Frederick Obayagbona & Anor. V. D. Obazee & Anor (1972)
LawGlobal-Hub Lead Judgment Report
Parties
- FREDERICK OBAYAGBONA
2. JOSEPH OSADOLOR(For themselves and on behalf of members of Plot Allotment Committee Ward 10/E Benin City) Appellant(s)
AND
- D. OBAZEE
2. FELIX IZEKOR(For themselves and on behalf of members of Plot Allotment Committee Ward 40/A, Benin City) Respondent(s)
G. S. SOWEMIMO, J.S.C.
In the Suit B/62/67, the plaintiffs, who are the present Appellants instituted an action against the Defendants, the Respondents in this appeal, and the claims as set out in paragraph 23 of the Statement of Claim are:
(a) A declaration that the exercise of the functions of Plot Allotment Committee by the Defendants, Ward in respect of Allotments made by the plaintiffs before 1963, August, is contrary to the findings of the Local Government Adviser.
(b) An injunction restraining the Defendants and or their agents/servants from further exercise of the areas in dispute and further laying out the said area already allocated to people on the recommendation of Ward 10/E before 30th August, 1963.”
The case was heard by Irikefe, J., at the Benin High Court of the Mid-Western State and on Friday, 2nd of August, 1968 he gave judgment in the following terms:
“I would therefore pronounce in favour of the decision contained in the Local Government Adviser’s ruling Exhibit “Kl” and enter judgment for the plaintiffs against the defendants as claimed. I also make the following consequential orders:
(a) That in terms of Exhibit “K1”, the recommendations leading to the approvals contained in the customary grants, Exhibits D, E, F, G, H, J, L, L1, L2, L3, L4, L5, L6, L7, and L8 are deemed to have been made on 30th August, 1963 by the defendants.
(b) That the plaintiffs are hereby empowered to go back on the land in dispute with an officer of the Benin City Town Planning Authority, preferably the 5th plaintiffs’ witness, John Orobator, who should plot out the exact identity of all the approvals as at (a) above by means of and with the aid of Exhibit “Y”.
(c) That thereafter the plaintiff at their expense should get a licensed surveyor to translate the work done at (b) above into a countersigned survey plan to be filed in this court as permanent evidence of the location of the 15 approvals at (a) above within three months from the making of this order. The said plan should “show clearly the name of each grantee of land against the precise area approved for him.
(d) That the plaintiffs and their surveyor or other officials of the Benin City Town Planning Authority are not to be disturbed or interfered with in the course of their entry on the disputed land for the purpose of carrying out the order made herein.
(e) That such disturbance and or interference, if any, if deposed to by the plaintiffs or their agents will attract the usual sanctions.
(f) That Exhibits “W” to “W3” and any other grant shown to impinge upon or to relate to the same area of land as is taken up by the 15 approvals as at (a) above are hereby declared null, void and of no effect whatsoever.”\
On the issue of costs, Mr. Okeaya Inneh, counsel for plaintiffs asked for costs which was resisted by Mr. Idehen, counsel for the defendants on the ground that the plaintiffs were not entitled to costs. The learned Judge then made the following orders:
“Court:- Although the position at law is that costs should follow the event, it is my view that in each case irrespective of the fact that the plaintiffs may have succeeded in their claims, the discretion to award costs is nevertheless mine. Whereas the enquiry by the Local Government Adviser was ordered early in 1963, and notice thereof, Exhibit “M” published on 7th March, 1963 the plaintiffs in order to exhaust the defendants’ land rushed through several approvals while the enquiry was actually on. In fact the last approval is dated 10th August, 1963 some 20 days before the ruling as per Exhibit “K1”. I am of the view that the conduct ofthe plaintiffs was unreasonable and was an indirect attempt to prejudice the rights of the defendants. Both Exhibits “A” and “Y” show that the plaintiffs have not succeeded in respect of all the land “said to be in dispute and the effect thereof is that the defendants have succeeded to the extent that the plaintiffs have failed. For the above reasons I order that each party should bear its own costs.”
The appellants have appealed to this court on five grounds of appeal, three grounds being additional grounds for which leave was sought and obtained. The Appellant in paragraph 4 of the Notice of Appeal set out the relief sought as follows:
“Relief sought from the Federal Supreme Court of Nigeria: That judgment for the entire land in dispute be entered in favour of the plaintiffs and that defendants be condemned in costs both of the proceedings in the lower court and in the Appeal.”
The appellants’ counsel argued grounds 1 and 4 together and these grounds read as follows.
“(1) That the learned Judge erred in Law and on the facts in holding that the plaintiff has not succeeded in respect of all the Land in Dispute and that the Defendants have succeeded to some extent.
(4) The learned trial Judge erred in law and on the facts in holding that “the plaintiffs have not succeeded in respect of all the land said to be in dispute.”
The substance of the complaint is that the learned trial Judge having entered “judgment for the plaintiffs against the defendants as claimed” was in error to hold in his consideration on the questions of costs thus:
“The plaintiffs have not succeeded in respect of all the land said to be in dispute and the effect thereof is that the defendants have succeed to the extent that the plaintiffs have failed.”
