MRS ENO UMO v. MRS CECILIA UDONWA
(2012)LCN/5240(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of March, 2012
CA/C/33/2008
RATIO
THE DUTY OF THE COURT TO EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY
A Court is duty bound to exercise its discretion judicially and judiciously. Offodile Vs. Eqwuotu (2006) 1 NWLR pt 961 Page 421- This means that “A proper exercise of discretion should be according to law and not humour. It is not to be arbitrary, vogue and forceful but legal and regular. It must be upon facts and circumstances Presented court, from where it must draw a conclusion governed by law”. U.B.N. Plc vs. Adjarho (1997) 6 NWLR pt 507 page 112. In re Alase (supra). A court’s exercise of discretion without averting to all the peculiar facts and circumstance of the particular case before it, is as bad as its exercise upon a wrong principle. Also, if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of on appellate court to have it reviewed. Oduba vs. Houtmanaracht (1997) 6 NWLR pt 508 page 185- Every court hearing a case can award cost as it is within its discretion to do so Afribank (Nig) Plc Vs. Genewa (1999) 12 NWLR pt 632 page 567. The Court of Appeal will ordinarily not interfere with a Proper exercise of discretion of a lower Court. However where the exercise of discretion tends to do injustice to one of the parties, the Appeal Court must employ its judicial sledge hammer to salvage the situation. Guda Vs. Kitta (1999) 12 NWLR pt 629 page 21, Imani & Sons Ltd Vs Bil Construction Co. Ltd (1999) 12 NWLR pt 630 Page 254. PER. UZO I. NDUKWE-ANYANWU, J.C.A
PRACTICE AND PROCEDURE: PRINCIPLE OF LAW ON EXERCISING JUDICIAL DISCRETION JUDICIALLY AND JUDICIOUSLY
It is an established principle of law in judicial practice that all judicial discretion vested in or conferred on a court of law is required to be exercised judicially and judiciously. The terms “Judicial” and “Judicious” were defined by the Supreme Court in the case of ERONINI v IHELIKO (1989) 2 NWLR (101) 46 at 60 and 61 as follows.”Acting judicially imports the consideration of the interest of both sides weighing them in order to arrive at a just or fair decision. Judicious means:-(a) proceeding from or showing sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense.” In the above premises, once the High Court exercises its discretion in the assessment and award of cost in accordance with the provisions of its Rules, taking into account the interests of both sides, the exercise would be both judicial and judicious and therefore sustainable in law. PER. MOHAMMED LAWAL GARBA, J.C.A
ON WHAT THE COURT MAY TAKE INTO CONSIDERATION WHEN FIXING THE AMOUNT OF COSTS OF COUNSEL
In addition, in awarding costs, a court is entitled to consider among other factors, the following: -a) the summons fee b) duration of the case c) legal representation d) expenses incurred by the successful party in the ordinary course of prosecuting the case. e) The value or purchasing power of the Naira at the time of the award. See ONABANJO V EWETEGA (1993) 4 NWLR (288) 443 at 460; DELTA STEEL CO. LTD v AMERICAN COMP. TECH. LTD (1999) 4 NWLR (597) 53 at 68. This court had, per Ikongbeh, JCA in the case of UZOMA v OKORIE (2000) 15 NWLR (612) 882 at 893, held that: “Matters such as the number of years it takes to conclude a case, the number of adjournments, processes that had to be filed and the transportation of counsel to and from the court are such that the court may take into consideration when fixing the amount of costs and court may not need to expressly state so. Thus … the fact that the reasoning of the trial court on the matter was not recorded did not necessarily make the decision on costs arbitrary.” PER. MOHAMMED LAWAL GARBA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MRS ENO UMO – Appellant(s)
AND
MRS CECILIA UDONWA – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court No. 3 Calabar Cross River State delivered on 26th July, 2007. Briefly the facts of this case are as follows: The Respondent as plaintiff brought this suit under the Undefended List Procedure vide order of 7th June, 2007. The Appellant as defendant was served this writ on 14th June, 2007. The respondent as Plaintiff claimed as follows:
1. The sum of Two Hundred and Twenty Seven thousand Five Hundred Naira (N227,500.00) only the balance of her indebtedness to the Plaintiff.
