ENGINEER CHRIS I. OJOMO v. ACCESS BANK PLC
(2019)LCN/12877(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/AK/182/2015
RATIO
COURT AND PROCEDURE: AWARD OF COST
“As clearly stated in the case of Akpelu V. Chukwu (2005) All FWLR (Pt. 268) 1885 D, the award of cost is always at the discretion of the Judge; of course guided by laid down principles and not by private opinion. Also, such exercise of discretion must never be affected by questions of benevolence or sympathy.” Has the exercise of the discretion in the award of costs in this appeal in any way been shown to be affected or influenced by private opinion other that the reasonable cause of justice which should be actuated by judicious and judicial considerations only? In the instant appeal, the learned Counsel has clearly shown the provisions of the Rules of the High Court that allows for amendments and the fact that in the circumstances that it was even made, at the threshold and inception of the hearing and for the first time, was sufficient reason to grant the application without ado.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE : WHERE A COURT IS TO EXERCISE DISCRETION
“In Flemidon (Dev.) (Nig.) Ltd V. Anaemere (2006) All FWLR (Pt. 301) 1915 @ 1941 D & G, 1942 1943 H & B it was held thus; the exercise of discretion is a matter exclusively for the Court after it has weighed all the circumstances of the case, that, because no one set of facts or circumstances can constitute a guide or authority for other instances, where the exercise of discretion is called into play and the Court cannot be bound by previous decisions to exercise its discretion in a particular way. Therefore, it is for the Court concerned, to meet the ends of justice and be fair and just in every circumstance, failing which, the Appellate Court may interfere.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: COURT DICRETION TO AWARD COST AND DAMAGES
“The award of costs is of course, always at the discretion of the Court which discretion must be exercised judiciously and judicially. Although a Court has the sole discretion to award costs, such costs should not be made to serve as a punitive measure or punishment. See NNPC V. CLIFCO NIG. LTD (2011) LPELR-2022 (SC).” PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
ENGINEER CHRIS I. OJOMO Appellant(s)
AND
ACCESS BANK PLC Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Justice, Ondo State, per Honourable Justice O. A. Odusola sitting at the Akure Judicial Division delivered on the 5th day of August, 2015 wherein it awarded a cost of N50,000 against the Appellant in favour of the Respondent on the 5th of August, 2015 when the Suit No. AK/107/2014 came up for the hearing between the parties at the trial Court. The suit had suffered a long adjournment since January 2015 due to the over 5 months strike covering January 2015 ? May 31st 2015 by the Judiciary staff of Ondo State and other States in the Federation.
On the said 5th August, 2015, the Appellant as claimant moved an application for the Amendment of its statement of claim and same was granted but with an order for costs of N50,000 only in favour of the Respondent on the ground that the Appellant?s/Plaintiff?s application was aimed at frustrating the speedy trial of the suit.
It is against the order for costs as awarded and the quantum thereof that the Appellant felt aggrieved and has by Notice of Appeal dated 19th August, 2015 and filed on 18th November, 2015 lodged this appeal and upon the Grounds thus:
GROUNDS OF APPEAL
1. The learned trial Judge erred in law when he awarded the sum of N50,000.00 cost against the Appellant “for causing delay in today’s hearing, the Claimant must be punished with costs. The cost shall be paid on or before the next date of hearing.’
PARTICULARS
i. This case was only instituted on 12th day of May, 2014.
ii. Since the institution of the suit, there was a 5 – month strike covering January, 2015 – May, 31st 2015 by the Judicial Staff of Ondo State and some other States in the Federation.
iii. There has not been any delay on the part of the Appellant since the commencement of this case.
iv. The fact that the case is set for hearing does not preclude a party from bringing an application for amendment for the purpose of determining the real issues in controversy in the suit.
v. Under the Ondo State High Court (Civil Procedure) Rules 2012 parties are allowed to amend their processes before and after hearing has commenced.
vi. An application for amendment is not an application for an adjournment.
vii. Costs are awarded at the discretion of the Court but the discretion must be exercised judicially and judiciously.
viii. Costs are not awarded for the purpose of punishing a litigant.
ix. Costs awarded by this Honourable Court violate all known principles and rules of law governing award of cost.
x. The award of costs has occasioned serious miscarriage of justice to the Appellant.
xi. The case came up for hearing for the first time on the said date of 5/8/2015.
