SAMUEL MADUKA AKAMNONU & ANOR v. SUNDAY IBENYE (2016)

SAMUEL MADUKA AKAMNONU & ANOR v. SUNDAY IBENYE

(2016)LCN/8159(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of February, 2016

CA/E/376/2008

RATIO

APPEAL: WHETHER A PARTY CAN ARGUE AGAINST ANY PART OF THE JUDGEMENT THAT IS NOT APPEALED AGAINST IN AN APPEAL

It is trite law that in an appeal, a party cannot argue against any part of the judgment that is not appealed against. See Awote & Ors v. Owodunni & Anor (1987)5 SCI and Sparkling Breweries Ltd & Ors. v. UBN Ltd (2001)7 SC (pt. 11) 146. per. EMMANUEL AKOMAYE AGIM, J.C.A.

EVIDENCE: WHETHER ONLY CREDIBLE EVIDENCE CAN BE RELIED ON BY PARTIES AND THE COURT IN DETERMINING ANY ISSUE IN A CASE

This is because it is trite law that only credible evidence can be relied on by parties and the Court in determining any issue in a case. Evidence adjudged not credible cannot be relied on to determine the issues in a case. per. EMMANUEL AKOMAYE AGIM, J.C.A.

PRACTICE AND PROCEDURE: ERROR IN A CASE; WHEN CAN AN ERROR IN A CASE VITIATETHE PROCEEDINGS OR JUDGEMENT

It is settled law that it is not every error in a case that will vitiate the proceedings or judgment therein. It is only such error that occasions a miscarriage of justice, in the sense that without the error, the decision would have been different and in favor of the Appellant, that can vitiate the proceedings or judgment of the Trial Court. See Bamayi vs The State (2001) 4 SC (pt 1) 18, Savannah Bank of Nigeria vs Starite Industries Overseas Corporation (2009) 2-3 SC 8, Onochie vs Odogwu (2006) 6 NWLR (pt 975) 65 (SC), Sanusi vs Ameyogun (1992) NWLR (pt 237) 527 (SC), M.O. Kanu, Sons and Co Ltd vs FBN Plc (2006) 5 SC (pt 111) 80, Akayepe and Another vs Akayepe (2009) 11 NWLR (pt 1152) 217 (SC). per. EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

1. SAMUEL MADUKA AKAMNONU
2. MADUABUROCHUKWU MADUKA Appellant(s)

AND

SUNDAY IBENYE Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering the Leading Judgment): On 11-4-2008, the Anambra State High Court, sitting at Ogidi in Idemili Judicial division, rendered judgment in Suit No. HID/141/99 holding that the plaintiff?s claim succeeds and ordering that the defendants were restrained by themselves, their agents, servants and privies from further entry into the land in dispute or in any manner whatsoever interfering with the plaintiff?s possession of the land in dispute.

Dissatisfied with this judgment, the defendants on 12-5-2008 commenced this appeal No. CA/E/376/2008 by filing a notice of appeal containing eight grounds for the appeal.

Both sides filed, exchanged and adopted their respective briefs, namely. The amended appellants? brief and respondent?s brief.

The amended appellants? brief raised the following issues for determination-
1. ?Whether the learned trial judge was right when he held that the defendants/appellants vendor had no title over the land in dispute and therefore the defendants/appellants acquired no title over same?
2. Whether the learned trial judge was right when he

granted the plaintiff/respondent the order of perpetual injunction restraining the defendants/appellants from further entering the land in dispute and committing further acts of trespass?
3. Was the learned trial judge right when he held that the land in dispute belonged to the plaintiff/respondent?
4. Whether the learned trial judge was right when he held that the Nrachi ceremony of the mother of the vendor of the defendants/appellants which was performed later after the death of the grandfather of the vendor of the defendants/appellants was not capable of reversing the inheritance of the father of plaintiff/respondent in 1940, of the land part of which is in dispute?
5. Whether the learned trial judge was right when he failed to evaluate or to properly evaluate and consider the evidence adduced before him by the parties?
6. Whether the learned trial judge was right when he held that the defendants/appellants vendor had no title to the land in dispute?
7. Was the learned trial judge right when he awarded the cost of N82,000.00 to the plaintiff/respondent?
8. Whether the judgment is against the weight of evidence

?The

respondent?s brief raised the same issues for determination.
I will determine this appeal on the basis of the issues for determination in the appellant?s brief.