2. The sum of One Hundred Thousand Naira (N100,000.00) only being the cost of litigation.
3. 25% interest on the said amount until the liquidation of the judgment debt”.
On the return date, the defendant/appellant did not file a notice of intention to defend this suit. The trial Judge went ahead and delivered his considered judgment. In it the trial Judge held as follows:
‘In the result, judgment is entered in favour of the plaintiff against the defendant in the sum of N227,500 with N50,000.00 cost of litigation, with interest at the rate of 21% till the judgment debt is liquidated.
The Appellant being dissatisfied filed his notice and 3 grounds of appeal. The Appellant also filed his brief of argument on 8th April, 2008 and in it articulates 3 issues for determination as follows:-
1. Whether the trial Judge was right in awarding to the Respondent 21% post judgment interest.
2. Whether the learned trial Judge in awarding cost had exercised a proper judicial discretion.
3. Whether the claim of the Respondent was not speculative.
The Respondent in this appeal did not file any brief. O 18 R4 (1) of the court Appeal Rule 2011 provides as follows:
“The Respondent shall also within thirty days of the service of the brief for the Appellant on him file the Respondent’s brief which shall be duly endorsed with an address for service”.
It would be taken that the Respondent does not want to file any Respondent’s brief. This appeal therefore would be heard on the Appellant’s brief alone.
On issue one, the Appellant’s Learned counsel submitted that the Respondent claimed 25% interest until the liquidation of the judgment debt but the learned trial Judge awarded 21% interest. Counsel argued that there were two types of interests which the law allows the court to award to litigants
(1) Pre-judgment Interest: which is usually awarded as a matter of agreement by the parties.
(2) Post-judgment Interest: which is governed by rules of court. Counsel referred the court to O 40 R 7 of the Cross River State High Court (Civil Procedure Rules) 1987 which provided as follows:
“The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done reckoned from date of judgment or order, or from some other point to time, as the Court think fit, and may order interest at a rate not exceeding ten per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.”
Counsel submitted that the learned trial Judge erred in law when he awarded 21% interest contrary to the provisions of 0 40 R 7 Cross River State High Court (Civil Procedure Rules) 1987. See FCDA Vs- Ezinkwo (2007) ALL FWLR pt 395 page 95, Idakula Vs. Richards (2000) FWLR pt 14 page 2439. Where Akpabio JCA (as he then was) held
‘that it was wrong for a learned trial judge to award 15% Post-judgment interest instead of 10%
allowed by the rules of Court.’
Counsel finally urged the court to set aside the award of 21% post-judgment interest in favour of the Respondent.
A judgment obtained under the “Undefended List Procedure is a judgment on the merits and not a default judgment. Consequently the proper step for a party aggrieved with the judgment to take is to appeal against the judgment or bring another action to set it aside on grounds of fraud.
Daniela Vs. Insight Eng . Co. Ltd (2002) 10 NWLR pt 775 Page 231, G. Cappa Plc Vs. V. Abmine & Sons (Nig) Ltd (2002) 11 NWLR pt 777 page 32.
In the instant case there is no evidence of an agreement as to pre-judgment interest and as such the court would not concern itself with that. The post-judgment interest claimed by the Respondent of the trial Court was 25% and the Court awarded 21%. Interest may be awarded in a case in two distinct circumstances namely
(a) as of right and
(b) where there is a Power conferred by statute to do so, the exercise of the Court’s discretion.
See Texaco Vs. Overseas (Nig) Unltd Vs. Pedmar (2002) 13 NWLR pt 785 page 526, I.T.B Plc Vs. KHC Ltd (2006) 3 NWLR pt 968 page 443. In regards to the award of interest on a judgment debt, it needs not be specifically claimed before it can be awarded.The award is at the discretion of the Court and its Regulated Rules. ITB Plc Vs. KHC Ltd (supra).