Upon the transmission of the record of Appeal on the 25th November, 2015 and the simultaneous filing of the Appellant’s Brief of Argument dated 25th November on the same date, the Respondent was expected to respond; this was not done as the Respondent had neglected or failed to file the Respondents Brief of Argument or any motion for the leave of this Court to file same out of time.
In consequence of the above, the Appellant filed a motion of 18th February, 2016 on the 23rd February seeking for an order of this Court to hear and determine this appeal on the Appellant’s Brief of Argument alone for failure of the Respondent to file its Brief of Argument.
The said application was granted by this Court on 16/5/2016, the Respondent having been served since 3rd December 2016 as deposed to.
The said Appellant’s Brief of Argument adopted at the hearing on 23/01/2019 raised a lone Issue to wit:
Whether the cost of N50,000 awarded against the Appellant by the trial Court in favour of the Respondent is excessive and punitive.”
The Learned Counsel for the Appellant had stated at paragraph 4.2 of the Brief at page 1 thereof that the grouse of the Appellant borders majorly on being arbitrarily chastised by the lower Court for exercising his right of Amendment which he did in a manner that is far from being described as frivolous and vexacious.
The Learned Counsel contended that only one motion for amendment was filed since the matter was filed in 2014 and that is the motion in issue and that the Appellant acted in accordance with the provision of Order 24 Rule 1 of the Ondo State High Court (Civil Procedure) Rules, 2012 which provides as follows:
A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before closing his case.”
It was submitted that since the Rules aforesaid, did not make mandatory that amendment must compulsorily be done during pre-trial stage, it was sad and distraughting however that the learned trial Judge with due respect observed thus;
Throughout pre-trial stage the claimant did not deem it necessary to amend his process that the object of the rules granting opportunity to any desirous party to amend his pleadings not more than twice during the trial but before the close of his case is not aimed at occasioning injustice or slow pacing the process of litigation but rather to administer justice in fair and just terms.
That the application for amendment made for the first time and at threshold of the trial cannot be a ploy to frustrate the whole proceedings. That the intent and purposes or object, import and operation of costs was lost to the trial Judge in this instance.
He referred to the definition of costs in Black’s Law Dictionary 9th Edition, page 397 Relies onBuhari V. Obasanjo (2005) 2 NWLR (Pt. 910) 241 @ 602 B ? D after reproducing portions of the Ruling complained against, the Counsel chronicled the histology of the case and submitted that the Ruling of the trial Judge that ?for causing delay in today’s hearing, the Claimant must be punished with costs. I therefore award the sum of N50,000 against the Claimant and in favour (sic) the defendant.”
Conspicuously betrays profound appreciation of the practice, procedure and application of costs as same vividly violates all known principles and Rules of law governing the award of costs.
That the use of the words the Appellant will be punished with costs violates all known principles of costs and crippled the hope of the Appellant receiving justice before the Court. Reliance is placed on Iweasirim V. World Courier Nigeria Ltd (2002) FWLR (Pt 131) 1852 and upon the aforesaid authority, Counsel submitted that the N50,000 costs awarded by the learned trial Judge was not only crushing but out rightly inordinate, extremely punitive and despicably damnifying.
The Learned Counsel concedes that costs is at the discretionary domain of the Court but that it has to be exercised judiciously and judicially. Relies on University of Uyo V. Akpan (2014) All FWLR (Pt. 7386) 472 @ 530 C; Coomassie V. Tell Communication Ltd (2003) FWLR (Pt. 180) 1451 @ 1462; Francis V. Osunkwo (2000) FWLR (Pt. 14) 2469@ 2484 B; Akpelu V. Chukwu (2005) All FWLR (Pt. 268) 1852 @ 1888 D.
It was submitted that the appeal is not based on frivolity, nor is it a time wasting academic exercise but on a genuine, cogent and profound reasons for the amendment; was not a motion for adjournment and the fact of the case is set for hearing does not preclude a party from bringing an application for amendment for the purpose of determining all issues and questions once and for all.
That costs which should be awarded under a judicially and judiciously guided discretion was in this case awarded as a punitive measure. That this was in violation of the law governing the award of costs and has occasioned a miscarriage of justice. The Learned Counsel relied on many other decided cases and urged that the appeal be allowed.
