Mr. Dumbor Gbarabe V. The Registered Trustees Of The Methodist Church Of Nigeria (2009)
LawGlobal-Hub Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
This is an appeal against the ruling of the High Court of Rivers State; Port Harcourt Judicial Division (the lower court) delivered on 9th December 2003 dismissing the plaintiffs (appellant’s) suit for want of diligent prosecution.
The appellant herein, as plaintiff, instituted an action against the respondent before the lower court by a writ of summons filed on 25/9/01. He subsequently filed a statement of claim on 10/7/02. In paragraph 16 thereof, he sought the following reliefs:
- An order of perpetual injunction restraining the defendant either acting by itself or through its servants, agents or privies from entering, constructing, planting or trespassing into the land in dispute lying and situate by the side of the defendant/respondent’s fence called “Open Space” directly between the two fence wall Banham Methodist Church and Central Police Station along Banham Street by Aggrey Road, Port Harcourt.
- A declaration that the defendant caused damages to the plaintiff business (sic) actually by chasing the plaintiff and the plaintiffs worker away from where the plaintiff carried on his business.
- The sum of N10, 000, 000.00 (Ten Million Naira Only) representing General Damages.
On 22nd October, 2003 the suit was adjourned to 8th, 9th, 10th, 11th and 12th December, 2003 and 12th, 13th, 14th and 15th January, 2004 for hearing. On 8/12/03 the appellant was present in court but his counsel was absent. The respondent was absent but represented by B.M. Wifa, SAN, of counsel. The suit was adjourned to the following day. On 9/12/03 both parties were absent. Learned counsel for the appellant was also absent. Mr. B.M. Wifa, SAN reminded the court that the previous day’s adjournment was due to the absence of the appellant’s counsel and noted that he was absent again. He therefore urged the court to dismiss the suit. The suit was accordingly dismissed with N10, 000.00 costs awarded in favour of the defendant.
The appellant was dissatisfied with this decision and filed a notice of appeal on 9/1/04 containing two grounds of appeal. The grounds of appeal are as follows:
GROUND 1(ONE)
The learned trial Judge erred in law in dismissing the plaintiff/appellant’s suit notwithstanding the letter for adjournment sent to the court.
PARTICULARS
i. A letter of adjournment was sent to the Honourable Court.
ii. The matter was among the pending matters reassigned to the learned trial Judge who was just sworn in not long ago.
iii. There are about 7 more days already fixed for trial by the court which have not been exhausted.
iv. The case was not struck out.
GROUND 2 (TWO)
The learned trial Judge erred in law in awarding the Sum of N10, 000.00 costs against the plaintiff/appellant.
PARTICULARS
i. The proper consideration for award of cost was not followed.
ii. The application for adjournment was not to cause delay.
iii. The day the dates for trial were taken, both the defendant and Counsel were all absent in court.
In compliance with the rules of this court, the parties duly filed and exchanged their respective briefs of argument. The appellant’s brief is dated and filed on 3/2/05. The respondent’s brief dated 22/5/06 was filed with leave of this court and deemed filed on 4/7/07. The respondent also filed a notice’ of preliminary objection dated and filed on 20/3/09. Arguments in respect thereof are contained in the respondent’s brief. We heard the appeal on 9th June, 2009. Both the appellant and his counsel were absent. We were satisfied from our record that he had been duly served with a hearing notice for the hearing of the appeal on that date. Having filed a brief of argument, he was deemed to have argued the appeal pursuant to Order 17 Rule 9 (4) of the Court of Appeal Rules 2007. Mr. B.M. Wifa, SAN, leading E. Alikor, Esq. drew the court’s attention to the respondent’s notice of preliminary objection and the submissions in respect thereof as contained in the respondent’s brief. He urged us to uphold the Preliminary objection. On the merits of the appeal, he adopted the respondent’s brief and urged us to dismiss the appeal. In further adumbration of the arguments at pages 4 – 7 of his brief he referred us to the additional authority filed on 5/6/09 viz: Chief Nicholas Banna Vs Telepower Nig. Ltd. (2006) 15 NWLR (1001) 198 @ 2168- C & E – F; 216 G – 217 C; 220 – 221 G.
The appellant formulated two issues for the determination of this appeal. They are:
- Whether the learned trial Judge was right when he dismissed the case of the appellant. (Ground 1)
- Whether the learned trial Judge ought to have awarded any cost at all against the appellant. (Ground 2)
The respondent adopted the issues as formulated by the appellant. Where a preliminary objection has been raised challenging- the competence of the appeal in any respect, prudence dictates that the preliminary objection should be considered and resolved before going into the merits of the appeal. This is because where the preliminary objection goes to the root of the appeal, and it is upheld, it could determine the entire appeal.
