NZE ALOYSIUS MADU & ANOR v. CHIEF FESTUS ANOZIA & ANOR
(2018)LCN/12039(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of August, 2018
CA/PH/79/1996
RATIO
COURT AND PROCEDURE: WHERE PARTY WHO FAILS TO COMPLY WITH PROCEDURE
“In the latter case, it is usually awarded as a form of punishment to a defaulting party who fails to carry out or comply/fulfill a procedure specified by the rules of the Court or obey an order made by the Court, either in its entirety or in accordance with the specified time. See the cases of UBA v. GMBH (1989) NWLR (Pt. 110) 374; Layinka v. Makinde (2002) 10 NWLR (Pt. 775) 358 and Saeby Jernstoberi M. F. A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR (Pt. 637) 128. In the award of costs in the latter case, the exercise of discretion in awarding it, must be based or be predicated on good reasons, that is, it must be justifiably reasonable else the same would be set aside on appeal to an appellate court. See UBA v. GMBH (supra).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. NZE ALOYSIUS MADU
2. AUGUSTINE AGUBUEZE
(For themselves and as representing Umudim family Okwudor, Mgbidi) Appellant(s)
AND
1. CHIEF FESTUS ANOZIA
2. OKIKAJEKWU UDOGU ONONAKU Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Imo State, sitting at Mgbidi, (hereinafter referred to as the lower Court), delivered on the 22nd day of March, 1995 by Hon. Justice P. C. Okoli, J.,wherein the lower Court dismissed the plaintiffs/appellants’ (hereinafter referred to as the appellants) case as having been abandoned.
The substantive suit from where this appeal emanated was commenced by a writ of summons and claim dated and filed on the 13th day of May, 1992. At paragraph 13 of the appellants’ further amended statement of claim which was deemed duly filed and served by order of the lower Court, made on the 24th day of February, 1994, the appellants claimed against the defendants/respondents (hereinafter called the respondents),jointly and severally as follows:
1. A declaration that the Plaintiffs are entitled to statutory right of occupancy over the land in dispute verged yellow in the plaintiffs? survey plan No. VEN/D/88/92 attached to and filed with this statement of claim.
2. N2,000.00 as general damages for trespass.
3. Perpetual injunction restraining the Defendants acting by themselves or through their agent/agents and workmen from further trespassing into the land in dispute.
In accordance with the rules of the lower Court at the material time, the parties filed and exchanged their pleadings. Thereafter, the suit proceeded to hearing. On the 19th day of January, 1994, the appellants opened their case, and on the said day and date, the 1st appellant testified as PW1. Afterwards, the appellants filed due process in the form of a motion on notice and evinced their bid to call four additional witnesses. However, during the course of leading the appellants’ further witness, Cyprian Aguzie (who testified as PW5), the learned trial judge asked the witness a question, to which answer was given by the said PW5. The appellants’ counsel was not happy with the question posed by the learned trial judge to the witness, and he made his displeasure known by protesting against an alleged interference by the learned trial judge with the conduct of his case.
The protest and or objection was ignored by the learned trial judge and he went ahead to put the question he posed to the witness and answer was given on record. Dissatisfied with this development, the appellants’ counsel sought for an adjournment, but the same was not granted by the learned trial judge. Having failed to get the adjournment sought for the learned counsel for the appellants applied to withdraw his appearance for the appellants, and the said application was duly granted.
Subsequently, the appellants filed a motion on notice on the 5th day of January, 1995, wherein they sought for the leave of the learned trial judge to allow the appellants’ counsel; Prince N. I. A. Ohanyere, to continue as their counsel. The motion was supported by two affidavits, one deposed to by the 1st appellant, while the other was deposed to by the counsel himself. In response to the appellants’ application, the respondents filed a counter affidavit. The learned trial judge on the 13th day of February, 1995 dismissed the application, for being unmeritorious. Now, on the 22nd day of March, 1995 when the instant case came up for hearing, neither the appellants nor their counsel were present in Court for the day’s proceeding, consequently, the learned trial judge was of the opinion that the appellants had abandoned their case, thus, he dismissed the case.
