CHARLES MUSA, ESQ v. PINNACLE COMMERCIAL BANK & ANOR
(2019)LCN/13526(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/L/794/2015
RATIO
COUNSELS: COUNSELS AS OFFICERS OF THE COURT MUST BE TREATED WITH RESPECT
It must be remembered that counsel who appear before the Courts to represent parties in case/matters are, as much as the judges, officers of the Courts who deserve to be treated with respect in the conduct of proceedings.
Even in situation where the conduct of a counsel calls for criticism or admonition by the Court, appropriate language to be employed by the Court should be courteous, decent, but firm such that the message would be direct and clear, but not scurrilous, abusive and disparaging of the personal integrity, and character of counsel. Judges, as representative of the creator on Earth in the Temple of Justice, are expected to be above the ordinary and be extra ordinary in patience, dignity, decency and humanity in words and actions; in the Court rooms where they are Lords and outside of the Court.PER MOHAMMED LAWAL GARBA, J.C.A.
COUNSELS: JUDGES MUST TREAT COUNSELS WITH RESPECT
In the words of Ogundare, JSC in Menakaya v. Menakaya (supra) we Judges owe it a duty to be restrained and civilized in dealing with those counsel, parties and members of the public who appear in our Courts.?
I also find the admonition by Uwaifo, JCA, (as he then was) in Salim v. Ifenkwe (supra), apt when he said: –
It is indecent and discourteous of any judge to take undue advantage of his immunity to embarrass a counsel with insults and scurrilous remarks. That is a clear case of abuse of privilege. The Court is and must be run as a solemn, dignified and civilized forum where the sacred duty of the administration of justice is carried out on a consistent sobriety of the mind. It is not a pandemonium where insults are shouted.PER MOHAMMED LAWAL GARBA, J.C.A.
THE COURT OUGHT TO EXERCISE DISCRETION IN LINE WITH THE PROVISIONS OF THE LAW
On the costs awarded against the Appellant personally in the Ruling on the motion of 16th January, 1998, the basis for the award, as can be seen in the Ruling, was that the motion was deliberately filed by him to abuse the process of the High Court. Although the High Court may have the judicial discretion to award costs after finding that the motion was lacking in merit and dismissing same, as a consequence that follows, the dismissal, the discretion, is required by established principle of law, to be exercised judicially and judiciously. Ideozu v. Ochoma (2006) ALLFWLR (308) 1183, UBN Plc v. Astra Builders W.A. Ltd. (2010) 5 NWLR (1186) 1, Waziri v. Gumel (2012) 3 MJSC (Pt. 1) 55.PER MOHAMMED LAWAL GARBA, J.C.A.
DISCRETION OF THE COURT: THE COURT IN EXERCISING ITS DISCRETION MUST CONSIDER THE INTEREST OF BOTH PARTIES
A judicial exercise of a Court?s discretion involves a consideration of the interests of both sides of a case and weighing them in the con of the circumstances of the case in order to arrive at a just and fair decision. Judicious exercise of a discretion; as a twin brother, connotes showing and demonstrating sound reasoning, marked by wisdom and good sense in the judicial exercise of the discretion. See Eronini v. Iheuko (1989) 2 NWLR (101) 46 60-1, Onagoruwa v. IGP (1991) 5 NWLR (193) 593, ACB Limited v. Nnamani (1991) 4 NWLR (186) 486.PER MOHAMMED LAWAL GARBA, J.C.A.
