SIDUS TELECOMMUNICATIONS ENGINEERING CORPORATION LTD & ORS v. STANBIC IBTC BANK PLC
(2020)LCN/15557(CA)
In The Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, November 26, 2020
CA/L/319/2015
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Ebiowei TobiJustice of the Court of Appeal
Between
1. SIDUS TELECOMMUNICATIONS ENGINEERING CORPORATION LIMITED 2. DR. PATRICK ADIGWE 3. MR. ALI MUZAR 4. MR. JEREMIAH MEZER APPELANT(S)
And
STANBIC IBTC BANK PLC RESPONDENT(S)
RATIO:
THE DECISION OF A SUPERIOR COURT OVER A LOWER COURT
It is trite that the decision of a superior Court binds a lower Court of record. See the case of Abacha vs. Fawehinmi (2000) 6 NWLR (Pt.660) 228. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRINCIPLE GUIDING APPEAL AS TO COST
By all odds, by Section 241 (2) ( c ) of the 1999 Constitution (as amended) and Section 14 (1) of the Court of Appeal Act, an appeal as to costs only cannot lie except with leave of Court. The authorities in this regard are legion. The Appellants did not obtain leave of Court to appeal against the costs awarded by the lower Court. In MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 8-9, Eko, JSC stated:
“I am the least convinced that the very persuasive decision of the Court of Appeal in A.C.B. v. OKONKWO (1997) 1 NWLR (Pt. 480) 194 which applied the provisions of Section 220 (2) (c) of the 1979 Constitution, in pari materia with Section 241 (2) (c) of the extant 1999 Constitution, is not apposite. Section 241 (2) (c) of the Constitution does not intend to confer right of appeal, as of right, on the Appellant complaining about costs in an appeal from the High Court to the Court of Appeal. I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. OKONKWO (supra), to wit – A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220 (2) (c) of the 1979 Constitution. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WHETHER APPEAL ON COST IS AS OF RIGHT
This Court has been consistent on this point as can be seen from GOVERNOR, EASTERN NIGERIA V. ONYELU (1965) ALL NLR 690. The Court of Appeal followed the decisions in UNIFAM IND. LTD. v. OCEANIC BANK (supra); ASIM NIG. LTD. v. LBRDA (supra); ONUIGBO v. NWEKESON (1993) 3 NWLR (Pt. 283) 533 at 546. I will not depart from these precedents, at least on the doctrine of stare decisis.”
In contributing to the issue, Odili, JSC stated as follows at pages 74-76:
“The question herein raised has brought into focus Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria and Sub-section (2) (c) thereof provides thus: – ‘Nothing in this section shall confer any right of appeal – (c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only’… On this issue of cost the Court of Appeal and the Apex Court have set the record straight thereof to the effect that an appeal complaining on the issue of cost is not as of right. I shall cite a few of those cases for effect. See Governor, Eastern Nigeria v Onyelu (1965) All NLR 197 at 198 … Adeyemi v Awobokun 1968 All NLR 690 where the position in the Onyelu case was adopted intoto. The Court of Appeal lately in Asims Nig. Ltd v LBRBDA (2002) 8 NWLR (Pt. 769) 349, held that ‘at any rate, Section 241 (2) (c) of the 1999 Constitution which corresponds with Section 220 (2) (c) of the 1979… Constitution does not confer right of appeal on a party on issue of costs’ per Muhammad, JCA (as he then was) at page 366, Para. D. The Court of Appeal reiterated the same legal position in Unifam Ind. Ltd v Ocean [sic] Bank Intl (Nig.) Ltd (2005) NWLR (Pt. 911) 83 when it held that: – ‘a successful party is generally entitled to the cost of the litigation. However if a party is aggrieved by the order of a Court of law as it relates to cost, he does not appeal as of right. He must first seek and obtain the leave of Court before an appeal can be lodged against an order relating to cost’ per Aderemi, JCA (as he then was) at page 102… Recently in Oketade v Adewunmi (2010) 3 (Pt. II) MJSC 31 where the appellant filed three (3) grounds of appeal (see page 39, paragraphs D-F thereof) the Supreme Court confirmed the above decisions of the Court of Appeal on the issue of costs when it held at page 42, paras. F-G and page 45, paras. C-E that: – ‘It is trite that appeal does not lie as of right against an award of costs by a Court. The cases of Unifam Ind. Ltd v Oceanic Bank Intl (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 83 at 102 and Asims (Nig.) Ltd v Lower Benue River Basin Dev. Authority (2002) 8 NWLR (Pt. 769) 349 cited by learned counsel for the respondents are in point. I endorse the views ably expressed in both cases’ per Fabiyi, JSC at page 45. The issue herein has been rested as the cases above cited show and so the Court of Appeal had no jurisdiction sequel to Section 241 CFRN to entertain the appeal on ground of legal costs without leave of either the trial Court or of itself, the Court of Appeal. See Onuigbo v Nwekeson (1993) 3 NWLR (Pt. 283) 533 at 546 (CA), A.C.B. v Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 207 (CA).” UGOCHUKWU ANTHONY OGAKWU, J.C.A.
INSTANCE WHEN AN APPELLATE COURT WILL INTERVENE
In civil cases, a successful party is generally entitled to be compensated by way of cost, the amount of which is at the discretion of the Court. The discretion of the trial Court in awarding cost is one which an appellate Court is loath to interfere with, except and unless the award is manifestly excessive or too low. See NITEL vs. IKPI (2007) 8 NWLR (PT 1035) 96 and ADIM vs. NBC LTD (2010) 9 NWLR (PT 1200) 543 at 561. When the Court exercises its discretion in the award of costs judicially and judiciously and does so without being capricious there is no basis for an appellate Court to intervene. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent, as Claimant before the lower Court, instituted an action against the Appellants in SUIT NO. LD/583/2013: STANBIC IBTC BANK PLC vs. SIDUS TELECOMMUNICATIONS ENGINEERING CORPORATION LTD & ORS. The Writ of Summons in the said action was issued and sealed on 10th July, 2013. The writ could not be served on the Appellants.
On 21st January, 2014, the Respondent by a motion ex parte applied to the lower Court for an order enlarging the time to renew the writ of summons and for an order renewing the said writ of summons. The said application was granted as prayed by the lower Court on 3rd February 2014.
Upon being served the renewed writ of summons and other Court processes, the Appellants filed a preliminary objection wherein they urged the lower Court to set aside its order made on 3rd February 2014, renewing the life of the writ. The lower Court having heard the preliminary objection dismissed the same in a Ruling delivered on 12th February 2015. The Appellants, dissatisfied with the said Ruling, appealed against the same by Notice of Appeal filed on 20th February 2015. The scarified Ruling of the lower Court is at pages 247-256 of the Records while the Notice of Appeal is at pages 257-260 of the Records.
The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged. The extant Appellant’s brief which Appellants’ counsel relied upon at the hearing is the Appellants’ Amended Brief of Argument filed on 9th May 2017, but deemed as properly filed on 6th May, 2019. The brief which learned counsel for the Respondent adopted and relied upon at the hearing is the Respondent’s Brief of Argument filed on 11th April, 2016 but deemed as properly filed on 6th May 2019.
The Appellants crafted two issues for determination, videlicet:
“(1) Whether having regard to the provision of Order 6 Rule 6(2) of the High Court of Lagos State (Civil Procedure) Rules 2012, the learned trial judge was right granting the Respondent’s ex-parte application dated 21st January, 2014 for renewal of the Writ of Summons dated and filed on 10th of July, 2013 after its expiration.
(2) Whether the cost of N100,000.00 awarded against the Appellants by the learned trial judge was justifiable in the circumstance of this case.”