I will determine issues 1, 2, 3, 4, 5, 6 and 8 together as they all deal with the question of whether the trial Court rightly held that the appellants acquired no title in the land in dispute, as the said land belonged to the respondent and not to Chukwuwetalu Nwachukwu, the person that purportedly sold the land to the appellants.

I have calmly and carefully read all the arguments of both sides on the above issues. On the pleadings and evidence of both sides.the central factual issue in controversy was the lineage of the respondent and that of Chukwuwetalu Nwachukwu (the person from whom the appellants bought the land in dispute). The respondent maintained that his progenitor is Ejiofor whose son by his first wife Ugonna, named Ibenye begot Daniel Ekebor Ibenye who is the respondent?s father, that after the death of Ejiofor, his first wife Ugonna was remarried by one Anazodo from another kindred resulting in the birth of Nwachukwu Anazodo who in turn begot Richard

Umenwa Nwachukwu who had only female children and no male child, that one of the said female children named Mary gave birth to Chukwuwetalu Nwachukwu while sojourning at Osogbo in Western Nigeria, some years after her father?s death and that the respondent and Chukwuwetalu Nwachukwu do not have a common paternal lineage and so cannot jointly inherit or hold the land Ibenye inherited from Ejiofor and handed down to respondent?s father.

The appellants rather maintained that the respondent and Chukwuwetalu Nwachukwu had a common paternal ancestory or lineage that their progenitor was Ezelagbo and not Ejiofor, that the 2nd wife of Ezelagbo bore him two sons namely Nwachukwu and Ibenye, that Nwachukwu who was the 1st son begot Richard Umenwa Nwachukwu who had no male issue but had four females, that Mary the last female child agreed with the father not to marry but stay at home to bear a male child for him, that Mary begot Chukwuwetalu Nwachukwu by an unknown man for the father, that the 2nd son of Ezelagbo by his 2nd wife, Ibenye begot Daniel Elebo the father of the respondent.

?Both sides in their pleading and evidence agree that their

respective progenitor originally owned the land in dispute. While respondent maintained that he as the only surviving male child or descendant of Ejiofor and exclusively inherited the land in dispute, the appellants in their amended statement of defence maintained that the respondent and Chukwuwetalu Nwachukwu as the only surviving male descendants of Ezelagbo inherited and held the land in dispute jointly and in common.

The trial Court found that in a previous Suit No HID/321/99 between the respondent and Chukwuwetalu Nwachukwu it had upheld the respondent?s version of traditional history of his family and that since Chukwuwetalu Nwachukwu did not appeal against that decision, it remained valid and he cannot contend otherwise in the present suit. The exact wordings of this portion of the judgment of the trial Court reads thusly- ?The plaintiffs case is that he did not descend from Ezelegbo but from Ejiofor. He has sued Chukwuwetalu in an earlier suit. That is suit No. HID/321/97, Sunday Ibenye v. Chukwuwetalu Nwachukwu. The judgment in that case is in evidence as Exhibit P.4. In that case the Court found in favour of the plaintiff?s

traditional history of his family. The Court found that the only connection between plaintiff and Chukwuwetalu is their common female ancestor Ugonna. There has been no appeal against that judgment. Chukwuwetalu admitted in this case that he was aware of the suit but chose not to defend the suit. The law is clear that the judgment of the Court is valid until set aside. That being so it is not open to Chukwuwetalu to contend otherwise in this suit.?

There is no ground of this appeal against this portion of the judgment of the trial Court that Chukwuwetalu Nwachukwu was bound by the trial Court?s decision in suit No HID/321/1997 upholding respondent?s traditional history and that he could not contend to the contrary in the present case. By not appealing against the said part of the trial court?s judgment, the appellants accepted it as correct and binding upon them. See Odjevwedje & Anor v. Echanokpe (1987) 3 SC 47, Iyoho v. Effiong (2007)4 SC (Pt. 111)90, Biariko v. Edeh ? Ogwile (2001)4 SC (pt. 11)96, SPDC Nig. Ltd. v. XM Federal Ltd. & Anor (2006)7 SC (pt. 11) 27.

