveals that he was debriefed while preparing for the hearing of the said Suit W/32/72 fixed for the 25th of March, 1974. The preparation is taxed at N150 with another N150 for marginal errors in this taxation. In effect the total amount payable by the respondents to the applicant is N3100. By this taxation I hold that the applicant was overpaid by N1100. This amount is refundable. ………(Brackets supplied by this court.)
Perhaps we should point out here that, what appears, in the underlined portion of the above question, to pass in the name of taxation, in effect, amounts to assessment of dues to the appellant upon a quantum meruit basis; the learned Judge having, in an earlier portion of his judgment, expressed his inability to find, as a fact, an agreement, on remuneration, between the appellant and the respondents. This appeal is from the judgment of which the above quotation forms part.
In this court the question has been raised as to the jurisdiction of the lower court, under Order 32 Rule 2 of the High Court (Civil Procedure) Rules, Western Region, Cap. 44 Vol. II 1959 Edition of the Laws of Western Region of Nigeria, to entertain this application. Learned counsel for the appellant has maintained, as, indeed, he did in the lower court, that the application is maintainable under Order 32 Rule 2 of the High Court Rules aforesaid and, also, under Section 12 (2) of the Legal Practitioners Act 1962 (No. 33 of 1962). Order 32 Rule 2 aforesaid reads:-
“No solicitor shall commence any suit for the recovery of any fees, charges, or disbursements for or on account of any business done by him until the expiration of one month after he shall have delivered to the party to be charged, therewith, either by serving the same personally, or by sending through the post by registered letter to, or by leaving at the office, place of business, dwelling house or last known place of abode of, such party a bill of costs, signed by himself (or in case of a partnership by any of the partners either in his own name or in the name of the partnership) or enclosed in or accompanied by a letter signed in like manner and referring to such bill.” (underlining supplied).
The next rule (i.e. Order 32 Rule (3)) then empowers the court to tax the bill (i.e. bill of costs referred to in Rule (20)) or refer the same for taxation and settlement by a taxing master; and pending such reference, the court shall restrain the solicitor from commencing any suit for recovery of his fees, charges or disbursements aforesaid (i.e referred to in Rule (2)). Under this rule (i.e. (3)) the court may act upon the application of either the solicitor or the person to be charged (i.e. usually, the client). It is provided under rule 6 of this Order (i.e. Order 32) that every order to be made under a reference referred to above by the taxing master shall certify “what shall be found due to or from the solicitor in respect of the bill referred including the costs of the reference.” The last rule under this order provides that “in taxing the bill of costs ……. the taxing master shall be guided by the rules and fees set out in the Third Schedule (to the High Court Rules aforesaid) in so far as they apply to any items in such bill of costs.”
(Underlining and brackets in the foregoing quotation supplied).
The preceding order (i.e. Order 31) deals with “Solicitors and the Preparation of Legal Documents” and the “Third Schedule” to the High Court Rules aforesaid deals with “Rules regulating the scale of fees chargeable in conveyancing matters.” We think, however, that Order 32 is meant to be complimentary to Order 31. Rule (3) of Order 31 enjoins that “no solicitor shall be entitled to recover any fee for drawing or preparing a conveyance beyond the amount which may be allowed by the authorised scale of fees” “or in the case of matters not included therein” (and applying the ejusdem generis rule of interpretation, “matters” in this context can only refer to matters relating to the preparation of legal documents; certainly, not “contentious matters”) which the court may allow in taxation having regard to the circumstances and events enumerated in sub-rules (a) (b) (c) and (d) of that rule (i.e. Rule 3 aforesaid).
By Rule (4) of the same order (i.e. Order 31), it is provided that a solicitor may make an agreement with his client (and vice versa) before the transaction of any conveyancing business for the remuneration of the solicitor so long as the said agreement conforms with (or does not offend) the proviso to the said rule (i.e. Rule 4 of Order 31). The proviso contains all the necessary safeguards for the client similarly contained in the Solicitors Act governing the remuneration by clients of the solicitors in similar circumstances in England.
It is interesting to note the provisions of Rule 3 of the Third Schedule aforesaid which reads:-
“The remuneration prescribed by Scales I and II is not to include stamps, counsel”s fees, auctioneer”s or valuer”s charges, travelling expenses …………………. nor is it to include any business of a contentious character, nor any proceedings in any court, but it shall include all engrossing charges, and allowances for the time of the legal practitioner and his clerks and for copying and parchment, and all other similar disbursements.” (Underlining supplied by the court).