The appellants were however dissatisfied with the said decision of the lower Court which dismissed their case and have appealed against the same to this Court. The appellants’ notice of appeal with which they appealed against the decision of the lower Court was filed on the 15th day of May, 1995. Their complaints against the said decision of the lower Court were captured in their six grounds of appeal. The grounds of appeal without their particulars and the relief sought by the appellants from this Court are reproduced below as follows:
1. ERROR IN LAW.
The learned trial Court erred when it made an order dismissing the plaintiffs’ suit.
2. ERROR IN LAW.
The learned trial Court erred in law when it infringed the plaintiffs’ constitutional right of fair hearing.
3. MISDIRECTION ON FACTS.
The learned trial Court misdirected itself on facts when it held that the plaintiffs had abandoned their case.
4. ERROR IN LAW.
The learned trial Court erred in law when after discharging counsel for the plaintiffs from appearing for the plaintiffs dished out punishments to the plaintiffs.”
5. ERROR IN LAW.
The learned trial Court erred in law when it posed a question to the plaintiffs’ witness during examination in chief of the witness when the occasion did not warrant it.
6. ERROR IN LAW.
The learned trial Court erred in law when it made disparaging remarks on counsel in a ruling dated 13/2/95 without justification in law.”
4. RELIEF SOUGHT FROM COURT OF APPEAL.
That the judgment/ruling of Court dismissing the plaintiffs’ case including order to pay costs be set aside and an order for hearing of the case de novo by another Judge in the same Judicial Division be made.
In compliance and accordance with the rules of this Court, the record of appeal was compiled and served on the parties. It was subsequently transmitted to this Court as well. Thereafter, the parties filed and exchanged their respective briefs of argument.
However, the appellants at paragraph 3, page 2 of their brief of argument, indicated that they have abandoned ground 6 of their grounds of appeal. The said ground of appeal is accordingly struck out.
The appellants’ brief of argument was prepared by Prince N. I. A. Ohanyere and filed on the 25th day of March, 1998. On the other side of the divide, the respondents’ brief of argument prepared by Chief D. C. O. Njemanze, KSC, SAN, was dated and filed on the 26th day of June, 1998. The said respondents’ brief was however deemed as having been properly filed and served on the 24th day of February, 2000 by the order of this Court.
Towards the determination of this appeal, the learned counsel for the appellants distilled four issues for resolution. The issues are reproduced below as follows:
1. Whether the plaintiffs’ right to fair hearing was not infringed when the learned trial judge:
(a) dismissed the plaintiffs, suit in their absence, after hearing from the defence counsel, on a date the case was not adjourned to for continuation of hearing.
(b) failed to accede to the Plaintiffs’ application to allow counsel of their choice to continue as their counsel in the case.
2. Whether the learned trial judge was right in holding that the plaintiffs had abandoned their suit and dismissing it. If the judge is not right, whether the dismissal did not lead to miscarriage of justice.
3. Whether the learned trial judge was right in dishing out punishments against the plaintiffs after discharging their counsel from appearing for them.
4. Whether the question posed by the Court to the Plaintiffs’ 5th witness (PW5) during his examination in chief was necessary and justifiable in law.”
On his own part, the learned senior counsel for the respondents raised preliminary objection in the respondents’ briefs of argument. The respondents’ preliminary objection was based on the ground that the appellants’ grounds 2, 4, 5 and 6 of their grounds of appeal are incompetent, due to the fact that the said grounds of appeal were predicated on the interlocutory rulings of the lower Court, and that the appellants failed and or neglected to appeal against the rulings within the time permitted by the law and rules of this Court, and without prior leave to appeal on those grounds or extension of time todo so, having been sought and granted.
In addition, the respondents’ counsel also donated two issues for resolution and eventual determination of this appeal on its merit. The issues are reproduced below as follows:
(i) Whether the appellants abandoned their case at the lower Court.
(ii) Whether the appellants case was dismissed without affording them due opportunity to be heard.”
On the 20th day of June, 2018, when this appeal came up for hearing, the attention of this Court was not drawn to the preliminary objection contained in the respondents brief of argument. In this circumstance and accordance with the rules and established procedures of this Court, the preliminary objection is deemed as having been waived and or abandoned.