?Learned counsel for the appellant argued in the

appellant?s brief thusly- ?The plaintiff/respondent may contend that based on the judgment of the Anambra State High Court holden at Ogidi in Idemili Judicial Division delivered in suit No. HID/321/97, he has no paternal relationship with the defendants/appellants? vendor but maternal and therefore the said defendants/appellants? vendor has no title over the land in dispute.
It is our submission that the above contention cannot hold water in the face of the uncontradicted evidence and pleadings of the defendants/appellants and their witnesses.?

This argument is incompetent and invalid as the appellants had accepted the above portion of the trial Court?s judgment as correct and binding upon them. It is trite law that in an appeal, a party cannot argue against any part of the judgment that is not appealed against. See Awote & Ors v. Owodunni & Anor (1987)5 SCI and Sparkling Breweries Ltd & Ors. v. UBN Ltd (2001)7 SC (pt. 11) 146.

?The appellants? acceptance of the above reproduced portion of judgment as correct and binding upon them, rendered this whole appeal by them unarguable and or

unmeritorious. In the face of the said accepted judgment, the appellants cannot argue that Chukwuwetalu Nwachukwu is of a common paternal ancestory or lineage with the respondent and so is entitled to jointly inherit and hold the suit land in common with the respondent and the appellants cannot argue that the trial Court was wrong to have held that the suit land belonged exclusively to the respondent as the surviving male child of Ejiofor.

The arguments of Learned counsel for the appellants that the daughters of Richard Nwachukwu were entitled to inherit the interest their father held jointly and in common with respondent?s father, that Chukwuwetalu Nwachukwu was entitled to hold jointly and in common the said land in dispute with the respondent by virtue of the practice of Nradu custom of Obosi people and by respondent?s father giving him the name he bears, are incompetent and unsustainable since it is judicially settled by the decision in HID/321/1997 in Exhibit P4 that Richard Nwachukwu, Chukwuwetalu?s maternal grand father is not a child of Ejiofor and is not of a common paternal lineage with the respondent?s father. Not being

a member Ejiofor family both her, his children and grand children obviously cannot have any right or interest in the land belonging to Ejiofor and handed down to his son Ibienye and his grand children down the line.

Learned counsel for the appellant argued that the appellants? occupation of the land in dispute did not amount to trespass because before they purchased the land from Chukwuwetalu Nwachukwu, they consulted the respondent, who assured them that the land belonged to Chukwuwetalu. Learned counsel submitted that the testimony of the 1st appellant as DW6 concerning the appellants? consultation of the respondent was not challenged or shaken under cross-examination, that the testimony must be deemed accepted by the respondent as the truth. For this submission he relied on Offorlette v. State (2000)12 NWLR (pt 681)415 at 436.

Learned Counsel for the appellants further submitted that the trial Court should not have made the order of injunction restraining the appellants from continuing to enter upon or occupy the land in dispute because the respondent by his conduct represented to the appellants that Chukwuwetalu Nwachukwu had title

over the land in dispute which he could transfer to them, that the respondent was stopped from denying that the appellants purchased valid title to the land and that if the trial Court had applied the doctrine of estoppel by representation or by conduct, it would have come to a different conclusion and would not have made the order.

This argument disregards the clear decision of the trial Court that the testimony of the 1st appellant that they consulted the respondent before they purchased the land from Chukwuwetalu conflicts with the testimony of Chukwuwetalu that he sold that land as a revenge for the respondent having sold some other land and that it does not believe the said testimony of the 1st appellant. The exact wordings of that part of the judgment of the trial Court reads thusly- ?The 1st defendant testified that he went to consult the plaintiff before he bought the land. He testified further that the plaintiff assured him that the land belonged to the Chukwuwetalu after going with him to see the land. Now this story conflicts with the testimony of his vendor Chukwuwetalu. He made it clear that he sold the land as a revenge for the

plaintiff having sold some other land. He did not as much suggest that the land was his share of land, or that it belonged to him exclusively. It is obvious from the witness statement of Chukwuwetalu that he did not consult the plaintiff before the sale.

