Unique Phamaceutical Ltd & Anor V. Sidney Rotimi Sawyer & Anor (2007)
LawGlobal-Hub Lead Judgment Report
M. D. MUHAMMAD, J.C.A.
The Respondents in this appeal commenced suit no. FHC/AB/CS/1/96 at the Federal High Court Abeokuta, Ogun State against the Appellants. The former’s claim against the latter was for the sum of N287,034,188:00k damages and N82,613,133:00k interest for an alleged breach of contract relating to product Labels.
At the conclusion of pleadings, Appellants by a motion on notice challenged the jurisdiction of the court to hear Respondents’ suit. Before the objection was heard, Respondents sought and obtained leave of the court to amend particulars of their statement of claim. Appellants herein appealed against the lower court’s ruling granting Respondents leave to amend their claim. Appellants also had proceedings in the suit stayed by the trial court.
On 7th March 1997 the Respondents filed and served Appellants a notice of discontinuance of their action. The notice of discontinuance is dated 5th March 1997. Appellants thereupon by a motion dated 30th June 1997 prayed the trial court to strike out Respondents’ action and award the Appellants N150,000.00 costs of the action. A Three paragraph affidavit supported Appellants application. Paragraphs 2 and 3 of the supporting affidavit are hereunder reproduced for their relevance:-
“2. After the last adjourned date, the plaintiffs filed a Notice of Discontinuance of this action but failed to serve the defendants with a copy thereof; a copy of the said Notice is herewith attached and marked Exhibit “A”.
3. I am informed by Mr. Fashanu, of Counsel, and I verily believe, that:
(i) the defendants have made over twelve appearances in this action after being dragged to court by the plaintiffs;
(ii) on each occasion, trips had to be made from Lagos where the defendants and their counsel are based to Abeokuta costing the defendants, at least N12,000.00k on each occasion in transportation and hotel costs as the Counsel had to travel to Abeokuta the previous day to each court sitting to ensure prompt attendance in court the next day and had to stay in an hotel overnight;
(iii) it is necessary to have the action formally struck-out so that the defendants can discontinue their pending interlocutory appeal at the Court of Appeal, Ibadan;
(iv) the defendants have incurred other costs in this action including filing of process herein and arranging for the hearing of their interlocutory appeal.” (Underlining supplied for emphasis)
It is rewarding to particularly restate that Respondents’ notice of discontinuance was filed during the pendency of Appellants appeal against the lower court’s ruling granting the Respondents leave to amend their statement of claim. Appellants objection to the court’s exercise of jurisdiction into Respondents action also abided in the proceedings the lower court had stayed on 20/2/97 following Appellants prayer to that effect pending the determination of the appeal against court’s ruling granting leave to the Respondents to amend their statement of claim.
On 20th January 1998, Respondents notice of discontinuance as well as Appellants application asking that Respondents suit be struck out and for N150.000:00k cost of the action came before the lower court. Both sides were represented by Counsel on that date. The court’s proceedings that day was brief and the court’s terse regarding what occurred reads:-
“Having read the Notice of Discontinuance from the Plaintiff and the motion of the defence asking for the striking out the suit, and asking for N150,000.00k cost against the Plaintiff.
This Court hereby Orders that the suit be struck out. There is no Order as to costs.
The Appellants are dissatisfied with the foregoing decision and have appealed to this court on two grounds. These are hereunder supplied for ease of reference:-
“3. GROUNDS OF APPEAL
(1) The decision of the lower court contravened the provisions of Section 33(1), Chapter IV of the Constitution of the Federation Republic of Nigeria, 1979 in that the Learned Judge failed to give the Appellants fair hearing upon their Motion on Notice dated 30th June, 1997.
PARTICULARS:
(i) Upon the Appellants, Motion coming up on 20/1/98, the Learned Judge, merely of his own motion, determined the Motion on Notice by striking out the case and refusing to award any costs of the action to the Appellants as defendants to the action and also refused to award costs upon the Motion.
(ii) The Appellants were not allowed to move their Motion thereby breaching their right to fair hearing.
(2) The decision failing to award costs of the action and upon the Appellants Motion is wrong in law in that:
(i) the winner in an action is entitled to costs of the action;
(ii) there was uncontroverted evidence before the lower court of the costs incurred by the Appellants in defending the action.
On 28/6/05 this Court, following Appellants application in that vein, ordered that the appeal be heard on Appellants brief alone. At the hearing of the appeal for which hearing notice had been duly Issued to the Respondents, Appellants adopted and relied on their brief of argument. The said brief of argument contains two issues distilled from the two grounds of appeal in the notice for the detemination of the Appeal. These two issues read:-
“3.1 Whether the lower court did not breach the constitutional right of the Appellants to fair hearing in them to be heard through their counsel upon their Motion for costs?
3.2 Whether upon the circumstances, the Appellants were not entitled to the costs claimed or any other amount of costs as the Honourable Court might assess?”