In other words, the “Third Schedule” aforesaid deals with remuneration of the solicitor in “non-contentious matters” such as conveyancing matters and preparation of other legal documents. Matters relating to counsel”s fees, to “business of a contentious character” and to “proceedings in any court are clearly and expressly excluded from the purview of the provisions in the Third Schedule aforesaid and a fortiori from matters within the ambit of Orders 31 and 32 of the High Court Rules aforesaid; and the reference in Rule (3) of Order 31 of the High Court Rules aforesaid to “matters not therein included which the court may allow in taxation having regard to sub-rules (a) (b) (c) and (d) of that rule (i.e. (3) can only be to matters of conveyancing” in respect of sales, purchases, mortgages involving a sum of over one thousand pounds …………………. (to be) “calculated according to the scale of charges for the time being in England” as provided by sub-rule (c) of Rule (1) of the Third Schedule aforesaid.
It is, therefore, clear that the provisions of Order 32 Rule (2) aforesaid can have no relevance to matters relating directly to taxation of the legal practitioner”s fees simpliciter, in contentious matters or proceedings in court, such as in the case in hand. We will have course to return to this aspect of the appeal; in the meantime, however, we will examine closely Section 12 (2) of the Legal Practitioners Act No. 33 of 1962 (hereinafter referred to as “the 1962 Act”).
In other to appreciate the scope and effect of Section 12 of the 1962 Act, we think it is necessary to draw attention to the provisions of Sections 10, 11, 13 and 14 of the said Act, and these read:-
“10(1) There shall be a committee to be called the Legal Practitioners Remuneration Committee which shall consist of:-
10(3) The Committee shall have power to make orders regulating generally the charges of legal practitioners and, without prejudice to the generality of that power, any such order may include provision as to all or any of the following matters, that is to say:-
(a) the maximum charges which may be made in respect of any transaction or activity of a description specified by the order;
(b) the ascertainment of the charges appropriate for any transaction or activity by reference to such consideration as may be so specified;
(c) the taking by practitioners of security for the payment of their charges and the allowance interest with respect to the security;
(d) agreements between practitioners and clients with respect to charges.”
“10(4)The Committee shall not make an order under this section unless they have served a copy thereof of the proposed order on the Chairman of the Association and have considered any representations in writing made to the Committee by the Association ………..”
10(5) Until the first order made in pursuance of this section comes into force, nothing in this section shall be construed as affecting the law in force in any part of Nigeria with respect to the remuneration of legal practitioners.”
10(6) Nothing in this section shall apply to the fee marked on a brief to appeal in any proceedings which is delivered to a person of counsel to Her Majesty.” (Underlining supplied by the court).
“11(1) Subject to the provisions of this Act, a legal practitioner shall be entitled to recover his charges by action in any court of competent jurisdiction.
(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 ……has been served on the client personally or left for him at his last address as known to the practitioner ………; and
(b) the period of one month beginning with the date of delivery of the bill has expired.”
Sub-section (3) of Section (11) then makes provision for the circumstances under which a legal practitioner may be allowed by the court to proceed with action for recovery of his charges although the period of one month from the delivery by him of his bill or charges to his client has not expired.
Section 12 of the 1962 Act then makes provisions for applications by either the client or the legal practitioner for taxation of the bill of charges; that section reads:-
“12(1) …….. the court shall on the application made by a client within the period of one month from the date on which a bill of charges was delivered to him, order that the bill shall be taxed and that no action to recover the charges shall be begun until taxation is completed.
(2) Subject to the provisions of the next following sub-section, the court may if it thinks fit, on an application made after the expiration of the period aforesaid by the legal practitioner or …… by the client in question:-
(a) order that the bill shall be taxed;
(b) order that until taxation is completed no action to recover the charges mentioned in the bill be begun and any such action already began shall be stayed…….”
(underlining supplied by the court)
Section 19 of the Act defines a “legal practitioner” as ” a person entitled in accordance with the provisions of the Act to practise as a barrister, or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.” The manner of taxation is provided for in Section 13 which reads:-
“13(1) The taxation of bills of charges shall be in accordance with the provisions of any order in force under Section 10 of this Act; and where no such order is in force or any item falling to be taxed is not dealt with by the order, the charges to be allowed on taxation of the item shall not exceed such as are reasonable having regard to the skill, labour and responsibility involved and to all the circumstances of the case……”
In Nigeria a barrister or a solicitor may practise as a legal practitioner; the barrister may, and quite often does, carry out the duties of a solicitor and vice versa. It is well known that a solicitor is capable of suing for his fees but a barrister is incapable of doing so. It was established earlier on in the profession that the remuneration of a barrister (or counsel) was regarded as honorarium, rather than merces (see Mostyn v. Mostyn (1870) 5 Ch. App. 457) and so it is that barrister may not, and in fact cannot, successfully sue for his fees.
