F. A. Akinbobola Vs Plisson Fisko Nigeria Ltd & Ors (1991)
LawGlobal-Hub Lead Judgment Report
S. KAWU, J.S.C.
On the 22nd October, 1990 when this appeal came before this court, after hearing arguments of counsel on both sides, I allowed this appeal. I then indicated that I would give my reasons for the judgment today which I now do.
Briefly stated, the facts which gave rise to this appeal are as follows:-
The appellant in this court was the plaintiff in the Kwara State High Court where he had instituted an action against the 1st respondent for “money had and received.” At the time of the institution of the suit, the 3rd respondent was in possession of the 1st respondent’s assets, having been appointed a receiver and manager by the 2nd respondent. The 2nd and 3rd respondents were joined as parties when the appellant realised that the assets of the 1st respondent were being sold by the 3rd respondent at the instance of the 2nd respondent.
The appellant then sought and obtained an ex parte order from the Kwara State High Court restraining the 3rd respondent from selling all the plants, machinery and equipment of the 1st respondent, or in the alternative an order directing the 1st respondent to deposit the sum of N100,000 in court pending the determination of the case. Subsequently, learned counsel for the respondents filed a motion in the High Court praying the court to set aside the ex parte order on the ground that the Kwara State High Court had no jurisdiction to hear the substantive suit.
The court refused to do so holding that it had jurisdiction to hear the matter. Consequently, the respondents appealed to the Court of Appeal which court ruled that the Kwara State High Court had no jurisdiction to hear the matter. The Appeal Court then directed that the case be heard by the Judge of the Federal High Court, llorin. All the relevant papers filed in the State High Court relating to the case and the sum of N100,000 deposited in that court were subsequently transferred to the Federal High Court, Ilorin.
Before embarking on the hearing of the case, the learned Judge of the Federal High Court Ilorin (Jinadu, J.) invited counsel on both sides to address him on the issue of jurisdiction. After counsel’s addresses, the Judge came to the conclusion in his ruling that his court lacked jurisdiction to hear the case and he therefore struck it out. He also ordered that the deposit of N100,000 which had been transferred to his court should be returned to the 3rd respondent if no appeal was lodged within the prescribed period.
He further ordered that the 2nd and 3rd respondents be struck out of the case. The appellant, being dissatisfied with the ruling of the Judge of the Federal High Court appealed to the Court of Appeal, contending in that court that having held that he had no jurisdiction to hear the case the learned Judge of the Federal High Court was wrong when he proceeded to strike out the substantive case, instead of transferring the suit to the appropriate State High Court for hearing. He also contended that the learned Judge of the Federal High Court was also wrong in striking out 2nd and 3rd respondents as parties and that the order directing the return of N100,000 was also wrong.
In its judgment, the Court of Appeal upheld the appellant’s appeal but went further to direct that as it had previously held in the previous appeal before it, the N100,000 deposit in court should be returned to whoever had paid the deposit. The court also made no order as to costs.
The appellant, again being dissatisfied with the decision of the Court of Appeal has further appealed to this court on two issues.
Mr. Akintoye’s first complaint in this court on behalf of the appellant is about the order of the Court of Appeal directing the refund of the N100,000 deposit. It was learned counsel’s submission that the Court of Appeal was wrong in making the order which was not applied for by any of the parties, in citing in support of his submission the case of Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt. 73) 695.
In his reply, Mr. Eno, learned counsel for the respondent, contended that the order made by the Court of Appeal was proper being a consequential order which the Court of Appeal was competent to make. His submissions on this point at page 9 of his brief read as follows:-
“It is therefore not correct to assert as Akinbobola has done in Ground 1 of his argument that the Court of Appeal gave a consequential order which was not specifically asked for. When therefore in the final summing up the Court of Appeal in Suit No.CA/K/200/87 held
“This appeal succeeds and is hereby allowed except as regards the question of payment of N100,000 into court which we still say should be refunded to whoever paid it (whether the company or the receiver) in accordance with the previous ruling of this court”.