COSTS: THE PURPOSE
It is also common knowledge in law that costs are not ordered as a punitive penalty against a party or merely to unreasonably enrich a successful party. See Amaro Limited v. Bendel iles Mills Limited (1991) 8 NWLR (207) 37, Registered Trustees of Ifeloju Friendly Union v. Koku (1991) 5 NWLR (198) 65, N.B.C.I. v. Alfijir Nigeria Limited (1993) 4 NWLR (287) 346 @ 365, Sogunro v. Yeku (2003) 12 NWLR (835) 644 @ 667, Adim v. NBC Limited (2010) 9 NWLR (1200) 543, ACB, Plc v. Ajugwo (2012) 6 NWLR (1295) 97 @ 135.PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
CHARLES MUSA, ESQ. Appellant(s)
AND
1. PINACLE COMMERCIAL BANK
2. UBA SAM MONU, ESQ. Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was counsel who represented the 2nd Respondent; as 2nd Defendant in Suit No. LD/784/97 before the High Court of Lagos State (High Court) and in the course of trial, filed motions dated 10th January, 1998 for striking out the suit and he also filed ?Notice of Summons? dated 3rd February, 1998 for, inter alia, an order to set aside the service of the writ and statement of claim on the 2nd Respondent. Both were heard together on the 4th February, 1998 and Rulings delivered thereon, on the same day.
According to the Appellant, in the Rulings, the High Court castigated him and awarded the costs of One Thousand Naira (N1,000.00) against him personally.
His grievance with the comments and award of costs against him in the Rulings, led to this appeal brought by the Notice of Appeal dated and filed on the 9th June, 2015, on three (3) grounds which are thus: –
GROUND ONE
The learned trial Court misdirected itself when it held as follows: –
The problem is the counsel appearing for the second defendant by name Charles Musa, Mr. Charles
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Musa is a man who has no respect for himself, and no respect for the profession to which he belongs. He appears to be such a lawyer who will do anything on earth, anything at all for a fee. All the antics of filing series and series of application on virtually the same grounds give him away as a desperate man who wants to succeed by means of hooks and crooks. It is not the duty of a lawyer to want to win his cases, at all times by all means. Only God knows what damages he has done to this profession. This is an act, which constitutes an abuse of the process of this Court. A reputable lawyer who knows his opinions would not do that. It is my view that this Mr. Musa filed the application deliberately to abuse the process of the Court.
PARTICULARS:
1. The Appellant did not file ?series and series of application on the same grounds? as claimed by the Lower Court.
2. There was no basis for the said findings.
3. The attack on the professional integrity of the Appellant was unwarranted.
4. The Lower Court, with due respect, was wrong to have critized and disparaged the professional integrity of the
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Appellant.
GROUND TWO
That the learned trial Court misdirected itself when it ordered that ?cost assessed at N1,000.00 is awarded against Mr. Charles Musa personally.?
PARTICULARS:
1. There was no basis to award cost against the Appellant.
2. No application for costs to be awarded against the Appellant was made.
3. The Appellant was not a party to the suit.
GROUND THREE
The decisions are against the weight of evidence.?
The Appellant has submitted a sole issue for decision by the Court in the Appellant Brief filed on 10th September, 2015 as follows:-
?Whether the lower Court was right when, in its Rulings on the applications of the 2nd Respondent delivered on 4th February, 1998, it castigated the Appellant who was merely discharging his duty as counsel and awarded cost against him personally to be paid to the Chief Registrar of the lower Court (Ground1, 2 and 3 of the Notice of Appeal.)”
The Respondents although duly served with all the relevant processes of the appeal, including the Appellant?s brief, did not file any process for the prosecution of the appeal.
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Learned Counsel for the Respondent; E. Ogazi and O.O. Onugbe for the 2nd Respondent, who appeared at the Oral Hearing of the appeal informed the Court that they did not file Respondents? Brief and had nothing to say for the purpose of the determination of the appeal.
The Appellant who appeared in person at the hearing, adopted this Brief and urged the Court to allow the appeal and ?set aside all the pronouncements of the High Court —- delivered on 4th February, 1998 in Suit No. LD/784/97 as they concern the Appellant.?
Inspite of the fact that the Respondents to the appeal, who were both Defendants to the action before the High Court, did not file briefs in the appeal to contest the Rulings as they concerned the Appellant thereby leaving the appeal unchallenged, the Court has the duty to consider and decide the sustainability in law, of the grounds of appeal and issues canvassed by the Appellant in his brief of arguments, if the appeal was to succeed and be allowed.
