CORAM
Tunde Oyebanji Awotoye Justice Court of Appeal
Kenneth Ikechukwu Amadi Justice Court of Appeal
Abdu Dogo Justice Court of Appeal
PARTIES
SEVEN-UP BOTTLING CO. LTD
APPELLANTS
1. SIFOR LIMITED
2. CHIEF OLUWATOYIN TALABI ISRAEL
3. A. B. MICROFINANCE LTD.RESPONDENT(S)
RESPONDENTS
AREA(S) OF LAW
CONTRACT LAW, CIVIL PROCEDURE, COSTS IN LITIGATION, PRELIMINARY OBJECTION, JUDICIAL DISCRETION, APPEALS
SUMMARY OF FACTS
The Appellant/Cross Respondent (Seven-Up Bottling Co. Ltd) commenced a suit against the Respondents/Cross Appellants on October 28, 2021, before the High Court of Ogun State, Ota Judicial Division via a Writ of Summons. The Appellant claimed that the Respondents had breached the terms and conditions of a lease agreement between the parties. The Appellant sought the sum of N2,600,000 being the outstanding amount as of August 12, 2015, interest on the said sum, and costs of litigation.
In response, the Respondents/Cross Appellants filed a Notice of Preliminary Objection challenging the competence of the Appellant’s suit on the grounds that it was statute-barred and did not disclose a reasonable cause of action. After hearing the parties on the preliminary objection, the lower Court delivered its ruling on April 21, 2021, upholding the preliminary objection and dismissing the Appellant’s suit.
Regarding costs, the lower Court ruled that despite the Respondents’ prayer for costs of N200,000, it would not award any costs as it was of the view that the Defendants (now Cross Appellants) did not deserve costs, stating that “cost shall be in cost.” Both parties were dissatisfied with the ruling: the Appellant appealed the dismissal of its case, while the Respondents cross-appealed the refusal to award costs in their favor.
The Appellant later discontinued its appeal, which was dismissed by the Court of Appeal on November 13, 2024. The Cross Appellants’ appeal proceeded, focusing on the lower Court’s refusal to award costs despite their success in having the suit dismissed through their preliminary objection.
HELD
1. The Cross Appeal was dismissed.
2. The Court held that the lower Court properly exercised its discretion in not awarding costs to the Cross Appellants based on the facts and circumstances of the case.
3. The Court found that the Cross Appellants had not shown that the reason given by the Trial Judge for not awarding costs was not supported by the facts and circumstances of the case.
4. The Court held that the statement “cost shall be in cost” was an accidental slip that did not affect the Trial Judge’s earlier decision that the Cross Appellants did not deserve the award of costs.
5. Each party was ordered to bear its own costs.
ISSUES
Whether the learned Trial Judge was right in refusing to award costs to the Defendants (Cross Appellants) but rather awarded costs in cause despite having dismissed the suit at their instance ?
RATIONES DECIDENDI
AWARD OF COSTS – DISCRETION OF THE COURT
“The position of the law on the award of cost is clear and settled. The law is that the award or refusal to award cost is at the discretion of the Court. However, as is always the case with the exercise of discretion by the Court, the discretion must be exercised judicially and judiciously.” – Per ABDU DOGO, J.C.A.
ENTITLEMENT TO COSTS – RIGHT OF SUCCESSFUL PARTY
“It is also a settled principle of law that the successful party is entitled to the award of cost to compensate him for the expenses he incurred in the litigation and on loss of time, and the successful party can only be deprived of this entitlement for good reason(s).” – Per ABDU DOGO, J.C.A.
APPELLATE INTERVENTION – WHEN APPELLATE COURT SHOULD NOT INTERFERE WITH TRIAL COURT’S DISCRETION
“I hold the view that the Cross Appellants have not shown that the reason given by the Trial Judge for not awarding cost to them is not supported by the facts and circumstances of the case before him. As earlier stated above, the award of cost is at the discretion of the Trial Judge. Therefore, since the Trial Judge exercised his discretion based on the facts and circumstances of the case before him, and the Cross Appellants have not shown that the finding of the Trial Judge is perverse, this Honourable Court is required not to interfere with the exercise of the discretion of the Trial Court.” – Per ABDU DOGO, J.C.A.
