ODUTOLA V. PAPERSACK NIG. LTD
June 4, 2025NAZIRU ISMAIL v. THE STATE
June 5, 2025Legalpedia Citation: (2025-05) Legalpedia 45761 (CA)
In the Court of Appeal
Thu May 8, 2025
Suit Number: CA/C/47/2023
CORAM
Amina Audi Wambai Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Ntong Festus Ntong Justice of the Court of Appeal
PARTIES
1. TRANSATLANTIC MORTGAGE LIMITED
2. THE BAYELSA STATE GOVERNMENT
APPELLANTS
PROF. JOHN OFFEM
RESPONDENTS
AREA(S) OF LAW
CIVIL PROCEDURE, COSTS, JUDICIAL DISCRETION, INTERLOCUTORY APPEALS, PRACTICE AND PROCEDURE, CONSTITUTIONAL LAW, FAIR HEARING, MOTIONS PRACTICE, UNDEFENDED LIST PROCEDURE
SUMMARY OF FACTS
The Appellants (Transatlantic Mortgage Limited and Bayelsa State Government) were defendants in a suit filed by the Respondent (Prof. John Offem) under the Undefended List Procedure at the High Court of Cross River State sitting at Calabar. The Respondent filed his originating processes on May 2, 2019.
Upon receiving the Respondent’s processes, the Appellants filed a Notice of Intention to Defend together with a Motion on Notice (Preliminary Objection) on June 26, 2019, challenging the jurisdiction of the High Court of Cross River State to hear the matter. Issues were joined between the parties.
Subsequently, the Appellants became aware of additional facts and decided to file a second Motion on Notice on December 13, 2019, similar to the first but with modifications to capture the true state of affairs and the new facts discovered.
On January 17, 2020, when parties were scheduled to adopt their addresses, the Appellants’ counsel sought and obtained leave of court to withdraw the Motion on Notice filed on June 26, 2019, and substitute it with the Motion on Notice filed on December 13, 2019.
The trial court, having heard from learned counsel for both parties, granted the Appellants leave to substitute the Motion but awarded substantial costs: N100,000 against the 1st Appellant and N400,000 against the 2nd Appellant, totaling N500,000 in favor of the Respondent. The trial court ordered that this amount be deposited with the Cross River State judiciary pending the outcome of any appeal.
The trial court’s reasoning for the costs was that after issues had been joined, the Respondent had incurred expenses including filing fees for reply and rejoinder on points of law, costs of typing, printing, and serving documents, and transportation costs to court.
Dissatisfied with the cost award, the Appellants filed this interlocutory appeal on June 17, 2022, arguing that the cost award was excessive, punitive, and an abuse of the trial court’s discretionary powers.
HELD
1. The interlocutory appeal succeeded in part.
2. The Court held that the cost award of N500,000 was excessive, punitive, and an abuse of judicial discretion.
3. The cost award of N500,000 was set aside.
4. The Court awarded a reduced cost of N100,000 total (N50,000 against each Appellant).
5. The balance of N400,000 from the amount already deposited with the Cross River State Judiciary was ordered to be returned to the Appellants.
6. The main case was ordered to continue at the lower court to be heard and determined on its merits.
ISSUES
Whether the award of the gargantuan cost of N500,000.00 (Five Hundred Thousand Naira) against the Appellants for simply withdrawing the Motion on Notice filed on the 26th day of June, 2019 and substituting same with the Motion on Notice filed on the 13th of December, 2019 is not an abuse of the exercise of the discretionary powers of the Court which ought to be exercised judicially and judiciously?
RATIONES DECIDENDI
NATURE OF JUDICIAL DISCRETION – NOT ARBITRARY OR CAPRICIOUS
“Judicial discretion is a term applied to the discretionary action of a Judge or Court and means discretion bounded by the rules and principles of law and not arbitrary, capricious or unrestrained. Discretion is a legal term to be exercised in discerning the course prescribed by law and is not according to the whims and caprices of the individual Judge but to that of the law. Discretion of Court is not a tea, bread and butter business. It is the law that a proper exercise of discretion should be done according to the law and not humour.” – Per NTONG FESTUS NTONG, J.C.A.
REQUIREMENTS FOR PROPER EXERCISE OF DISCRETION
“Discretion is not to be arbitrary. Discretion is not vague. Discretion is not fanciful. A proper discretion of Court should and ought to be legal and regular. Discretion of Court must be exercised upon the facts, peculiarity and circumstances presented before the Court of law from which a Court must draw a conclusion governed by law.” – Per NTONG FESTUS NTONG, J.C.A.