The law is that the success of an appeal in this Court does not depend on or assured merely on the ground of the absence of brief of argument from the
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Respondents to challenge it and support the decision of a Lower Court against which the appeal was brought. John Holt Ventures Limited v. Oputa (1996) 3 NWLR (470) 101, Salau v. Para-Koyi (2001) 13 NWLR (731) 602, Echere v. Ezirike (2006) ALLFWLR (323) 1597 @ 1608. I would therefore proceed to consider the merit of the appeal on the basis of the arguments by the Appellant on the sole issue raised by him.
Appellants Submissions:
After setting out the statements by the High Court complained about, the Appellant submits that he did not file series and series of applications on virtually the same grounds, but applications were filed by the 2nd Respondent who was a party to the case and a legal practitioner and the Appellant as counsel who represented him in the case only acted on his behalf.
In the alternative, he argues that he only filed three applications, one of which was to amend the Statement of Defence which cannot be said to be series and series of applications since they were on different grounds. He maintains he had the duty to discharge his professional representation by employing necessary tact and diligence required of him and
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that the issue of jurisdiction he raised on ground of non-service of the writ and statement of claim on the 2nd Respondent could be raised at anytime, citing Elike v. Nwakwoala (1984) NSCC Vol. 15, Page 903 @ 905. The Appellant submits that in the circumstances, it was inexplicably very harsh and out of sync with the facts of the case, for the High Court to use words to disparage his person, integrity and professional competence, relying on the statements in the cases of Salim v. Ifenkwe (1996) 5 NWLR (450) 564 @ 586, Menakaya v. Menakaya (2001) 16 NWLR (738) 203 @ 252, Ukpo v. Ngaji (2010) ALLFWLR (514) 144 @ 168 and Sodipo v. Lemninkainen (1986) 1 NWLR (2015) 220 @ 224. According to him, the issue of his professional competence and integrity was not raised by any of the parties and was not an issue before the High Court which could have treated without hearing the parties. Among others, the case of Alli v. Ayinde (2010) ALLFWLR (540) 1315 @ 1332 was referred to and it is contended that there was no justification for the attack on the Appellant?s professional integrity or basis to award costs against him personally as costs are awarded to compensate an
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aggrieved party and not to penalize.Layinka v. Makinde 10 NSCQR (Pt. 2) 644 and Attorney Genral, Kwara State v. Alao (2000) 9 NWLR (671) 84 @ 91, inter alia, were cited on the principles for the award of costs by a Court and it is argued by the Appellant that none of the instances set out in Order 55, Rule 13 of the High Court Rules, 1994 (the Rules) was applicable to his case as the costs awarded against him personally were directed not to be paid to his client or other party to the case for the reasons set out therein, but to be paid to the Chief Registrar of the High Court. Rule 13(2) of Order 55 of the Rules was also relied on for the submission that the Appellant was entitled to be heard before the order on cost was made against him which was not in any case, asked for by any of the parties and could not be granted, on the authority of Olomada v. Mustapha (2011) ALLFWLR (559) 1080 @ 1137.
In conclusion, the Court is urged to allow the appeal and set aside the pronouncements of the High Court in the Rulings delivered on 4th February, 1998 as they concern the Appellant.
?
From the Record of Appeal, the Appellant who represented the 2nd Respondent as
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Counsel in the case before the High Court took over the representation from the former Counsel from the Firm of Dapo Akinosun & Co. engaged by the 2nd Respondent to conduct the case for him. When he took over the case, he filed two (2) motions and Notice of Summons as follows: –
(1) Motion on Notice dated the 16th January, 1998 for the following orders: –
?1. AN ORDER striking out this suit on the ground that the Honourable Court lacks jurisdiction since the Plaintiff is not the proper Plaintiff and lacks the locus standi and authority to institute this suit.?
2 Alternatively, AN ORDER suing aside all the proceedings and orders made in this matter on the grounds, inter alia, that same were made without personal service of the writ of summons and original processes in this suit upon the 2nd Defendant and consequently this Honourable Court LACKS JURISDICTION to make same, with due respect.
