Asims (Nig.) Limited & Anor V. Lower Benue River Basin Development Authority & Ors.(2001)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
In the original suit, the Plateau State High Court sitting at Keffi (then of Plateau State) entered a partial judgment in favour of the appellants (as plaintiffs) for the sum of N1,096,750.00 as damages plus N420.00 costs. The respondents (as defendants) filed an appeal against the judgment and made part payment of N500,000.00 of the judgment debt. Before paying the balance however, the appellants levied execution and attached some 7 vehicles of the respondents. The amount realised was N865,200.00 which was added to the N500,000.00 and paid to the plaintiffs as judgment sum. The defendants were dissatisfied and appealed to the Court of Appeal. The Court of Appeal allowed the appeal on 30/10/92 and set aside the judgment of the trial court. The respondents then filed a motion on notice pursuant to Order II Rule 10 of the Judgments (Enforcement) Rules 1963 praying for the following reliefs:
“1. An Order directing the respondents herein to return all the items taken in execution in this case plus N500,000.00 cash back to this honourable court for onward transmission to the applicants and/or
- Alternatively, an order directing the respondent to return the sum of N1,182,200.00 (made up of
N685,200.00 being proceeds from the sales of the goods attached) to the applicants herein and/or
- Alternatively, an order directing the respondents to return the sum of one million and ninety seven thousand, one hundred and seventy naira (N1,097,170.00) being the judgment debt plus costs to them.
And for such further order or orders as this honourable court may deem fit to make in the circumstances.”
After taking arguments on the motion by the respective parties, the learned trial Judge ruled in favour of the applicants. He granted the motion and ordered the respondents to pay to the applicants the judgment debt in the sum of N1,097,170.00 plus costs paid to the respondents. Dissatisfied with the above ruling the respondents (now appellants) appealed to this court on three grounds. Shorn of their particulars, the grounds read as follows:
“1. The honourable Judge misdirected himself in law by holding that the application was brought under the proper law.
- The honourable trial Judge erred in law in awarding a total sum of N39,016.00 as costs for applicant counsel’s thirteen appearances.
- The honourable trial Judge erred in law when he ordered the refund of the proceeds of sale of the attached properties instead of a retrial.”
Parties filed and exchanged briefs of arguments. In his brief, learned counsel for the appellants formulated three issues:
“(i) Whether wrong law is the same as non-existent law and of the same effect?.
(ii) Assuming Order II rule 10 Judgments (Enforcement) Rules 1963 is proper law, does it confer on the lower court the power to make the orders it made?.
(iii) Whether cost can be awarded without basis for same?.”
The learned SAN for the respondents adopted the issues formulated by the appellants’ counsel. The respondents were not in court on the hearing date nor their counsel. They were however deemed under Order 6 rule 9 (e) of our Rules, to have argued their appeal as presented in the brief.
Learned counsel for the appellant on his issue No.1 submitted that wrong law is not the same as non existent law and do not have same effect. So, bringing an application under a wrong law is curable because the law does exist but there was a mistake in stating it correctly and is not fatal to an application if well grounded. But where the law or provision under which an application is brought is repealed or no longer has a place in the statute books, the law becomes dead and non-existent. Anything done or purported to be done under such a non-existent law is null ab initio and of no effect. Learned counsel argued that Order II rule 10 of the Judgments (Enforcement) Rules, 1963 under which the application was brought was non-existent. The only effective law, he argued is Cap. 407 of 1990 Laws of the Federation. On that premise, the application ought to be dismissed. He cited the cases of Zimit v. Mahmoud (1993) 1 NWLR (Pt. 267) 71 at 92. Udofia v. Christ Apostolic Church (1992) 5 NWLR (Pt. 242) 437 at 445.
On issue No.2, learned counsel for the appellant submits that Order II rule 10 Judgments (Enforcement) Rules, 1963 only provided for the mode of bringing the application as an interlocutory application. Again, after setting aside the judgment, the honourable court(Court of Appeal) was asking that a retrial be undertaken. The appellants failed to so initiate.
On his 3rd issue, learned counsel for the appellant submits that costs is not arbitrary. It follows events and there must always be basis for its award. The trial court was wrong in awarding a total costs of N39,000.00 for the alleged 13 appearances of the SAN, at N3,000.00 per appearance. He argued that there were only six appearances in all and the respondents’ counsel appeared only 3 times. Further, costs is for parties and not for counsel. Costs is not punitive and there was no proof of how the N3,000.00 costs per appearance was arrived at. Learned counsel urged this court to set the award of costs aside. He urged finally that this appeal be allowed and the lower court’s ruling be set aside.