The court was making a consequential order which gave effect to the judgment it follows by ordering the refund of the N100,000 to the receiver.
I think there is merit in the submission of Mr. Akintoye that the Court of Appeal was in error when it made the order directing the refund of N100,000 deposit. The issue before the Court of Appeal relating to the deposit was whether the learned Judge of the Federal High Court could validly make the order directing the refund of the deposit after he had held that his court lacked jurisdiction to entertain the substantive suit.
That issue was resolved in favour of the appellant by the Court of Appeal. In my view, the order made by the Court of Appeal cannot be said to be consequential order. Furthermore, as Mr. Akintoye rightly submitted, it was an order gratuitously made by the Court of Appeal as none of the parties had asked for it. A court will not normally grant a relief to a party which has not been claimed – Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184.
Mr. Akintoye also complained about the Court of Appeal’s refusal to award costs to the appellant who was a successful party in the appeal. The award of costs, is of course, always at the discretion of the court which discretion must be exercised, both judiciously and judicially – Haco Ltd. v. S.M. Daps Brown (1973) 4 S.C. 149. It is also a well established principle that costs follow the events and that a successful party is entitled to costs unless there are special reasons for depriving him of his entitlement- Adenaiya v. Governor-In-Council (1962) 1 All NLR 308; [1962] 1 SCNLR 442.
In this case, I am satisfied the Court of Appeal had not properly exercised its discretion when it refused to award costs to the appellant who was a successful party in the appeal before it. In my judgment the appellant is entitled to costs in the lower court which are assessed at N250.00 and N500 in this court. I direct that the N100,000 deposit should remain in the custody of the trial court pending the determination of the substantive case.
The foregoing are my reasons for allowing this appeal on the 22nd of October, 1990.A. O. OBASEKI, J.S.C.: On the 22nd day of October, 1990, I allowed this appeal for having substantial merit after hearing counsel in oral argument, reading the brief together with the record of proceedings and judgment in the court below and considering the oral and written submissions. I then indicated that I would give my Reasons for Judgment today.
I have before now had the advantage of reading the Reasons for Judgment just delivered by my learned brother, Kawu, J.S.C, I agree with him as his opinions on all the issues raised in the appeal accord with mine.
The facts of the case have been fully set out in the said Reasons for Judgment. This appeal falls within a narrow compass. Firstly, there is the failure of the Court of Appeal to award costs to the appellant who was the successful party in the appeal. Secondly, significantly, the court of Appeal failed to make an order or direct that the N100,000.00 (one hundred thousand Naira) it had earlier ordered to be transferred to the Federal High Court which ordered the payment of the deposit be transferred back to the State High Court.
The issue of jurisdiction which at first was settled by the Court of Appeal in favour of the Federal High Court and later in favour of the State High Court is of profound importance in this appeal.
When the Federal High Court to which the case was transferred held that it had no jurisdiction in the matter a decision affirmed by the Court of Appeal, the Federal High Court became incompetent to make any order other than the order of transfer in the matter. Further, since it was not the Federal High Court that ordered that the deposit of N100,000.00 be made, it was not competent of it to order that the amount be refunded when the matter for which the deposit was made had not been determined. If the Federal High Court had made the order for deposit before the plea of want of jurisdiction was raised and enquired into and upheld, it could have had the jurisdiction to make the order to refund the deposit.
If a court makes an order which it has no jurisdiction to make, it has jurisdiction to rescind the order so as to restore the status quo.
The next issue is the failure or refusal of the Court of Appeal to award costs to the successful appellant. Since the appellant succeeded in the appeal, he is entitled to costs in the appeal to meet, if not the whole, at least, part of his expenses in the appeal. Unless there are grounds for depriving a successful party of costs, he should, in the judicial and judicious exercise of the discretion of the court, be awarded costs in the appeal. See Obayagbona & Ors. v. Obazee & Ors. (1972) NSCC. (Vol.7) 383 where this court held that it is settled principle that except for good reasons, a successful party is not to be deprived of costs.
It was for the above reasons and those set out in the Reasons for Judgment delivered by my learned brother, Kawu, J.S.C., that I allowed the appeal.