3. AN ORDER setting aside the writ of summons, statement of claim and all other processes filed by the Plaintiff in this suit same being prepared by Yomi Siwonniky, Esq. who is an employee of Krest Proprieties and is incompetent to represent
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the Plaintiff.
4. AN ORDER barring the said Yomi Siwoniku Esq. from further appearing for the Plaintiff in this suit.
5. Alternatively and or in addition. AN ORDER striking out the statement of claim as being vague, inconsistent and bereft of material facts sufficient to sustain pleadings.
6. AN ORDER striking out the name of 2nd Defendant from this suit.
7. Such further orders as the Honourable Court may deem.?
(2) Motion on Notice dated 20th January, 1998 for following orders:-
?AN ORDER granting leave to the 2nd Defendant to amend his Statement of Defence in the manner underlined in the proposed Amended Statement of Defence.
SUCH FURTHER ORDERS as the Honourable Court deems appropriate.?
(3) ?NOTICE OF SUMMONS? dated 3rd February, 1998 for: –
1. AN ORDER setting aside the purported service of the writ of summons and statement of claim in this suit on the 2nd Defendant on the grounds of lRREGULARlTl ES contained therein
2. AN ORDER Summoning one ISIAKA ADIGUN, a bailiff of this Honourable Court for the purpose of Cross-examining him upon the Affidavit of service purportedly
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deposed to by the said Isiaka Adigun in this suit and dated 17th march, 1997.
3. AN ORDER summoning YO. III SIWONIKU ESQ. who deposed to affidavits dated 27/1/98 in this matter for the purpose of:
(a) Cross-examining him as to how he obtained the said purported Affidavit. of service which is supposed to be part of the Honourable Court’s record without applying for same in writing and without same being certified as a Certified True Copy by the Honourable Court’s Registrar and without payment of necessary fees for such certification.
(b) Cross-examining him as to how he has suddenly metamorphosed from being a full time employee of Krest Properties to become an employee of Wale Olaniyan & Associates.
(c) Producing his letter of appointment, pay slips and other pieces of evidence to prove that he is an employee of Wale Olaniyan & Associates
(d) Resolving the conflicts of his said affidavit of27/1/98 with the 2nd Defendant’s affidavits of J 6/1 /98 and 20/ J /98 in this matter.
4 AN ORDER DISMISSING THIS SUIT for LACK of JURISDICTION of this Honourable Court because: (a) The 2nd Defendant was not served as aforesaid. (b)
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The Plaintiff herein lacks the locus standi to institute this suit because, inter alia:
(a) Krest Properties is a business name under which Krest investment Limited carries on business, the plaintiff does not carry on business in the name of Krest Properties
(b) The Plaintiff only claims to be the managing agent of the property in dispute, and does not claim to be the landlord, and the Plaintiff is not the landlord/owner of the property nor its managing agent is a STRANGER to this matter.
(c) The plaintiff neither discloses the name of the landlord of the property nor did he obtain the permission of the landlord or the leave of this Honourable Court to institute this action on behalf of the landlord.
5 AN ORDER that the purported affidavit of service dated 14th March, 1997 be forwarded to the Nigeria Police Forensic Laboratory F.C.l.D. Alagbon, Lagos for testing, examination and analysis to determine the age and date of the ink thereon to ascertain if same was written and made on 14th March, 1997 or if same was made in 1998 to cover up the obvious lapse of non service of the writ of summons and statement of claim on the 2nd defendant
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as aforesaid.
6. Alternatively, AN ORDER setting aside all the proceedings and orders made in this matter on the grounds, inter alia, that same were made without personal service of the writ of summons and originating processes in this suit upon the 2nd Defendant and consequently this Honourable Court LACKS JURISDICTION to make same, with due respect.
7. AN ORDER striking out prayers 1 and 2 of the 2nd Defendant’s motion on Notice dated 16th January, 1998, same being overtaken by the prayers herein.