A perusal of the record of appeal and in particular the Ruling complained of awarding costs and the Grounds of Appeal shows that the appeal concerns the award of costs as made in the circumstances. As clearly stated in the case of Akpelu V. Chukwu (2005) All FWLR (Pt. 268) 1885 D, the award of cost is always at the discretion of the Judge; of course guided by laid down principles and not by private opinion. Also, such exercise of discretion must never be affected by questions of benevolence or sympathy.”
Has the exercise of the discretion in the award of costs in this appeal in any way been shown to be affected or influenced by private opinion other that the reasonable cause of justice which should be actuated by judicious and judicial considerations only? In the instant appeal, the learned Counsel has clearly shown the provisions of the Rules of the High Court that allows for amendments and the fact that in the circumstances that it was even made, at the threshold and inception of the hearing and for the first time, was sufficient reason to grant the application without ado.
That there was no delay occasioned or intended as after all the prior delay in the commencement of trial was not caused by the Appellant; but by the protracted and long strike action embarked upon by the JUSUN (Judiciary Staff Union of Nigeria). I agree absolutely with this stance. In Oto V. Adojo (2003) 7 NWLR (Pt. 820) 636 @ 672 B ? E, the Court held that the principle upon which Courts act on appeal against costs is that it does not interfere where the costs are in the discretion of the trial Court, unless satisfied that it did not exercise its discretion or did not do so judiciously.”
In this matter, there is no doubt that a discretion, was exercised in the imposition of costs and in the fixture of the quantum thereof. The appeal clearly is against both situations. If the award of costs is found to be wrong then the issue of the quantum shall be academic; of no utilitarian value as it would have been subsumed in the former question of impropriety of the award, in the first place. InFlemidon (Dev.) (Nig.) Ltd V. Anaemere (2006) All FWLR (Pt. 301) 1915 @ 1941 D & G, 1942 1943 H & B it was held thus; the exercise of discretion is a matter exclusively for the Court after it has weighed all the circumstances of the case, that, because no one set of facts or circumstances can constitute a guide or authority for other instances, where the exercise of discretion is called into play and the Court cannot be bound by previous decisions to exercise its discretion in a particular way. Therefore, it is for the Court concerned, to meet the ends of justice and be fair and just in every circumstance, failing which, the Appellate Court may interfere.
In such a case, the Appellate Court will see whether the discretion had or had not been exercised judicially and judiciously or whether it was malafide, arbitrary or illegal in the sense that the Court had considered extraneous matters or failed to take into account material facts. In short, the appeal Court, would want to see that the lower Court’s exercise of its discretion was done in a manner consistent with serving the ends of justice.
Although costs follow event and a trial Court has an absolute and unfettered discretion to award or refuse costs, in a case before it, the discretion must be exercised judicially and judiciously. In the instant case, the sum awarded as costs by the Court in the exercise of its discretion must be adjudged excessive.
The trial Judge?s exercise of its discretion cannot be found judicious and judicial and is thus set aside.”
In the case leading to this appeal, the suit was instituted on the 12th day of May 2014, after close of pleadings, pre-trial conference on 4/11/14 and 11/11/2014 matter was adjourned to 9/12/14 for pre-trial conference report and hearing. The Court could not sit on that date earlier fixed because of intervening strike action by members of staff of Ondo State Judiciary of 2/1/2015 to 1/6/2015 matter rementioned on 1/6/15 and adjourned to 5/8/15 for hearing.
The application for amendment was filed before the said 5/8/15. From the above scenario, where had the Appellant gone wrong in filing his application for amendment? He was not responsible for the non sitting of the Court as occasioned by the strike action. Should his application for amendment not have been granted at no costs to him.
At least, even if costs follow event, the event relied upon for the award of costs herein is that there was delay caused by the Appellant in the hearing of the appeal. Would it have served the cause of justice, in the reckoning of the trial Court to have denied the Appellant his right of bringing an application for amendment? Obviously, the award of costs was made as a punishment as clearly expressed in the Ruling complained of. The award was not in the judicious exercises of indemnity of the Respondent for genuine and reasonable out of pocket expresses incurred.
It was not so stated, nor was any claimed by the Respondent on that ground. It was rather, costs awarded out of fancy and arbitrary pontification of the learned trial Judge.