I have carefully examined the two sets of issues put forward by the learned counsel for the parties, and I am of the firm opinion that the set of issues put forward by the learned senior counsel for the respondents and the Issues Nos. 3 and No. 4 raised by the appellants are the main issues in contemplation for consideration/resolution in or of this appeal. The issues have comprehensively captured all the complaints and divergent views in contention in this appeal and has sufficiently covered the two remaining issues formulated by the appellants’ counsel. Thus, the issues are adopted by me for resolution and in the determination of this appeal.
ARGUMENTS IN SUPPORT OF ISSUES.
The learned counsel for the appellants, stated that after the ruling of the lower Court delivered on the 13th day of February, 1995 wherein the lower Court dismissed the appellants’ application seeking the leave of the lower Court to allow their counsel Prince N. I. A. Ohanyere to continue representing them, that is, after the said counsel’s initial withdrawal of his appearance from the case; no date was announced or communicated to them for the continuation of hearing in the case. He maintained that only the respondents and their counsel somehow became aware that the case was adjourned to the 22nd day of March, 1995 for continuation of hearing.
He contended that the learned trial judge only heard the argument of the respondents’ counsel that the appellants have abandoned their case, and concluded without hearing from the appellants or order the issuance and service of hearing notice on them, before dismissing the appellants’ case. The learned counsel for the appellants’ then submitted that ”the dismissal in the circumstance was an infringement of the plaintiffs’ right to fair hearing as enshrined in S. 33 (1) of the Constitution of the Federation, 1979.”
He referred us to the cases of Adeyemi Adeniyi v. Governing Council of Yaba Tech. (1993) 6 NWLR (Pt. 300) 426; Ndu v. State (1990) 7 NWLR (Pt. 164) 550; Ariori & Ors. v. Elemo & Ors. (1983) 1 S. C. 13 and Isiyaku Mohammed v. Kano Native Authority (1968) 1 ALL N. L. R. 424.
Also, the learned counsel for the appellants made what could be regarded chronological sequences of all the lower Court’s sitting dates and the appearances of the parties together with those of their counsel; it was then submitted, that ‘the learned trial court was not right in holding that the plaintiffs had abandoned their suit’ and that ‘the dismissal of the suit thereafter by the lower Court led to miscarriage of justice as by the said dismissal the plaintiffs have not only lost their claim to the land in dispute forever but also their right to have their case determined on the merit.
He referred us to the case of Usikaro v. Itsekiri Communal Land Trustees (1991) 2 NWLR (Pt. 172) 150. He also argued that the situation would have been different if the lower Court had merely struck out the appellants? case, because the appellants would still have had the opportunity to apply for the case to be relisted. He referred us to the cases ofLiquidator v. Adeyefa (1970) 1 ALL NLR 13 @16 andMomoh International Ltd. v. H. W. Romain & Sons Ltd. (1993) 8 N. W. L. R. (Pt. 314) 746 @ 756.
In addition, the learned counsel for the appellants submitted, that the learned trial judge erred and breached the appellants’ right to fair hearing when he refused the appellants’ application to allow their counsel of choice to resume and or continue his representation for them. According to the learned counsel for the appellants, this is more so, ‘as it is not proper in law to visit the sins of counsel (if any) on the litigant’. He called in aid the cases of Chief Princewill v. Mallam Usman (1990) 5 NWLR (Pt. 150) 274 @ 283 – 284 and Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118 @ 142. Further, the learned counsel for the appellants contended, that the costs of N500.00 awarded twice against the appellants were unwarranted as there was no basis for awarding them. He also submitted, ”that the learned trial Court visited its grievance, against Plaintiffs’ counsel on the Plaintiffs/Appellants by dishing out punishments to them by way of ordering unwarranted costs against them after discharging their counsel from appearing for them in the case.”
