HACO LIMITED VS S.M. DAPS BROWN-1973

HACO LIMITED VS S.M. DAPS BROWN

(1973) LCN/1730(SC)

In the Supreme Court of Nigeria

Friday, April 27, 1973

Case Number: SC. 306/1973

RATIO

AWARD OF COSTS AS JUDICIAL DISCRETION EXERCISED ON FIXED PRINCIPLES OF REASON AND JUSTICE

“The award of costs involves a judicial discretion which must be exercised on fixed principles, that is according to rules of reason and justice, not according to private opinion. (See Sharpe v. Wakefield (1891) AC 175, at p. 179; Wurno v. U.A.C. LTD. (1956) 1 FSC 33, at p.34). Similarly, the exercise of this discretion must not be affected by questions of benevolence or sympathy.” –Per IRIKEFE, AG. JSC

JUSTICES:

ELIAS, CHIEF JUSTICE, NIGERIA

FATAYI- WILLIAMS, JUSTICE, SUPREME COURT

IRIKEFE, JUSTICE, SUPREME COURT

APPELLANTS

HACO LIMITED

BETWEEN

RESPONDENTS

S.M. DAPS BROWN

IRIKEFE, AG. J.S.C (Delivering the Leading Judgment): Before the Lagos High Court the plaintiff/respondent herein, claimed as follows against the appellants:-
“(a) The sum of 300 pounds deposited by the plaintiff with the defendants with the interest thereon at the rate of 6 per centum per annum in accordance with clause 15 of the agreement made between the plaintiff and the defendants and dated the 7th day of December, 1957.
(b) Arrears of salary at the rate of 40 pounds per month and equated bonus at the rate of 10 pounds per month from July, 1967 up to date of judgment.
(c) 300 pounds being repatriation expenses for the plaintiff and his family from Lagos to Kano.
(d) Costs.”
Claims (a), (b) and (d) were repeated in the Statement of Claim, while claim (c) was abandoned.
In his Statement of Claim aforesaid, the respondent averred as follows under paragraph 2:
“Under clause 15 of the terms of the agreement the plaintiff deposited with the defendant the sum of 100 pounds subject to the further terms and conditions under the said clause.”
The above averment was admitted in paragraph 1 of the Statement of Defence. Later, and just before the action proceeded to trial, the defence sought for and obtained leave to amend the Statement of Defence and to pay a sum of money into court in satisfaction of claim (a) on the writ of summons.
The proposed amendment is dealt with in the affidavit filed in support of the application and in paragraph 5 thereof, the following facts are deposed to:-
“That the defendants are ready and willing to pay into court the sum of 150: 18: 3 pounds being the balance left in the plaintiff’s deposit account together with interest thereon at 6% up to date, and have left a cheque for that amount at my disposal.”
In the course of the hearing, counsel for the parties agreed that the sum of 150: 18: 3 pounds already paid into court represented respondent’s full entitlement under head (a) of his Writ of Summons and, before the court adjourned for judgment, it ordered that this sum be paid out to the respondent. The respondent failed to establish any of his other claims save that in respect of which money was paid into court and the learned trial judge, Dosunmu, J., ended his judgment as follows:

