In The Court of Appeal of Nigeria

On Friday, the 26th day of July, 2002




DAHIRU MUSDAPHER                                         Justice of The Court of Appeal of Nigeria

ZAINAB ADAMU BULKACHUWA                        Justice of The Court of Appeal of Nigeria

ALBERT GBADEBO ODUYEMI                              Justice of The Court of Appeal of Nigeria





    4. DR. OLU ONAGORUWA – Respondent(s)

MUSDAPHER, J.C.A.: (Delivering the Leading Judgment):
 In the High Court of Justice of the Federal Capital Territory, Abuja, and in suit No. FCT/HC/CV/33/99, Alhaji Ibrahim Coomassie, the erstwhile Inspector General of Police, as the plaintiff claimed against the defendants, damages for libel. The offending statement was said to have been published in Tell Magazine issue of No. 52 dated December 28th, 1998. The first defendant is the publisher of the Magazine, the 2nd defendant and the third defendant are the reporter and the Editor-in-Chief of the said Magazine, while the 4th defendant was the person, who made the alleged offending statement in an interview which was published as aforesaid. The defendants were all said to be resident at Lagos outside the jurisdiction of the court.
The action was said to be instituted against the defendants on the 5th day of February, 1999 and by an ex-parte application of that date, the plaintiff obtained leave to issue and serve the writ outside the jurisdiction of the court. The ex-parte order was made on the 10th day of February, 1999. Another ex-parte order was made to serve the 4th defendant by substituted means on the 25th February, 1999.
On the 3rd day of May, 1999, the 1st, 2nd and 3rd defendants filed an application praying the court for an order to dismiss the suit for want of jurisdiction in the alternative to set aside the issuance and service of the writ of summons. The reasons given by the applicants, among other reasons, were that the writ of summons was purportedly issued on the 5th of February, before the leave to issue and serve the writ outside the jurisdiction of the court was given. Similarly, the 4th defendant also filed an application praying the court to inter-alia, strike out, the suit on the grounds of jurisdiction. In the counter affidavit the plaintiff caused to be filed, it was stated that the then Registrar of the court, one Mrs. Zainab Aliyu, admitted that she made a mistake in that, though she issued the Writ of Summons on the 11/2/99, after the necessary leave was obtained, she dated some copies of the writ of summons on 5th of February, 1999, because the writ of summons was earlier assessed for payment on the 5th of February.
When the matter came up on the 24th of May, 1999, Mr. Adegboruwa of counsel for the 1st, 2nd and 3rd defendants argued the motion aforesaid. The motion filed by the 4th defendant was also argued by Mr. Tokumbo Onagoruwa of counsel. The learned Counsel for the plaintiff in his arguments against the motions, it is recorded at page 43 of the record of proceedings thus, “plaintiff counsel applies that the writ and services of the writ and or any other writ in this matter should be set aside as prayed by counsel for the defendants”. When counsel for the plaintiff, requested the court to rule on his application to set aside the writ of summons, the court without making a Ruling on the issue recorded at page 43 B “case is adjourned to the 7/7/99 for continuation”. That was on the 24/5/99.
At the resumed hearing on the 7/7/99, the learned Counsel for the plaintiff informed the court that he had filed a notice of discontinuance under the provisions of Order 29 rule 2(1) of the (Civil Procedure) Rules of the court. Learned Counsel for the defendants objected to the competency of the notice to discontinue and urged the court to make a ruling on their arguments in respect of the motions filed by them. The learned trial Judge adjourned the matter to 12/10/99 for ruling. The court delivered its ruling on the 12/10/99 by holding that the plaintiff was entitled to discontinue and held that it was unnecessary to rule on the motions filed by the two set of defendants. Perhaps to understand the reasons for the appeal, it is convenient to record in full what transpired in the court as recorded on page 47 of the record of proceedings after the delivery of the ruling aforesaid:
“The ruling is read. The court grants the plaintiff/applicant’s prayer to discontinue. The case is struck out.
“Counsel to the 4th defendant”