8. Such further orders as the Honourable Court may deem appropriate.?
The motions and the NOTICE OF SUMMONS were heard by the High Court on Wednesday; the 4th February, 1998 and the Rulings delivered on the same day. The statements by the High Court complained of by the Appellant are in the Rulings on the motion dated the 16th January, 1998 and the ?NOTICE OF SUMMONS? and for the purpose of full appreciation of the statements and the complaint thereon, it is expedient to set them out as they appear in the Record of Appeal. Here they are, first is the Ruling on the ?NOTICE OF SUMMONS?
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RULING
By notice of summons dated 3rd February, 1998, the 2nd Defendant prays this Court for a total of five reliefs as listed are five of the notice of summons.
Notice of the summons. It is supported by an affidavit of 22 paragraphs in which affidavit is ? about five exhibits. I have read the affidavit in support and the exhibits attached thereto. I have ?. Listened to the submissions of counsel for the 2nd defendant/applicant. I have also listened to the submissions of Mr. ?. For the Plaintiff/Respondent. Those submissions form part of and or hereby incorporated into this ruling.
As to the issue of purview, I am more than satisfied that the 2nd defendant is duly served with the writ of summons, the statement of claim and other processes. The 2nd defendant was first represented by a firm of Legal Practitioners known as Dapo Akinmosun & Co. That firm filed a motion contesting 2nd defendants joiner. The application was taken and overruled. The firm filed anther application for state of further proceedings. They also filed a notice of appeal. All throughout the 2nd defendant never raised
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the from the issue of non service. It was when Mr. Charles Musa took over the handling of this matter that the issue of non-service cropped at. It is my Judgement that the issue of non-service is an afterthought.
I have no doubt in my mind about service. The prayer for summoning Isiaka Usman bailiff of this Court to appear before this Court does not arise.
The prayer to summoning Yomi Siwoniku is uncalled for whether Siwoniku in a full time. Employee of the Company is only a matter relation to ethnic of the profession. It cannot vitiate his appropriate in his Court.
?The prayer for an order dismissing this suit for want of Jurisdiction is misconceived. The grounds stated for that are flimsy unarguable and petty.
I am satisfied that the affidavit of service deposed to by Isiaka the bailiff of this Court is genuine. There is no justification whatsoever for invitation of handwriting analyst.
There is no reason whatsoever adduced for the prayer to set aside proceedings. The prayer is uncalled for.
From my observation of this case the problem s not with the 2nd defendant per se. The problem is the counsel appearing for the 2nd defendant
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by name Charles Musa, Mr. Charles Musa is a man who has no respect for himself, and no respect for the profession to which he belongs. He appears to be such a lawyer who will do anything on earth, anything at all for a fee. All the antics of filing series and series of application on virtually the same grounds give him a way as a desperate man who wants to succeed by means of hooks and crooks. It is not the duty of a lawyer to want to win his cases, at all times by all means.
Only God knows that damage he has done to this profession.
Be that it may, this application lacks merit. It is accordingly dismissed.
Cost assessed at N500,00 is amended against the 2nd defendant in favour of each of the 1st defendant and Plaintiff.? (Underline supplied)
Then, the Ruling on the motion dated 16th January, 1998: –
?Ruling
By motion on notice dated 16th January, 1998, the 2nd defendant prayed this court for a total of seven reliefs. He abandoned his 1st, 2nd, 3rd, 4th, 6th, 7th grounds of reliefs for the reason that those grounds have been dealt with in an earlier ruling delivered by this court earlier on this morning. He is
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therefore left with only the 5th leg of relief wherein he prayed in the Alternative that Statement of claim he struck out, on the ground that the statement of claim is vague, unconsistent and bereft of material facts. The application is supported by affidavit of 15 paragraphs to which was attached some four exhibits.
The Plaintiff deposed to a counter affidavit. I have read the affidavit in support and the exhibits attached thereto and the counter affidavits. I have listened to the submissions of Counsel for all the parties as recorded above.