A. G. KARIBI-WHYTE, J.S.C: After argument by counsel, on the 22nd October, 1990 I allowed this appeal. I indicated on that day that I will give my reasons for so doing today. Herein below are my reasons.
The main issue contended for in all the courts below have been the question of jurisdiction. The facts represent what one could in the absence of an apt description label a tragi comedy. The Ilorin High Court had exercised jurisdiction in respect of the subject matter of the claim in an action for refund of money had and received in respect of a contract job.
The claim by the plaintiff against the defendants before the Kwara State High Court sitting at Ilorin is as follows:-
“The plaintiffs claim against the defendants jointly and severally is for the sum of N100,000.00 being money had and received for contract job which was abandoned, special damages for the breach of contract and for General damages. The 2nd defendant being the Debenture Holders of 1st defendant company and the 3rd defendant appointed by the 2nd defendant for the 1st defendant business. The 1st defendant through his Site Agent at Ilorin contracted on the 6th January, 1983 to lay a stone base and Asphalt works at NNPC, Oke-Oyi Deport, Ilorin in the sum of N139,822.30 for which 1st defendant obtained N80,000.00 as advance payment. 1st defendant abandoned the work and at their own request a new contractor Solei Boneh (Nig.) Limited was rewarded the contract at a total cost of N155,615.74.
Particulars
Advance payments to 1st defendant as per cheques Nos. 064770 & 061052 each for Special damage as a result of the delay in completion (i.e. New Contract cost less original estimate of 1st defendant)
… N15,793.44
General damages … N4,206.56
Making a total of N100,000.00”
Pleadings were filed and served. The defendants filed and served a counterclaim. Plaintiff replied to the counterclaim.
On the 27th August, 1984 when the action was pending in the Ilorin High court, the learned Judge, Gbadeyan, J on an Ex parte application brought by learned counsel to the plaintiffs made an interlocutory order directing the 3rd defendant to give security for N100,000 liquidated damages, pending the determination of the case. The 1st defendant was ordered to deposit N100,000 within 30 days as security for the sum of N100,000.00 claimed. Defendant appealed against the order.
On appeal by the defendants to the Court of Appeal, it was held that the Ilorin High Court had no jurisdiction, but that jurisdiction was in the Federal High Court, Ilorin The court of appeal directed that the matter be transferred to the Federal High Court, Ilorin for trial. This was the first episode. It is pertinent to observe that the Court of Appeal heard the appeal by the defendants on 19th May, 1986, and allowed the appeal. The enrolled Order reads as follows-
“The appeal succeeds and it is accordingly allowed. The substantive suit is hereby transferred to the appropriate Federal High Court having jurisdiction in Kwara State. All relevant documents to this case shall be remitted by the Chief Registrar of the High Court of Justice, Kwara State to the said Federal High Court with N150.00 in favour of each of the appellants.”
It seems to me, as stated in the Order, the appeal considered only the issue of jurisdiction of the court below. The question of the interlocutory order made against the 3rd defendant to give security for N100,000, and the 1st defendant to deposit N100,000 pending the determination of the action was not considered.
On the 10th July, 1986, the Assistant Chief Registrar of the High Court of Ilorin, one Mr. S.B. Adisa, in a letter forwarding the case to the Federal High Court Ilorin, wrote,
“Telephone: Ref. No. 274/4
Telegrams: REGISTRAR High Court of Justice,
Kwara State,
Ilorin, Nigeria.
10th July, 1986
The Senior Registrar,
Federal High Court,
Ilorin
Re: Suit No. KWS/561/84 and Appeal No. CA/K/5/86
F.A. Akinbobola
(Trading under the & style
F.A. Akinbobola & Sons …. Plaintiff
And
- Messrs Plisson Fisko Nig. Ltd.
- United Bank for Africa Ltd.
- Alhaji Jimoh A. A. Adeniyi, FCA
Receiver of U.B.A. …. Defendants
In compliance with the order of the Court of Appeal Kaduna directing the Federal High Court to try this case, I hereby remit both the correspondence and judge’s files, in the above mentioned case for your necessary action.