The Respondent equally nominated two issues for determination, scilicet:
1) Whether the writ of summons in Suit No: LD/583/2013 was capable of revival and renewal, the application for renewal of same having been brought after its expiration.
2) Whether the cost of N 100,000.00 awarded against the Appellants was justifiable in the circumstances of the suit.
There is nothing to choose from in the issues distilled by the parties. The issues are six and one-half dozen of the other. Accordingly, the issue as formulated by the Appellants will be the cicerone for the consideration of the submissions of learned counsel and determination of this appeal.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The quiddity of the Appellants’ submission on issue number one is that by the stipulations of Order 6 Rule 6 (2) of the High Court of Lagos State (Civil Procedure) Rules, 2012, a writ of summons can only be renewed before the expiration of the lifespan of the writ as the writ becomes void after its expiration and no application can be made for its renewal vide ALAO vs. OMONIYI (1966) NMLR 161, ANSA vs. CROSS LINES LTD (2006) 1 ALL FWLR (PT 321) 1271 at 1285, MOBIL OIL NIG LTD vs. OJAIYA (1964) LLR 60 and SHELDON vs. BROWN BARLEY’S STEELWORKS LTD (1953) QB 353. It was asserted that the lower Court was therefore wrong to have granted the application for renewal of the writ after the writ had expired.
It is the further submission of the Appellants that the lower Court was wrong to have relied on the decision in KOLAWOLE vs. ALBERTO (1989) 1 NWLR (PT 98) 382 as the 1972 Rules of the High Court of Lagos State applied in that case is different from the provisions of the 2012 Rules which is at stake in this matter. It was stated that the 1972 Rules used the word ‘MAY’ and gave an option that application for renewal of writ may be made before or after the writ has expired; whilst the 2012 Rules does not given such an option, and the application must be made before the writ expires in order for it to be granted.
The Appellants posited that Rules of Court are meant to be obeyed and that the prescriptions of Order 6 Rule 6 (2) of the 2012 Rules ought to be followed. The cases of MV ‘ARABELLA’ vs. N.A.I.C. (2008) 11 NWLR (PT 1097) 182 at 205 -206, EKPAN V. UYO (1986) 3 NWLR (PT 26) 63 at 76 and DADA vs. DOSUNMU (2006) 18 NWLR (PT 1010) 134 at 166 were referred to. It was maintained that since the application to renew the writ was not made within the terms of Order 6 Rule 6 (2) of the 2012 Rules, the lower Court should have refused the same. The case of HART vs. T.S.K.J. NIG LTD (1998) 12 NWLR (PT 578) 372 at 390 was relied upon.
It was conclusively submitted on issue number one, that where specific provision has been made to govern an act as in Order 6 Rule 6 (2) of the 2012 Rules, it is that specific provision that would apply and not a general provision. Order 44 Rule 4 of the 2012 Rules relied upon by the lower Court, it was opined, would only apply where the act for which the application for extension of time was made had not become void. The case of BRITISH BATA SHOES CO. LTD vs. MELIKAN (1956) 1 NSCC 91 was called in aid.
The conspectus of the Appellants’ submission on their issue number two is that the costs awarded by the lower Court upon dismissing their preliminary objection was unjustifiable, punitive and outrageous. It was posited that Courts do not impose costs as punishment vide REGD TRUSTEES OF IFELOJU vs. KUKU (1991) 5 NWLR (PT 189) 65. It was conclusively submitted that the costs awarded was a bonus to the successful party as there was no event to justify the award of any costs vide UBN LTD vs. NWAOKOLO (1995) 4 KLR 919 and ADEROUNMU vs. ADEROUNMU (2003) 2 NWLR (PT 803) 1 at 27.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
In replication, the Respondent submits on its issue number one that a writ of summons can be revived and renewed, notwithstanding that the application for renewal was made after the expiration of the writ vide AYALOGU vs. AGU (2002) 3 NWLR (PT 753) 168 at 179 and 181-182 and KOLAWOLE vs. ALBERTO (supra). It was maintained that Order 5 Rule 6 and Order 47 Rule 3 of the 1972 Rules applied in KOLAWOLE vs. ALBERTO (supra) are in pari materia with Order 6 Rule 6 and Order 44 Rule 4 of the 2012 Rules, under which the writ in this matter was renewed.