It is therefore clear to me that the 1st defendant could not possibly be telling the truth when he stated that the plaintiff told him that the land is the share of Chukwuwetalu. Surely he does not deserve credit as a truthful witness and I do not believe him at all. this becomes even more obvious when the testimony of the D.W.4 is considered. He is Nnaemeka Onyedika. He testified in paragraphs 14 and 15 of his witness statement that it was the kindred that told Chukwuwetalu to sell two plots of the land. They also said that the land is not to be sold by an outsider and that was why they called the defendants. Under cross examination he stated the response of the plaintiff to their decision to be that ?He told the elders to come to Court if they wish. This happened over 15 years ago? There is therefore no doubt that the plaintiff never accepted the authority of the kindred to arbitrate over the

matter talk less of accepting their decision.?

There is no ground of this appeal complaining against the decision that the testimony of 1st appellant conflicts with that of Chukwuwetalu and the decision disbelieving the said testimony. By not appealing against it the appellants accepted the decisions as correct and binding upon them.

Having accepted that the said testimony of 1st appellant is not credible or believable, then no valid argument can proceed on the basis of such evidence. This is because it is trite law that only credible evidence can be relied on by parties and the Court in determining any issue in a case. Evidence adjudged not credible cannot be relied on to determine the issues in a case. See

Learned Counsel for the appellants argued that the father of the respondent did adopt Chukwuwetalu Nwachukwu as his own son. He based this submission on the appellants? averments in paragraph 10 of the amended statement of defence as follows- ?The defendants vehemently deny paragraph 10 of the statement of claim and in answer there to, state that Mary the daughter of Richard Umenwa Nwachukwu agreed with her father to

remain in the family and not to marry until she begat a male issue for his father and when Mary begat a male issue, it was Daniel Elebo, the father of the plaintiff who gave him the name Chukwuwetalu. Furthermore, it was Daniel Elebo who gave out the daughters of Richard Umenwa Nwachukwu including Mary when she eventually decided to marry and took their bride price. Mary, after the birth of Chukwuwetalu got married.?

In the view of Learned Counsel the adoption is constituted by the facts that respondent?s father gave Chukwuwetalu his name and also gave out daughters of Richard Nwachukwu in marriage and received their bride prices. Learned Counsel then submitted that- ?It is our submission that from the moment Daniel Elebo Ibenye adopted Chukwuwetalu into the Ibenye Nwachukwu families, he, Chukwuwetalu became a co-owner with Daniel elebo Ibenye of all the land Daniel elebo Ibenye before the birth of Chukwuwetalu, was owning and enjoying alone and the above being the case chukwuwetalu, before and after the death of Daniel Elebo Ibenye was acquired interests in all the properties which Daniel Elebo Ibenye was enjoying before his birth,

which interest ranks equal with that of the plaintiff/respondent.
It is therefore our submission that the learned trial judge erred when he held that Chukwuwetalu had no title whatsoever over the land in dispute and that the defendants/appellants acquired no title from him to the land in dispute.
It is our submission that the learned trial judge was wrong and in error, when he held that the defendants/appellants occupation of the land in dispute therefore amounted to trespass.?

This argument that the respondent?s father adopted Chukwuwetalu as his son conflicts with the case of the appellants in their pleading and evidence that Chukwuwetalu was by the practice of Nrachi custom of Obosi people adopted by his maternal grand father Richard Umenwa Nwachukwu as his son. It was never the appellants? case that Chukwuwetalu was adopted by the respondent?s father. On this point, the trial Court held that- ?In the instant case, it is not suggested that Daniel Elebo adopted Chukwuwetalu as his son. That would have made all the difference. What is suggested is that, by the process, Chukwuwetalu was adopted as the son of

Richard Umenwa Nwachukwu. Consequently, even if I believe the defendants? case in it?s entirety I would still come to the conclusion that Chukwuwetalu had no title to the land in dispute to transfer to the defendants. Since the law is NEMO DAT QUOD NON HABET, the defendants acquired no title from him. See OJOH V. KAMALU (2005)18 NWLR (PT 955)523.?

