3PLR – CO-OPERATIVE AND COMMERCE BANK (NIGERIA) PLC. V. OGOCHUKWU OKPALA & ANOR.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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CO-OPERATIVE AND COMMERCE BANK (NIGERIA) PLC.

V.

OGOCHUKWU OKPALA & ANOR.

 

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 15TH DAY OF MAY, 1997

CA/E/66/96

3PLR/1997/31  (SC)

 

 

OTHER CITATIONS

(1997) 8 NWLR (Pt.518)

 

BEFORE THEIR LORDSHIPS

OKAY ACHIKE, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

NIKI TOBI, JSC

 

BETWEEN

CO-OPERATIVE AND COMMERCE BANK (NIG) PLC. Appellant(s)

 

AND

1. OGOCHUKWU OKPALA
2. COMMISSIONER OF POLICE ENUGU STATE Respondent(s) 

MAIN ISSUES

1. PRACTICE AND PROCEDURE – APPLICATION FOR ADJOURNMENT: Duty of court in any application for adjournment to evaluate the evidence surrounding the application before handing down a ruling in respect thereof
2. PRACTICE AND PROCEDURE – APPLICATION FOR ADJOURNMENT: Effect of wrongful exercise of the court’s power to grant or refuse to grant an application of adjournment
3. PRACTICE AND PROCEDURE – APPLICATION ON NOTICE AND FOR ADJOURNMENT: Whether where a court is faced with applications on notice and that of an adjournment they are obliged first to decide on the application for adjournment and thereafter decide on the fate of continuation of the other application
4. COURT – BUSINESS OF COURT: Whether the business of the court is to be conducted within the framework of the law, practice and procedure that have inured over the ages
5. COURT – DISCRETION OF COURT: Whether costs are in the discretion of the Court and where discretion is exercised judicially and judiciously the appellate court is powerless to interfere with the honest exercise of the court’s discretion
6. LEGAL PRACTITIONER – DUTY OF COUNSEL: Duty of counsel while putting across his client’s case to do so fearlessly and courageously and not descend to the arena of mischief or calculated attempt to misguide or mislead the court
7. LEGAL PRACTITIONER – DUTY OF COUNSEL: Duty of counsel for either party to be careful in formulating issues for determination to ensure that the same arise from the grounds of appeal and effect thereof
8. COURT – DUTY OF COURT: Mode or modus operandi available to a judge for the determination of a matter available in controversy
9. COURT – FUNCTION OF COURT: Whether a court has a legal duty to pronounce an order as to costs at the conclusion of every decision, which term includes rulings and judgments
10. EQUITABLE REMEDY – INJUNCTION: Whether an injunction can be granted to prevent any threatened or apprehended waste in order to arrest further waste or trespass
11. APPEAL – INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstances under which an appellate court would interfere with the exercise of the lower court’s discretion
12. INTERPRETATION OF STATUTE – ORDER 26 RULE 9 (2) (C) ANAMBRA STATE HIGH COURT RULES: Statutory interpretation of Order 26 Rule 9(2)(c) of the Anambra State High Court Rules 1988, applicable to Enugu State
13. COURT – ORDER OF COURT: Whether it is the law that a court cannot make an order in vain
14. PRACTICE AND PROCEDURE – POWER OF ADJOURNMENT: Discretionary nature of the exercise of power of adjournment by the court

 

ACHIKE, J.C.A. (Delivering the Leading Judgment): By originating summons taken out by the plaintiff/appellant it prayed the court for an order compelling the 2nd defendant/respondent not to release 1st defendant/respondent’s vehicles with registration numbers BD 1750 BC, a Mercedes Benz 911 truck and Peugeot Pick Up Van AN353 Y, to him or to anyone until the determination of the proceedings in the summons. Additionally, the appellant sought an order of the court to sell the two vehicles in reduction of 1st respondent’s indebtedness to the appellant. By an ex-parte order, the appellant succeeded in placing the vehicles in the custody of the 2nd respondent. During the pendency of the suit, the 1st respondent successfully by a motion on notice, obtained an order releasing the Peugeot vehicle to him upon signing a bond. All these determinations were made by Edozie, J. who also adjourned the hearing of the originating summons to 10/10/94.