It was posited that the 2012 Rules makes mandatory provisions but still provides leeway around the mandatory provisions where the time stipulated is not met. It was asserted that rules of Court are meant to do substantial justice by oiling the conduct of the parties in an action and not supreme master to parties appearing before the Court and the Court itself. It was opined that Order 44 Rule 4 of the 2012 Rules can therefore be read in conjunction with Order 6 Rule 6 of the 2012 Rules. The cases of AUTO IMPORT LTD vs. ADEBAYO (2003) FWLR (PT 140) 1686 and KOLAWOLE vs. ALBERTO (supra) were relied upon.
The Respondent wrapped up its submission on issue number one by submitting that the mistake or omission in bringing the application to renew the writ after the writ had expired was an irregularity which a Court can cure. The case of ANSA vs. CROSS LINES LTD (supra) was cited in support.
The thrust of the Respondent’s submission on issue number two is that the Appellant’s appeal against the costs awarded against them by the lower Court is incompetent since the Appellants did not obtain leave to appeal on costs as required by Section 241 (2) (c) of the 1999 Constitution as amended.
It was further argued that the costs awarded was justifiable in the circumstances since costs follow event and are awarded at the discretion of the Court to the successful party. The cases of ACB vs. AJUGWO (2012) 20 WRN 47 at 81-82 and ADVERT-ANGE LTD vs. ESKADE VENTURES LTD (2013) 46 WRN 172 were referred to. It was conclusively submitted that the Appellants did not give any special reasons to show why the costs awarded against them was not justifiable.
RESOLUTION
The facts of this matter are not disputed. The Respondent instituted the action and the writ of summons was issued on 10th July 2013. By the provisions of Order 6 Rule 6 (1) of the High Court of Lagos State (Civil Procedure) Rules, 2012, the lifespan of the writ of summons was six (6) months. The writ of summons could not be served on the Appellants within the six (6) months lifespan of the writ of summons. On 21st January, 2014, about eleven (11) days after the lifespan of the writ of summons had expired, the Respondent applied for extension of time to apply for renewal of the writ and for an order renewing the writ. On 3rd February 2014, about twenty-four (24) days after the writ had expired, the lower Court made the order extending the time to apply for the renewal of the writ and made an order renewing the writ.
The quodlibet under issue number one is the Appellants’ contention that the writ having expired had “become void and a nullity, dead and buried forever” and can no longer be renewed. For the Respondent, the expiration of the writ before the application to renew did not detract from the powers of the Court to exercise discretion and extend the time limited by the Rules since the Rules are made for the Court and parties and not the Court and the parties for the Rules.
The provisions of Order 6 Rule 6 (2) and Order 44 Rule 4 of the 2012 Rules which are at the heart of the disceptation in this matter stipulate as follows:
ORDER 6 RULE 6 (2)
“If a Judge is satisfied that it has proved impossible to serve an Originating process on any Defendant within its lifespan and a Claimant applies before its expiration for renewal of the process, the Judge may renew the original or concurrent process for three (3) months from the date of such renewal. A renewed Originating Process shall be in Form 6 with such modifications or variations as circumstances may require.”
ORDER 44 RULE 4
“The Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment of the Court, extend or adjourn the time for doing any act or taking any proceedings.
Provided that any party who defaults in performing an action within the time authorised by the Judge or under these Rules, shall pay to the Court a fee of Two Hundred Naira (N200) for each day of such default at the time of compliance.”