There is no ground of this appeal complaining against the decision of the trial Court that the respondent?s father did not adopt Chukwuwetalu Nwachukwu as his son. By not appealing against the decision, the appellants accepted the decision as correct and binding upon them. Having accepted as correct the decision that the respondent?s father did not adopt Chukwuwetalu as his son, the above argument of Learned Counsel for the appellant to the contrary is incompetent and cannot be sustained.

Let me now consider issue 7 in the appellants? brief. Learned Counsel for the appellants has argued that the trial Court was in error to have awarded cost of N82,000.00 in favour of the respondent for 11 appearances throughout the duration of the case, that by Part C of Schedule 3 to

the High Court (Civil Procedure) Rules of Anambra State 2006 which prescribe payment of N5,000 per day for SAN and N2000 per day for other legal practitioners as transportation or appearance costs, the total amount that would have been payable for the 11 appearances was N22,000.00, that the award of N82,000.00 as costs went beyond indemnifying the respondent for his out of pocked expenses and compensation for true and fair expenses of litigation, that there is no evidence before the Court of what were the out of pocket and litigation expenses of the respondent to enable the trial Court determine what would be fair compensation for litigation expenses.

Learned counsel for the respondent argued in reply that the award of N82,000.00 was proper, that the award was not based on only the number of appearances, that the award of cost is at the discretion of the Court, that the trial Court exercised its discretion judicially and judiciously when it awarded the said cost and that costs follow the event and that a successful party is entitled to costs unless there are special reasons for depriving him his entitlement to costs.

?Let me now consider the merit of

the above arguments by both sides.

The part of the judgment of the trial court dealing with the award of costs to the respondent reads thusly- ?There were a total of 11 appearances in this case, which is a land matter. As prescribed by the rules of this Court, there shall be cost of N82,000 in favour of the plaintiff.? So the reason the trial court gave for awarding the sum of N82,000.00 as cost is that the case is a land matter in which they had been 11 appearances. I agree with the submission of Learned Counsel for the appellant that the reason given by the court for the award do not sufficiently explain the basis for the award.

Both sides have correctly restated the law that the exercise of a Court?s discretion must be judicial and judicious. An exercise of a Court?s discretion is judicial and judicious if it is reasonable and just in the con of the peculiar facts and circumstances of the case before the Court. It means that the exercise of discretion is not arbitrary or wrongful. See Ekwunife vs Wayne (WA) Ltd (1989) 5 NWLR (pt 122) 422 at 448 (SC), Oduba vs Houtmangracht and Another (1997) 6 NWLR (pt 508) 185 (SC),

Haco Ltd vs Brown (1973) 4 (SC) (reprint) 103, R. Lauwers Import-Export vs Jozebson Industries Co Ltd (1988) 7 SC (pt 111) 26 and Olumegbon and Others vs Kareem and Others (2002) 5 SC (pt 1) 101.
Generally, for a Court?s exercise of discretion to be judicial and judicious, it must be supported by correct, valid and convincing reasons. It is arbitrary or wrongful if it is not supported by any reasons or is supported by wrong or insufficient reasons. See Ekwunife vs Wayne (WA) Ltd (supra) and Yussuf vs Ilori (supra).

The award of costs is at the discretion of the Court. The discretionary nature of this decision is prescribed in Order 49 Rule 6 of the High Court of Anambra State (High Court) Rules 2006, which vests on the Trial Court, the power to exercise such discretion. It provides that: ?subject to the provision of any applicable law and these Rules, the costs of and incidental to all proceedings in the High Court, including the administration of estates and trusts, shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.?
?Order 49 Rule 1 (1)

and (2) of the same Rules prescribe how the Trial Court shall exercise the discretion of awarding costs. It provides that;
1) In fixing the amount of costs, the principle to be observed is that the party who is in the right shall be indemnified for the expenses to which he has been necessarily put in the proceedings as well as compensated for his time and effort in coming to Court. The Judge may take into account all the circumstances of the case including filing fees payable in the High Court and professional fees payable to the legal practitioner of the successful party
2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order.
By virtue of this provision, the Trial Court can summarily determine the amount awardable as cost and the word ?summarily? in Order 49 Rule 1 (2) does not mean in effect, that the Trial Court is not bound to give reasons for such determination. The adverb ?summarily? refers to the manner, the determination of the costs awardable is to be carried out. Literally or ordinarily,