Nevertheless, by a motion on notice dated 6/9/95, 1st respondent prayed the court as follows:

“(a)    Interlocutory Injunction restraining the plaintiff from selling his Peugeot Pick Up Van No. AN 353 Y illegally seized or removed from his premises.

(b)     Interlocutory Injunction restraining the plaintiff from further seizure or interference with the first defendant’s goods and properties.

(c)     An order on the plaintiff to return the Pick Up Van No. AN 353 Y to the first defendant.

(d)     An order restraining the plaintiff (sic) “from further molestation of the workers of the first defendant.”

The motion was fixed for hearing on 12/9/95 before the vacation Judge, Agbo J. On receipt of hearing notice of the said motion, appellant’s learned counsel, Mr. E.C. Ibe wrote a letter dated 12/9/95 drawing the court’s attention that the substantive case has been adjourned to 10/10/95 by the trial judge and bearing in mind that the motion was sought to be heard on 12/9/95 – during vacation period – it was not convenient for him to attend the sitting before the Vacation Judge and accordingly sought adjournment of the motion to 10/10/95, being the date the substantive suit had been adjourned. Appellant’s letter for adjournment was endorsed to Mr. A.C. Onwu, learned 1st respondent’s counsel. When hearing commenced before the trial Vacation Judge, on 12/9/95, the letter by appellant’s counsel was duly brought to his notice and the said letter was admitted in evidence and marked Exhibit A, and thereafter Mr. A.C. Onwu of counsel moved his motion in terms of the motion paper. The learned trial judge immediately after the motion was moved granted the respondent the relief sought i.e., an order that appellant should return the Peugeot Pick-Up Van registration No. AN 353 Y, the subject of an earlier order made by Edozie J on 19/7/94 forthwith and awarded N5,000.00 costs against the appellant. This appeal is against this ruling of the Vacation Judge.

Appellant’s learned counsel postulated the following issues for determination, namely-

“(i)     Was the Notice of Motion of an urgent nature to justify its being heard by a Vacation Judge before whom the substantive suit No. E/289/94 was not pending more so when the substantive suit had been adjourned by a brother Judge to a date 10/10/95 outside the vacation period?

(ii)     Was it proper for the learned vacation Judge to grant an injunction to a defendant in a suit in which the defendant has no counter claim?

(iii)    Was the learned trial vacation Judge right to proceed to hearing the Motion for an Interlocutory Injunction without firstly disposing of the application by the appellant for an adjournment of that Motion to a future date.

(iv)    Was it a proper exercise of judicial discretion to award N5,000.00 costs to a successful applicant in a motion for an interlocutory injunction when the motion was neither opposed nor proceedings thereon delayed?”

For the 1st respondent, the following issues were identified by the learned counsel, to wit,

“(i)     Whether on the affidavit evidence before the court it was proper for the trial judge to have treated the application as of urgent nature to enable the court hear it during vacation and grant an interlocutory injunction to a party whose legal rights have been infringed and threatened.

(ii)     Whether the trial Judge exercised his discretion judicially and judiciously in hearing the motion when the purported letter of adjournment was objecting to the competence of the court to hear the matter during vacation instead of advancing cogent reasons why the matter should be adjourned.

(iii)    Whether there was proper basis for an award of N5,000.00 costs to a successful (sic) application in a motion of urgent nature.

(iv)    Whether the appellant who is in contempt of court is entitled to any of the reliefs sought.”

At the oral hearing before us both counsel made no further submissions but rested their case on their respective briefs.

It is worthy of note that learned appellant’s counsel expressly abandoned Issue no. (ii), having offered no argument in respect thereof. Respondent’s learned counsel, rightly in my view, neither filed any issue nor offered any argument in respect of appellant’s Issue no. (ii). The said issue having been abandoned, the same is hereby struck out.