IMPROPER EXERCISE OF DISCRETION
“It is my humble view therefore that a Court’s exercise of its discretion, without averting to all the peculiar facts and circumstances of the particular case before it, is as bad as its exercise upon a wrong principle.” – Per NTONG FESTUS NTONG, J.C.A.
APPELLATE INTERVENTION IN MISCARRIAGE OF JUSTICE
“Also, if there is any miscarriage of justice in the exercise of judicial discretion, it is within the competence of an appellate Court to have it reviewed.” – Per NTONG FESTUS NTONG, J.C.A.
COST AWARDS SHOULD NOT BE EXCESSIVE OR PUNITIVE
“It is agreeable that it is within the discretion of a Court hearing a case to award cost especially when such Court desires to check the excesses, lackadaisical attitude, laziness and inelegance of lawyers and or their clients, such award of cost ought not to be excessive and punitive in any wise.” – Per NTONG FESTUS NTONG, J.C.A.
APPELLATE COURT’S POWER TO INTERVENE
“My Lords, on a general note, this Court will not ordinarily interfere with the proper exercise of a discretion made by a lower Court. However, where the exercise of discretion tends to occasion aggravated miscarriage of justice to one of the parties in the appeal, the Court is endowed with its judicial sledge hammer to salvage the situation.” – Per NTONG FESTUS NTONG, J.C.A.
EXCESSIVE COST AWARD ASSESSMENT
“Therefore, from the facts and circumstances of the case as presented at the trial Court, the gargantuan cost of N500,000.00 (Five Hundred Thousand Naira) awarded against the Appellants, to my mind, is punitive and outrageous by all standards. This is particularly so because the entire processes filed by the Respondent, including the cost of typing, printing and service on the other party, did not in all sincerity exceed the sum of N50,000.00 (Fifty Thousand Naira).” – Per NTONG FESTUS NTONG, J.C.A.
PURPOSE OF COST AWARDS – NOT PUNITIVE
“Costs are not awarded as a punitive measure against the losing party but for the purpose of meeting the legitimate expenses of the successful party either wholly or partially as the Court may see fit.” – Per NTONG FESTUS NTONG, J.C.A.
PUNITIVE COSTS VITIATE PROPER DISCRETION
“Costs that are awarded to serve as deterrence to an unsuccessful party to prevent him from filing future claims of a particular kind are certainly punitive, and a Court that award such costs cannot be saying to be exercising its discretion judiciously and judicially. Punitive costs operate to vitiate or undermine proper exercise of judicial and judicious discretion.” – Per NTONG FESTUS NTONG, J.C.A.
PROPER BASIS FOR COST AWARDS
“It is now settled that the aim of awarding costs is not to punish unsuccessful litigant but to serve as an indemnity to compensate a successful party for the expenses incurred such as typing, printing, filing, service on the other party and the cost of transportation to Court including legal representation and nothing more.” – Per NTONG FESTUS NTONG, J.C.A.
DISCRETION MUST BE EXERCISED JUDICIALLY
“Notwithstanding, cost is awarded at the discretion of the Court but such discretion, like any other discretion, must be exercised judicially and judiciously. IT IS MY HUMBLE VIEW THEREFORE IN ANY CASE BEFORE A COURT OF LAW, COST FOLLOWS EVENTS.” – Per NTONG FESTUS NTONG, J.C.A.
APPELLATE INTERVENTION IN IMPROPER COST AWARDS
“Therefore, the Court of Appeal will interfere with the award of cost by the lower Court which was not judicially and judiciously awarded.” – Per NTONG FESTUS NTONG, J.C.A.
ASSESSMENT OF EXCESSIVE COST AWARD
“In the final analysis, I am convinced that the award of N500,000.00 (Five Hundred Thousand Naira) as cost against the Appellants is excessive. Accordingly, this interlocutory appeal succeeds in part and the award is hereby set aside. Consequently, I hereby award a total cost of N100, 000.00 (One Hundred Thousand Naira) against the Appellants as follows – N50,000.00 (Fifty Thousand Naira) against the 1st Appellant and N50,000.00 (Fifty Thousand Naira) against the 2nd Appellant.” – Per NTONG FESTUS NTONG, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Cross River State (Civil Procedure) Rules, 2008
• High Court of Cross River State (Civil Procedure) Rules, 2008
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