- The Order forms page 176 of the correspondence file.
- Please acknowledge receipt.
Sgd.
(S.B. ADISA)
ASSISTANT CHIEF REGISTRAR”
It was after this letter, and on the 4th August, 1986 that learned counsel to the defendants brought a motion in the High Court of Kwara State at Ilorin, seeking an Order on behalf of the 3rd defendant, who he referred to as Receiver Manager, that the sum of N100,000.00 paid into court by him in compliance with the Order of Court to avoid restraint placed on him by the court in the performance of his duties as a receiver/manager on behalf of the 2nd defendant, should be refunded to him as a result of the successful appeal against the Court Order.
However, the second episode commenced on the 26th August, 1986 when learned counsel to the plaintiffs brought an application in the Federal High Court, Ilorin seeking the following Orders –
“i. An order on the 3rd defendant respondent to furnish sufficient security to fulfil any decree that may be made against the defendants in this suit of which the claim is for a liquidated sum.
ii. A further order that the sum of N100,000 (one hundred thousand naira) paid into the Registry of the High Court Ilorin on 11/3/85 by the defendants/respondents be transferred and deposited with the Registrar of this Honourable Court as security pending the final determination of this case;
iii. And for such further order or other orders as the Honourable Court may deem fit in the circumstances of the case.”
On the 29th September, 1986, learned counsel to the respondents also brought a motion in the Federal High Court, Ilorin, seeking an order on behalf of the defendants.
“1. That the sum of N100,000 which the High Court, Ilorin ordered to be transferred from the Kwara State High Court to the Federal High Court be paid to the defendants, pursuant to the Court Order.
- Giving leave to the defendant/applicant to amend the motion on notice filed on the 4th of August, 1986 to reflect the correct name of the court and authorities for the application to court.
- That the plaintiffs suit be stayed until the costs of N150 awarded in favour of each appellant (making a total of N450) be paid to the successful appellants.
- To deem the new motion filed to be the proper motion filed and served.”
On the 22nd October, 20th November, 1st December, 1986 after counsel had made submissions in the applications by the plaintiffs to transfer to the Federal High court of the N100,000, deposited as security by 1st defendant in the Kwara State High Court, and the defendants seeking a refund of the money following the decision of the Court of Appeal that the Kwara State High Court had no jurisdiction in the matter, Jinadu J., called on counsel on the 20th November, 1986 to address him on the issue of jurisdiction notwithstanding that the case was referred to him by the Court of Appeal.
After hearing arguments on the issue, the learned Judge in a considered ruling delivered on the 19/1/87 held that he had no jurisdiction in respect of the claim of the plaintiffs. He held that the breach of contract, subject matter of the action arose out of a simple contract between plaintiff and 1st defendant. Again the breach was committed before the 1st defendant was put into receivership by the 2nd defendant. The learned Judge also held that there was no privity of contract between plaintiff and the other two defendants. The 2nd and 3rd defendants ought not to have been made parties to the action.
The learned Judge however, struck out the action, and declined to order a transfer to the Kwara State High Court. He declined to make any order as to costs. Although he struck out the action, he directed that the N100,000 transferred to the Federal High Court be released to the 3rd defendant, after the expiration of the statutory period within which to appeal.
The application was for 1st defendant to deposit N100,000 to abide the result of the litigation, 3rd defendant is to enter into security for N100,000. It is therefore curious to order the release of N100,000 deposit made by 1st defendant to 3rd defendant.
Plaintiff dissatisfied, appealed against the judgment to the Court of Appeal on a number of grounds. The Court of Appeal as I have already stated, allowed the appeal on this second occasion on the ground that the learned trial Judge having struck out the action before it, there was no other claim remaining for adjudication by him. In the view of the Court of Appeal, the learned Judge had no jurisdiction to make any consequential orders.
The Court of Appeal admitted it was in error in the first occasion in remitting the case to the Federal High Court for adjudication. Relying therefore on the recent case of Ahmadu Usman v. Sidi Umaru (1987) 3 NWLR (Pt.62) 655, it held it was entitled on discovering its error in an earlier decision in a case to vary the order so made in that case in a subsequent appeal to it on the same case.
