O.N. Rewane Vs Festus Sam Okotie-eboh (1960)

LawGlobal-Hub Lead Judgement Report

ADEMOLA, CJF

The respondent in this appeal was declared the duly elected candidate of Warri constituency at the election to the House of Representatives held on 12th December, 1959.

The appellant, who was also a candidate for the constituency, petitioned against the return of the respondent by the Returning Officer for the constituency. It is hardly necessary to enumerate the grounds of his objection; suffice it to say that the petition was heard in the High Court of Warri Judicial Division in the Western Region and dismissed with 2,000 guineas costs by Thomas, J.

The petitioner appealed to this Court from that judgment and order.

Six grounds of appeal were filed. The first two grounds were against the venue where the petition was heard; the third and fourth grounds were appeals on questions of fact and misdirection; the fifth and sixth grounds were against the order as to costs, which grounds I will set out later in this judgment. Shortly before the hearing of the appeal, however, the appellants Counsel filed a notice in this Court, and served a copy on the respondent and/or his Counsel, that he was abandoning grounds 1 to 4 of the grounds of appeal and that grounds 5 and 6 only would be argued.

It will be reasonable to infer that as a result of this precautionary measure, Mr. Mac-Kenna, Q.C., Counsel for the respondent in the Court below, who had also intimated this Court that he would be appearing to argue for the respondent in sup-port of the judgment and order of the Court below, did not come out from England to argue the appeal.

At the hearing of the appeal, Chief Rotimi Williams, Q.C., reiterated his intention to abandon the first four grounds of appeal, and to argue the following two grounds:-

(5) The order as to costs is unreasonable and the learned trial Judge took irrelevant matters into consideration in the award of costs.

(6) Having regard to the maximum amount allowed for an order for security for costs the order as to costs was erroneous and unreasonable.’

Chief Okorodudu, for the respondent, raised a preliminary objection to this two grounds and urged the Court to strike them out on the ground that there are two matters included in each of the grounds, namely ‘unreasonable’ and ‘irrelevant matters,’ each of which should have formed the subject-matter of a separate ground. Also, he argued, the two grounds of appeal were vague. For this contention, Chief Okorodudu relied on Rules 12 (3) and (4) Federal Supreme Court Rules.

As it did not appear to us that there was any due weight in the points raised, we decided to hear the appeal on the two grounds.

Chief Rotimi Williams, arguing the appeal, directed our attention to the record of appeal which indicated that apart from out of pocket expenses, costs were due for six days hearing; on two of the six days the Court sat in the afternoons as well for about 2 hours. Added to this, costs were due in two of the motions preliminary to the hearing. In these two instances, orders for costs to be costs in the Cause were made; in two other motions preliminary to the hearing of the case, costs have already been awarded.

We were referred to the learned Judges assessment of costs and the grounds given by him for the award of costs. He gave two reasons:

‘(1)Right of the respondent to defend himself by engaging the best Counsel available to him, and

(2) The fact that the respondent has been put to heavy expenses in defending himself.’

With regard to (2), seven items of expenditure were referred to before the learned trial Judge to which Chief Rotimi Williams called our attention. They are:

(a)

(b)

(c)

(d)

(e)

(f)

(g)

Brief fee of Mr. MacKenna, Q.C. from U.K. 1,000 gns

Q.C.s fees for studying pleadings

Q.C.s Clerk fees

Refresher fees for 10 days at £161:15s:0d per day

Investigation of charges

Subpoena

Air Transport

£35:15s:0d

£25: 0s:0d

£1,612:10s:0d

£105:0s:0d

£50:0s:0d

(1)     Counsel to consult Q.C. in London                 £284:8s:0d

(2)     Return fare for Q.C.                         £284:8s:0d

Finally, Chief Rotimi Williams submitted that the case was one in which the employment of the services of a Q.C. was hardly necessary and if one was needed, the services of a local Q.C. would have sufficed. On the contrary, the respondent in his memorandum of appearance stated he was not only employing local Q.C. (Chief H.O. Davies) as well as 10 junior Counsel, but also he was employing Mr. MacKenna, Q.C., from London as the leader

Chief okorodudu, for the respondent, argued (1) that this Court is not competent to review costs awarded in the Court below, and (2) that if the Court is so competent, there are no circumstances adduced upon which the Court can exercise its powers of review. For the first proposition Counsel relied on page 315, paragraph 579 of 14 Halsbury, 3rd Ed. which deals with discretion of Court as to costs in Election Petitions. It reads:

‘The discretion of the election Court in dealing with costs is absolute and cannot be reviewed by the High Court.’