The defendant has been made to come to defend case that is incurably defective. The plaintiff did not withdraw at the earliest possible time, that is 3rd of May, 1999. He made both the court and the learned Counsel for the (sic) onerous rigors and cumbersome hard-work of arguing and recording motions. The counsel for the 4th defendant has been coming from Lagos as senior member of the bar. Documents were filed. The counsel for the 4th defendant asks for N250,000.00 for our appearances” Ebun-Olu Adegboruwa appears late apologises for coming late for the 1st to 3rd defendants, apologies for coming late and requests for N500,000 costs.
Court – Costs usually are not awarded punitively, but in the circumstances that the defendants are based in Lagos and so also is their counsel. The plaintiff had the earliest opportunity to withdraw but he failed to do so.
Costs to the four defendants is assessed at N100,000.00 per defendant. The cost to be paid before any similar suit can be brought against them again; plaintiff counsel is asking for leave to appeal against the issue of costs.
Leave is granted accordingly.”
The plaintiff hereinafter called the appellant has appealed to this court against the order for costs. The amended notice of appeal contains five grounds of appeal. Distilled from the grounds of appeal, the learned Counsel has submitted three issues for the determination of the appeal. The issues are:
1. Was there breach of the appellant’s fundamental right to fair hearing on the issue of costs?
2. Assuming, but not conceding that, there was no breach of the appellant’s right to fair hearing on the issue of costs, did the learned trial Judge exercise his discretion to award the costs judicially and judiciously before awarding the total costs of N400,000.00 (that is N100,00.00 per respondent) to all the respondents.
The learned Counsel for the 1st to 3rd respondents adopted the same issues for determination. The learned Counsel for the 4th respondent did not file any brief and indeed did not appear at the hearing of the appeal even though it was evident that he had been served with all the appeal processes.
Now, in his brief for the 1st to the 3rd respondents, the learned Counsel raised preliminary objection to hearing of the appeal. It is argued that grounds 2 and 3 in the appellant’s amended notice of appeal are incompetent in that the said grounds offend the provisions of Order 3 rules (2) & (3) of the rules of this court 1989 as amended.
The grounds are said to be argumentative and or narrative in nature. It is submitted that the grounds of appeal should be struck out, vide GVDA v. Kitta (1999) 12 NWLR (Pt. 692) 21 at 39. At the healing of the appeal, Mr. Amaechina of counsel for the 1st to 3rd respondents, abandoned the preliminary objection and this was accordingly struck out.
I shall now consider Issue No. 1. It is argued that for the appellant, that the learned trial Judge had not afforded the appellant any hearing on the question of costs contrary to the provisions of S. 36(1) of the 1999 Constitution. It is submitted that the courts are bound to apply and enforce the principles of fair hearing in any dispute placed before the court for resolution. Vide UBN Plc. v. C.F.A.O. (Nig.) Ltd. (1997) 11 NWLR (Pt. 527) 118. It is again submitted, that the result of any decision made prejudicial to a party in any legal dispute in which no fair hearing was accorded to the party, the decision is null and void and of no effect. Learned Counsel referred to the following cases, Osazuwa v. Edo State Civil Service Commission and 1 Other (1999) 4 NWLR (Pt. 597) 155; Gen Oil Ltd. v. Ogunyade (1997) 4 NWLR (Pt. 501) 613 at 633. It is submitted that an examination of the printed record will show that the learned trial Judge made the order for the payment of costs after hearing the counsel for the respondents without hearing counsel for the appellants.
It is again argued that although counsel appeared for the appellant and made submissions on the issue of costs, the submissions of counsel were not recorded and were not taken into account, when the decision on the costs was made. Learned Counsel further referred to the cases of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 at 184; Okonedo Egharegbemi v. Julius Berger (1995) 5 NWLR (Pt. 398) 679 at 695, Otapo & Others v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 605; Iwouha v. Okoroike (1996) 2 NWLR (Pt. 429) 231 at 250.
It is again submitted, that the fact that counsel had admitted making submissions on the issue of costs, is not important, in that the submissions were not recorded nor had any bearing on the mind of the Judge when he decided the matter prejudicially against the appellant. Learned Counsel referred to the case of Fawehimni Construction v. O.A.U. (1998) 6 NWLR (Pt. 553) 171 at 347. Daramola v.A.-G., Ondo State (2000) 7 NWLR (Pt. 665) 440 (2000) FWLR (Pt. 6) 997.