However, the Court of Appeal after varying its order and remitting the case to the Kwara State High Court for full hearing and determination, went on to direct that
“… as regards the question of payment of N100,000 into court which we still say should be refunded to whoever paid it (whether 1st defendant or 3rd defendant) in accordance with the previous ruling of this court”
The Court of Appeal declined to make any order as to costs.
Accordingly the only issue decided were-
(a) The jurisdiction of the court to try the action, which was no longer in issue
(b) The issue of the refund of the deposit of N100,000 as security to abide the determination of the case which was in contention.
(c) The issue of non-award of costs in the appeal.
Plaintiff/appellant appealed against the judgment of the Court of Appeal to this court on the following grounds excluding particulars –
“(1) The Court of Appeal erred in law in giving a consequential order which was not specifically asked for by either party and which had the effect of varying or whittling down its judgment:
(2) The previous judgment in the interlocutory appeal which the Court of Appeal relied in ordering the refund of the N100,000.00, is a nullity judgment which can be ignored or that can be set aside by the very Court of Appeal who gave it.
(3) The Court of Appeal erred in law in refusing to grant costs to the successful party (the appellant) without stating any justifiable reason for not doing so.
(4) The order of refund of the N100,000 is against the weight of evidence or facts before the Court of Appeal.”
The six issues for determination formulated by learned counsel to the appellants and the four by learned counsel to the respondents could be reduced to the following issues whether
(i) the order made by the Court of Appeal for a refund of the N100,000 deposited for security, to the respondents, is valid and
(ii) the Court of Appeal can refuse to award costs to a successful appellant.
In the circumstance of this case, I shall consider only these issues which in my view are sufficient in the determination of this appeal.
I shall begin with the issue of the order directing a refund of the N100,000 deposited as security to abide the result of the action.
It is a fundamental requirement of our administration of justice that as a plaintiff is limited to and bound by his claim on his writ of summons and statement of claim, so an appellant is bound by his grounds of appeal. – see Ogiamien v. Ogiamien (1967) NMLR 245. This elementary and fundamental principle governs the Judge in the determination of a cause before him See Ochonma v. Unosi (1965) NMLR 321.
A Judge is required to confine himself to the claim before him or where it is an appeal the grounds of appeal relied upon by the appellant. – See lnua v. Nta (1961) 1 All NLR 576. A careful perusal of the grounds of appeal before the court below, discloses that only ground (iii) raised the question of the deposit of the sum of N100,000.00 The ground of appeal excluding particulars provides as follows – “iii. The learned trial Judge misdirected himself when he said;
“The 3rd defendant complied with the Court’s Orders and also deposited a sum of N100,000.00 in court” – thereby came to a wrong conclusion by ordering that, “the sum of 100,000.00 deposited at the Kwara State High Court and transferred to this court be returned to the 3rd defendant.”
It is important to observe here what the court below said in respect of the exercise of jurisdiction by the trial Judge after striking out the action before him. The court below found that writ of summons filed in the substantive action disclosed only a claim in contract. It was then held at that
“In view of this we held that there was only one cause of action in the substantive suit, and not two, and since that one was struck out for want of jurisdiction, there was no other one remaining for adjudication by the learned Judge of the Federal High Court.”
It is on this ground that the judgment of the learned Judge was set aside. I agree with the court below that having struck out the case, the learned Judge lacked jurisdiction to make any consequential order affecting the subsequent determination of the case on its merit. – See Ojora v. Odunsi (1959) 4 F.S.C.189; [1959] SCNLR 496.
It is important to point out that learned counsel to the respondents who supported the order did not file a cross-appeal on the ground that the learned trial Judge had the necessary power on striking out the action to make the consequential order to refund the N100,000.00 deposited as security.
I do not think the contention that a consequential order can be made in this case can be right. It is well settled that where the court has no jurisdiction it cannot enforce its coercive powers. The coercive powers of the court are founded on the existence of its legal jurisdiction to exercise the judicial powers of the Constitution.