The case Maidenhead Election Petition – Lovering v. Dawson (1874 and 1875),L. R. 10 C. P. 726, was referred to. This case was a decision on the meaning of the Corrupt Practices (Municipal Election) Act, 1872, under which petition in Municipal election was tried by a special election Court. There was no ordinary right of appeal from the election Court, but Section 15 of the Act provided that certain matters might be referred to the superior Court, that is, the Court of Common Pleas, for its determination. These matters do not include orders as to costs, and it was held by the Court of Common Pleas that the effect of Section 19(1) of the Act, of which the substance is reproduced in regulation 55(1) of the Federal Legislative Houses (Disputed Seats) Regulations 1959, was to make the decision of the election Courts as to costs, final. The learned author of Halsbury points out in foot-note (r) to page 317 of Volume 14, 3rd Edition cited, that it does not follow that the decision would necessarily apply to a decision of the High Court in England as to the costs of an election petition, and since in Nigeria there is a general right of appeal to this Court from the decision of a High Court on an election petition, I am not prepared to hold that regulation 55(1) precludes this Court from entertaining an appeal as to costs.

Chief Okorodudu also referred us to the case Donald Campbell and Co. Ltd. v. Pollak (1927) A.C. 732, as laying down the guiding principles with respect to the matter of discretion of the trial Court on costs and the competency of the Appeal Courts to review such decisions. With respect, much as this case is illuminating on the matter of the exercise of a Judge’s discretion upon materials before him in the award of costs, and the power of the Appeal Court to overrule that exercise of discretion, this case was primarily dealing with a Judge exercising his discretion to deprive a successful plaintiff of his costs in the exercise of his discretion. This case, therefore, has no application to the present appeal, which is concerned with the question of costs.

It is generally accepted that costs follow the event; it is usually for a successful party to a litigation to be awarded costs; he is entitled to costs as between party and party. A respondent in an election petition is entitled to engage the best Counsel available in Nigeria for his defence. The Court is not in the least concerned with the number of Counsel he may choose to engage, and it is the nature of the case that will decide whether one, two or three Counsel was a necessity for the purpose of the case, or whether a Q.C. was necessary. If it is clear to the respondent that the petitioner is engaging the services of a local Q.C. he is, if he so desires, entitled for his own defence to engage a local Q.C. The respondent in the present appeal, in his memorandum of appearance to defend the petition filed against him, entered, among counsel who would be appearing for him, the name of Chief H.O. Davies, a local Q.C.

On the same list appears the name of Mr. MacKenna, Q.C. as leader (as he puts it). He cannot now, on the fact of this document. be heard to say, as his Counsel did say, that he had not the intention of employing two Q.C.s or that he had not the intention of engaging the services of a Q.C. from England until it was clear to him that Chief H.O. Davies had been briefed by the Attorney-General to appear in the same matter for the Returning Officer who was also petitioner against. Chief Okorodudu agreed, when it was put to him, that at the time the respondent filed his memorandum of appearance, he had then not consulted the lawyers he mentioned in that list. It was possible that if he had consulted Chief H.O. Davies at the time, the latter would not have accepted a brief from the Attorney-General. It is clear that the employment of a Q.C. from England, in the person of Mr. MacKenna, was uppermost in the mind of the respondent right from the start.

I think the time has now come for this Court to lay down general principles upon which Courts are to allow costs in respect of Counsel engaged from overseas to argue a case in Nigeria. It must be made clear that the Court is not against engaging the services of Counsel from overseas to conduct cases in Nigeria.

Any person is entitled to engage the best and the most prominent Counsel who is quali

Other Citation: (1960) LCN/0850(SC)