The learned Counsel for the 1st to the 3rd respondents on the other hand, argued that though the cases referred to by the appellant’s counsel deal with the issue of fair hearing in general terms, the facts of this case are different and the cases are not accordingly applicable. What the appellant admitted was that his submissions on the question of costs were merely not recorded, what is important in realm of fair hearing is that each party must be heard before a decision is arrived at, the appellant clearly submitted that his counsel was in court and had made submissions on the issue of costs. The learned Counsel further submitted that the facts of this case are distinguishable from the decision in Fawehinmi Construction Co. Ltd. case because in that case nothing was recorded while in this case, the submissions for the appellant’s counsel were not properly recorded. It was accordingly, submitted that the issue should be resolved against the appellant.
Now, I have above reproduced the relevant portion of the proceedings in relation to the issue of costs. It is manifest from the said proceedings that the learned trial Judge did not invite or give the opportunity to the appellant’s counsel to react to the issue of costs. He merely went into the matter after only hearing the learned Counsel for the respondents. It is trite law and settled which now does not require any citation of any authority or decided cases, that in our Jurisprudential system, the role of a Judex is very clear, the Judge is an umpire, though a Judex cannot compel a party or counsel to argue to an issue before it, yet the Judex must afford reasonable opportunity to the party or counsel to ventilate views on any issue deserving a decision or consideration by the Judge. The court has a duty to be an impartial arbiter and not to descend on the arena.
The court is duty bound to be dispassionate while deciding matters before it, nor resort to whims, not to speculate, but to do substantial justice and decide matters on the merits of all the issues placed before it, after affording each of the contesting parties reasonable opportunity of being heardIn the instant case, though it appears that the appellant’s counsel was in court, and he reacted to the issues of costs, the reaction was not recorded and from the decision of the trial court, it is clear that whatever submissions were made by counsel for the appellant, did not appear to have been considered one way or the other in the decision made by the court.
Record of proceedings of the court is the only indication of what took place in court. It is not like minutes of a meeting which can be corrected at a later meeting. It is always the final reference of the events that took place in a court. The failure of the learned trial Judge to record what has happened has affected the decision he has reached. In the Fawehinmi Construction case supra, Belgore, J.S.C., said at page 182- thus:
“The record of the superior courts must be full especially at first instance as to leave no important matter out or to conjecture.
In the trial court, where parties appear and more especially with their counsel present, their views must be recorded at every stage on the relevant matters like issue of adjournment or costs or non suit. Where a trial Judge, without anything on the record supporting it, makes an order and that order is challenged as incompetent because the parties never addressed on it, in my view that order must be set aside;”.
Even if, I accept that the appellant’s counsel made submission on the invitation of the Judge on this important issue, and the learned trial Judge merely did not record it, the court still has the duty to show that it had taken the views expressed by the appellant’s counsel on the issue. The court has the duty to show that before its reaching its decision, it has considered all the views expressed on the issue by the competing parties. In my view, the learned trial Judge was in error, in not recording the views of the appellant’s counsel and in not taking it into consideration, when he made the order that prejudicially affected the appellant. The order was accordingly, in breach of the fundamental right of the appellant, which had rendered the decision unconstitutional. I accordingly, resolve issue No.1 in favour of the appellant.
Issue No. 2 is concerned with whether in the circumstances of this case and notwithstanding that the appellant was given a fair hearing, the learned trial Judge in the award of costs had exercised the discretion judicially and judiciously.