It is also necessary at this stage to look closely at respondent’s Issue No. (iv). It is clear, looking at the appellant’s four grounds of appeal (see pp.20 – 22) that respondent’s Issue cannot be pegged to any of the grounds of appeal. This court and the apex Court has repeatedly cautioned counsel for either party to be careful in formulating issues for determination to ensure that the same arise from the grounds of appeal otherwise the same will be discountenanced as incompetent. In this instant appeal, respondent having filed no cross-appeal he is obliged, like the appellant, to postulate issues for determination from the only grounds of appeal filed by the appellant. Respondent is in violation of the rule that his (iv) issue for determination ought to arise from any of the appellant’s grounds of appeal. In the circumstance, respondent’s issue No. (iv) is also struck out as being incompetent.

Appellant’s issue No. (i) questions whether the motion on notice dated 6/9/95 heard by the vacation Judge was of an urgent nature to warrant its being dealt with during vacation. Learned appellant’s counsel submits that the reliefs sought by the respondent/applicant in that motion were not of urgent nature and could not justifiably be taken during vacation. In the alternative, counsel submits that even if it is conceded that the motion was sufficiently of urgent nature, the mere fact of its service would be enough to keep the matter in status quo until the determination of the motion, and relies on Vaswani Trading Co. v. Savalakh Co. (1972) 12 SC 77 at 90. And further submits that if appellant sold the Peugeot Pick-Up Van, the subject-matter of that application, the sale would be caught by the doctrine of lis pendens and nemo quod dot non habet (sic) to warrant setting aside the sale. Furthermore, since the order of injunction cannot be granted to restrain a threatened or reparable injury, the application cannot be said to be of urgent nature. He relies on 7 Up Bottling Co. Ltd v. Abiola (1995) 4 NWLR (Pt.389) 287 at 301 – 302 and Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144 at 166.

In reply to this issue, respondent’s learned counsel submits that the urgency of the application could be gathered from the contents of the two affidavits in support of the application which were neither challenged nor contradicted, bearing in mind the said van was the very same vehicle already released on bond by Edozie J. Furthermore, counsel submits that by section 21(3) of High Court Edict No.16 of 1987 of Anambra State High Court Rules, applicable in Enugu State, injunction can be granted to prevent any threatened or apprehended waste and to stop continuing waste or trespass, and accordingly, that the injunctive orders sought were urgent. Counsel denied the applicability of the authority of 7 Up Bottling Co. Ltd v. Abiola (supra) relied on by appellant as not being in consonance with the principle stated by the appellant’s counsel. Learned counsel subscribes to the urgency of the application.
Hearing of cases during annual vacation of the High Court in Enugu State of Nigeria is predicated on the Anambra State High Court Rules 1988, applicable to Enugu State. It’s Order 26 Rule 9(2)(c) is relevant to the present discussion and proves under that sub-rule 9(2)(c) that
“During the annual vacation –
interlocutory applications of an urgent nature may be dealt with”.