the word means a quick shortened determination without the customary formalities of proof of facts of the circumstances the Court considered in fixing the amount of costs. Reading Sub-Rules (2) and (3) of Rule 1 of Order 49 shows clearly that what is meant by a determination summarily of the amount of costs is a determination ex tempore on the spot during delivery of judgment or decision, along with the judgment or decision. This is because the Sub-Rule provides that where the Judge deems it impracticable to determine summarily, the amount awardable as cost, the determination of same shall be referred to a taxing officer. So if the Court cannot determine extempore (on the spot while delivering the judgment) then it has to refer the trial and determination of the issue to a taxing officer. It will not be determined on the spot as the judgment is being delivered. The said Sub-Rule (3) provides that ?when the Judge deems it to be impracticable to determine summarily the amount of any costs which he has judged or ordered to be paid, all questions relating thereto shall be referred by the Judge to a taxing officer for taxation.?
Order 49 Rule 1

states the principle to be observed in fixing the amount of costs and what the Court should consider or take into account in fixing the amount. There is nothing in the provisions of Order 49 Rule 1 restricting its application to the formal trial and determination of the amount awardable as costs by a taxing officer following a referral of the question to it by a Court pursuant to Sub-Rule (3) of Rule 1 of Order 49. Equally, there is nothing therein excluding its application to the fixing of the amount of costs summarily or extempore by the Court while delivering its judgment or decision.
Where a law prescribes the matters to be taken into account in exercising discretion in determining an issue, it emphasizes and gives legislative flavor to the general legal principle that a judicial discretion must be exercised on certain principles, according to rules of reason and justice in the con of the peculiar facts of the case. See UBA vs GMBH (1989) NWLR (pt 110) 374, Haco Ltd vs Brown (supra), Onabanjo vs Ewetuga (supra) and Gabari vs Ilori (Supra). The decision resulting from the exercise of discretion must show or reflect a consideration of the said

principles and circumstances relied on in arriving at it. There is no other way of knowing what principle was used, what facts and reasons were relied on, in fixing an amount of cost, if there is nothing in the decision showing the principle applied and the reasons for the decision. The fixing of the amount of costs without showing the principle and reasons relied on, renders the decision perverse, arbitrary and wrongful. From the foregoing, it is glaring that the Trial Court did not properly exercise its discretion in fixing the amount of costs because the decision did not show the principle and reasons it relied on for the award.

Since the Trial Court has not properly exercised its discretion in fixing the amount of costs at N82,000.00, this Court can interfere with that award in line with the settled principle that an Appellate Court can interfere with a decision resulting from an improper exercise of discretion by a Trial Court. See Ntukidem and Others vs Oko and Others (1986) NWLR (pt 45) 909 (SC), Nwabueze vs Nwosu (1988) 9 SC 681, Odutola vs Kayode (1994) 2 SCNJ 21, Salu vs Egeibon (1994) 6 SCNJ 223 and University of Lagos and Another vs Aigoro

(1985) 1 SC 295.
?Since the Trial Court has not stated any reason for the award N82,000.00 as costs in favour of the Respondent, I will review the award to find out if the facts and circumstances of the case justify the award. The record of this appeal show that the Respondent as the Plaintiff was the successful party in the Trial Court. The suit was commenced on 8-10-2009 and a final judgment was rendered by the Trial Court on 20-6-2013. So the case at the Trial Court lasted for 3 years and 9 months. The Plaintiff was represented by counsel and filed several processes throughout the trial process. The Plaintiff and his counsel attended most of the sittings of the Trial Court in the case. Apart from the fees paid for the filing of processes, the record of appeal do not show if the Plaintiff incurred any expenses for the engagement of legal practitioner to prosecute his claim, incurred costs for the transportation of his Legal Counsel, himself and witnesses to and fro the Court during the proceedings in the Trial Court. However, it is common knowledge in Nigeria that generally, professional fees are paid for a legal practitioner to prosecute one?s