The amendment had not frustrated the hearing of the case; there was nothing shown that prevented the case from proceeding even on that date. What is more, the Appellant was within his legal Right within the Rules of Court applicable to apply for the amendment. The prior warnings of the Court that once a matter had been fixed for hearing, it should not be frustrated as relating the hearing, had not been violated, as I see no such frustration in the hearing. Even then the ‘warnings’ recognised the exception of ‘extenuating circumstances’ ‘Extenuating circumstances’ had been shown in the fact of the case coming up for the first time for hearing after the imposed want of sitting of the Court.
The further order that the costs shall be paid on or before the next date of hearing further re-enforces the tempestous in judicious exercise of the costs awarded and particularly as I find nothing on the record that the Respondent so asked that costs be paid on or before the next date of hearing.”
If the Respondent was in any way prejudiced by the amendment sought on that date, why did he not ask for a date to file an amended Response
The ‘spew’ of the learned trial Judge, was indeed a hot magma of a volcanic eruption, when he stated that ? ?For causing delay in today’s hearing, the claimant must be punished with costs.
I therefore award the sum of N50,000 against the Claimant and in favour of the Defendant.”
The Learned Counsel for the Appellant had said, it was a capricious and perverse exercise of discretion in the circumstances of this case.
I agree. Accordingly, I shall intervene; and for the reasons I have stated, I allow this appeal and set aside the Ruling of 05/08/2015 rendered by Hon. Justice A. O. Odusola. In Suit No. AK/107/2014 between the parties herein.
Appeal is allowed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the preview of the draft of the lead judgment just delivered by my learned brother; Mohammed A. Danjuma, JCA. I am in agreement with the reasoning that led to the conclusion that the appeal is meritorious and should be allowed.
The award of costs is of course, always at the discretion of the Court which discretion must be exercised judiciously and judicially. Although a Court has the sole discretion to award costs, such costs should not be made to serve as a punitive measure or punishment. See NNPC V. CLIFCO NIG. LTD (2011) LPELR-2022 (SC).
The position is that costs follow event and in awarding costs, it is pertinent that the Court states the basis upon which the award of costs is predicated. In the instant case, the learned trial judge gave his reason for the award of the costs as “for causing delay in today’s hearing, the claimant must be punished with costs. I therefore award the sum of N50, 000 against the claimant and in favour (sic) the defendant.” This, indeed, has defiled the law governing the award of costs and shall not be allowed to stand. I joined my learned brother Danjuma, JCA, in allowing the appeal and set aside the Ruling of the trial judge. I therefore allow the appeal and set aside the Ruling of 5/8/2015 delivered by Hon. Justice A. O. Odusola in Suit No. AK/107/2014. I abide by the consequential order made therein.
PATRICIA AJUMA MAHMOUD, J.C.A. (DISSENTING): I have read in draft the judgment just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA There is no doubt that the issue of award of cost is discretionary. While the appellate Court is enjoined not to interfere in the exercise of the trial Court’s discretion, it is justified in doing so where the exercise of such discretion is not judicially and judiciously done. The question to pose at this stage therefore is, what is judicial discretion? I like to adopt and quote in part the definition given by Muntaka-Coomassie JSC (as he then was) in the case ofAJUWA & ANOR V SPDC NIG. LTD (2011) 18 NWLR PT 1279, 797 in part as follows:-
Then in the New International Comprehensive Dictionary of the English language Encyclopedia Edition at 365, the word “discretion” was defined as – “the act or the liberty of deciding according to justice and propriety, and ONE’S IDEA OF WHAT IS RIGHT AND PROPER UNDER THE CIRCUMSTANCES WITHOUT WILL FULNESS OR FAVOUR.” (Emphasis mine).
It is instructive that this definition talks of ‘one’s idea of what is right and proper under the circumstances’. This is in consonance with the legal maxim that an appellate Court will not interfere with the exercise of discretion by a lower Court simply because faced with a similar application, it would have exercised the discretion differently. However, the appellate Court may do so in special circumstances such as where the discretion was exercised on wrong or inadequate material or where no weight or insufficient weight was given to relevant considerations or where the Court or Tribunal acted under misapprehension of fact or that the exercise was tainted with some irregularities or substantial irregularity and in all cases where it is in the interest of justice to so interfere. See the decision of this Court in ODIGWE V JSC, DELTA STATE (2010) 10 NWLR PT 1255, 254. See also the apex Court’s case of BRAITHWAITE & ORS V DALHATU (2016) LPELR – 40301 (SC) where the Court held that:
“… The principle is that the attitude of appellate Courts to the exercise of discretion by lower Courts is not dissimilar to that adopted over the issue of findings of fact, which is that unless the exercise of discretion by a Court of first instance or by a lower Court is MANIFESTLY WRONG, ARBITRARY, RECKLESS OR INJUDICIOUS, an appellate Court will not interfere merely because faced with similar circumstances it would have reacted differently.”