Finally, the learned counsel for the appellants argued, that though the learned trial judge has the power to put a question to a witness, however, he can only do so when it is absolutely necessary or in order to clear any perceived ambiguity. According to the learned counsel, such ambiguity does not exist in this case. Thus, he submitted, that the learned trial judge, ”as an impartial umpire he should have allowed the parties to the conflict to conduct their case in their own initiative.” He supported his position with the cases of Oteju & Ors. v. Oluguna & Ors. (1992) 8 NWLR (Pt. 262) 752 @ 767 and Arubo v. Aiyeleru & Ors. (1993) 3 NWLR (Pt. 280) 126 @ 142 – 143.
In reply, the learned senior counsel for the respondents stated that contrary to what the appellants are trying to make this Court to believe, the learned counsel for the appellants voluntarily withdrew his appearance for the appellants and in respect of their case, and he was duly replaced by another counsel by the name J. U. Okoronkwo Esq. He contended that the learned trial judge, duly informed the parties of the adjourned date for the case but the appellants and their counsel intentionally decided and stayed away. The learned senior counsel for the respondents stated that the order of the lower Court dismissing the appellants’ suit was in line with Order 37 Rule 8 of the High Court (Civil Procedure) Rules, 1988 of Imo State (hereinafter referred to as the Rules), which empowered the lower Court to dismiss a plaintiff’s case if he fails to appear on the date the case is fixed for hearing, as it was in this case. The learned senior respondents’ counsel further argued, that the appellants did not avail themselves of the opportunity provided in Order 37 Rule 9 of the Rules, by applying to the lower Court within six days to set aside the dismissal order. He referred us to the case of Williams v. Hope Rising Voluntary Funds Society (1982) 2 SC 145.
He then submitted, that ”where a Plaintiff fails, refuses or neglects to attend Court to prosecute his case or deliberately refuses to attend Court to prosecute his case the Court ought to deem the case abandoned and dismiss the same”. He called in aid the cases of Imana v. Robinson (1979) 3 & 4 SC 1 @ 9 – 10; Umarco v. Panalpina (1986) 2 NWLR (Pt. 20) 65 @ 73 and Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46.
Furthermore, the learned senior counsel for the respondents submitted, that ”it is fundamental in our system of adjudication that the law will never protect any person against his own deliberate default or misdeed”. He supported his submission with the case of Ita v. Nyong (1994) 1 NWLR (Pt. 318) 56 at 73. He contended, that the appellants and their counsel having realized the fruitlessness of their case, decided to abandon the case by failing and/or refusing to appear in Court for the continuation of the said case. He also stated, that the appellants and their counsel apart from not being present in Court to explain their absence, they failed and or neglect to communicate to the Court in an appropriate manner, that they would not be present for the day’s proceeding. Hence, no material was placed before the lower Court to excuse their absence.
Therefore, the lower Court was left with no option than to presume that they have abandoned their case and on that basis, the learned trial judge rightly dismissed the appellants’ case. Once again, the learned senior counsel for the respondents argued that the appellants were not denied fair hearing as they were given sufficient opportunity to present their case but, they intentionally opted to abandon the same.
Finally, the learned senior counsel for the respondents submitted, that the learned trial judge was within his right to pose a question to the appellants’ witness, as the same was aimed at clearing an ambiguity and also taking note of the fact that the question asked was harmless. He referred us to the case of Oteju v. Oluguna (1992) 8 NWLR (Pt. 262) 752 @ 766 – 767.
He then concluded with the submission, ‘that in the circumstance of this matter that the appellants abandoned their case and cannot thereafter start raising the issue of lack of fair hearing after they had been given opportunity to prosecute their case’. The learned counsel thereby urged that these issues ought to be resolved in favour of the respondents.
It is important to observe, that it is within the discretion of a judge to grant adjournment to a party in order to give such a party, adequate opportunity to present his case or continue with the case. However, like all other exercise of discretions any exercise of such discretionary power to adjourn cases, must be exercised judicially and judiciously. See the cases of Ndu v. State (1990) NWLR (Pt. 164) 550; Alsthom S. A. v. Saraki (2005) 3 NWLR (Pt. 91) 208 and Odusote v. Odusote (1971) ALL NLR 219. The judge in the exercise of his power is expected to exercise the same in the overall interest of the case, and to ensure that there is no miscarriage of justice. Thus, where a party is deserving of being granted an adjournment but the same was wrongly denied to him and on that basis, the party’s case was struck out or dismissed (as in the instant cases), the judge could not be said to have acted fairly and justly. See Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1.