In Obayagbona v. Obazee (1972) 5 S.C.247, Sowemimo, J.S.C. stated the position as follows –
“A consequential order” must be one giving effect to the judgment which it follows. Thus any consequential order made subsequent to a judgment and detracting from the judgment is not one made within jurisdiction.”
The Court of Appeal referring to the court below stated at page 127, that “in view of the above authorities, it
is my considered view that when Jinadu, J., rightly held that he had no jurisdiction to entertain the suit, he should merely have struck out the action, without making any of the orders he made therein. The orders cannot even be said to be “consequential” as the matter had not been tried.”
It is difficult to disagree with this statement. The order can only relate to matters adjudicated upon. Where nothing has been decided between the parties, there can be nothing consequential thereto. The Court of Appeal then went on to apply the same principle to all the other determinations, including the joinder of the 2nd and 3rd defendants and the Order in respect of the security for N100,000. Referring specifically to the Order for refund of the security the Court of Appeal said,
“…The same thing applied to the second order directing that the N100,000.00 paid into court should be returned to the 3rd defendant. It is our view that Jinadu, J., had no power to have made that order, even though the money was properly payable to the 3rd defendant by virtue of the Court of Appeal Order…”
There is no doubt that the court below was of the opinion that the trial Judge had no jurisdiction to make the consequential order, and accordingly the order for refund of the N100,000.00 was set aside.
On what principle then did the Court of Appeal rely in making its own Order This could be discerned from its reasoning. I am here quoting the court in extenso on this. The court said, at pages 127-128,
“It is our view that ever before the case got to the Federal High Court, the money (N100,000) should already have been refunded to whoever paid it into court. That should be so because the said money was paid into court by virtue of an Order of Court of Kwara State High Court which was subsequently set aside. That being the case, the return of the money to whoever paid it into court was implied in the Court of Appeal Ruling. Therefore, before transferring the case to the Federal High Court, the parties should have been restored to the status quo so that they could have arrived there de novo.
Be that as it may, we still held that the Federal High Court Judge had no duty to have ordered a return of that money or any money for that matter because he had no jurisdiction to entertain the suit.”
In its conclusion in this appeal, the court below allowed the appeal on the ground of want of jurisdiction, but went on to order the refund of the N100,000.00 to whoever paid it into court; in accordance with a previous ruling of this court.
It is difficult to understand the juridical basis of the reasoning on which this order is based. I shall come to this later in this judgment. Learned counsel to the appellant in his brief of argument has submitted that it was not clear whether this was a consequential Order. Mr. Eno for the respondent has submitted that it is a consequential Order which the court was competent to make.
The court below being an appellate court, cannot exercise jurisdiction in the matter where the trial Judge is without jurisdiction. It only exercises its appellate jurisdiction to correct the errors of the learned Judge. Hence it will have no jurisdiction to make any consequential orders after it has held that the learned Judge had none. Accordingly having held that the learned trial Judge had no jurisdiction to make consequential orders the court below could not have made any because it can only exercise jurisdiction on appeal “as if the proceedings had been instituted in the Court of Appeal as court of first instance.” – See S.16 Court of Appeal Act, 1976 No. 43.
It seems to me the Court of Appeal was unable to consider the instant appeal arising from the judgment of the federal High Court, differently from the earlier appeal to the same court from the judgment of the Kwara State High Court, Ilorin. It is conceded that in each case the appeal is against the jurisdiction of the court, and in each case the Court of Appeal held that the High Court was without jurisdiction. Accordingly any consequential order made was without jurisdiction.
In the earlier appeal, the Court of Appeal having held that the Kwara State High Court had no jurisdiction to hear and determine the matter, gave an order directing transfer of the matter which it has powers to do, to the Federal High Court for adjudication and determination. The drawn up order did not contain refund of the N100,000.00 deposit.