COSTS IN CAUSE – APPLICATION OF COSTS IN CAUSE
“On the last statement made by the Trial Court after holding that the defendants (Now Cross Appellants) do not deserve the award of cost, that ‘In view of this cost shall be in cost (sic)’ I regard this as accidental slip because the matter before the trial Court had been concluded with the upholding of the preliminary objection and dismissal of the suit. What preceded that statement clearly shows that the trial judge does not intend to award cost to the defendants. ‘Cost in cause’ will apply only where the Court awards cost but differed the assessment and/or payment of same to the end of the matter.” – Per ABDU DOGO, J.C.A.
ERROR IN JUDGMENT – NOT ALL ERRORS IN JUDGMENT WARRANT REVERSAL
“Similarly, it is settled law that it is not every error in the judgment/decision of a Court that will warrant the reversal of the judgment/decision. The error must be substantial and must have occasioned miscarriage of justice.” – Per ABDU DOGO, J.C.A.
EFFECT OF ACCIDENTAL SLIP – WHEN ACCIDENTAL SLIP DOES NOT AFFECT DECISION
“I hold the view that the error referred to above is not substantial and did not occasion any miscarriage of justice because the Lower Court clearly stated its position that the defendants (Now Cross Appellants) do not deserve to be awarded cost owing to the facts and circumstances of the case.” – Per ABDU DOGO, J.C.A.
MERIT OF APPEAL – DETERMINATION OF MERIT IN APPEAL
“Based on the foregoing analysis, therefore, I hold the view that the Lower Court properly exercised its discretion not to award cost to the Cross Apellants based on the facts and circumstances of the case before it. Consequently, I hold that this cross-appeal lacks merit. It is accordingly dismissed. Each of the parties should bear his/its cost.” – Per ABDU DOGO, J.C.A.
CONCURRING OPINION – AGREEMENT WITH LEAD JUDGMENT
“I had the opportunity of reading the draft of the judgment just delivered by my learned brother, ABDU DOGO, JCA. I entirely agree with the reasoning and conclusion. This Cross Appeal is completely devoid of merit. I also dismiss it.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.
CONCURRING OPINION – AGREEMENT WITH LEAD JUDGMENT
“I had the privilege of reading the draft copy of the leading judgment in this appeal delivered by my learned brother, HON. JUSTICE ABDU DOGO, JCA. I agree with his reasoning and conclusion reached that this appeal is lacking in merit. I equally dismiss it.” – Per KENNETH IKECHUKWU AMADI, J.C.A.
PROPER EXERCISE OF DISCRETION – FACT-BASED EXERCISE OF JUDICIAL DISCRETION
“I will therefore not interfere with it because the Cross Appellants have not convinced me that the reason given by the Trial Judge for not awarding cost to them is perverse.” – Per ABDU DOGO, J.C.A.
DISCRETION ON COSTS – NON-AWARD OF COSTS DESPITE SUCCESS ON PRELIMINARY OBJECTION
“In the instant case, the Trial Judge gave his reason for not awarding cost to the Cross Appellants thus: ‘Ordinarily, cost ought to follow events. From the facts of this case which shows that the Claimant has a cause of action but has no where to litigate it, I do not intend to award any cost as I am of the view that the Defendants do not deserve that cost. In view of this, cost shall be in cost (sic).'” – Per ABDU DOGO, J.C.A.
COMPENSATORY NATURE OF COSTS – PURPOSE OF AWARDING COSTS
“It is also a settled principle of law that the successful party is entitled to the award of cost to compensate him for the expenses he incurred in the litigation and on loss of time, and the successful party can only be deprived of this entitlement for good reason(s).” – Per ABDU DOGO, J.C.A.
DISCONTINUANCE OF APPEAL – EFFECT ON CROSS-APPEAL
“The main appeal was dismissed by this Honourable Court on 13th November, 2024 following the filing of a Notice of Discontinuance of the Main Appeal dated 14th August, 2024 by the Appellant/Cross Respondent on the same 14th August, 2024.” – Per ABDU DOGO, J.C.A.
CASES CITED
STATUTES REFERRED TO
High Court of Ogun State (Civil Procedure) Rules 2014, Order 49 Rule 1(1)