The pith of the sub-rule is that there is a restriction placed on hearing of interlocutory applications. Such interlocutory applications must be shown to be of an urgent nature. No doubt, the characterisation of applications as of urgent nature or otherwise, is, in my view a matter that falls for determination within the province of the powers of the trial judge. In other words, it is a matter not within the whims and caprices of counsel for the parties. Although, as I have observed, that the decision whether the application is of urgent nature or not is a matter for the trial, I must hasten to add that such decision must be reached, having regard to the affidavit evidence placed before the court by the parties. Nothing short of this will suffice. The submission by learned appellant’s counsel that the reliefs sought by the respondent was not of an urgent nature is worthless being bad in that it is not borne out from the affidavit evidence. It must be discountenanced. His alternative submission that if the application is conceded to be urgent, the mere service of the application would be enough to keep the matter at stake in status quo until the determination of the motion on notice. With respect, that submission is not well founded. Mere service of notice of motion, even a motion for a stay of execution, cannot be elevated to mean an interim order of stay of execution or maintaining a status quo of the res, the subject of the dispute, until the disposal of the application. That is not the law. To accept that a mere application for injunction or order of similar nature will automatically put in place a restraint on the parties with regard to their dealings with the subject-matter of the application will, in my view, generate more disturbing consequences, than the law can cope with. Even in a serious application for arresting the enjoyment of the fruits of successful litigation the law on stay of execution has emphatically prescribed that a mere application for stay of execution cannot be construed as automatic grant of the order sought. The reason is that the grant of such application is a discretionary relief and a matter of discretion for the trial Judge who must pronounce on such application judicially and judiciously and not as a matter of course. In other words, the court must evaluate the affidavit evidence placed before the court and reach a decision one way or the other. It is therefore, manifest that mere service of a notice of motion to restrain the adversary party from doing anything can never, without more, be elevated or metamorphose to the grant of such order. It will surely bring about a measure of confusion in the law which should be much discouraged. The well-known authority of Vaswani invariably cited and relied upon in applications for stay of execution has no relevance.
On the part of the respondent, it has been forcefully submitted that in the absence of a counter-affidavit challenging the averments in the respondent’s two affidavits, the court should regard the affidavit evidence as correct and also act on them. Whether the affidavits in support of the motion are sufficiently cogent to characterize the application as urgent now fails for determination. Unfortunately, the learned trial Judge failed completely to evaluate or pretend to evaluate the affidavit evidence filed by the appellant. Having failed to evaluate the affidavit evidence the trial judge placed himself in an awkward or invidious position with regard to any pretence to evaluate the affidavit evidence. At best, with respect, he can only make a guess whether to characterize the application as urgent or not. Rather than make an attempt to evaluate the affidavit evidence the trial judge accorded unnecessary consideration discussing that the appellant’s counsel was teaching him the powers of a vacation Judge forgetting that appellant was acting in flagrant contempt of the order of the court. These observations by the learned Judge, with respect, had no doubt distracted his attention from evaluating the affidavit evidence produced by the respondent which called for consideration. It is important to reiterate for the benefit of trial courts that a trial judge who is called upon to exercise his discretion or to decide an issue based on the evidence before him can never accomplish that task by abdicating his responsibility of his office to which the evaluation of legal evidence is assigned. Anything short of actual review and proper detailed evaluation of the evidence placed before the Court will leave the trial judge much incapacitated to determine the point in controversy that rests wholly on the evidence adduced at the trial. A judge not being a magician or a soothsayer has but only one mode or modus operandi available to him for the determination of a matter available in controversy, namely, it is by assessment and evaluation of the evidence. A mental exercise with regard to such determination is always held as weird and suspect. The test is whether a third party perusing the ruling or judgment of a judge who has reached such a decision on any matter in controversy is placed in a position ordinarily to appreciate the assessment or evaluation made by the trial Judge and which made his conclusion either irresistible or unanswerable. Nothing short of such analysis will make the decision reached by the judge with regard to the point that was called for determination acceptable. As several times as I read the 15 line Ruling of the Vacation Judge so often have I utterly been unable to discern any pretence on the part of the Judge to evaluate the serious issue of the character of the application placed before him, as a vacation judge. In the result, I hold that the learned trial Judge having abdicated his high office to which the right to evaluate evidence placed before him is ascribed, he was disempowered to reach a fair and proper conclusion on the characterization of whether or not the application at the instance of the respondent was of urgent nature.

I must unhesitatingly accede to the submission of learned respondent’s counsel that it is good law that injunction can be granted to prevent any threatened or apprehended waste in order to arrest further waste or trespass. That clearly is in tune with the provisions of section 2(3) of High Court Edict No. 16 of 1987 of Anambra State High Court Rules, applicable in Enugu State of Nigeria. Mere seizure of goods whether at the instance of the order of the Court or not cannot amount to trespass under the law of tort, but it is potentially capable of leading to was left the detention has been protracted. I have carefully perused the supporting affidavit deposed to by 1st respondent as well as the second affidavit in support of the motion attributed to have been deposed to by one Miss Obiageli Okechukwu. I find nothing in them which shows that the aforesaid seized Peugeot Van has been subjected to waste, sufficient to warrant the court to grant the order sought by the applicant/respondent on the ground of waste or for the overall interest of ensuring the security of the Peugeot Van.

The trial judge having failed to evaluate legal evidence placed before him cannot, in law, reach a tenable conclusion with regard to the matter in controversy. In the circumstances, I discountenance the conclusion on characterization that the application was of urgent nature.