Also, though Courts (and indeed the lower Court) are inherently and by their rules have the discretional power to dismiss a case, however, the power should be sparingly used, so as not to unjustly shut out a litigant from prosecuting his case on the merit, thereby denying such a party ready access to the seat of justice. That is, the discretional powers of a Court to dismiss a case will only be held to have been judiciously and judicially exercised, only when a case has been considered on its merit. See the cases of S & D Construction Co. Ltd v. Ayoku (2011) 46 WRN 1 and University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143. Thus, it would generally be considered an improper exercise of power if a judge dismisses a party’s case because of the failure of the party or his counsel to appear in Court on the day his case was fixed for hearing. In such a situation, for the defendant’s application to dismiss the plaintiff’s suit for lack of diligent prosecution to succeed, he must establish the followings:
1. That there had been an inordinate delay by the plaintiff (and what qualifies as inordinate delay depends mainly on the facts and circumstances of each case).
2. That such inordinate delay is inexcusable, meaning that until credible evidence is given, the probable or natural inference is that it is inexcusable.
3. That the defendant is likely to be seriously prejudiced by such delay and the longer the delay, the more the likelihood of serious prejudice caused by such delay. See the case of Onuora v. Ofomata (2012) LPELR 19942.
In the instant case, could it be held that the appellants were guilty of inordinate delay? I think not. I have carefully examined the record of appeal before me and have paid particular attention to the attendance or appearances of the appellants and their counsel at the proceedings or sittings of the lower Court, and I am of the firm viewpoint that the appellants could not be adjudged or held to be responsible for the cause of an inordinate delay. From the record of appeal placed before us, the appellants have been diligently, faithfully and religiously attending the lower Court’s proceedings. Indeed, since the formal commencement of the proceedings at the lower Court, the appellants have been attending the lower Court’s proceedings, save for the day the suit was dismissed.
In arguing the appeal before this Court, the appellants contended and or stated their reasons for their failure to attend the Court on the 22nd day of March, 1995, when their suit was dismissed, that they were unaware of the day’s sitting and no hearing notice was served on them. I have also examined the record of proceedings on the last date the case came up, on the 13th day of February, 1995, before the date that the suit was dismissed, and I do agree with the learned appellants’ counsel that, no mention was made or mentioned in open Court or contained in the record with regard to the adjourned date for the continuation of hearing on/of the case, after the ruling on the application brought by the appellants was dismissed. (See pages 103 – 108 of the record of appeal). Even in the event that the date was mentioned to the hearing of the appellants, the learned trial judge would still not be held to be justified in dismissing the appellants’ suit. This is so because, the appellants have been consistent in prosecuting their case, and on the previous hearing dates before the date their suit was dismissed, the appellants’ application seeking the leave of the learned trial judge to allow the counsel of their choice who previously withdrew from the case be allowed to continue representing them, was dismissed.
Thus, as it stood, the appellants are presumed to be without any legal representation and they deserve to have one as a matter of right and choice. I say this because, there is no application on record whereby any other counsel has formally notified the lower Court that he/she will take over the appellants’ case. In this circumstance, it is only fair for the learned trial judge in the overall interest of justice to grant an adjournment to the appellants with an order that fresh hearing notice should be served on them. Instead, the learned trial judge went ahead to accede to the application by the learned respondents’ counsel to dismiss the appellants’ suit.
I am of the firm viewpoint that the discretional exercise of the lower Court’s power which dismissed the appellants’ suit was not exercised judicially and judiciously, and the same is liable to be set aside.
On the refusal of the learned trial judge to grant the appellants’ application seeking the leave of the learned trial judge to allow the appellants’ counsel Prince N. I. A. Ohanyere, to continue prosecuting this case as counsel to the appellants; I have critically examined the circumstances that initially led to the withdrawal of the counsel’s appearance in the first place; the application seeking the leave of the lower Court to allow the learned counsel to continue, particularly the affidavits in support of the application, the respondents’ counter-affidavit and the ruling of the lower Court dismissing the appellants’ application, and I share the appellants’ view that they were denied fair hearing by the learned trial judge pursuant to S. 33 (1) of the Constitution of the Federal Republic of Nigeria, 1979 which is in parimateria with Section 36 of the Constitution of Federal Republic of Nigeria, 1999 (as amended).