By the notice of preliminary objection filed on 20/3/09 the respondent contends that Ground One of the notice of appeal is incompetent; that this Court lacks jurisdiction to entertain it and that it ought to be struck out. The grounds of the objection are that a ground of appeal must relate to the decision of the court and should be a challenge to or an attack on the validity of the ratio decidendi of the decision; that Ground one is not borne out of the record of the trial court; that the letter of adjournment purportedly written to the court on 9/12/03 did not form part of the record forwarded to this court and did not form the basis of the decision of the court below; that Ground One of the notice of appeal does not challenge the basis of the decision of the court below; that parties as well as the court are bound by the records of the court and appeals must be fought on the basis of the facts as contained in the record of proceedings.
In arguing the preliminary objection, learned Senior Counsel submitted that where the record of proceedings is not a true representation of what transpired in court, appropriate steps must be taken to make it truly representative before being presented to the Court of Appeal for hearing and determination. He referred to: Ehikioha Vs C.O.P. (1992) 4 NWLR (233) 57 @ 74 F – G; Albasma (Nig.) Ltd. Vs Salami (1998) 4 NWLR (546) 448 @ 456 – 457 F – B; Sommer Vs F.H.A. (1992) 1 NWLR (219) 548 @ 557 – 559 H – B. He submitted that from the record of proceedings of 9/12/03 it is apparent that the purported letter for adjournment written by the appellant’s counsel was not before the court on that day and did not form the basis of the court’s decision to dismiss the suit. He submitted that in the circumstances the appellant could not validly raise a ground of appeal from it. He relied on: Gambari Vs Ilori (2002) 14 NWLR (786) 78 @ 95 B – C. On the submission that the ground of appeal must be a challenge to or an attack on the validity of the ratio decidendi of the judgment, he relied on: Egbe Vs Alhaji (1990) 1 NWLR (128) 546@ 590 A.
Relying on the case of: Sommer Vs F.H.A. (supra) at 558 H, learned Senior Counsel submitted further that the appellant ought to have challenged the record of proceedings by filing an affidavit in that regard but failed to do so. He submitted that since Ground One did not arise from the record of proceedings, and did not relate to the lower court’s decision on 9/12/03, it is incompetent and ought to be struck out.
The appellant did not file a reply brief in respect of the preliminary objection.
As correctly submitted by learned Senior Counsel for the respondent, the law is settled that the grounds of appeal must relate to the decision appealed against and must be a challenge to the validity of the ratio of that decision. See: Egbe Vs Alhaji (1990) 1 NWLR (128) 546: Dalek Nig. Ltd OMPADEC (2007) ALL FWRL (364) 204; C.C.B. Plc Ekperi (2007) 3 NWLR (1022) 493. In ground one of the notices of appeal the appellant contends that the learned trial Judge erred in law in dismissing the appellant’s suit notwithstanding the letter for adjournment sent to the court. Learned Senior Counsel for the respondent has argued that the alleged letter for adjournment did not form part of the record of the court on 9/12/03. Upon a careful perusal of the record of appeal, a letter for adjournment addressed to the registrar of the lower court, dated 9/12/03, appear at page 18 thereof. However, here is nothing in the record of proceedings of 9/12/03 to suggest that the letter for adjournment w s before the court, or brought to its attention at the time the suit was dismissed. The record of proceedings for 9/12/03 is reproduced hereunder for ease of reference:
Parties absent.
Appearances: B.M. Wifa (SAN) with him S. Propnen for the Defendant.
B.M. Wifa (SAN): This matter came up yesterday and it was the plaintiff that could not go on. Today the plaintiff is absent and his counsel is also absent. I ask that the matter be dismissed.
Court: This suit came up before me yesterday for hearing. The plaintiff occasioned the adjournment. Today again, he is not present in court. His counsel is also absent. One can conclude that the plaintiff has lost interest in this matter. In the circumstances, this suit is hereby dismissed. There shall be costs payable by the plaintiff to the defendant in the sum of N10, 000.00.”