In the instant case, the learned trial judge granted the application for amendment, he did not refuse it. The respondent’s counsel in the Court below did not oppose the application but asked for N50,000 costs. The trial judge did not grant more than was asked. N50,000 is not unreasonable in the circumstances. It is not manifestly wrong, arbitrary, reckless or injudicious in my view to have granted N50,000 costs in the circumstances of this case. As stated in the ruling of the lower Court at pages 52-53 of the printed records, the last two lines the litigants and counsel are aware that once the particular lower Court set down a matter for hearing, he was intolerant of anything done to frustrate the hearing except in the face of extenuating circumstances. There is nothing on record to show that the appellant’s counsel reacted to the application of N50,000 costs by the respondent’s counsel. It is trite that silence is deemed admission and in this case acceptance. Furthermore, it is a notorious fact that bank customers in an effort to forestall the bank from calling in the facility or the security often rush to Court with frivolous claims and resort to employing all sorts of delay tactics to frustrate both the bank and indeed the Court. This position is fortified even by the attitude of the appellant in this matter. Which litigant would file an interlocutory appeal against an order for costs of N50,000, except one who wishes to use the suit as a ploy to buy time? While conceding that the appellant has a right of appeal in every matter, in situations such as this it is condemnable for the appellant not to have waited for the conclusion of this matter to appeal the whole judgment if the decision goes against him. If the decision goes in his favour he could well ask for costs which may be over the N50,000 awarded against him.
This is more so as the appellant apart from making written submissions never showed how in real terms the cost awarded was “inordinate, extremely punitive and despicably damnifying” to borrow his words. I have read the case of IWEASIRIM V WORLD COUPIER NIG LTD (2002) FWLR, PT. 131 185 cited and relied on by the appellant. In that case, the cost of N17,000 was awarded against the defendant because he asked for an adjournment. N17,000 in 2002 was worth more than N100,000 in 2015 when this order was made. In the instant case, the matter was adjourned for hearing to the 09/12/2014 for pretrial conference report and hearing, pre trial conference having concluded on the 11/11/2014. The JUSAN strike that counsel alluded to did not start until the 02/01/2015. I have read the appellant’s brief particularly paragraphs 4.14 – 4.17 contained at pages 3-4 of the brief which traced the history of this case. I find it curious that counsel never made reference to the records. I have read the records. The subject motion and affidavit are contained at pages 27-28. The written address is contained at pages 35-37 of the records.
There is nothing contained in these documents that reflect the whole history of the case as being posited by counsel in his brief. There is no evidence on records to show that any reason was advanced to the trial judge in the affidavit in support of the motion, the written address or the oral submissions in Court.
I find it mischievous to say the least for counsel to posit these reasons of JUSAN strike etc in their brief and make it appear as if inspite of those reasons for the delay proferred, the learned trial judge still went ahead to make the order. It is incompetent for counsel to bring issues before this Court which were not canvassed in the Court below. I find that the learned trial judge was right to have been incensed by the delay tactics of the appellant. It is indeed this type of attitude that caused the collapse of many banks in this country where litigants who are debtors to banks rush to Court with frivolous claims to stall payments. The attitude of the appellant herein affirms that. For how do you explain that a litigant abandons a claim of N29,700,000 for five years to pursue an appeal in respect of N50,000? They may have succeeded in delaying the day of reckoning with the bank but they have failed woefully to satisfy me that this award of N50,000 costs is inordinate in the prevailing circumstances of this case, the uttered words of the Court alluding to punishment notwithstanding. I hold that this appeal fails and I accordingly dismiss it.
Appearances:
A.S Pelemo, Esq. holding the brief of F. OmotoshoFor Appellant(s)
Duro Adonis, Esq.For Respondent(s)
