R. Melifonwu & Ors V. Chukwudebe Adazie & Ors (1964)

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COKER, J.S.C 

When we disposed of the appeal in this case, we reserved for further argument the question of costs in the court below. Our judgment in the appeal is that the proper order to have been made in the High Court was one of non-suit against the respondents people of Umuezearoli who were the plaintiffs in the High Court.

At the resumed hearing, learned counsel for the appellants of Isiokwe submitted that the Isiokwe people are entitled to their costs in the court below in view of the fact that the case of the people of Umuezearoli against them had not succeeded and also because they did expend some money in the preparation of their defence and in particular the preparation of a plan filed with their statement of defence. Learned counsel for the appellants people of Iyiawu also submitted that the Iyiawu people are entitled to costs in the court below as the respondents of Umuezearoli clearly failed to prove their case against them and that they had been joined in the action by the consent of all parties including the plaintiffs in the High Court. They too filed a plan in the action. On the other hand, learned counsel for the people of Umuezearoli contended that no costs should be awarded in respect of the trial in the High Court inasmuch as the judgment of this Court involves that none of the parties to the action was entitled to the judgment of the court and also as litigation over the land in dispute has not been finally set at rest.

After hearing counsel on all sides, it seems to us inconceivable that if the High Court had properly entered a judgment of non-suit against the respondents of Umuezearoli the court would not have awarded costs against them. They instituted the present proceedings in which they claimed a declaration of title, damages for trespass and an injunction. To say the least the effect of the judgment of non-suit is that they have failed to prove their case against the defendants who are the present appellants. No reasons of any substance have been urged before us to disentitle the appellants to their costs in the circumstances of the case and we take the view that they should have their costs in the court below.

Accordingly, we order that the respondents people of Umuezearoli should pay to the appellants their costs in the court below assessed as follows:

(i) To the appellants of Isiokwe-165 guineas.

(ii) To the appellants of Iyiawu-105 guineas.

Other Citation: (1964) LCN/1116(SC)