Upon reading the statement of claim, it is thereon stated that the 2nd defendant is an employee of the 1st defendant who lives in the premises. It is also thereby pleaded that the defendants have filled and refused to pay rent.
I hold that the statement of claim is sufficiently clear, for any reasonable reason. The statement of claim discloses sufficient reasonable abuse of action.
The application lacks merit. It is accordingly dismissed.
Learned counsel for the 2nd Defendant Mr. Musa told the Court that he went through the Courts records. He is aware that the Lawyer who earlier appeared for the
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2nd defendant filed a motion for an order to strike out the name of the 2nd defendant for misjoinder and for an order dismissing the suit on the ground of non disclosure of reasonable cause of action, yet Counsel went ahead to file this application asking for yet the same prayer. This is an act which constitutes an abuse of the process of this court.
A reputable Lawyer who knows his opinion would not do that. It is my view that this Mr. Musa filed the application deliberately to abuse the process of this Court.
Accordingly cost assessed at N1,000.00 is awarded against Mr. Charles Musa personally such cost to be paid to the Chief Bailiff of this Court.? (Underline supplied)
Looking at the underlined portion of the Ruling on the ?NOTICE OF SUMMONS? the statement by the High Court was undoubtedly directed at and made on the professional integrity and character of the Appellant as counsel who represented a party to the case before the High Court and in that capacity, filed processes in the name and on behalf of the party he represented in the ordinary and/or usual course of the representation. The statement, on its face and
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in its express, straightforward, ordinary and plain sense and terms, not only impugns, but directly disparages the professional integrity and character of the Appellant in the discharge of his professional duty as a Counsel representing a party in the case before the High Court on the alleged ground that he filed ?series and series of application (sic) on virtually the same grounds.?
From the Record of Appeal, it is not possible to find out and see what the High Court meant by the phrase ?series and series of application on virtually the same grounds? since no indication was made as to the series of the applications filed by the Appellant on the same grounds before the High Court to have warranted and called for the statement. However, as seen earlier, there were three (3) processes; two (2) motions and one (1) notice of summons filed by the Appellant before the High Court and the motion dated the 20th January, 1998 sought for amendment of the Statement of Defence which was granted as prayed without any comment, adverse or otherwise, at all.
The grounds upon which the motion for amendment of the Statement of Defence was sought
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and granted by the High Court were not the same with the other motion filed on 16th January, 1998 and the Notice of Summons of 3rd February, 1998.
In addition, in the Ruling on the motion of 16th January, 1998, the High Court had stated, in the introductory part thereof, that: –
?Mr. Charles Musa moves.The prayer is for the application is dated 16th January, 1998. He said the 1st four (4) prayers of that application has been treated in the ruling delivered earlier.
He is left with prayer 5. It is for an order striking out the Statement of Claim as being vague.?
The simple implication and legal effect of this statement, which constitutes a finding in the Ruling, was that the prayers or reliefs 1-4 of the motion were abandoned by the Appellant in moving the motion on the ground that they have been overtaken by the Ruling delivered earlier on the notice of summons and only prayer 5 of the motion was submitted for decision by the High Court. Relief 5, as seen above was or the striking the statement of claim on the ground that it was vague and so the motion or application was not made on ?virtually the grounds? with the
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motion of 20th January, 1998 for amendment.
Then the notice of summons was primarily based on the ground of non-personal service of the writ and statement of claim on the 2nd Respondent and lack of locus standi on the Plaintiff to institute the action. The ground(s) upon which the notice of summons was premised are clearly not the same as the grounds upon which the motions of 16th January, 1998 and 20th January, 1998 were based or predicated, or even ?virtually? so.
Apparently therefore, the Record of Appeal does not bear out, show or contain ?All the antic of filing series and series of application on virtually the same grounds? as stated and claimed by the High Court in the Ruling on the notice of summons.
In the 6th Edition of Oxford Advanced Learners Dictionary of Current English by A.S. Hornby at page 1074, the word ?series? was defined to mean, inter alia, as:
?1 ? of several events or things of a similar kind that happen one after another.?