That is not the end of the matter. By the extensive and far-reaching provisions of section 16 jurisdiction of this court, I have not the slightest hesitation that I can invoke the wide jurisdiction of this Court and have “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance …” This portion of the provisions of section 16 is enough to clothe this court with jurisdiction to evaluate the affidavit evidence in the instant appeal as Court of first instance. As I had earlier stated, I have perused the only affidavit evidence placed before the lower court. The paragraphs of the affidavits do not make any impressionable impact as regards the injunctive orders prayed for. What is more disturbing is that the applicant is using the medium of this application to capitalize on a case of contempt against the appellant which is wholly uncalled for in this application. With the utmost candour, I think that it is only paragraph 12 of the supporting affidavit which avers that the destination of the res, the Peugeot Van, is unknown as the plaintiff’s task force people did not leave any receipt as to the whereabout (sic) of the vehicle.’ If by the ipse dixit of the respondent the whereabouts of the res are uncertain surely, any order the court may make in this regard will be vague. It is certainly the law that a court cannot make an order in vain. In the light of paragraph 12 of the supporting affidavit, the learned trial judge ought to have been wary to hold impliedly that the interlocutory application was of urgent nature which justified his hearing it during vacation. The injunctive orders sought by the respondent may in its execution be invidious, if not impossible and impracticable. I do not share the view that the application to do an invidious or impracticable thing can, without more, be described as of urgent in nature.
In the result, I resolve appellant’s Issue No. 1 against the respondent and hold that on proper evaluation of the evidence before the court, the trial vacation judge ought not to have granted the application’s injunctive reliefs nor the order for the return of the Peugeot Van.

Appellant’s second issue having been struck out, this brings us to the third issue. This coincides with respondent’s second issue. The issue is whether the learned vacation Judge was right to proceed to hearing the respondent’s application for an adjournment of the said motion. It must be said straightaway that the decision to adjourn a case at the instance of one of the parties is a matter fraught with difficulties. This is so because such application calls for the exercise of the judicial discretion of the court which must be seen to have been done judiciously. An application for adjournment of a case or an interlocutory application is indeed an application for postponement of the case or the application placed before the court. It is a matter often treated with utmost levity which ought not to be the case because a wrongful exercise of the court’s power to grant or refuse to grant such application may lead to the review of the exercise of such power by an appellate court.

The appellate courts are slow and act with due caution when called upon to decide whether or not this discretionary power was determined both judicially and judiciously. It means that it is only in exceptional circumstances that an appellate court would interfere with the exercise of the lower court’s discretion. See A.C.B. v. Agbanyim (1960) 5 FSC 19; (1960) SCNLR 57; Odusote v. Odusote (1971) 1 All NLR 219 and Evans v. Bartlam (1937) AC 473.         In any application for adjournment it is undesirable for the trial or even an appellate court to do so by reaching a decision – one way or the other-mentally. The court in every such situation must visibly be seen to have evaluated the evidence surrounding the application before handing down a ruling in respect thereof, bearing in mind that his ruling would be a subject of review by a higher court. To therefore decide on such application without due evaluation of all the surrounding circumstances of the case would court the disapproval of the higher court in respect of that decision to adjourn or refuse to adjourn. Whatever reasons that influence the decision-making to adjourn or refuse to adjourn a suit or an application must be stated on the record because it is only by so doing that the appellate court can appreciate the circumstances leading to the ruling on adjournment. In any event, it is prudent for the court to invite counsel to address it on the evidence placed before it in relation to the application for adjournment.

It behoves us to say that the power of adjournment gives the court a powerful weapon to ensure that an application for adjournment is not abused by either party to the case in giving rise to delaying tactics. Therein lies the discretionary nature of the exercise of power of adjournment by the court. In any event, in exercising that power the court must continue to bear in mind that it is not simply the interest of the applicant seeking adjournment that calls for consideration; nay, it includes the consideration of the interest of the adversary as well as that of the court. See Umarco v. Panalpina (1986) 2 NWLR (Pt.20) 65 and University of Lagos & anor v. Aigoro (1985) 1 NWLR (Pt.1) 143.