He may, and is entitled to, refuse to accept a brief if the fee therefor is not paid upon delivery of the same because if he fails to insist on payment upon delivery of the brief or before conclusion of the matter for which he was briefed the payment of the same – whether from the instructing counsel or from his client – will become a mere matter of honour; there being no contractual relationship between either the client or the instructing solicitor and the counsel, the latter cannot bring an action for recovery of the same in a court of law.
At common law, however, the solicitor could always enforce his agreement with his client for his (the solicitor”s) remuneration subject to the qualification that the courts quite often (if not always) leaned in favour of the client and were slow to enforce agreements which were favourable to the solicitor “unless they were satisfied that they (the agreements) were made under circumstances that precluded any suspicion of an improper attempt on the solicitor’s part to benefit himself at the client’s expense” (See Clare v. Joseph (1907) 2 KB 369 at 376 per Fletcher Moulton LJ. (Brackets supplied).
It is against the foregoing background that the various statutory enactments relating to the solicitor and his client (in England, and (in Nigeria), to the legal practitioner (i.e. the barrister, solicitor) and his client, may be closely examined. Again, in England it is only the client who may ask for taxation of a bill of costs sent to him by his solicitor, whereas the Nigerian statute speaks of a bill of charges which may be taxed at the request not only of the client but also of the legal practitioner. The reason for the difference is not far to seek; it lies in the lack of clear cut separation in this country of the work or duties of the solicitor and counsel.
Taxation of costs has been defined as “the mode by which certain officers of the various courts allow or disallow the sums claimed by solicitors from their clients, or by the one party in an action from the other” and “taxation as between solicitor and client, which may be had whether the business be transacted in court or not, is only obtained upon the application of the party chargeable by a signed bill of costs ………………” (See Wharton”s Law Lexicon – 14th Edition p. 978). A “bill of costs” is “an account of the charges and disbursements of an attorney or solicitor incurred in the conduct of his client”s business. It is an account of fees, charges and disbursements by a solicitor in a legal business.” (see Wharton”s Law Lexicon Op. Cit. 126; and Dictionary of English Law by Earl Jowitt 237).
A bill of costs, therefore, can relate to contentious, as well as, non-contentious business. The 1962 Act defines a “bill of charges” as “such a bill as is mentioned in paragraph (a) of sub-section (3) of Section 11” of the Act. It then goes on to define “charges” as “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 (Section 14(1) of the Act refers).
Adverting to the foregoing observations we will now deal with the specific facts in the case on appeal. We find that the appellant delivered his bill of charges well over a month before he brought the present application in the High Court, and could have begun his action for recovery of the charges at the time he commenced these proceedings because the clients (the respondents herein) had not availed themselves of the provisions of sub-section (1) of Section 12 of the Act.
In those circumstances, had the appellant commenced his action for recovery of the charges then unless, the court on the evidence that there was no such agreement, or that although such agreement existed, with the client (the respondents), it was not made “under circumstances that precluded any suspicion of an improper attempt on his (the solicitor’s) part to benefit himself at his client’s expense.” the court would have entered judgment in his favour (Clare v. Joseph (supra) Emmens v. Elderton (1853) 4 H.L. Cas. 624 also Art 1205 p. 731 Vol. 26 Halsbury’s Laws of England, 1st Edition. This is more so by virtue of subsection 3 of Section 10 of the Act.
The position, therefore, is that while the courts in England would never tamper or interfere directly with the charges or fees of counsel save in the circumstances where they have been included in a solicitor’s bill of costs, the courts will interfere directly in Nigeria – by virtue of the 1962 Act – with the charges of counsel whether practising as a barrister simpliciter or as barrister and solicitor. In England the position would never have arisen because counsel do not and cannot sue for their fees. In Nigeria, it seldom arose in the past since experience has shown to counsel that in view of his dual position, it was wise to insist on payment of his fees or charges before performance of his duties in respect of any trial.
The appellant has, however, commenced these proceedings under sub-section (2) of Section 12 of the 1962 Act and having invoked the exercise of the jurisdiction of the court under the sub-section the court became seised of the matter and has had to carry out taxation of his bill of charges. The learned Judge has pointed out in his judgment, and we think rightly, that what is involved here is a lump sum bill; and he also was of the opinion that Section 13 of the 1962 Act “does not relate to the solicitor’s professional fees agreed upon in respect of an assignment not completed.” We do not share the latter view of the learned Judge as the statement in so far as it relates to “professional fees”, is rather too wide or general. Section 13 aforesaid provides the measure of taxation of bills of charges in all cases coming under the provisions of Sections 10, 11 and 12 and within the definition of “charges” and “bill of charges” in Section 14 of the Act. Therefore, where a solicitor’s professional fees come within the ambit of these sections, Section 13 applies.