The word ?several? was also defined at pages 1078-9 of the dictionary to mean: –
?more than two but not very many”.
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These definition shows that the word ?series? means many events or things of a similar kind that happen one after another; in succession. So when events or things are said to have happened by the use of the words ?series and series? as employed by High Court in its Ruling, it imports that the events or things happened so many times more than the series of them. In the con of processes of a Court of law, the filing of series and series of applications virtually on the same grounds means the filing of so many and several applications predicated on the same legal grounds seeking for the same reliefs from the Court in the same case against the same parties, in an unbroken succession and by the same party or counsel. The Record of Appeal does not show even a series, let alone a series and series, of applications filed by the Appellant on virtually the same grounds in the case before the High Court.
I completely agree with the Appellant that the Record of Appeal does not contain facts and evidence to warrant the statement that he filed series and series of applications on virtually the same grounds in the case
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before the High Court and justify the attack, castigation, insult and abuse of his integrity, character and professional conduct heaped on him by that Court.
For not being based on and borne out by any fact and circumstances of the case before it in the Record of Appeal, vitriolics poured on the Appellant by the High Court in the Ruling on the Notice of Summons were/are completely and absolutely unwarranted, uncalled for, unfair and unjustified.
It must be remembered that counsel who appear before the Courts to represent parties in case/matters are, as much as the judges, officers of the Courts who deserve to be treated with respect in the conduct of proceedings.
Even in situation where the conduct of a counsel calls for criticism or admonition by the Court, appropriate language to be employed by the Court should be courteous, decent, but firm such that the message would be direct and clear, but not scurrilous, abusive and disparaging of the personal integrity, and character of counsel. Judges, as representative of the creator on Earth in the Temple of Justice, are expected to be above the ordinary and be extra ordinary in patience, dignity,
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decency and humanity in words and actions; in the Court rooms where they are ?Lords? and outside of the Court.
In the words of Ogundare, JSC in Menakaya v. Menakaya (supra) ?we Judges owe it a duty to be restrained and civilized in dealing with those counsel, parties and members of the public who appear in our Courts.?
I also find the admonition by Uwaifo, JCA, (as he then was) in Salim v. Ifenkwe (supra), apt when he said: –
?It is indecent and discourteous of any judge to take undue advantage of his immunity to embarrass a counsel with insults and scurrilous remarks. That is a clear case of abuse of privilege. The Court is and must be run as a solemn, dignified and civilized forum where the sacred duty of the administration of justice is carried out on a consistent sobriety of the mind. It is not a pandemonium where insults are shouted.
In the premises, I find merit in the submissions of the Appellant that the statement by High Court on his person and professional conduct in the Ruling on the Notice of Summons dated 4th February, 1998 was totally unwarranted unsupportable in law and should not
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be allowed to stand.
On the costs awarded against the Appellant personally in the Ruling on the motion of 16th January, 1998, the basis for the award, as can be seen in the Ruling, was that the motion was deliberately filed by him to abuse the process of the High Court. Although the High Court may have the judicial discretion to award costs after finding that the motion was lacking in merit and dismissing same, as a consequence that follows, the dismissal, the discretion, is required by established principle of law, to be exercised judicially and judiciously. Ideozu v. Ochoma (2006) ALLFWLR (308) 1183, UBN Plc v. Astra Builders W.A. Ltd. (2010) 5 NWLR (1186) 1, Waziri v. Gumel (2012) 3 MJSC (Pt. 1) 55. A judicial exercise of a Court?s discretion involves a consideration of the interests of both sides of a case and weighing them in the con of the circumstances of the case in order to arrive at a just and fair decision. Judicious exercise of a discretion; as a twin brother, connotes showing and demonstrating sound reasoning, marked by wisdom and good sense in the judicial exercise of the discretion. See Eronini v. Iheuko (1989) 2 NWLR (101) 46 @
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60-1, Onagoruwa v. IGP (1991) 5 NWLR (193) 593, ACB Limited v. Nnamani (1991) 4 NWLR (186) 486.