case in Court and that it costs money to move from one place to another. The knowledge of these facts is not reasonably open to question. Therefore this Court can take judicial notice of them by virtue of Section 124 (1) and (2) the Evidence Act 2011 which provides that;
1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is;
a) Common knowledge in the locality in which the proceeding is being held, or generally; or
b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned
2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this section refers, and shall take such knowledge into account.
Considering the 3 years and 9 months period the case lasted, the fees paid for filing processes, the costs of transporting the Plaintiff, his witnesses and Legal Counsel to and from Court during the 11appearances in the Trial Court for this case, the professional fees of his lawyer, the persisting inflation and the continually diminishing intrinsic value of the national monetary currency (naira and

kobo), I think that the cost of N82,000.00 awarded in favor of the Plaintiff is to indemnify him for the expenses to which he has been necessarily put in the proceedings and compensate him for the time and effort in continuing to Court. In Onabanjo vs Ewefuga (supra), this Court, per Tobi JCA (as he then was), held thusly;?and that takes me to the final issue on costs. 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 in default nor are they given as a bonus to the party in victory. Therefore, if the extent of the damnification can be found out, then the extent to which costs ought to be allowed is ascertained. A Judge will not award unreasonable costs and cripple a party who lost in the case. See Rewane vs Okotie-Eboh (1960) SCNLR 461: (1990) 5 FSC200; Inneh vs Obaraye (1957) SCNLR 180; (1957) 2 FSC 58: Kukoyi vs Odufale (1965) 1 All NLR 300.
?There are no rigid principles or rules governing the award of costs. The principles or rules so far fashioned out by the Courts are mainly designed to be useful aids to the award of cost and not the

final word on the issue. No Court of law has the legal capacity to propagate principles or rules governing the award of costs of all times and at all times. This is because so much discretion is involved in the matter and the discretion can only be exercised in the light of the peculiar circumstances of the case.
While it is the general practice to emphasize that what I may call the negative aspects of award of costs. The Courts are equally entitled to take into consideration the positive aspects governing their award. For instance, while Courts of law are not allowed to award punitive costs, they are bound to award costs which are commensurate with the circumstances of the case. Such costs will not be said to be punitive. Costs follow the event and so long as they follow events and vindicate the out of pocket expenses of the party in victory. The adverse party cannot be heard to complain.
In awarding costs, a Court of law is entitled to consider, amongst other factors, the summons fees, the duration of the case, the number of witnesses called by the party in victory, the vexations and frivolities of the action or defence of the party who failed in

the litigation, and legal representation. One other important consideration is in respect of monetary value at the time of incurring the expenses and the value at the time of the award. In the latter situation, the Court will take into consideration the purchasing power of the naira in our present oppressive economy.?
In Gabari vs Ilori (supra), this Court again held that ?there are materials before the Learned Trial Judge from which the number of appearances made in the matter and how much filing fees was paid could be ascertained. It however stands to common sense that in litigation brought in private capacity in this country, fees are paid and expenses including solicitors fees [are] incurred. The submission of the Learned Counsel for the Appellant to the effect that no evidence was called in support is preposterous. The Learned Trial Judge awarded costs on [the] ground that the first Respondent be compensated for his filing fees, appearances and out of pocket expenses not to talk of solicitors fees. None of these grounds has been faulted by the Appellant. Counsel has not proffered reason to justify our intervening with the order on costs.

The award of costs in Nigerian Court[s] to a successful party is grossly inadequate as it hardly takes into consideration his solicitor?s fees which is spiraling in recent times because of the dwindling value of the national currency, the naira. The inflationary trend in the economy should respectfully be taken into account in the award of costs by our Courts. The result of the award of costs in the Court below is not liable to [be set aside] contrary to the contention of the Appellant.? (per Salami JCA (as he then was).