“As to the other items of claims, the plaintiff’s counsel properly concede that they have not been made out. In the result I will enter a formal judgment for the plaintiff in the sum of 150: 18: 3 pounds being refund of his deposit. But this amount I understand already paid into court has been withdrawn by the plaintiff. All the other items of claims are accordingly dismissed. The plaintiff cannot have full costs having lost the major part of his claims, I award him 65 guineas cost which include his out of pocket expenses.”
It is against the above award of costs that this appeal has been brought with the leave of the lower court.
Before us Miss Franklin, counsel for the appellants sought and obtained leave to argue two grounds of appeal which read thus:-
“(a) That the learned trial judge misdirected himself in law and on the facts by making an order for costs in favour of the respondent without regard to the payment into court by the appellant of the exact sum for which the respondent subsequently obtained judgment, and which sum the respondent had collected from court before proceeding with the case against the appellant.
(b) That the cost is excessive.”
Miss Franklin dealt with the two grounds together and the pith of her complaint appears to be that the respondent, having failed on a substantial part of the reliefs claimed, should only have been entitled to costs up to the time money was paid into court and that, in any case, the order as to costs should reflect the extent to which the appellants had succeeded in the case as a whole. Alternatively, it was also argued that since the only claim on which the respondent succeeded could have been properly brought in the Magistrate’s Court, the costs awarded should be in accordance with the scales applicable in that court.
We assume that counsel’s contentions envisage compliance with the rules of court governing payment into court, and as such, an examination of the said rules will not be out of place. ORDER 22 (RULES OF THE SUPREME COURT – see ANNUAL PRACTICE – 1969) deals with payment into court. ORDER 22 RULE 1(1) reads thus:-
“In any action for a debt or damages any defendant may at any time after he has entered an appearance in the action pay into court a sum of money in satisfaction of the cause of action in respect of which the plaintiff claims or, where two or more causes of action are joined in the action, a sum or sums of money in satisfaction of any or all of those causes of action.”
RULE 1(2) of the same Order reads:-
“On making any payment into court under this rule, the defendant must give notice thereof in Form No. 23 in Appendix A to the plaintiff and every other defendant (if any); and within 3 days after receiving the notice the plaintiff must send the defendant a written acknowledgment of its receipt.”
One of the footnotes appearing against ORDER 22 RULE 1(5) states that to be effective on the question of costs, the payment or last payment made or increased before the beginning of the trial or hearing of the action must be made not less than 14 days before the trial or hearing of the action begins, otherwise the plaintiff will not have the full time allowed to him by Rule 3, in which to accept the money paid into court without leave.
Acceptance of money paid into court is dealt with under ORDER 22 RULE 3(4) which states thus:-
“On the plaintiff accepting any money paid into court all further proceedings in the action or in respect of the specified cause or causes of action, as the case may be, to which the acceptance relates, both against the defendant making the payment and against any other defendant sued jointly with or in the alternative to him shall be stayed.”
ON THE EFFECT OF ACCEPTANCE on a claim the following notes appear against ORDER 22 RULE 3(4):-
“The acceptance of money paid into court, if duly made, has effect in two ways, viz (1) whether the money was paid in before or after the beginning of the trial or hearing of the action, the acceptance will operate as a stay of further proceedings (2) if the money was paid in and accepted before the beginning of the trial or hearing of the action, the plaintiff is entitled as of right to receive payment of the money without an order of the court and to tax his costs.”
ORDER 27 RULES 1-3 of the OLD SUPREME COURT RULES (LAWS OF NIGERIA – 1948 VOL. X) which are still applicable in the Lagos State deals also with payment into court and the provisions are substantially similar to those contained in the ENGLISH ANNUAL PRACTICE.
Mr. Whyte, learned counsel for the respondent, in his reply contended that the appellants cannot rely on the payment into court as: (a) It was made rather later in the day and not in accordance with settled procedure and (b) In any case, the record shows that the learned trial judge in the court below had taken all relevant circumstances into consideration.
It is plain that the parties did not advert their minds to the rules governing payment into court as set out above. We do not, therefore, agree with the appellants’ plea that the lower court had a duty to reduce costs payable by them merely because money had been paid into court. We think, however, that the appellants are on sure ground in their contention that the decision on costs does not adequately reflect the degree of success achieved by them on the case as a whole.
Now it is settled law that costs normally follow the event, unless there are circumstances warranting the contrary. (See Order 62 Rule 3 – Annual Practice – 1969). The award of costs involves a judicial discretion which must be exercised on fixed principles, that is according to rules of reason and justice, not according to private opinion. (See Sharpe v. Wakefield (1891) AC 175, at p. 179; Wurno v. U.A.C. LTD. (1956) 1 FSC 33, at p.34). Similarly, the exercise of this discretion must not be affected by questions of benevolence or sympathy. (See Kierson v. Thompson & Sons Ltd. (1913) 1 KB 587, at p.589 and also Bevington v. Perks (1925) 2 KB 229, at p.232. We are satisfied that there is abundant authority in support of the proposition that a successful party in an action, unless he misconducts himself, is entitled to costs as of right. (See Cooper v. Whittingham (1880) 15 Ch.D. 501, at p.504; Inneh v. Obaraye (1957) 2 FSC 58, at p.59; and Ladega v. Akinliyi & Ors. SC.1/1967 delivered on 19/12/1969.
The record of this case clearly shows that the learned trial judge did not address his mind to the fact that the appellants won on practically all the reliefs claimed by the respondent and the appeal therefore succeeds on this ground. In the result, the appeal is allowed and the costs awarded the respondent in the court below, that is 65 guineas is reduced to N40 and this shall be the judgment of the court. There will be costs in favour of the appellants against the respondent in this Court assessed at N100.