The above stipulations are comprehension friendly. Order 6 Rule 6 (2) is clear that an application for renewal of an Originating process, which includes a writ of summons, is to be made before the expiration of the process. By Order 44 Rule 4, the time appointed by the Rules may be extended by a Judge either before the expiration of the appointed time or after the appointed time has expired. The period stipulated to make an application for renewal of the originating process, under Order 6 Rule 6 (2) is a time appointed by the Rules. So, being a time appointed by the Rules, it seems to me that a Judge pursuant to Order 44 Rule 4 may extend the time appointed by the Rules under Order 6 Rule 6 (2).
Howbeit, the associated question is the status of a writ of summons that has not been served after its lifespan has expired. The Appellants relying on ALAO vs. OMONIYI (supra) argue that the writ becomes void, a nullity, dead and buried forever. ALAO vs. OMONIYI (supra) is the decision of the Lagos High Court, Coram: Lambo, J., delivered on 16th May, 1966. By all odds, it was held in the case that a writ which is not renewed before its expiration has become void, “an incurable nullity, dead and buried and for it there can be no resurrection. ”Unfortunately, I am unable to be persuaded by the said decision as it does not represent the current state of the law.
In ANSA vs. CROSS LINES LTD (supra) at 1286 which was relied upon by both parties, this Court (per Chukwuma-Eneh, JCA [as he then was]) held that every mistake or omission in practice and procedure under the rules is now to be treated as an irregularity which the Court can cure so long as it can do so without prejudice or on terms. It was then emphatically held as follows:
“And so, it is no longer the law that a writ of summons not served within 12 months of its issuance is ‘void’. It remains in abeyance until renewed; see Ayalogu vs Agu (supra).”
Furthermore, in AYALOGU vs. AGU (supra) at 179 it was held as follows:
“A writ of summons which is not served within 12 months of its issuance is not void. Such writ merely ceases to be in force and is renewable either before or after 12 months of its date of issue”
This Court continued and stated at pages 181 -182:
“A writ of summons which has not been served for twelve months remains a valid writ of summons, but lies dormant and ineffective for service waiting to be reactivated and rendered efficacious in the manner prescribed by the Rules of Court. The Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed.”
From the state of the law, it seems effulgent that an expired writ of summons is not void. It can still be renewed.
The Appellants invoke the legal principle enshrined in the maxim generalis specialibus non derogant to contend that it is the specific provision in Order 6 Rule 6 of the 2012 Rules that governs the renewal of a writ and not the general provisions of Order 44 Rule 4. The said maxim means that general things do not derogate from special things and thus the specific provision in Order 6 Rule 6 is not affected by the general provision for extension of time in Order 44 Rule 4. See KRAUS THOMPSON ORGANISATION vs. NIPSS (2004) LPELR (1714) 1 at 18, MARTIN SCHRODER & CO vs. MAJOR & CO NIG LTD (1989) LPELR (1843) 1 at 31-32 and FMBN vs. OLLOH (2002) 9 NWLR (PT 773) 473 at 488 and 489-490.
With due deference to learned counsel, I am unable to accept that the said maxim is applicable in the circumstances of this matter. For the maxim to apply the two provisions have to cover the same subject matter. This is not so here. Order 6 Rule 6 (2) strictly applies to renewal of a writ while Order 44 Rule 4 deals with extending the time appointed by the Rules or an order of Court for doing of anything. In the diacritical circumstances of this matter, Order 44 Rule 4 acts as a precursor and after performing its role, it fizzles out; before Order 6 Rule 6(2) comes into play. This issue has been laid to rest by the apex Court in KOLAWOLE vs. ALBERTO (supra) where it was, inter alia, held as follows: “I agree…that although Order 5 Rule 6 is a specific provision for renewal of a writ of summons which is still in force, Order 47 Rule 3 provides for the cases where the period of its effectiveness has expired. Order 47 Rule 3 vests in the Court the general exercise of discretion to enlarge time in order to avoid injustice to either of the parties.”