The order now made by the court below in favour of the respondent by relying on an order made in an earlier appeal between the same parties without argument is both without precedent and not supported by the facts of the case relied upon in the instant appeal. I agree with Mr. Akintoye for the appellants that it was an order gratuitously made because neither of the parties had asked for it. A court ought not to normally grant a relief which has not been claimed. – See Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 84.
Furthermore where the court suo motu intends in the case before it to rely on an earlier order in another case between the parties, it is necessary and in the interest of justice to give notice of same to the parties. It is possible, as in this case, that the validity of the order and its applicability may be in issue.
I now return to the rationale for the order. It is somewhat difficult to appreciate the rationale for refunding the N100,000 when the order was for the hearing and determination of the matter in respect of which the security was required. The Court of Appeal must have been oblivious of the fact that the first order for refund of the N100,000 was on the assumption that the Kwara State High Court lacked jurisdiction to hear and determine the matter. In the present appeal the court held that the Kwara State High Court had jurisdiction. It will therefore be strange that the court cannot make an order for deposit of money as security pending the determination of the case. The Court of Appeal was clearly wrong.
The second issue is whether the Court of Appeal was right to refuse to award costs to the successful appellant. It is argued, and rightly too, that although the question of award of costs is discretionary, the exercise of the discretion is judicial, and on recognised principles. – See Haco Ltd. v. S.M. Daps Brown (1973) 4 S.C.149. Generally, except on very exceptional circumstances for depriving him of his entitlement, which must be indicated by the Judge, a successful party to a litigation is entitled to the costs of the action. – See Adenaiya v. Governor-in-Council (1962) 1 All NLR 308; [1962] 1 SCNLR 442. The Court of Appeal has not stated the reason why the successful appellant in the court below should not be entitled to the costs of the appeal. In my judgment, the Court of Appeal has failed properly to exercise its discretion when it refused to award costs to the successful party.
In my judgment therefore the decision of the Court of Appeal shall be and is hereby set aside appellant shall have the costs of the appeal in the court below, assessed at N250.
On the N100,000.00, I direct the N100,000.00 deposit should remain in the custody of the Kwara State High Court, pending determination of the trial of the action.
These are my reasons for allowing this appeal.
S. M. A. BELGORE, J.S.C: I read in advance the reasons for judgment of my learned brother, Kawu, J.S.C., with which I am in agreement. Issues between the contending parties should govern the decision of the court and a relief not sought ought not be granted. Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184. Awoyegbe v. Ogbeide (1988) 1NWLR (Pt.73) 695. The parties in this case never alluded to the sum of N100,000.00 deposited, a deposit ordered earlier by the trial court against possible damages due to the appellant, a very fundamental issue. Since the parties never sought any order on this deposit it was wrong of the courts below to have ordered its refund.
Costs certainly follow the event as in this case the appellant was entitled to his costs.
It was for the foregoing reasons and fuller reasons advanced by Kawu, J.S.C., that I allowed this appeal on the 22nd October, 1979.
P. NNAEMEKA-AGU, J.S.C.: On the 22nd of October, 1990, this appeal was heard. After reading the record and the briefs of both parties and listening to the arguments of counsel, I allowed the appeal summarily and reserved the reasons for my judgment till today. I now give my reasons.
This case which commenced in a Kwara State High Court as a claim for N100,000.00 (a hundred thousand Naira) as money had and received had had a chequered history. That court in an ex parte application had ordered the 3rd defendant to pay N100,000.00 as security. In the first appeal to the Court of Appeal, it held that the State High Court had no jurisdiction to entertain the suit and ordered that the case be transferred to the Federal High Court in the State for hearing and determination. When the matter came before the Federal High Court, the plaintiff moved the court for an order that the security paid at the order of the State High Court be transferred to the Federal High Court pending the determination of the suit. On the other hand, the 3rd defendant moved the court for an order to be allowed to withdraw the said sum of money paid as security. The Court, Jinadu, J., invited counsel on both sides to address him on the issue of jurisdiction. After hearing argument, the learned Judge held that the Federal High Court had no jurisdiction to hear the suit and that the 2nd and 3rd defendants were no proper parties to the suit. He further ordered that the N100,000.00 deposited by the 3rd defendant as security be returned to him, after the statutory period for appeal if there was no appeal.