However, by virtue of sub-section (3) of Section 10 and there being no order in force under sub-paragraph (d) of sub-section (3) of Section 10 of the 1962 Act, we think that the intention of the second leg of Section 13 is to crystallise in statutory form, pending the coming into force of any Order under sub-paragraph (d) of sub-section 3 of Section 10 of the 1962 Act, the general supervisory power of the courts, at common law, over all agreements for remuneration of the solicitor made between him and his client.
Generally, under sub-section 2 of Section 12 of the 1962 Act, the High Court, therefore, has the necessary power and jurisdiction to tax a solicitor’s bill of charges, on the invitation to do so by the solicitor. In the peculiar circumstances of this case, however, it does appear that the lower court cannot deal with the claim or prayer in these proceedings, under sub-section 2 of Section 12 aforesaid for the following reasons:-
1. The “bill of charges” in the case in hand relate to an alleged balance due on 6000 guineas alleged to have been agreed upon on a contract (i.e. as per a contract).
2. The lower court was unable to find as a fact that there was such a contract for payment of 6000 guineas; on the contrary the learned Judge regarded Exhibit “C” as suggesting “that the applicant (already) recovered…………………money in settlement of his fees”; and
3. the lower court found that the appellant had accepted the payment of 2000 guineas as per Exhibit “C” and that Exhibit “C” regarded that amount as “in settlement” of counsel’s service. This also was confirmed in the respondents” letters to the appellant Exhibits J & L dated 26th April, 1974 and 16th May, 1974, respectively the latter of which reads in part:-
“…………………I do not find my way clear to change the view already expressed in my last letter to you to the effect that the sum of 2000 (two thousand) guineas paid to you was quite an adequate compensation (i.e. your services rendered). (brackets supplied by court.)
4. Therefore, in the circumstances, there is no bill of charges in these proceedings as contemplated by the 1962 Act.
It is clear from the affidavit evidence in these proceedings that the appellant is asking for fees which he claims as his entitlement for services rendered (a) after he had been “debriefed” and (b) for that which he was ready and willing to render had he not been “debriefed” by the respondents; the learned Judge having failed to find any agreement or contract between the parties on the issue of remuneration, it appears that the claim relating to item “(a)” indicated above (i.e. for services rendered after the appellant had been “debriefed”), is a matter which is subject to an action or claim for money due on a quantum meruit.
The claim relating to item “(b)” indicated above (i.e. in respect of services he would have rendered had he not been “debriefed”), is a matter subject to action or claim for breach of contract (which, on the findings of the learned Judge, was not made out in these proceedings).
There is, however, no claim for money due upon a quantum meruit, before the court; to the extent, therefore, that the learned Judge treated the application before him as a claim based on a quantum meruit he was in error of law, for he had no jurisdiction to do so in the circumstances of these proceedings. It should, perhaps, be pointed out also, that had the appellant succeeded in establishing the alleged contract or agreement, then the ordinary action for damages for breach of contract would, in any event, have been available to him; or he could still have brought a claim for remuneration based upon a quantum meruit (see also Rees v. Williams (1865) L.R. 10 Exch. 200.
In the event, as these proceedings could neither be properly based under Order 32 rule 2 of the High Court Rules aforesaid nor under Sub-section 2 of the Section 12 of the Legal Practitioners Act 1962, the lower court had no jurisdiction to deal with the claim or prayer in these proceedings which should have been struck out. In view of the absence of any finding of any contract or agreement for payment beyond 2000 guineas between the client and the solicitor, the letters Exhibits J & L constitute an end to the matter. We would, here, repeat our earlier observations that the provisions of Order 32 rule 2 of the High Court Rules aforesaid are designed to meet applications for taxation of a bill of costs (as defined earlier on in this judgment) in respect of non-contentious business generally, or such contentious business as may arise, incidentally in the execution of matters stated in the Third Schedule to the High Court Rules aforesaid or, in the general execution of matters stated in the said Third Schedule. We would also like to observe, in passing, that in matters of taxation of bills of costs and bills of charges although the application therefore has been made to the court, the lower courts should always direct that taxation be carried out by a taxing master over whom they always have a supervisory power.
This appeal succeeds. We must, however, make it clear that the appeal succeeds, not on any of the points taken by or on behalf of the appellant but, on the point taken ex proprio motu by this court. The judgment of the learned Judge (Ephraim Akpata, J.,) together with the order for costs dated 30th May, 1975 in Suit M/1/75 in the High Court of Bendel State holden at Warri is hereby set aside and in substitution therefor it is hereby, order that the matter, or claim, in Suit W/32/72 be struck out and this shall be the judgment of the lower court. The respondents shall have costs in the High Court fixed and assessed at N50; and in this court, there shall be no order as to costs.
G.O.K. Ajayi, Esq., SAN, (with him, Mr. Akin Holowe)…..For Appellant
Chief S. Sowemimo, (with him, Mr. S.G. Jaho)…..For Respondent