It is submitted that though the award of costs is within the discretionary power of the courts that exercise is not absolute, and the exercise does not depend on the whims and caprices of the court.
It must be exercised judicially and judiciously and according to laid down rules. See Idi Wurno v. UAC Ltd. (1956) 1 FSC 33 at 34 G (1956) SCNLR 99, HACO Ltd. v. S.M. Daps Brown (1973) 1 NMLR 158.
In the instant case, the appellant was not to blame, the mistake on the date the writ was issued was not his fault. The registrar of the court explained she made the mistake. The appellant clearly stated that the writ was defective even though the mistake was not his own but that of the registrar who had the statutory duty to issue and date the writ. It is submitted that because the learned trial Judge refused to act on the 24th of May, 1999, when the appellant’s counsel applied for the writ to be struck out, the appellant was forced to file the notice of discontinuance. It is further submitted that the error committed by the registry should not be visited on the appellant, vide CCB v. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) 529 at 561.
It is further submitted that there were no materials placed before the learned trial Judge to enable him exercise his discretion reasonably. See Rewane v. Okotie Eboh (1960) 5 FSC 200. In Okpara v. Umeh (1997) 7 NWLR (Pt. 511) 95 at 106, this court held that the costs of N5,000.00 awarded were on the high side. The learned Counsel also referred to the case of UBN v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 at 152.
The learned Counsel for the respondents on the other hand submits, that the award of the costs in this case was justified because the court had followed the said laid down principles before it made the award. It is submitted that the costs awarded in this matter, were not meant to punish the appellant, but to compensate the respondents for their expenses. It is submitted that as successful parties, the respondents were entitled to costs having not misconducted themselves, vide HACO v. Brown supra. The costs were awarded because the respondents were based at Lagos and had of necessity come from Lagos, to defend the action which clearly involved great expenses. It is further submitted that the appellant did not clearly concede early enough when he knew that the writ was defective.
Costs incurred by a party on the expenses of his counsel are recoverable vide Ojiegbe v. Ubani (1961) 1 SC.
Now, the law is also settled that costs usually follow events and are at the discretion of the court. An appeal court may not interfere with the discretion of the trial court unless it is shown that the discretion was not properly exercised or as it is normally put; the discretion was not exercised judiciously and judicially. Costs should not also be awarded as a means of punishing the loosing partyThe learned trial Judge on this matter said:
“Costs usually are not awarded punitively but in the circumstances that the defendants are based in Lagos and so also is their counsel. The plaintiff had the earliest opportunity to withdraw, but he failed to do so.”
And thereafter, proceeded to award the costs. In my mind, the learned trial Judge decided to make the costs punitive on this matter at least by the reference that the appellant had failed to withdraw at the earliest time. The failure to withdraw also cannot be correct, since the appellant had on the 24/5/99 applied for the writ and the service on the respondents to be set aside, the learned trial Judge refused to end the matter there and then. Contrary to this, as he found in his ruling that ” All the parties in this suit has ‘(have)’ agreed that the writ was defective. All the parties have conceded that the court lacks the jurisdiction as the writ is defective, I cannot fathom why the trial Judge could not have terminated the trial there and then but adjourned the matter to 7/7/99 and thence to 12/10/99 for ruling. It was also clear that on the 7/7/99, when the parties appeared before the court, the respondents’ counsel opposed the motion for discontinuance and demanded a ruling on the matter for which the appellant conceded and all the parties agreed that the writ was defective.”
In my view, it is manifestly unfair to hold that the appellant ‘did not withdraw at the earliest time’, he discovered the error. The issue of the delay in terminating the matter early enough squarely fell on the shoulders of the respondents and the trial Judge. Since the writ was defective and the appellant applied for it to be set aside, it was not necessary for the appellant to file the notice of discontinuance.