The High Court in making the award of costs personally against the Appellant did not state the law or Rules which say that the Appellant as counsel was personally liable to pay costs for merely filing an application or motion which was found to be unmeritorious.
I have read the provisions of Order 55 Rule 13 of the High Court Rules, 1994 (extant at the time of the Ruling, which was Order 49 of the 2012, Rules and now Order of the 2016 Rules) which dealt with personal liability of legal practitioners for costs in matters before the High Court and agree with the Appellant that none of the situations set out in sub-Rule(1) is applicable to the Appellant?s case. In fact, sub-Rule(2) provides that the provisions of sub-Rule(1) shall apply where proceedings in Court cannot conveniently proceed or fails or are adjourned without useful progress being made because the legal practitioner was absent or he failed to deliver any documents to Court leading to the adjournment.
The Appellant was not shown in the Record of Appeal to have been absent from the
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High Court on any date of the proceedings or that he failed to deliver any document which necessitated an adjournment. In fact, the Record of Appeal shows, that the hearing of the motions and notice of summons, the Rulings thereon as well as the hearing and grant of the motion for summary judgement in the case were all done on the same date and day; the 4th February, 1998, a Wednesday, thereby ending the proceedings of the case before the High Court.
From the facts and circumstances of the filing of the motion of 16th January, 1998 as borne out by the Record of Appeal, there was no basis for the order of costs to be paid personally by the Appellant to the Chief Registrar of the High Court who was not a party to the proceedings in which the order was made.
The law is very well known generally, that costs in an action before a Court of law are ordered as compensation to a successful party who incurred necessary expenses in the prosecution of his case, against an opposing losing party. It is also common knowledge in law that costs are not ordered as a punitive penalty against a party or merely to unreasonably enrich a successful party. See
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Amaro Limited v. Bendel iles Mills Limited (1991) 8 NWLR (207) 37, Registered Trustees of Ifeloju Friendly Union v. Koku (1991) 5 NWLR (198) 65, N.B.C.I. v. Alfijir Nigeria Limited (1993) 4 NWLR (287) 346 @ 365, Sogunro v. Yeku (2003) 12 NWLR (835) 644 @ 667, Adim v. NBC Limited (2010) 9 NWLR (1200) 543, ACB, Plc v. Ajugwo (2012) 6 NWLR (1295) 97 @ 135.
As stated before now, no Rule of the High Court empowers it to order or award costs to be personally paid by a Counsel for merely filing an application or motion which was found to be without merit after a hearing, even if it was said to be an abuse of its process. As the judex and arbiter in the case before it, the rules of natural justice would not permit and allow the High Court to award costs to itself and order that it be paid to it through its officer; the Chief Registrar. With the respect due to the High Court, the award of costs against the Appellant personally and the order for the costs to be paid to the Chief Registrar cannot to be supported by the law and equity since the Rules of Court do not provide for it. It is not sustainable and the Court has a duty to interfere with it.
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In the final result, I find merit in the appeal and allow it in consequence of which, the statement by the High Court on the person of the Appellant contained in the Ruling on the Notice of Summons dated 3rd February, 1998 as well as the order of N1,000.00 costs against the Appellant personally in the Ruling on the motion of 16th January, 1998 are both hereby set aside.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother MOHAMMED LAWAI. GARBA, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA in this appeal. I agree that the appeal has merit and is allowed, I abide by the reasoning and conclusion contained therein. I also abide by the consequential orders made therein.
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Appearances:
Charles Musa, Esq.For Appellant(s)
E. Ogazi with him, M.T. Ayodele for the 1st Respondent.
O.O. Omugbe for the 2nd RespondentFor Respondent(s)
Appearances
Charles Musa, Esq.For Appellant
AND
E. Ogazi with him, M.T. Ayodele for the 1st Respondent.
O.O. Omugbe for the 2nd RespondentFor Respondent
