F.A. AKINBOBOLA VS PLISSON FISKO NIGERIA LTD & ORS
In the Supreme Court of Nigeria
Friday, January 18, 1991
Case Number: SC. 1862/1989
ANDREWS OTUTU OBASEKI,JUSTICE, SUPREME COURT
ADOLPHUS GODWIN KARIBI-WHYTE JUSTICE, SUPREME COURT
SAIDU KAWU,JUSTICE, SUPREME COURT
SALIHU MODIBBO ALFA BELGORE,JUSTICE, SUPREME COURT
PHILIP NNAEMEKA AGU JUSTICE, SUPREME COURT
F. A. AKINBOBOLA (Trading under the Name and Style of F. A. AKINBOBOLA & SONS)
1. PLISSON FISKO NIGERIA LTD. (In Receivership)
WHEN A COURT ACTS WITHOUT JURISDICTION- CAN RESCIND
“If a court makes an order which it has no jurisdiction to make, it has jurisdiction to rescind the order so as to restore the status quo”. Per A.O.OBASEKI, J.S.C.
COSTS IN AN APPEAL- WHO SHOULD BE AWARDED
“Unless there are grounds for depriving a successful party of costs, he should, in the judicial and judicious exercise of the discretion of the court, be awarded costs in the appeal”.Per A.O.OBASEKI, J.S.C.
KAWU, J.S.C. (Delivering the Leading Judgment) REASONS FOR JUDGMENT On the 22nd October, 1990 when this appeal came before this court, after hearing arguments of counsel on both sides, I allowed this appeal. I then indicated that I would give my reasons for the judgment today which I now do. Briefly stated, the facts which gave rise to this appeal are as follows: The appellant in this court was the plaintiff in the Kwara State High Court where he had instituted an action against the 1st respondent for ‘money had and received.’ At the time of the institution of the suit, the 3rd respondent was in possession of the 1st respondents assets, having been appointed a receiver and manager by the 2nd respondent. The 2nd and 3rd respondents were joined as parties when the appellant realised that the assets of the 1st respondent were being sold by the 3rd respondent at the instance of the 2nd respondent. The appellant then sought and obtained an ex parte order from the Kwara State High Court restraining the 3rd respondent from selling all the plants, machinery and equipment of the 1st respondent, or in the alternative an order directing the 1st respondent to deposit the sum of N100,000.00 in court pending the determination of the case. Subsequently, learned counsel for the respondents filed a motion in the High Court praying the court to set aside the ex parte order on the ground that the Kwara State High Court had no jurisdiction to hear the substantive suit. The court refused to do so holding that it had jurisdiction to hear the matter. Consequently, the respondents appealed to the Court of Appeal which court ruled that the Kwara State High Court had no jurisdiction to hear the matter. The Appeal Court then directed that the case be heard by the Judge of the Federal High Court, Ilorin. All the relevant papers filed in the State High Court relating to the case and the sum of N100,000 deposited in that court were subsequently transferred to the Federal High Court, Ilorin.
Before embarking on the hearing of the case, the learned Judge of the Federal High Court Ilorin (Jinadu, J.) invited counsel on both sides to address him on the issue of jurisdiction. After counsels addresses, the Judge came to the conclusion in his ruling that his court lacked jurisdiction to hear the case and he therefore struck it out. He also ordered that the deposit of N100,000 which had been transferred to his court should be returned to the 3rd respondent if no appeal was lodged within the prescribed period. He further ordered that the 2nd and 3rd respondents be struck out of the case. The appellant, being dissatisfied with the ruling of the Judge of the Federal High Court appealed to the Court of Appeal, contending in that court that having held that he had no jurisdiction to hear the case the learned Judge of the Federal High Court was wrong when he proceeded to strike out the substantive case, instead of transferring the suit to the appropriate State High Court for hearing. He also contended that the learned Judge of the Federal High Court was also wrong in striking out 2nd and 3rd respondents as parties and that the order directing the return of N100,000 was also wrong. In its judgment, the Court of Appeal upheld the appellants appeal but went further to direct that as it had previously held in the previous appeal before it, the N100,000 deposit in court should be returned to whoever had paid the deposit. The court also made no order as to costs. The appellant, again being dissatisfied with the decision of the Court of Appeal has further appealed to this court on two issues. Mr. Akintoyes first complaint in this court on behalf of the appellant is about the order of the Court of Appeal directing the refund of the N100,000 deposit. It was learned counsels submission that the Court of Appeal was wrong in making the order which was not applied for by any of the parties citing in support of his submission the case of Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt.73) 695. In his reply, Mr. Eno, learned counsel for the respondent, contended that the order made by the Court of Appeal was proper being a consequential order which the Court of Appeal was competent to make. His submissions on this point at page 9 of his brief read as follows: ‘It is therefore not correct to assert as Akinbobola has done in Ground 1 of his argument that the Court of Appeal gave a consequential order which was not specifically asked for. When therefore in the final summing up the Court of Appeal in Suit No. CA/ k/200/87 held: – ‘This appeal succeeds and is hereby allowed except as regards the question of payment of N100,000 into court which we still say should be refunded to whoever paid it (whether the company or the receiver) in accordance with the previous ruling of this court’ The court was making a consequential order which gave effect to the judgment it follows by ordering the refund of the N100,000 to the receiver.’ I think there is merit in the submission of Mr. Akintoye that the Court of Appeal was in error when it made the order directing the refund of N100,000 deposit. The issue before the Court of Appeal relating to the deposit was whether the learned Judge of the Federal High Court could validly make the order directing the refund of the deposit after he had held that his court lacked jurisdiction to entertain the substantive suit. That issue was resolved in favour of the appellant by the Court of Appeal. In my view, the order made by the Court of Appeal cannot be said to be consequential order. Furthermore, as Mr. Akintoye rightly submitted, it was an order gratuitously made by the Court of Appeal as none of the parties had asked for it. A court will not normally grant a relief to a party which has not been claimed Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184. Mr. Akintoye also complained about the Court of Appeals refusal to award costs to the appellant who was a successful party in the appeal. The award of costs, is of course, always at the discretion of the court which discretion must be exercised, both judiciously and judicially – Haco Ltd. v. S.M. Daps Brown (1973) 4.S.C. 149. It is also a well-established principle that costs follow the events and that a successful party is entitled to costs unless there are special reasons for depriving him of his entitlement -Adenaiya v. Governor-In-Council (1962) 1 All NLR 308; [1962 1 SCNLR 442. In this case, I am satisfied the Court of Appeal had not properly exercised its discretion when it refused to award costs to the appellant who was a successful party in the appeal before it. In my judgment the appellant is entitled to coats in the lower court which are assessed at N250.00 and N500 in this court. I direct that the N100,000 deposit should remain in the custody of the trial court pending the determination of the substantive case. The foregoing are my reasons for allowing this appeal on the 22nd of October, 1990.