Admittedly, a legal practitioner is expected to maintain a high sense of decorum at all times and give the Court absolute respect and maintain its dignity, no matter the level of any perceived display of impertinence, disrespect, provocation and other unfavourable behaviourial attitude towards the Court. Perhaps, the essence of an appeal is to give a party and or his counsel the opportunity to test the decision of the lower Court and or have the lower Court’s decisions reviewed by a higher Court. Thus, it is unexpected and somewhat unpardonable for a lawyer to have recourse to disrespectful antics or play to the gallery and start throwing tantrums at the presiding judge or justices, simply because the procedural steps or decision(s) made and or taken by the said presiding judge or justices (as the case may be) is unfavourable to him.
That having been said, a judge or justice(s) (as the case may be) on his own part too is required to be very careful in the course of exercising their disciplinary powers against an erring counsel, he is expected to demonstrate lots of restraint so as not to unwittingly stultify or jeopardize the case of a litigant and thereby deny him his constitutional right to choose counsel of his choice on account of the untoward and or unprofessional antics displayed by such a supposedly learned counsel. A balance should be adequately struck between maintaining the integrity of the Court and protecting the constitutional right of a litigant. Refusing to allow a counsel to represent a party, on the basis of an alleged previous misdemeanor or unprofessional conduct of the learned counsel, to my mind constitutes a breach of the party’s right to fair hearing.
In the instant case, the negative remarks made by the learned appellants’ counsel on the basis of which the appellants’ application seeking leave of the lower Court to allow their counsel to continue to represent them, was refused. The allegations were neither contained in the record of appeal before me, nor stated by the respondents in their counter affidavit against the appellants’ application. A critical look at the allegations as contained in the lower Court’s ruling, would also reveal that, the alleged appellants’ counsel unprofessional behavour being complained about, included those that occurred in other cases, other than the instant matter.
While, these allegations truly represent unprofessional behavourial attitude and also depicts lack of decorum, it is not enough in the given circumstances of the instant case to deny a partys fundamental right to have a counsel of his choice to represent him in a case pending in a Court, because if the allegations are true, the mistake of the appellants’ counsel, should not have been visited on the appellants themselves in view of the peculiar circumstances of the instant case. Thus, I am of the firm viewpoint that the learned trial judge erred when he dismissed the appellants’ motion on notice filed on the 5th day of January, 1995, seeking for the leave of the lower Court to allow their counsel, Prince N. I. A. Ohanyere to continue as their counsel.
Finally, on the issue bordering on power of a Court to put question to a witness. By virtue of Section 246(1) of the Evidence Act, 2011 (hereinafter referred to as the Evidence Act). A judge is empowered or has the power to put question(s) across to a witness in some certain circumstances, in order to clear some ambiguities or clarify certain point(s) in the evidence given by the witness. For ease of reference, I seek the indulgence of your Noble Lordships to reproduce the provision of the said Section 246(1) of the Evidence Act, 2011 and the same is reproduced below as follows:
”The Court or any other person empowered by law to take evidence may, in order to clear up ambiguities or to clarify points which have been left obscure in the evidence given by any witness, ask any question he pleases, in any form, at any time of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order or, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.”
From the provision of the Evidence Act, reproduced above, it is clear that the learned trial judge has the power to put any question across to the appellants’ fifth witness as he did. This power as granted to the learned trial judge can be exercised at any stage of the evidence being adduced by the said witness, provided the questions are not scandalous, insultive, or falls into other categories of questions which the witness is at liberty not to answer or prohibited from being put to a witness by the Evidence Act.
In the instant case, the question put to the appellants’ witness was asked to clarify a point from the evidence being given by the witness and nothing more. The question is innocuous as the learned counsel for the respondents has contended. It has no seemingly damaging effect whatsoever on the case of the parties especially that of the appellants. Thus, I do not agree with the learned counsel for the appellants that the learned trial judge has compromised his position as an impartial arbiter in this case by merely asking a question, aimed at clarifying a point or clearing a perceived ambiguity in the evidence adduced by the appellants’ witness.