In the instant case, while the application dated 12/9/94 was billed for hearing on even date, appellant by his letter Exhibit A sought adjournment for the hearing of the application. It is good law and good practice that a court faced with these two applications is obliged first to decide on the application for adjournment and thereafter decide on the fate of continuation of the other application. This initial decision remains paramount irrespective of the fact that the application on notice was first in time. It is startling that although Exhibit A was admitted in evidence the court ignored it completely and failed to evaluate its content vis-a-vis any address the opposing counsel would have proffered to the contrary. In the result, the trial judge completely failed to address the application for adjournment. On the authorities and in the interest of justice, he was palpably in deep error to have failed to first resolve the fate of the application for adjournment before inviting counsel for the applicant in the motion on notice to move his motion. Clearly, looking at the cold pages of the record of appeal, it is manifest that the trial court did not give any consideration to the application for adjournment which he was legally bound to do.

It is also interesting to observe that applicant’s counsel was not even invited to address the court on the application for adjournment bearing in mind the content of Exhibit A. This, to say the least, was most unfortunate, particularly as learned counsel to the adversary party was copied Exhibit A by appellant’s counsel. Lower courts must continue to bear in mind that the business of the court is to be conducted within the framework of the law, practice and procedure that have inured over the ages and counsel, as an officer of the court should, demonstrably qua counsel assist the court in reaching a reasonable decision on any matter before the court, particularly where the procedure adopted by the trial court runs counter to well established principles.

Now since no express or positive consideration whatsoever was given to the application for adjournment. the presumption in law is that the application was refused. That cannot be the end of the matter because the trial court having abdicated his responsibility to decide on whether the procedure adopted by the learned trial Judge by openly refusing to carry out his legal duty should be overlooked, particularly where such conduct prejudices the legal rights of any of the parties.

It is beyond question that the learned trial Judge in the circumstances leading to this appeal – faced with two applications, the first, a motion on notice and the other an application for adjournment – was bound, as earlier stated, to first dispose of the application for adjournment which we have now established that he failed completely to do. It follows that his subsequent act in hearing the motion on notice was procedurally indefensible with its attendant consequences. In other words, the hearing of the motion on notice was palpably erroneous and prejudicial to the appellants’ application for adjournment and therefore, cannot be allowed to stand.

Before i conclude this issue, it is fair to address the point raised by learned respondent’s counsel in the respondent’s brief at page II with regard to Exhibit A. He submitted that the fact of admission of Exhibit A in evidence shows clearly that the court had not only read the letter but clearly understood the contents which to the right thinking person, the letter cannot in any way be construed to mean a letter for adjournment. I submit that after the court had read the letter the court after making up its mind that the letter was not an application for adjournment rightly decided to hear the motion by calling on the 1st defendant applicant to move the motion.” With due respect to learned counsel, I am bound to say that i have never in my near four decades of active acquaintance with the law come across such preposterous submission. Counsel, while putting across his client’s case is duty bound to do so fearlessly and courageously but he is not permitted to descend to the arena of mischief or calculated attempt to misguide or mislead the court with submission that border or ridicule and which if erroneously acted upon by the court will precipitate a miscarriage of justice. Counsel, I must reiterate, is an officer of the court and nothing in the determination of any matter by the court in which he serves in that respectable capacity should derail him from comporting himself outside the four walls of that exalted position. One may ask, in the absence of the trial Judge’s demonstration of having been addressed Exhibit A can any right thinking person presume that he had read it and construed Exhibit A not to tantamount to a letter for adjournment and consequently mentally decide not to treat it as such? Furthermore, it may also be asked since when have counsel been assigned the responsibility or mandate to serve as the mouth-piece of the trial judge or court? I would like to state unreservedly that legal decisions of a court of record are never made or handed down mentally or indeed, orally. Not only will this be ridiculous and unacceptable, it will be unquestionably incompetent, being unconstitutional. Accordingly, this palpably confused submission which even does not accord with common-sense and manifestly offends the provisions of appellant’s right of a fair hearing ought to be, and is hereby rejected.
This brings us finally to the appellant’s fourth issue i.e., the complaint that the award of N5000 costs was not a proper exercise of judicial discretion. Mr. Ibe, learned counsel for appellant submits that in awarding costs, the court must accord to rules of reason and justice and not to private opinion. He cites and relies on the authorities of Wurno v. U.A.C. Ltd. (1956) 1 FSC 33 at 34; (1956) SCNLR 99; Chukwu v. Ossai (1994) 4 NWLR (Pt.339) 461 at 474 – 5. It is his further submission that costs are not awarded as a punishment but are in law awarded as an indemnity to the successful party in the contest.