On the second appeal to the Court of Appeal, the plaintiff contended that the Federal High Court should have transferred the case to the State High Court, and not to have struck it out; that as the court held that it had no jurisdiction to try the suit, it could not competently make any orders in it, including the one on N100,000.00 deposited as security. The Court of Appeal differently constituted, reversed its former decision in the case and held that its former decision on want of jurisdiction by the State High Court and the order remitting the case to the Federal High Court were wrong. It further held that it had power to vary the decision on jurisdiction and in fact varied it and remitted the case to the High Court of Kwara State for hearing and determination. It, however, confirmed the order of the High Court directing refund of the sum of N100,000.00 to the 3rd defendant who paid it. It also made no order as to costs.
The plaintiff (hereinafter called the appellant) has appealed further to this court. The defendants shall hereinafter be referred to as the respondents. The main issues for determination in the appeal are whether the order for refund of the deposit was competently made and whether the court below was right to have made no order as to costs. Mr. Akintoye for the appellant submitted that the Court of Appeal was wrong to have confirmed the order for refund of the deposit which was not asked for and when the court making the same had stated that it had no jurisdiction to entertain the suit. Mr. Eno, for the respondents, submitted that the order was a consequential one which the courts below were competent to make.
In my view, the learned counsel for the respondent has taken a rather simplistic view of what a consequential order means. A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon, it. It must be giving effect to the judgment already given, not by granting a fresh and unclaimed or unproven relief. An order made without a trial on one of the issues, as in the case, or, as observed by this court in Obayagbona v. Obazee (1972) 5 S.C. 247, one though made after the judgment detracts from it, is not a proper consequential order nor can a consequential order properly be made to give to a party entitlement to a relief he has not established in his favour. A proper consequential order need not be claimed but a substantive order must be claimed and sustained from the facts before the court. In the instant case, before the court ordered the payment of a deposit as security, the plaintiff, as applicant, had to depose to a whole set of facts upon which the court based its exercise of its discretion to order it to be paid. Similarly an order for a refund of the deposit must be based on certain facts and circumstances. No such facts were placed before the court and, worse, the issues in the case were not tried. In my view, the order for refund of deposit cannot in the circumstances of this case be said to be consequential. There is yet a more fundamental reason why the order for a refund of the deposit could not have been competently made by the court: it had declared that it had no jurisdiction to entertain the suit because it was, by the substance of the claim, a matter cognizable by the High Court of the State. Having so held, all that he could competently do – unless it was one which he could have lawfully transferred to the State High Court – was to strike out the case. He had no competence to make any other orders in it, as he proceeded to do.
See on this:
Ojora v. Odunsi (1959) 4 FSC 189; [1959] SCNLR 496
Din v. Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) 471
The Court of Appeal clearly and correctly stated so. I need only reiterate that the issue of jurisdiction is always so fundamental in a suit that the court must have jurisdiction before it can exercise any form of judicial power in it, save as I have stated. See: Attorney-General, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552.
But in the concluding paragraph of the Court of Appeal majority judgment, their Lordships, per Akpabio, J.C.A., while allowing the appeal, confirmed the order that the 3rd respondent should be refunded the N100,000.00 deposit paid by him. This is one of the main complaints in this appeal.
In my view, this order is rather startling for having earlier held that the learned trial judge of the Federal High Court was in error to have proceeded to make further orders after striking out the case I do not see how the Court of Appeal could have turned round to confirm any of those orders.
The complaint against the order is therefore well-founded. I also agree with my learned brother, Kawu, J.S.C, for the reasons given by him that the court was wrong to have made no order as to costs. The law is that, except for good reasons shown, a successful party ought not be deprived of his costs. See again Obayagbona & Anor. v. Obazee (supra) at p.253. No such reason was given in this case.
For the above reasons and the fuller reasons contained in the lead judgment of my learned brother, I also allowed the appeal and subscribed to the order made.
Appeal allowed.
Other Citation: (1991) LCN/2477(SC)