A.O.OBASEKI, J.S.C. On the 22nd day of October, 1990, I allowed this appeal for having substantial merit after hearing counsel in oral argument, reading the brief together with the record of proceedings and judgment in the court below and considering the oral and written submissions. I then indicated that I would give my Reasons for Judgment today. I have before now had the advantage of reading the Reasons for judgment just delivered by my learned brother, Kawu, J.S.C. I agree with him as his opinions on all the issues raised in the appeal accord with mine. The facts of the case have been fully set out in the said Reasons for Judgment. This appeal falls within a narrow compass. Firstly, there is the failure of the Court of Appeal to award costs to the appellant who was the successful party in the appeal. Secondly, significantly, the court of Appeal failed to make an order or direct that the N100,000.00 (one hundred thousand Naira) it had earlier ordered to be transferred to the Federal High Court which ordered the payment of the deposit be transferred back to the State High court. The issue of jurisdiction which at first was settled by the Court of Appeal in favour of the Federal High Court and later in favour of the State High Court is of profound importance in this appeal. When the Federal High Court to which the case was transferred held that it had no jurisdiction in the matter a decision affirmed by the Court of Appeal, the Federal High Court became incompetent to make any order other than the order of transfer in the matter. Further, since it was not the Federal High Court that ordered that the deposit of N100,000.00 be made, it was not competent of it to order that the amount be refunded when the matter for which the deposit was made had not been determined. If the Federal High Court had made the order for deposit before the plea of want of jurisdiction was raised and enquired into and upheld, it could have had the jurisdiction to make the order to refund the deposit. If a court makes an order which it has no jurisdiction to make, it has jurisdiction to rescind the order so as to restore the status quo . The next issue is the failure or refusal of the Court of Appeal to award costs to the successful appellant. Since the appellant succeeded in the appeal, he is entitled to costs in the appeal to meet, if not the whole, at least, part of his expenses in the appeal. Unless there are grounds for depriving a successful party of costs, he should, in the judicial and judicious exercise of the discretion of the court, be awarded costs in the appeal. See Obayagbona & Ors. v. Obazee & Ors. (1972) NSCC. (Vol.7) 383 where this court held that it is settled principle that except for good reasons, a successful party is not to be deprived of costs. It was for the above reasons and those set out in the Reasons for Judgment delivered by my learned brother, Kawu, J.S.C., that I allowed the appeal.
A.G.KARIBI-WHYTE, J.S.C. After argument by counsel, on the 22nd October, 1990 I allowed this appeal. I indicated on that day that I will give my reasons for so doing today. Herein below are my reasons. The main issue contended for in all the courts below have been the question of jurisdiction. The facts represent what one could in the absence of an apt description label a tragi-comedy. The Ilorin High court had exercised jurisdiction in respect of the subject matter of the claim in an action for refund of money had and received in respect of a contract job. The claim by the plaintiff against the defendants before the Kwara State High Court sitting at Ilorin is as follows:- ‘The plaintiffs claim against the defendants jointly and severally is for the sum of N100,000.00 being money had and received for contract job which was abandoned, special damages for the Breach of contract and for General damages. The 2nd defendant being the Debenture Holders of 1st defendant company and the 3rd defendant appointed by the 2nd defendant for the 1st defendant business. The 1st defendant through his Site Agent at Ilorin contracted on the 6th January, 1983 to lay a stone base and Asphalt works at NNPC, Oke-Oyi Deport, Ilorin in the sum of N139,822.30 for which 1st defendant obtained N80,000.00 as advance payment. 1st defendant abandoned the work and at their own request a new contractor, Solel Boneh (Nig.) Limited was reawarded the contract at a total cost of N155,615.74. Particulars Advance payments to 1st defendant as per cheques Nos. 064770 & 061052 each for Special damage as a result of the delay in completion (i.e. New Contract cost less original estimate of 1st defendant) – N15,793.44 General damages – 4,206.56 Malting a total of – N100,000.00’ Pleadings were filed and served. The defendants filed and served a counterclaim. Plaintiff replied to the counterclaim. On the 27th August, 1984 when the action was pending in the Ilorin High court, the learned Judge, Gbadeyan, J. on an ex parte application brought by learned counsel to the plaintiffs made an inte