Unquestionably, the award of costs by the court to the successful party falls squarely within the discretionary domain of the court, which must be exercised particularly in absence of tariffs for costs according to common sense and justice which in legal idiom means that the award must be made judicially and judiciously. While it is true that a successful party should not be denied costs it is firmly established that costs must follow the event but many a time circumstances and for good reasons, the defeated party may not be damnified in costs. See Akinbobola v. Plisson Fisko (1991) 1 SCNJ 129 at 131; (1991) 1 NWLR (Pt.167) 270.

Upon the institution of an action in this country, the Court generally is saddled with three functions, namely, first, the determination of matters in controversy between the parties, second, the making or pronouncement of order as to costs of the proceedings and thirdly, the assessment as regards to quantum of costs. The first may be called the routine function of the court in respect of all actions and interlocutory applications placed before the court. This is not complained of in this appeal. Now with regard to the Court’s second function, it is important to note that the Court has a legal duty to pronounce an order as to costs at the conclusion of every decision, and this term includes rulings and judgments. So the pronouncement as to costs must of necessity be regarded as an integral part of the judgment of the court. Little wonder some strict pleaders, in their wisdom, plead averments which are specifically tied to question of costs. It is mandatory, therefore, that the court must decide an order whether or not costs should be paid.  Now if the court decides that costs should be paid, in Nigeria, the very same court makes an assessment of the amount of costs payable and also, pronounces it.

For our working purpose, it is enough to describe costs merely as an indemnity to the successful party to the extent that he is justly damnified. See Rewane v. Okotie-Eboh (1960) 5 FSC 200 at 206; (1960) SCNLR 461. This matter was amplified by Baron Bramwell in Harold v. Smith 157 ER 1229 at p.1231 who put it thus:

“Costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment on the party who pays them nor given as a bonus to the party who receives them. Therefore, if the extent of the damnification can be found out, the extent to which costs ought to be allowed is ascertained. Of course, I do not say there are not exceptional cases in which certain arbitrary rules of taxation have been laid down; but as a general rule costs are an indemnity, and the principle is this – find out the damnification and then you find out the costs which should be allowed.”

As a general principle, it may be said that costs are in the discretion of the Court. Having said so, we must hasten to say that where the court exercises its discretion judicially and judiciously as opposed to doing so capriciously or upon any wrong principle, the appellate court is powerless to interfere with the honest exercise of the court’s discretion. It is therefore a matter of presumption that a trial court or a lower court in the matter of costs has exercised its discretion properly unless there is good cause for holding otherwise.

As far as one is aware, there is no statutory or regulatory tariffs available to the courts in Nigeria which guide the courts for the assessment of the amount of costs payable when the court has made an order as to costs payable by the party adjudged to pay costs. Be that as it may, the courts in Nigeria have approached this complex and vexed matter with considerable degree of caution and achieved reasonable and outstanding success in respect thereof. Invariably, the lower courts, including this Court, have looked upon the apex court for guidance in assessment of amount payable by way of costs. Understandably, the scales adopted by the Courts have varied over the years. Consideration is given to the special circumstances of each case, such as the length of the case or application has lasted. It is common knowledge, as one easily gleans from the Law reports that the apex Court in the last four years has, as a matter of rule of practice, awarded N1000 costs to the successful party after full hearing of appeals (See Olowu Abolore (1993) 5 NWLR (Pt.293) 255, Bhojwani v. Bhojwani (1996) Vol. 40/41 LRCN 1245;(1996) 6 NWLR (Pt.457) 661; Comex Ltd  v. NAB Ltd (1997) 3 NWLR (Pt.496) 643 and N100 costs for interlocutory applications. The Court of Appeal has also during the same period swung from N150 to N2000 for full hearings of appeals and N500 to N1000 in respect of interlocutory applications.