A party can only discontinue a valid action filed with due process and in this matter as at the 24/5/99, the appellant not only conceded, but applied for the writ to be set aside, but as mentioned above, it was refused, and he was compelled to file the notice of discontinuance, which was also opposed and the respondents demanded a ruling on their motions. It seems to me, that it was the appellant, who ‘won’ on his notice of discontinuance at the end of the day, since the learned trial Judge refused to rule on the respondents application, since as held by the Judge that under “Order 29 rule 2, I believe that the plaintiff is still within his legal limit to discontinue his suit without seeking the leave of court”. Since, costs follow events, I do not think that the learned trial Judge had exercised his discretion judicially and judiciously in awarding such high costs against the appellant. I accordingly, resolve the second issue in favour of the appellant.
I now come to the third and last issue. This is concerned with the order that the costs, must be paid before the appellant filed any similar suit against the respondents. It is submitted, that as in the second issue, the learned trial Judge had not acted within the laid down rules and had not acted fairly in making the order. It is further claimed that the order is unconstitutional in that it inhibited the appellant from exercising his rights for the determination of his civil rights as guaranteed by S. 36(1) of the Constitution. It is further argued, that the respondents never claimed the order and there was nothing in the record to justify the order made. Learned Counsel referred to Ekpenyong v. Enyong (1975) NSCC Vol. 928.
The respondents’ counsel submits that the court has the power to make the order in appropriate cases even suo motu learned Counsel referred to Ode v. Trustees of Ibadan Diocese (1966) 1 ALL NLR 287.
Now, the object of awarding cost is not to punish the unsuccessful litigant, but to compensate the successful litigant for his expenses. The court will not allow costs which are unreasonable in the sense that they are incurred as a result of the self-aggrandisement of the litigant. It is also the law that costs should not be inflicted on a loosing party, who is not to blame. See Atanda v. Lakanmi (1974) 3 SC 109.
But, the court may order that costs be paid before such party institutes further proceedings. That order is also discretionary, it should not be given without regard to certain parameters such as where the defendant is known to be a vexatious litigant, or where without any reason files a matter and when he discovers a brick wall discontinues in order to file another one, in such a case, as a matter of practice, and sometimes the rules of court provide for such a procedureIn the instant case, as mentioned above, although the court has the discretion to award costs and make the aforesaid order, the discretion must be exercised in accordance with fairness and justice. The order to pay the costs before any further suit is instituted is not even tied to the notice of discontinuance. The record is silent on the reason for it and indeed it has not been claimed and most importantly there are no facts or premises upon which the learned trial Judge relied to make the order. Considering all the circumstances of the case, the order for the payment of the costs before the appellant resumes litigation is an exercise in futility.
In the end, I allow the appeal and set aside the award of the costs against the appellant, who in my view was successful in arguing his notice of discontinuance, which was opposed by the respondents.
Accordingly, the orders for costs and the condition imposed is set aside by me.
The appellant is entitled to the costs of this appeal, which is fixed at N5000 against each of the respondents.

ODUYEMI, J.C.A.: I had the privilege of reading in advance, the judgment just delivered, by my learned brother, Musdapher, J.C.A.
His Lordship has, in his Lordship’s usual manner, meticulously dealt with all the issues that call for consideration in this appeal.
I agree entirely, with his Lordship’s reasoning and conclusions, which I adopt as mine.
I also allow the appeal. I abide with the consequential orders, as well as to the order on costs.

BULKACHUWA, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered, by my Lord Musdapher, J.C.A.
I agree with the reasoning and the conclusions, reached therein that this appeal has merit, I allow the appeal and abide by all consequential orders in the lead judgment, including orders as to costs.

Appeal allowed.



Charles Musa, Esq. For Appellant



Nnaemeka Amaechina, Esq. For Respondent


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