In this matter the trial Judge acted contrary to 0 40 R 7 of Cross River State High Court (Civil Procedure Rules) which only allows 10% on a judgment debt. Having acted arbitrary to the provision of 0 40 R 7 the only order the court can make is to set aside that award of 21%. The judgment debtor is only entitled to10% interest as Per the provisions of 0 40 R 7 as against 21% awarded by the trial Judge. I therefore resolve this issue in favour of the Appellant.
The second and the third issues will be dealt with together as they are similar in nature. The Appellant argued against the award of N50,000.00 as cost and the speculative nature of it. Learned Counsel submitted that the court usually compensated the successful party and not punish the unsuccessful party. Counsel submitted that the trial Judge awarded a heavy cost without giving reasons to justify the exercise of that discretion. Counsel conceded that an appellate Court would not ordinarily interfere with cost awarded within the discretion of the trial Judge. See Olusanya Vs. Osineye (2002) FWLR pt 108 page 1462 and Mallam Wurno Vs. U.A.C Ltd (1956) SCNLR Page 99.
The Court of Appeal will only interfere where the trial Judge did not exercise his discretion judicially and judiciously. See Bello Vs. Union Baptist Church (1997) 11 NWLR pt 528 Page 268. Counsel also submitted that the sum of N277,500.00 claimed by the Respondent was speculative. This included a solicitors fee of N50,000.00. The learned counsel argued that the claim for the principal interest and the solicitors fee were of a speculative. The sums were uncertain and should not have been heard under the Undefended List Procedure. Also that interest does not fall under or categorized under the liquidated money demand.
Counsel finally urged the Court to set aside this judgment and order a retrial in the interest of justice.
A suit is maintainable under the Undefended List Procedure if it relates to a claim for a debt or liquidated money demand. The Undefended List Procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim. It is a procedure meant to shorten the hearing of the suit. S.B.N Plc Vs. Kyentu (1998) 2 NWLR pt 536 page 41 , Garba Vs. Sheba Int. (Nig) Ltd (2002) 1 NWLR pt 748 page 372. A liquidated money demand includes a debt or means a specific amount which has accrued in favour of the Plaintiff from the defendant. The sum due and described as liquidated must have accrued and it must be certain Garba vs. Sheba (supra).
A plaintiff/Respondent who wants his suit to be placed under the Undefended List Procedure must file on affidavit deposing to facts from which the court can come to a conclusion that the Defendant/Appellant has no defence to the claims.
The plaintiff deposed to facts in his affidavit and his letter to the defendant that the appellant was owing the respondent a total sum of N227,500.00 being the liquidated money remaining from the debt
owed to the respondent. The Respondent also added to it her solicitors fees of N100,000.00.
These the Appellant did not contest during the trial court. A defendant who intends to defend an action brought under the Undefended List Procedure is expected to file a notice of intention to def end together with on affidavit disclosing a defence on the merit See Haido vs. Usman (2004) 3 NWLR pt 859 Page 65.
In this appeal, the appellant did not contest the sum of N227,500.00, the debt owed the Respondent. What the Appellant is contesting is the N50,000.00 cost awarded to the Respondent.
The trial Judge did not state the reasons or what persuaded his award of N50,000.00 as cost of litigation.
It is indeed difficult to calculate the cost of the processes filed as the cost was not embodied on the processes. However, the Respondent filed two motions, deposed to two affidavits, took out a writ under the Undefended List Procedure, paid for 2 orders and made 5 appearances in court. A successful litigant deserves to reap the fruits of his success. The N100,000 prayed for as solicitors fees does not fall within the armbit envisaged under the Undefended List Procedure. It is not o debt to the Defendant. For solicitors fee to come under the Undefended List Procedure it must have been factored into the agreement to be a debt known to the defendant.
I agree that a trial Judge can exercise his discretionary powers donated by the statutes in the award of costs. Judicial discretion therefore means that courts are to act according to the rules of reason and justice, not according to private opinion, and according to law not humour. See In Re: Alase (2002) 10 NWLR pt 776 Page 553.
A Court is duty bound to exercise its discretion judicially and judiciously. Offodile Vs. Eqwuotu (2006) 1 NWLR pt 961 Page 421-
This means that “A proper exercise of discretion should be according to law and not humour. It is not to be arbitrary, vogue and forceful but legal and regular. It must be upon facts and circumstances Presented court, from where it must draw a conclusion governed by law”. U.B.N. Plc vs. Adjarho (1997) 6 NWLR pt 507 page 112. In re Alase (supra).
