Alhaji the Hon. D.S. Adegbenro v. The Hon. S.L. Akintola (1963)

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BAIRAMIAN [Justice of The Supreme Court of Nigeria]

This is an application by Alhaji Adegbenro for costs against Chief Akintola. It arises in this way.

Last year in May, the then Governor of the Western Region (Sir Adesoji Aderemi) removed Chief Akintola from the office of Premier and appointed Alhaji Adegbenro to be the Premier. It is enough here to say that the removal was not in consequence of any resolution in the House of Assembly. Chief Akintola then sued them both, claiming that he had been wrongfully removed.

The High Court of the Western Region, in which the suit was brought, referred the constitutional questions involved to the Federal Supreme Court for decision. The decision was in favour of Chief Akintola’s claim. He took it to the High Court and obtained judgment. Alhaji Adegbenro took that decision to the Privy Council on appeal; he also brought an appeal to the Federal Supreme Court from the judgment of the High Court.

The Privy Council allowed the appeal and reversed the decision of the Federal Supreme Court; it gave answers to the questions referred by the High Court in favour of Chief Adegbenro, and he was to have certain costs as his costs in the cause. The last paragraph of the Judicial Committee’s Report reads:

“And in case Your Majesty should be pleased to approve of this Report then their Lordships do direct that the costs of this Appeal of the defendant Alhaji Adegbenro incurred in the said Federal Supreme Court and the sum of #31 ,140’978.5d his costs thereof incurred in England including his Motion before the Board on the 6th March, 1963 should also be his costs in the cause. “

(In that paragraph we have underlined the words relating to the items which shall be his costs in the cause.) That Report, which was dated the 27th May, 1963, was approved by Order-in-Council made on May the 30th. It is on that Order that the present application is based.
The opposition to it is based on the Constitution of Western Nigeria (Amendment) Law, 1963, which was enacted in that Region on the 27th of May , 1963, and ratified by the Parliament of the Federation, as we were told, on June the 3rd. The Amendment reads as follows:

“Paragraph (a) of the proviso to subsection (10) of section 33 of the Constitution of Western Nigeria is hereby amended by inserting, next after the words ‘unless it appears to him’, a comma and the words ‘in consequence of the passing of a resolution in the House of Assembly by a majority of the members of that House’ .”

That is section 3 of the Amendment Law; section 2 is on interpretation; and section 1 enacts that:-

“This Law. . . shall be deemed to have come into operation on the 2nd day of October, 1960.”

The original text of the proviso was “Provided that:-

“(a) the Governor shall not remove the Premier from office unless it appears to him that the Premier no longer commands the support of a majority of the members of the House of Assembly.”

The Amendment settled the question in favour of Chief Akintola: it was to be deemed that he had not been rightfully removed from office, and he remained the Premier of the Region: that was the necessary implication. Alhaji Adegbenro recognises that as the valid legal position, and at the hearing of his application for costs his learned counsel abandoned his appeal from the judgement of the High Court. His appeal was then dismissed, and that question is out of the way.

It is argued on behalf of Chief Akintola that if regard cannot be given to the Order-in-Council on the question of who is the rightful Premier, no more can effect be given to its direction against him to pay costs. That means that the Amendment Law was intended to deprive Alhaji Adegbenro of his costs. It will be enough to cite this sentence from Maxwell on Interpretation of Statutes, at p. 286 of the 10th edition:

“It is presumed, where the objects of the Act do not obviously imply such an intention, that the legislature does not desire to confiscate the property or to encroach upon the right of persons, and it is therefore that, if such be its intention, it will manifest it plainly, if not in express words at least by clear implication and beyond reasonable doubt.”

There is no mention of the suit, or of the parties, or of costs in the Amendment Law, and in the Court’s opinion there is no clear implication that the legislature intended not only to settle a political question, but also to deprive the applicant of his costs. It was Chief Akintola who sued; Alhaji Adegbenro was entitled to resist the claim; and in appealing to the Privy Council he was exercising a right conferred on him by section 114 of the Constitution of the Federation then in force. The Order-in-Council made on his appeal was made in consequence of his exercising his constitutional right of appeal, and it should be given effect to save to the extent that the constitutional amendment ratified by Parliament obliges the courts to disregard one part of that Order-in-Council.

It is true that Chief Akintola wins his suit but loses the costs and has to pay costs to the defendant. Costs usually follow the event, but the two are not intertwined: a party may win but be disallowed his costs; he may even be ordered to pay the costs of the losing side. It is an unusual result: but it has happened in an unusual case; and the present case is unusual. Incidentally the result is a fair one, and accords with the liberal spirit of our Constitution, which, for example, in section 30 of the one then in force (section 31 of the new Constitution of the Federation), does not allow confiscation of property.

The Court is of opinion that there was no intention in the Constitution of Western Nigeria (Amendment) Law, 1963, to deprive Alhaji Adegbenro of his costs. His application succeeds, and it is ordered as follows:

(1) That the plaintiff is Suit No. 11161162, namely the Hon. S. L. Akintola, shall pay the defendant Alhaji the Hon. D. S. Adegbenro his costs incurred in the Federal Supreme Court and the sum of #1,140’978.5d his costs of appeal incurred in England as his costs in the cause;

(2) That his costs in the Federal Supreme Court be taxed by the Chief Registrar of the Supreme Court, and that a certificate thereof as taxed by him (or finally allowed in case of review) be annexed to this Order;

(3) That the said plaintiff shall pay the said defendant fifteen guineas as costs of this application, to which shall be added the fees of drawing up this Order, the costs of taxation and of the certificate thereof;

(4) That this Order be carried out by the High Court of the Western Region.

Other Citation: (1963) LPELR-F.S.C.187/1962