From the above proceedings it is evident that the purported letter for adjournment did not form part of the proceedings on that day. This court cannot base a decision on speculation. The ground of appeal must clearly derive from the decision appealed against. The ratio or the decision as can be gathered from the record was that having regard to the unexplained absence of the appellant and his counsel on two consecutive dates fixed, for trial, the inference was that the appellant had lost interest in his suit. As far as the proceedings of 9/12/03 are concerned, there was no reason before the court for their absence. In the circumstances, I am inclined to agree with the learned Senior Counsel that Ground One of the notice of appeal, not being a challenge to the ratio decidendi of the lower court, is incompetent. It is hereby struck out.
Issue no. 1 formulated therefrom is also incompetent and accordingly struck out.
The only surviving issue for determination is the appellant’s issue no. 2 viz: Whether the learned trial Judge ought to have awarded any costs at all against the appellant.
It is the appellant’s contention that there was no justification for the award of costs. Learned counsel for the appellant submitted that having regard to the fact that the appellant’s counsel in his letter sought for an adjournment on the basis of ill health, costs ought not to have been awarded against him. He also argued that learned counsel for the respondent did not ask for costs and therefore the court ought not to have granted an order not sought by the parties. He relied on: Fasikun II Vs Oluronke (1992) 2 NWLR (589) 6; Ekpenyong Vs Nyong (1975) 2 SC 71
In reaction to this issue, learned senior counsel for the respondent submitted that the lower court, in the circumstances of this case, properly awarded costs in favour of the respondent, particularly as it had not displayed any lethargy in the conduct of its case. He submitted that the respondent ad been consistently present in court and was diligent in the defence of its case. He referred to: Melwane Vs Chancira Corporation (1995) 6 NWLR (402) 438 @ 469 G – A. He submitted that the award of costs is a latter within the court’s discretion and is incidental to an order for the dismissal of a suit. He referred to Order 53 Rule 3 of the Rivers State (Civil Procedure) Rules 1987 and–submitted that the court is empowered to award costs to indemnify the party who is in the right for the expenses to which he has been necessarily put in establishing his claim, defences or counter claim. He submitted that costs may be awarded even though not specifically applied for by the parties and that in making the award the court would take all the circumstances of the case into consideration” He contended that the award, of N10, 000.00 was justified in the circumstances of this case because it followed the dismissal of the suit and also because the respondent had been put to some necessary expenses.
In the course of resolving the preliminary objection, I held that there was nothing in the record of proceedings of 9/12/03 to suggest that the purported letter for adjournment was before the court when the suit was dismissed: The submission in that regard in relation to the award of costs shall therefore be disregarded, as it goes to no issue.
The law is trite that the award of costs is a matter within the court’s discretion. As with all exercise of discretion, an appellate court would not interfere with the exercise of discretion by a lower court merely because it would have exercised its discretion differently if faced with the same set of facts. An appellate court would only interfere where it is satisfied that the discretion was exercised mala fide, arbitrarily, not judicially or on any wrong or irrelevant ground, or that the learned trial Judge failed to take into account any relevant facts, Furthermore, costs are given as indemnity to the person entitled to them and not imposed as a punishment on the party who pays them. See: Glasope Vs N.S.N. Ltd. & Anor. (1988) 3 NWLR (11) 147 @ 151 G – H &153 B – F It is also well settled that costs follow the event. A successful party is entitled to costs unless there are circumstances to deprive him of that entitlement. Costs are awarded for the purpose of meeting the legitimate expenses of the successful party, either wholly or partially as the court sees fit. See: Adebiyi Vs Layinka & Anor. (2002) 98 LRCN 1139 @ 1154 EE – JJ; Rewane Vs Okotie-Eboh (1960) SCNLR 461; C.C.B: (Nig.) Plc Vs Okpala (1997) 8 NWLR (518) 673.
Applying the above principles to the facts of this case, there is no doubt from the record of proceedings that the respondent was put to some expense in the defence of the suit. A statement of defence was filed on its behalf. It can be found at pages 7 – 9 of the record. It was represented by counsel on each date that the case came up before the lower court, that is, on 22/10/03, 8/12/03 and 9/12/03. The suit was dismissed on 9/12/03 for want of prosecution. Costs follow the event. The respondent was entitled to costs. The award of N10, 000.00 as costs was reasonable in the circumstances. The appellant has not advanced any reasons to warrant the interference of this court with the award. This issue is therefore resolved against the appellant.
In conclusion, this appeal is entirely unmeritorious. It is hereby dismissed. The decision of the lower court delivered on 9/12/03 is hereby affirmed. The respondent is entitled to the costs of this appeal, which I assess at N30. 000. 0 against the appellant.
Other Citations: (2009)LCN/3412(CA)