On the issue of costs, it is instructively significant to observe, that there are two types of costs. One is awarded in accordance with settled principles of law, while the other is awarded in the exercise of a court’s discretion. In the case of the former, the costs are usually awarded in favour of a litigant who went through the rigours of a litigation, or hearing an application, or appeal. It is awarded to compensate for the financial commitment the successful party made in the prosecution of a case, application or appeal.
In the latter case, it is usually awarded as a form of punishment to a defaulting party who fails to carry out or comply/fulfill a procedure specified by the rules of the Court or obey an order made by the Court, either in its entirety or in accordance with the specified time. See the cases of UBA v. GMBH (1989) NWLR (Pt. 110) 374; Layinka v. Makinde (2002) 10 NWLR (Pt. 775) 358 and Saeby Jernstoberi M. F. A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR (Pt. 637) 128. In the award of costs in the latter case, the exercise of discretion in awarding it, must be based or be predicated on good reasons, that is, it must be justifiably reasonable else the same would be set aside on appeal to an appellate court. See UBA v. GMBH (supra).
In the instant case, the first award of costs being contested herein fell under the categories of award in the latter case described above.
Then the next question that needed to be asked and answered is: Whether the costs was justifiably awarded? To answer this poser, the circumstances under which the costs were awarded had to be properly examined. In the first award, whereby the learned trial judge awarded costs against the appellants because the sitting for the day was aborted due to the appellants’ motion seeking leave of the lower Court to allow their counsel who had hitherto withdrawn from the case, be allowed to continue.
A cursory look at the record of proceedings for that day would reveal the fact that the respondents did not indicate that they intend to oppose the application. In fact, the learned trial judge suo motu adjourned the sitting for that day and prompted the respondents to respond to the motion. (See page 98 of the record of appeal). In essence, I agree with the learned counsel for the appellants, that the adjournment granted on the 11th day of January, 1995 was at the instance of the lower Court and there is no justification for awarding N500.00 (Five Hundred Naira) costs against the appellants.
With regard to the second award of costs, it falls under the category of the first type of costs earlier described in this appeal.
It was awarded in favour of the respondents for successfully contesting the appellants’ application. However, it has earlier been held in this judgment that the application was wrongly refused and ought to have been granted. Thus, the basis upon which the second N500.00 costs was awarded against the appellants has been overtaken by events. In this vein, the award of costs against the appellants as done and expressed in this appeal was not done or based on any established legal justifiable basis and the awards are liable to be set aside and they are accordingly set aside.
In conclusion, Issues 1 and 2 as donated by the learned counsel for the respondents and adopted for resolution in the determination of this appeal, are resolved in favour of the appellants. In addition, Issue 3 of the issues donated by the appellants’ counsel and adopted for resolution in respect thereof is also resolved in favour of the appellants. While Issue 4 of the appellants’ issues as adopted is resolved against the appellants.
Having resolved the issues formulated and or donated for resolution and the determination of this appeal in the manner stated above, this appeal is found by me to have succeeded in part. Thus, judgment is hereby entered in favour of the appellants in respect thereof as follows:
1. Leave is hereby granted to the appellants’ counsel Prince N. I. A. Ohanyereto continue to represent the appellants.
2. The order of the lower Court made on the 22nd day of March, 1995 whereby the lower Court dismissed the appellants’ case in Suit No. HOU/12/1992 is hereby set aside.
3. The awards of two separate sums of N500.00 as costs against the appellants by the learned trial judge are set aside.
4. The appellants’ case, that is, Suit No. HOU/21/1992 is hereby remitted and or referred back to the Chief Judge, Imo State High Court, for the said suit to be heard de novo by another Judge.
5. Parties are to bear their respective costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
ITA GEORGE MBABA, J.C.A.: I agree
Appearances:
Bailiff was unable to locate the address of Appellants’ counsel for service.For Appellant(s)
A. I. Uduma, Esq.For Respondent(s)