In his brief, learned senior counsel for the respondent submitted on issue No.1 that to say that the motion before the trial court was brought under the wrong law or non-existent law was strange. He argued that the appellants were in no way misled by the rules stated on the motion paper. That the motion was argued on its merits and the ruling was on the merits. Further, there was no complaint of miscarriage of justice. Other provisions and rules of courts were relied upon the moving the motion. Failure to mention the rule under which an application was brought could not vitiate the application. Reliance was made on Adaka v. Ikot Abasi T.R.C. (1991) 6 NWLR (Pt.198) 480 at page 488 C.
On the second issue, the learned SAN submitted that the issue of retrial was never germane to the case as there was, from the record no order for retrial.
Arguing the 3rd issue, the learned SAN submitted that basis were laid for the costs demanded. Costs follow events. As the motion was successfully moved and as no reason was adduced by the appellant why costs should not be awarded, the trial Court was correct in awarding the costs. Learned SAN urged this court to dismiss the appeal entirely.
From the first issue raised, the operative phrases in that issue if my understanding is correct, are: “wrong law” and “non-existent law”. A law may be wrongly applied without necessarily making it a non-existent. Equally, an “existent law” may be wrongly applied without necessarily making it non-existent. An “existing law” as defined by Section 315(4)(b) of the Constitution of the Federation 1999 (which corresponds with section 274 (4) (3) of the 1979 Constitution) means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when the section comes into force or which having been passed or made before that date comes into force after that date. See: Osadebay v. A.-G,. Bendel State (1991) 1 NWLR (pt. 169) 525; Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506. A non-existent law, on the other hand, is an obsolete law. It is that law which has become inoperative by lapse of time either because the reason for its enactment has passed away, or its subject matter no longer exists. An enactment is said to be obsolete where the state of things contemplated by the enactment has ceased to exist, or the enactment is of such a nature to be no longer capable of being put in force, regard being had to the alteration of political or social circumstances – See: Onu, J.S.C. in Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 at 698 – 699.
Now, the main contention of learned counsel for appellant is that Order II rule 10 of the Judgments (Enforcement) Rules, 1963, under which the application before the lower court was brought, was a non-existent law and could not have the effect of law same provision having been abrogated and contained in the Laws of the Federation of Nigeria 1990 as Cap. 407. Thus, the only effective law was Cap. 407 LFN, 1990 and not the 1963 Rules. It was the submission of the learned counsel that the law/provision under which the application was brought to the lower court was repealed. But, if I may ask: What is a repeal? And what is an amendment? Repeal of a statute, generally, is the abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated. Amendment of a statute however, means an alteration in the law already existing, leaving some part of the original still standing. It cannot be a new law. My learned brother, Pats-Acholonu, J.C.A. put the scenario in a graphic way:
“An amendment of an older enactment by way of inserting a new proviso does not make the principal law a new one. It can be likened to an old cloth in which a new piece of material has been added to a patch of it to strengthened the older fabric. On the totality, it is still an old cloth.”
See: Williams v. Akintunde (1995) 3 NWLR (Pt.381) 101 at 114.
The provision of Order 11 R. 10 Judgments (Enforcement) Rules, 1963, can be found in Cap. 123, Volume V. of the Laws of Northern Nigeria. (A Regional Law). The provisions of Cap. 407 of the Laws of the Federation can be found in volume XXII of the Laws of the Federation. It can be seen that the two laws are not of same application and effect. Whereas the former was a regional (State) law, the latter was a Federal Law. Even from the foreword on the Index volume of the 1990 Laws, it is clearly stated that:
“The revised edition of the Laws of the Federation of Nigeria, 1990 may be regarded as the culmination of efforts to restore the practice of revising and updating the laws of the Federation of Nigeria once every decade. ” ….. Nigeria is a Federation of twenty-one component States each of which is autonomous within the sphere of its legislative competence. The laws of the Federation are laws enacted by the Federal Legislative Authority. They relate to subjects on the Exclusive Legislative List or the Concurrent Legislative List both of which form part of the Constitution of the Federal Republic of Nigeria as a Schedule. Whereas the Federal Legislative Authority has exclusive competence to make laws in respect of matters contained in the Exclusive Legislative List, as regards matters in the Concurrent Legislative List both the Federal and State Legislative Authorities have the power to legislate. However, where there is a conflict or inconsistency between a Federal enactment and State Law on the same subject matter the Federal enactment shall prevail and the State enactment shall be void to the extent of the conflict or inconsistency.”