Arguing the first issue, Learned Appellant Counsel contends that by virtue of Section 33(1) of the 1979 Constitution Appellant was entitled to be heard before the disposal of his application asking the trial court the cost of the action Respondent discontinued. Failure of the court to hear the Appellants by discountenancing their motion constituted a breach of Appellants’ constitutional right to fair hearing. Relying on Mohammed v. Kano NA (1968) ALL NLR 411; Adigun & Ors Vs. AG Oyo State & Ors. (1987) 1 NSCC Vo1. 18 346 at 367; Shyllon v. Asein (1994) 6 NWLR (Pt.353) 670 at 684 and Adene v. Dantubu (1988) 4 NWLR (Pt. 88) 309 at 318 Learned Counsel urges that we vacate the lower court’s order in that regard.
Under Appellant’s 2nd issue. Learned Counsel submits that by virtue of Order XLIII Rule I of then applicable federal High Court (Civil Procedure) Rules, 1976 Appellant is entitled to the cost he applied for. Respondent never challenged the Affidavit in support of Appellants application. Learned Counsel urges that this court invokes Section 16 of the Court of Appeal Act 1976 to grant the Appellant what he deserves. Learned Counsel further relies on the decisions in Okorodudu vs. Okorodudu (1977) 3 SC 21; Obayagbona & Ors v. Obazee & Ors. (1972) 5 SC 247 (1991) 1 NWLR (Pt.167) 270 and Jadesinmi vs. Okotie Eboh (No.2) (1986) 1 NWLR (Pt. 16) 264 and prays that the appeal be allowed and costs granted to the Appellants in terms of their motion paper.
The print record of this appeal clearly bears out Learned Counsel for the Appellants. Appellants’ application for costs of the action Respondents commenced against them was discountenanced by the lower court in the course of striking the action following the notice of discontinuance filed by the Respondents who, rightly contended by the Appellants, are entitled to discontinue their action. The Appellants on the other hand are entitled by law to be heard on their application for costs of the discontinued action before a decision either way is taken. Failure to hear the Appellants before discountenancing their application is fatal to the entire proceeding of the court on the issue. It negates Appellants constitutional right to fair hearing and entitles this court to interfere by setting aside such a manifestly perverse decision, See S.G.B (Nig.) Ltd Vs. Aina (1999) NWLR (Pt.619) 414; Okere vs. Amadi (2005) 14 NWLR (Pt. 945) 545 SC
I agree with Learned Appellants’ Counsel that this is an appropriate instance to invoke Section 16 of the Court of Appeal Act to do that which the lower court was empowered by law to do but left undone and to give the Appellants the justice they were denied. See Emiri vs. Imieyeh (1999) 4 NWLR (Pt. 599) 442 SC; IBWA vs. Pavex Int’ Co. Nig. Ltd (2000) 7 NWLR (Pt.663) 105 SC and C.G.G. (Nig.) Ltd v. Ogu (2005) 8 NWLR (Pt.927) 366 SC.
Now, Order XLIII Rule 1 of the trial court’s procedural Rules provided as follows:-
“1 (1) If before the date fixed for hearing, the Plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his claim, he shall give notice in writing of discontinuance or withdrawal to the registrar, and to every defendant as to whom he desire to discontinue or withdraw. After the receipt of such notice such defendant shall not be entitled to any further costs with respect to the matter so discontinued or withdrawn than those incurred up to the receipt of such notice, unless the court otherwise orders, and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the court to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit.” (Underlining supplied for emphasis)
The foregoing Rule of Court is as clear as it possibly can be. It states that Appellants are entitled to such costs as were incurred before the service on it by the Respondents of the notice of discontinuance of the action that was yet to be fixed for hearing. They are entitled to the cost of attending court to obtain the order on cost as well.
The second limb of this very rule pertains to further costs incurred after the discontinuance of an action, Appellants’ application for costs on discontinuance of Respondents’ action in the lower court was not in respect of such further costs. Instead, the application is limited to the costs incurred by the Appellants prior to the issuance by the Respondents of the discontinuance notice. And costs indeed follow events. Respondents have not denied all those events deposed to in Appellants’ affidavit in support of the application for costs which form the basis of the sum asked for in that regard. It follows that Appellants are entitled to costs on the basis of all the facts deposed to in support of the claim for the costs. This is so because unchallenged facts deposed to in affidavits are deemed admitted and the court must act on same. Sec AG Plateau State vs. AG Nassarawa State (2005) 14 NWLR (PT.945) 273 SC and Odjegba vs. Odjegba (2004) 2 NWLR (Pt.858) 556 CA. Costs of the action commenced against the Appellants discontinued by the Respondents is thus N150,000.00k. The sum is ordered against the Respondents herein in favour of the Appellants. Appellants are further entitled to the costs of this appeal which has been adjudged successful.
The costs are assessed at N10,000.00 in their favour.
Other Citations: (2007)LCN/2553(CA)