In his own contribution, Nnamani, JSC asseverated:
“The terms of Order 47 Rule 3 appear to support my view that an application can be made after 12 months. Order 47 Rule 3 applies to all the Rules including Order 5 Rule 6. Time appointed by the Rules can be arguably, in the case of Order 5 Rule 6, include the period within which, on the face of the rule, an application for renewal can be made. This in the rule ex-facie is before the expiration of 12 months. Under Order 47 Rule 3, this can, for good cause, be extended by the Court.”
I have apposed the provisions of Order 5 Rule 6 of the 1972 Rules on which KOLAWOLE vs. ALBERTO (supra) was decided with Order 6 Rule 6 of the 2012 Rules which is in issue in this matter and it cannot be confuted that the stipulations in both provisions are in pari materia. The distinction which the Appellants labour to draw is a distinction without a difference. The important element in both provisions is that an application to renew an originating process has to be made before the expiration of the lifespan of the process. Furthermore, just as Order 47 Rule 6 of the 1972 Rules empowers the Court to grant an order for extension of time, the same is true with Order 44 Rule 4 of the 2012 Rules. The lower Court was consequently on top of its game when it followed and applied the decision of the apex Court in KOLAWOLE vs. ALBERTO (supra). Hear the lower Court at page 254 of the Records:
“Furthermore, I wish to refer to the case of Kolawole vs. Alberto (1989) 1 NWLR (Pt.98) 382 decided by the Supreme Court on the effect of the Order 5 Rule 6 and Order 47 Rule 3 of the High Court of Lagos State (Civil Procedure) Rule s 1972 which is in paripassu with Order 6 Rule 6 and Order 44 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012. The combined effect of the Order 6 Rule 6 and Order 44 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012 grants this Honourable Court, the jurisdiction to renew the Claimant’s Writ of Summons dated 10th July, 2013 and also by the decision in Kolawole’s case. It is trite that the decision of a superior Court binds a lower Court of record. See the case of Abacha vs. Fawehinmi (2000) 6 NWLR (Pt.660) 228. Therefore, this Honourable Court is bound by the decision in Kolawole’s case because departing from this decision will amount to an inexcusable judicial disrespect and arrogance in denying the subsistence of the hierarchy order of Nigerian Courts. I also need to add that the argument of the Applicants’ Counsel to set aside the Order of renewal is made in bad faith especially when the Writ in question is not over 12months old. The Applicants want to foreclose the doors of justice to the Claimants by this argument.”
The lower Court is imbued with jurisdiction under Order 44 Rule 4 of the 2012 Rules to extend the time limited by the Rules. It is instructive that the Appellants have not argued that the Respondent did not proffer good reasons for its failure to apply for the renewal of the writ of summons within the time limited by the Rules. The time having been extended, the lower Court possessed the vires to then order for the renewal of the writ as the effect of the order extending the time was as though the application for renewal was made within the context of the Rules. In a coda, the lower Court was right when it granted the Respondent’s application filed on 21st January 2014 for the renewal of the writ of summons. The issue number one is resolved against the Appellants.
The second issue interrogates whether the costs awarded by the lower Court upon the dismissal of the Appellants’ preliminary objection is justifiable. The said issue is distilled from ground two of the grounds of appeal. The said ground two shorn of its particulars reads as follows:
“The Learned trial Judge erred in law when he proceeded to award the cost of N100,000.00(One Hundred Thousand Naira) against the Appellants.”
The Respondent has argued that the said ground and the issue distilled therefrom is incompetent as the Appellants did not obtain leave of Court to appeal on costs. By all odds, by Section 241 (2) ( c ) of the 1999 Constitution (as amended) and Section 14 (1) of the Court of Appeal Act, an appeal as to costs only cannot lie except with leave of Court. The authorities in this regard are legion. The Appellants did not obtain leave of Court to appeal against the costs awarded by the lower Court.
In MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 8-9, Eko, JSC stated:
“I am the least convinced that the very persuasive decision of the Court of Appeal in A.C.B. v. OKONKWO (1997) 1 NWLR (Pt. 480) 194 which applied the provisions of Section 220 (2) (c) of the 1979 Constitution, in pari materia with Section 241 (2) (c) of the extant 1999 Constitution, is not apposite. Section 241 (2) (c) of the Constitution does not intend to confer right of appeal, as of right, on the Appellant complaining about costs in an appeal from the High Court to the Court of Appeal. I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. OKONKWO (supra), to wit – A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220 (2) (c) of the 1979 Constitution. In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue. Accordingly, I agree with the Appellant that the Respondent’s complaint in ground 4 of the Grounds of Appeal at the lower Court, from which the Respondent as the appellant at the lower Court formulated its issue 4, is incompetent having been raised without leave either of the trial High Court or the lower Court. This Court has been consistent on this point as can be seen from GOVERNOR, EASTERN NIGERIA V. ONYELU (1965) ALL NLR 690. The Court of Appeal followed the decisions in UNIFAM IND. LTD. v. OCEANIC BANK (supra); ASIM NIG. LTD. v. LBRDA (supra); ONUIGBO v. NWEKESON (1993) 3 NWLR (Pt. 283) 533 at 546. I will not depart from these precedents, at least on the doctrine of stare decisis.”
In contributing to the issue, Odili, JSC stated as follows at pages 74-76:
“The question herein raised has brought into focus Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria and Sub-section (2) (c) thereof provides thus: – ‘Nothing in this section shall confer any right of appeal – (c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only’… On this issue of cost the Court of Appeal and the Apex Court have set the record straight thereof to the effect that an appeal complaining on the issue of cost is not as of right. I shall cite a few of those cases for effect. See Governor, Eastern Nigeria v Onyelu (1965) All NLR 197 at 198 … Adeyemi v Awobokun 1968 All NLR 690 where the position in the Onyelu case was adopted intoto. The Court of Appeal lately in Asims Nig. Ltd v LBRBDA (2002) 8 NWLR (Pt. 769) 349, held that ‘at any rate, Section 241 (2) (c) of the 1999 Constitution which corresponds with Section 220 (2) (c) of the 1979… Constitution does not confer right of appeal on a party on issue of costs’ per Muhammad, JCA (as he then was) at page 366, Para. D. The Court of Appeal reiterated the same legal position in Unifam Ind. Ltd v Ocean [sic] Bank Intl (Nig.) Ltd (2005) NWLR (Pt. 911) 83 when it held that: – ‘a successful party is generally entitled to the cost of the litigation. However if a party is aggrieved by the order of a Court of law as it relates to cost, he does not appeal as of right. He must first seek and obtain the leave of Court before an appeal can be lodged against an order relating to cost’ per Aderemi, JCA (as he then was) at page 102… Recently in Oketade v Adewunmi (2010) 3 (Pt. II) MJSC 31 where the appellant filed three (3) grounds of appeal (see page 39, paragraphs D-F thereof) the Supreme Court confirmed the above decisions of the Court of Appeal on the issue of costs when it held at page 42, paras. F-G and page 45, paras. C-E that: – ‘It is trite that appeal does not lie as of right against an award of costs by a Court. The cases of Unifam Ind. Ltd v Oceanic Bank Intl (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 83 at 102 and Asims (Nig.) Ltd v Lower Benue River Basin Dev. Authority (2002) 8 NWLR (Pt. 769) 349 cited by learned counsel for the respondents are in point. I endorse the views ably expressed in both cases’ per Fabiyi, JSC at page 45. The issue herein has been rested as the cases above cited show and so the Court of Appeal had no jurisdiction sequel to Section 241 CFRN to entertain the appeal on ground of legal costs without leave of either the trial Court or of itself, the Court of Appeal. See Onuigbo v Nwekeson (1993) 3 NWLR (Pt. 283) 533 at 546 (CA), A.C.B. v Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 207 (CA).”