A court’s exercise of discretion without averting to all the peculiar facts and circumstance of the particular case before it, is as bad as its exercise upon a wrong principle. Also, if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of on appellate court to have it reviewed. Oduba vs. Houtmanaracht (1997) 6 NWLR pt 508 page 185- Every court hearing a case can award cost as it is within its discretion to do so Afribank (Nig) Plc Vs. Genewa (1999) 12 NWLR pt 632 page 567.
The Court of Appeal will ordinarily not interfere with a Proper exercise of discretion of a lower Court. However where the exercise of discretion tends to do injustice to one of the parties, the Appeal Court must employ its judicial sledge hammer to salvage the situation.
Guda Vs. Kitta (1999) 12 NWLR pt 629 page 21, Imani & Sons Ltd Vs Bil Construction Co. Ltd (1999) 12 NWLR pt 630 Page 254.
In the instant case, the trial Judge only had jurisdiction to deal with ‘a liquidate money demand’. The Court had no jurisdiction to deal with the solicitors fees under the Undefended List Procedure. This subhead can only be treated in the general cause list as it would need proof by documentary evidence and, or oral evidence in proof of the solicitor’s fees. The discretion to award N50,000.00 as cost of litigation is within the discretionary powers of the trial Court even though he did not state how he reached that figure. Like stated earlier on, the respondent filed two motions, deposed to two affidavits, took out o writ under the Undefended List Procedure, paid for two orders and made 5 appearances in Court. I do not see any reason to fault the exercise of his discretion in awarding N50,000.00 as cost of litigation. N50,000.00 is not outrageous in the circumstances of this case bearing in mind, the processes filed and the appearances made by counsel. The trial Judge exercised his discretion judiciously and judicially. It is therefore affirmed.
The appellant had also urged this court to send this case back for retrial.
An order of retrial will be made where a trial court failed in its primary duty of making findings of fact on issues before it. An appellate court is usually reluctant to order a retrial where
(a) The plaintiff has established his case by raising the probabilities in his favour, or
(b) The order of retrial will enable the defendant to improve his position during trial to the prejudice of his opponent or
(c) The litigation will be unnecessarily prolonged or
(d) The proceedings are conducted bythe trial court largely in conformity with rules of evidence and procedure or
(e) There was no substantial irregularity in the conduct of the case.
An order of retrial will not be made in any of the above circumstances so as to avoid injustice. Edjekpo Vs. Osia (2007) 8 NWLR pt 1037 page 635, Ogadengbe Vs. Balogun (2007) 9 NWLR pt 1039 page 380.
In the instant case, the trial Judge followed the right procedure during the trial. The only aspects complained about was the interest rate and the cost of action.
I have dealt with both issues and find no reason to send this case back for retrial.
The appeal therefore succeeds in part. The order for 21% post Judgment is set aside and substituted with 10% as provided by 0 40 R7 Cross River State High Court (Civil Procedure Rules 1987). I also affirm the judgment sum of N227,500.00 as judgment debt and N50,000.00 as cost of litigation.
I make no orders as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother U. I. Ndukwe-Anyanwu, JCA, in this appeal.
The issues submitted by the learned counsel for the Appellant have been adequately considered and resolved in line with law therein and the views expressed are the same with mine.
Just for emphasis, I would like to say that post judgment interest is not left to the discretion of a court but rather regulated by the Rules of court which usually provide for the rate or percentage at which a party was to pay from the date of judgment until it was fully liquidated by him. A party to a case may ask for any amount or percentage of the judgment debt as post judgment interest, but the award by the court must be in accordance with the Rules of court regulating the award. It is not like pre-judgment interest which may depend on pleadings and evidence adduced by the parties before the court.
On the issue of costs, ordinarily, the assessment and award of costs in a case are left at the discretion of the court by the relevant rules. For our purposes in the present appeal, Order 31, Rule 6 of the High Court of Cross River State (Civil Procedure) Rules 1987, applicable at the time of suit, provides thus:
“6. Subject to the provisions of any applicable law and these Rules, costs, both actual and incidental to all proceeding in the High Court, including the administration of estates and trusts, shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.”