I totally agree with the above observations by the then Federal Attorney-General and Minister of Justice, Prince Ajibola (SAN). By checking through the provisions of Cap. 407 of the 1990 LFN., I could not see any provision which repealed the provision of Order 11 R.10 Judgments (Enforcement) Rules, Cap. 123, Laws of Northern Nigeria, 1963 which was adopted and applicable to the Plateau State as an integral part (State) of Northern Nigeria. In any event, legal luminaries have guided our minds that a repeal is never presumed or implied but must be direct. See: Raleigh Ind. (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt. 341) 760 at page 771. Briggs v. Bob-Manuel (1995) 7 NWLR (Pt. 409) 559. If there was any interpolation and repeal or amendment between the two provisions i.e. Order 11 R10 (a Regional Law) and Cap. 407 of the 1990 LFN (a Federal Law) the repealing or amending law would have been clear and direct.
Secondly, learned counsel for the appellant has failed to particularize the specific provision of Cap. 407 LFN which repealed the provision of the Regional Law. Thus, the general principle of law that a statute is not repealed simply because a similar statute dealing with same subject is enacted still holds good and valid. Ezeji v. Ike (1997) 2 NWLR (Pt. 486) 206; Oyeyinka v. Osague (1994) 2 NWLR (Pt. 328) 618.
On the second arm of learned counsel for the appellant’s argument that a wrong law was applied and that made the whole proceedings of the trial court a nullity, is, to my mind, a novel principle being introduced by the counsel. The Law and Practice can hardly accommodate that novel principle. The trite principle of law is that where there is a right, there is a claim. ubi jus ubi remedium. Thus, to cling on mere technicality to defeat a right is a fruitless effort which is opposed to all known principles of justice. The attitude of the courts nowadays is geared towards achieving substantial justice and not to too much hanging on technicality. So, where a party in approaching a court comes under a wrong law, the court should not shut him out but should apply the appropriate law as the case demands. Ezeji v. Ike (supra); Falobi v. Falobi (1976) 1 NMLR 169; Evbuomwan v. Elema (1994) 6 NWLR (pt.353) 638; Raleigh Ind. (Nig.) Ltd. v. Nwaiwu (supra).
I will, and do agree with the learned trial Judge that bringing the application before him under a wrong law could hardly defeat the merit of the application and the submission of learned counsel for the appellants was rightly, too, in my view, dismissed by him. Issue 1 on that premises must fail and it has woefully failed.
On the second issue, I think the primary role of a trial court after ascribing probative value to evidence led before it is to pronounce its verdict. The verdicts usually are pronounced in form of Orders/directives, executory or prohibitive. The trial court directed that judgment sum plus costs be paid through the court to the respondents. I cannot see anything wrong in that. To say that the provision of order 11 R.10 of the 1963 Judgments Enforcement Rules was applicable only to interlocutory applications was again trying to employ technicalities to defeat end of justice. Secondly, I agree entirely with learned SAN for the respondents and the learned trial Judge that the decision of this court did not order for any retrial, so the appellants cannot import into the decisions of this court, an order that was never pronounced by the court. Even if he does, it is certainly to no avail.
Appellants’ third issue is on costs. Costs is a pecuniary allowance made to the successful party and recoverable from the losing party for his expenses in prosecuting or defending an action or a distinct proceeding within an action. Costs generally follows events. It is clear that the motion before the trial court was successfully moved. This ipso facto entitled the respondent to some costs. There was no reason from the appellant why the respondents should not be entitled to costs. The learned trial Judge exercised his discretion in assessing what the respondents were entitled to. I think the learned trial Judge exercised his discretion judicially and judiciously. The losing part at the trial court i.e. the appellants ought, and were bound to pay the costs assessed. The costs was not in anyway meant to be paid as personal to the counsel. It was rather for his client whom he represents. At any rate, section 241 (2) (c) of the 1999 Constitution which corresponds with section 220(2)(c) of the 1999 Constitution does not confer right of appeal on a party on issue of costs.
In the final result, all the issues formulated by the appellant have failed and are hereby dismissed. The appeal lacks merit and is equally dismissed. The respondents are entitled to N3,000 costs in this appeal from the appellants.
Other Citations: 2001)LCN/0978(CA)