I kowtow. In keeping with the settled state of the law, since the Appellants did not obtain leave to appeal on costs, ground two of the grounds of appeal is hereby struck out and the issue formulated therefrom is equally struck out since it has become a non-issue, not having been distilled from a competent ground of appeal.
This is an intermediate appellate Court so I would, in the unlikely event that I am wrong in the view that I rightly hold that the appeal against costs in this matter is not properly before the Court, proceed to resolve the Appellants complaint on the merits. The summation of the Appellants’ complaint is that the costs of N100,000.00 awarded against them by the lower Court is punitive, outrageous and unjustifiable.
In dismissing the preliminary objection, the lower Court conclusively held as follows at page 255 of the Records: “From the foregoing, the Notice of Preliminary Objection hereby fails. It has no legs on which to stand or knee caps to crawl on. It is obviously a waste of time with an intention to delay the trial of this case and as such it will attach a heavy costs.
It is hereby dismissed accordingly. N25,000 cost against each of the Applicants making it a total of N100,000.00 in favour of the Claimant/Respondent.”
The Appellants preliminary objection was dismissed, so the Respondent was the successful party. In civil cases, a successful party is generally entitled to be compensated by way of cost, the amount of which is at the discretion of the Court. The discretion of the trial Court in awarding cost is one which an appellate Court is loath to interfere with, except and unless the award is manifestly excessive or too low. See NITEL vs. IKPI (2007) 8 NWLR (PT 1035) 96 and ADIM vs. NBC LTD (2010) 9 NWLR (PT 1200) 543 at 561. When the Court exercises its discretion in the award of costs judicially and judiciously and does so without being capricious there is no basis for an appellate Court to intervene.
It has to be remembered that assessment of the amount to be awarded as costs is the responsibility of the Court which determines what costs are reasonable in the circumstances. Taking cognizance of the stipulations of Order 49 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 on the principle to be observed by a Court in fixing costs, I do not think that the amount awarded by the lower Court can be said to be exceptionally high, outrageous, punitive or unjustifiable in order for this Court to hold that the discretion was capriciously exercised. There is no basis for intervention with the costs awarded by the lower Court, which was awarded within its discretionary powers as following the event of the outcome of the Appellants’ preliminary objection. See generally NBCI vs. ALFIJIR MINING NIG LTD (1999) LPELR (2015) 1 at 42-43, NNPC vs. CLIFCO NIG LTD (2011) LPELR (2022) 1 at 26, AKINBOBOLA vs. PLISSON FISKO NIG LTD (1991) 1 NWLR (PT 167) 270, GAMBARI vs. ILORI (2002) 14 NWLR (PT 786) 78 at 103-104 and MEKWUNYE vs. EMIRATES AIRLINES (supra) at 67-73 and 86-88.
In conflation, even if the Appellants appeal on costs was competent, which I iterate that it is not, I would have still resolved issue number two against the Appellants as the costs awarded by the lower Court upon dismissing the Appellants’ preliminary objection, was a proper exercise of judicial discretion. The costs of N100,000.00 awarded against the Appellants by the lower Court was justifiable in the circumstances of this case.
The issues thrust up for determination have been resolved against the Appellants. It only remains to pronounce that the appeal is devoid of merit and fails in its entirety. The appeal is consequently dismissed and the decision of the lower Court delivered on 12th February 2015 is hereby affirmed. The Respondent is entitled to the costs of this appeal which I assess and fix at N300,000.00.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: I am in agreement with the concise judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
EBIOWEI TOBI, J.C.A.: I have had the opportunity of reading in advance the leading judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA and I agree in toto with his analysis and the conclusions reached on the issues presented by the parties through their counsel, for determination by this Honourable Court. I agree with my learned brother that this appeal falls flat on its belly and same is hereby dismissed. I have nothing more to add.
Appearances:
Mrs. J. T. Oyetan For Appellant(s)
Mrs. L. O. Ikwuagwu For Respondent(s)