For hearings at the High Courts where there may be several days of hearing, the assessment of costs has produced staggering differences. For example, in Rewane v. Okotie-Eboh (supra) where the trial court awarded 2,000 guineas i.e. about N4,200 costs in an election petition case, on appeal against costs, it was pruned down to 600 guineas, i.e., about N1,260. These differentials demonstrate eloquently the total absence of a guiding tariff in assessment of the amount payable by way of costs in our courts. Nevertheless, costs which were on the high side and which were seemingly punitive, as in Rewane v. Okotie-Eboh (supra), were easily recognisable and invariably pruned down on appeal because, as we have earlier noted, costs are awarded in accordance with the rules of reason and justice where no tariffs exists and not arbitrarily. See Wurno v. UAC Ltd (1956) 1 FSC 33 at 34; (1956) SCNLR 99.

In the instant appeal, the appeal which was fixed for hearing on 12/9/95 was disposed of on the same date, with the ruling running into two pages. It was apparent that the ruling was handed down on the bench and its hearing suffered no adjournment. There is nothing of a special nature whatsoever from the record to justify an award of heavy or punitive costs in the magnitude of N5000 when the two apex Courts in Nigeria – the Supreme Court and the Court of Appeal- and as may easily be gleaned from reported cases in the country, routinely fix an upper ceiling of N2,000 costs for fully contested appeals and N500 to N1,000 in respect of fully contested applications. Although the appellate courts should be wary to interfere with a discretionary award of costs made by the lower courts, there is unquestionably a duty on an appellate court to interfere with awards of high costs by the lower courts which are either unconscionable or fail to accord with reason and justice. I am clearly of opinion that the award of N5,000 costs by the lower court, in all the circumstances of the uncontested application, and in which nothing was stated on the record to justify the imposition of such seemingly punitive costs, is erroneous and indefensible; it cannot be allowed to stand. In exercise of the omnibus or general powers vested in this Court under the elaborate but comprehensive provisions of section 16 of the Court of Appeal Act, 1976 and if there was justification to’ award costs to the respondent for the hearing at the lower court, I would assess and fix costs at N500, bearing in mind that the application was heard in 1995.

Be that as it may, however, for all I have been saying the appeal has merit and the same succeeds. Accordingly, I would allow the appeal and set aside the ruling and the costs awarded by the learned Vacation Judge, Agbo, J. In its place, by reason of effluxion of time regarding the application for adjournment at the instance of appellant, which has been overtaken by events, larder that the main case should be returned and continued by Monica Edozie, J if she is still within the Enugu Judicial Division, but if not, the case should start de novo before another judge within the Enugu Judicial Division as may be determined by the Administrative Judge of the said Enugu Judicial Division.

This is a fairly straight forward appeal in which learned counsel for the parties at the oral hearing simply adopted their respective briefs of argument without further submissions. Accordingly, I assess and award N1,000 costs in this appeal in favour of the appellant.

EJIWUNMI, J.C.A.: I agree.

TOBI, J.C.A.: I have read the judgment of my learned brother, Achike, JCA and I agree with him. Where parties present before the court affidavit evidence in a motion, the court is bound to examine the evidence in order to arrive at a decision, unless the motion is strictly or essentially one of law. That was not the position in this appeal. The motion had to do with factual matters which called on the learned trial Judge to decide whether the issue involved was one of an urgent nature to warrant the invocation of what I may refer to vaguely as his “vacation jurisdiction.” Unfortunately, the learned trial Judge did not see the need to examine the affidavits of the parties before arriving at a conclusion. That is wrong. The law expected him to examine the affidavits before making the order.

The other aspect is in respect of the application for adjournment. A Judge must hear an application for adjournment and dispose of it before taking the main matter. He has no legal right to brush aside an application for adjournment as if it did not exist. While a Judge has no legal duty to invariably grant an application for adjournment, he must hear the application. It is only after hearing the application that he can refuse it.

In the circumstance, I also allow the appeal and award N1,000.00 costs in favour of the appellant. Appeal allowed.

 

Appearances

Eddy C. Ibe, Esq. For Appellant

AND

A.C. Onwu; For Respondent