Furthermore, in the assessment and award of costs by the High Court, it is to be guided by the provisions of Rule l(1) of the same Order 31 which provide that:-
“1(1). In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses which he has necessarily put in the proceeding as well as compensated for his time and effort in coming to court. The Judge may take in to account all circumstances of the case.”
The combined effect of the above provisions of the two (2) Rules of the High Court is that it is vested with a judicial discretion in the assessment and award of costs in proceedings that come before court which shall be exercised in line with the principle set out therein.
It is an established principle of law in judicial practice that all judicial discretion vested in or conferred on a court of law is required to be exercised judicially and judiciously. The terms “Judicial” and “Judicious” were defined by the Supreme Court in the case of ERONINI v IHELIKO (1989) 2 NWLR (101) 46 at 60 and 61 as follows:
“Acting judicially imports the consideration of the interest of both sides weighing them in order to arrive at a just or fair decision. Judicious means:-
(a) proceeding from or showing sound judgment;
(b) having or exercising sound judgment;
(c) marked by discretion, wisdom and good sense.”
In the above premises, once the High Court exercises its discretion in the assessment and award of cost in accordance with the provisions of its Rules, taking into account the interests of both sides, the exercise would be both judicial and judicious and therefore sustainable in law.
Perhaps I should point out that the above provisions of Order 31 Rule 1(1) and (6) are applicable to all proceedings in the High Court including proceedings conducted under the undefended list procedure provided by the Rules of that Court. The High Court is therefore entitled to assess and award costs in a judgment entered under the undefended list procedure as it may deem fit to order in the peculiar circumstances of a case. Put another way, the High Court is empowered by the judicial discretion vested in it by its rules to assess and make an order for or award costs in judgments entered under the undefended list proceedings. Speaking generally, costs as between party and party are given or awarded as an indemnity to the person entitled to them, usually a successful party at the conclusion of proceedings in a case, not as a bonus to him or imposed as a punishment to the losing party. REWANE V OKOTIE-EBOH (1960) SCNLR 461; UBN v SCPOK (NIG) LTD (1998) 12 NWLR 578; OGUNMAKIN v MILAD, OSUN STATE (1999) 3 NWLR (594) 261 at287.
In addition, in awarding costs, a court is entitled to consider among other factors, the following: –
a) the summons fee
b) duration of the case
c) legal representation
d) expenses incurred by the successful party in the ordinary course of prosecuting the case.
e) The value or purchasing power of the Naira at the time of the award.
See ONABANJO V EWETEGA (1993) 4 NWLR (288) 443 at 460; DELTA STEEL CO. LTD v AMERICAN COMP. TECH. LTD (1999) 4 NWLR (597) 53 at 68.
This court had, per Ikongbeh, JCA in the case of UZOMA v OKORIE (2000) 15 NWLR (612) 882 at 893, held that:
“Matters such as the number of years it takes to conclude a case, the number of adjournments, processes that had to be filed and the transportation of counsel to and from the court are such that the court may take into consideration when fixing the amount of costs and court may not need to expressly state so. Thus … the fact that the reasoning of the trial court on the matter was not recorded did not necessarily make the decision on costs arbitrary.”
For the above reasons, my firm view is that the costs of N50,000.00 assessed and awarded in favour of the Respondent by the High Court is founded on and supported by its Rules.
It must be noted that the Appellant’s complaint in the appeal is not that the amount awarded was excessive but whether the High Court had exercised its discretion judicially. I have earlier found that it had done so having acted in line with the rules of court considering the facts of the case before it.
In the result, I find no merit in the submissions on the Appellant’s Issue 2 and resolve it against her.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the lead judgment of my learned brother, Uzo AI, Ndukwu-Anysnwu, ICA just delivered. I am in full agreement with the reasoning and the conclusion that the appeal has succeeded in part. I abide by the consequential orders in the lead judgment.
I make no order as to costs.
Appearances
GIDEON ONWOK ESQ.For Appellant
AND
For Respondent