Whilst the award of costs is in the discretion of the learned trial Judge, it is a settled principle that unless for good reasons a successful party may not be deprived of his costs. In deciding to deprive a successful party of his costs, it is not open for the learned Judge having “given judgment for plaintiffs against the defendants as claimed” to whittle down the effect of the plaintiffs’ victory by depriving him of his costs. Again with respect it is quite wrong for the learned trial Judge having declared the plaintiffs successful “as claimed” to make consequential orders which had the effect as in this case, of varying his judgment and which in any case were not specifically asked for. The learned trial Judge was functus officio immediately after he gave his judgment. Both the consequential orders which he made and referred to above, as well as his misconception of the judgment when considering the issue of costs were definitely made without jurisdiction. We think that by the very nature of the term “consequential” any “consequential orders” must be one giving effect to the judgment. In its ordinary dictionary meaning, the word “consequential’ means “Following as a result, to inference; following or resulting indirectly”. See the Concise Oxford Dictionary, 5th Edition, Page 258. The word has never been regarded as a term of art. All the “consequential orders” by the learned trial Judge were not part of the claims before him and they do not necessarily follow as a result thereof or constitute an inference. A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for plaintiffs as claimed the Judge has become functus officio except for any act permitted by law or rules of court. We therefore uphold the contention of Appellants’ counsel on these grounds.
On ground 3, the complaint is that in refusing to grant costs to the successful party in this case the learned trial Judge was in error. Section 56 of the High Court Law of the Western State which is applicable in the Mid-Western State provides:
“Costs shall be allowed to a successful plaintiff on the scale prescribed for similar proceedings in a lower court in any action brought by him in the High Court which might have been tried in the lower court in its civil jurisdiction, unless the Judge is of the opinion that the action was one which it was proper to bring in the High Court and certifies accordingly.” Order 30 rules 1,2 and 5 of the High Court Rules read:
“1. In every suit the cost of the whole suit, and of each particular proceedings therein, and the costs of every proceedings in the court, shall be in the discretion of the court as regards the person by whom they are to be paid.
- The court shall not order the successful party in a suit to pay to the unsuccessful party the costs of the whole suit, although the court may order the successful party, notwithstanding his success in the suit, to pay the costs of any particular proceeding therein.
- In fixing amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in establishing his claim, defence or counter-claim, but the court may take into account all the circumstances of the case.”
In the case the learned trial Judge had entered judgment in favour of the plaintiffs against the defendants as claimed. There was no qualification whatsoever, but when he came to decide on the award of costs the learned trial Judge without any justifiable reason proceeded to derogate from the final judgment he had entered without qualification in favour of the plaintiffs, and refused to award costs to the successful party. The reason which the learned Judge gave for so doing was that the plaintiffs had succeeded in part only whist the Defendants have also succeded in the part in which plaintiffs have failed. There is nothing in the whole body of the judgment or in the final judgment to justify such remarks as he made. In his materials findings as indicated in this judgment there was no portion in which he had found that plaintiffs have succeeded in part or failed in part. In such a case the learned trial Judge was clearly wrong in exercising his discretion to refuse to award costs to the plaintiffs; the reasons he gave were without justification and were never part of his findings. We therefore hold that the complaint on this ground of appeal is justified and the plaintiffs should be awarded costs in the case.
Ground 5 of the appeal reads:-
In so far as the consequential orders are concerned, the decision of the learned trial Judge is against the weight of evidence and/or deal with matters not arising on the pleadings.”
The learned trial Judge had before entering judgment in favour of plaintiffs as claimed, made some findings of fact. The judgment was based on those findings of fact. All the consequential orders which he made were not on the issues raised in the pleadings, Mr. S. O. Giwa-Arna, counsel for the respondents conceded, quited rightly in our view, that the consequential orders had the effect of “qualifying” the judgment. This, it is clear, is not open to the Judge to do in the instant case. The appeal on this ground also succeeds.
The appeal on the whole succeeds and it is allowed. The consequential orders are hereby set aside as well as his order of refusal to award costs to the plaintiffs. On the issue of costs in the High Court the learned counsel for the plaintiffs had asked for 300 guineas costs on the basis that the out of pocket expenses were 127pounds.6s.0d. inclusive of the cost of the survey plan Exhibit A. In addition, he stated that there had been 15 appearances during the trial. The counsel for the defendants did not challenge the figures but rather stated that the plaintiffs were not entitled to costs. The learned trial Judge had merely stated that each side should bear its own costs.
We are of the view that with the materials before the High Court an order for costs could and should be made. It is hereby ordered that plaintiffs be awarded 200 guineas as costs in the High Court, and in this court as appellants, they are awarded 139 guineas costs. As already stated we set aside the consequential orders made by the learned trial Judge, but in all respects affirm his judgment for the plaintiffs as claimed.
SC.221/69