?Let me join the very distinguished Lord Justice Salami JCA (as he then was) in making observations concerning the lack of realism in our practice on claims for and award of costs following the final judgment or decision in a case. Both legal practitioners and the Courts hardly follow the principles and practice for fixing the amount of costs prescribed in Order 49 of the Anambra State High Court (Civil Procedure) Rules 2006 or similar provisions and general legal principle on claim for and award of costs. The currently prevailing practice is that the lawyer asks for costs. The Trial Court in its judgment, extempore fixes and

awards the amount of cost in one or two sentences without stating the principle and reason for the award. The result of this flimsy approach is that it is not guided by any legally recognizable principle, the amount often arrived at are too low and inadequate and therefore cannot indemnify the successful party for the expenses to which he has been necessarily put in the proceedings and cannot compensate him for his time and effort in coming to Court. While the flimsy judicial approach to fixing the amount of costs is inexcusable, it however results from the flimsy approach of counsel in asking for costs. Claimants for costs hardly ask for a referral of the trial of the issue of quantum of costs awardable to a taxing officer. The elaborate provision of our Rules of Court (Order 49 Rules 2 to 27 of the Anambra State High Court (Civil Procedure) Rules for example) are not being used. The successful litigant never enjoys the remedy of the high costs he has been necessarily put into the proceedings. The unsuccessful party is never held to pay for such expenses. This encourages frivolous litigations, disputations and defences. Such frivolous litigants with malice

afore thought deliberately puts the other party to great expense, ensuring he wins at such great expense. It is common knowledge in Nigeria that generally, professional fees for legal practitioners representing a party in Court are reasonably high. Often times the amount awarded cannot cover 5 percent of the amount the successful litigant paid as reasonable fees to his lawyer. Our current practice causes serious miscarriage of justice to the successful litigant in fixing the amount of cost in his favor. There is therefore an urgent need for a review of our current practice on award of costs following final judgment. It is clear from the foregoing that the Trial Court?s error of procedure in the award of N100,000.00 costs in favour of the successful Plaintiff did not occasion a miscarriage of justice against the Appellant. In my view, the Appellant gained from the error. Since the error did not occasion any miscarriage of justice to the Appellant, I will not set aside the award of N100,000.00 in favor of the successful Plaintiff. I will uphold it. It is settled law that it is not every error in a case that will vitiate the proceedings or judgment therein.

It is only such error that occasions a miscarriage of justice, in the sense that without the error, the decision would have been different and in favor of the Appellant, that can vitiate the proceedings or judgment of the Trial Court. See Bamayi vs The State (2001) 4 SC (pt 1) 18, Savannah Bank of Nigeria vs Starite Industries Overseas Corporation (2009) 2-3 SC 8, Onochie vs Odogwu (2006) 6 NWLR (pt 975) 65 (SC), Sanusi vs Ameyogun (1992) NWLR (pt 237) 527 (SC), M.O. Kanu, Sons and Co Ltd vs FBN Plc (2006) 5 SC (pt 111) 80, Akayepe and Another vs Akayepe (2009) 11 NWLR (pt 1152) 217 (SC).

In the light of foregoing, I resolve issue 7 in favour of the respondents.

On the whole this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of Anambra State High Court at Idemili Judicial Division on Suit No. HID/141/99 per J.I. Nweze J. of 11-4-2008 is hereby affirmed and upheld.

The appellant shall pay cost of N100,000.00 to the respondent.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read before now, the elucidating lead judgment just delivered by my learned brother, Hon. Justice Emmanuel Akomaye Agim, JCA.

?I agree entirely with the reasoning contained therein and which led to the resonating conclusion, that the instant appeal matter with the issues having been resolved in the manner stated in the said lead judgment, is devoid of any vestige of merit and deserves nothing but the stamp of a fail appeal matter.

Thus, for the fuller reasons stated in the said lead judgment, I also dismiss it and thereby abide, endorse and subscribe to the consequential orders made in the said lead judgment of my learned brother, Agim, JCA inclusive of the order made with regard to costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading before now, the judgment delivered by my learned brother Emmanuel AKOMAYE AGIM, JCA.

I agree with the reasoning and conclusion therein that the appeal lacks merit and should be dismissed. I abide by the orders made therein.

Appearances

H. N. C. Moghalu, Esq.For Appellant

AND

B. N. Ewelukwa, Esq.For Respondent