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APPEAL TO SET ASIDE COST AWARDED AGAINST COUNSEL SHOULD PROVIDE TENABLE REASON

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Before I round off, learned senior counsel for the Appellant has urged this court to set aside the costs of #5 million awarded against J.O. Olotu, Esq, counsel who settled the Appellant’s brief at the lower court. Without belabouring the point, let me state clearly that the Appellant has not placed before this court, any tenable reason or argument why the lower court’s order as to costs should be set aside or interfered with. Hence, the Appellant’s prayer in that regard is refused.

— A. Jauro, JSC. PDP v INEC (2023) – SC/CV/501/2023

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SUCCESSFUL PARTY IS ENTITLED TO COST EXCEPT WHERE SPECIAL REASON IS SHOWN

A successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See Per RHODES-VIVOUR, JSC in NNPC V. CLIFCO NIG. LTD (2011) LPELR-2022(SC) (P. 23, PARAS. D-A).

— U.M. Abba Aji, JSC. Cappa v NDIC (2021) – SC.147/2006

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INSTANCES WHERE COSTS AWARDED WERE REVERSED ON APPEAL

✓ Olasope v. National bank of Nigeria Ltd. & Anor (1985) 3 NWLR (pt 11) page 147 of 152. This court reduced the N200 costs awarded to the 1st Respondent to N100. Kutigi JCA (as he then was) said:- ‘I see no basis for awarding N200 costs to the 2nd Respondent who to all intent and purposes appears to be a busy-body as far as this suit is concerned. He voluntarily joined himself and had nothing to ask the Appellant even after testifying in court. And coupled with what his own counsel said in court below that his appearance should be discontinued. He is in my view entitled to no costs and I award none to him.’
✓ In Umarco Nigeria Ltd. v. Panelpina World transport Ltd. (1986) 1 CA (pt 2) page 324, this court set aside the N1,000 cost awarded in favour of the Respondent on the ground that this amount was not only excessive but also unreasonable having regard to the out-of-pocket expenses, the length of hearing and other relevant circumstances. See Oforn & Ors v. Odunsi (1960) NMLR 12. But in Daily Times Nigeria Ltd. v. Chief William (1986) NWLR Pt 36 page 526. The judge awarded the Respondent N1,000.00 exemplary damages and N1,000 costs. The Appellant appealed both on the exemplary damages and on the cost. On the issue of costs, it was contended that as the Respondent conducted the case himself and spent only N101.17k out-of-pocket expenses, N1,000 costs was excessive. The court held that award of N1,000 was not excessive even though the respondent out-of-pocket expenses are N101.17k . Ademola JCA (as he then was) said:- ‘On the issue of costs awarded I do not regard it as excessive because all factors must have been taken into consideration and the fact that the Respondent conducted the case himself should not necessarily be against him but could also be in favour of the Appellant in that if a counsel had been employed by the Respondent, the cost awarded could have reflected counsel cost in favour of the Respondent.’

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THE AWARD OF COSTS – GUIDING PRINCIPLES

It is trite that the award of costs is always at the discretion of the court but such discretion must be exercised judiciously and judicially. It is also a well settled principle that costs follow event and a successful party is entitled to costs except where there are special reasons for depriving him of such entitlement and these ought to be shown by the judge. See OBAYAGBONA VS OBAZEE (1972) 5 SC 247. AMIRA NIG) LTD VS MAL (NIG) LTD. (2001) 17 NWLR (PT 742) 269 and DONATUS IDAM VS ALEX IDEMYOR MENE (2009) 17 NWLR (PT 1169) 74 … It is worthy of note that costs are not imposed as a punishment on the party who pays them, neither are they awarded as a bonus to the benefiting party. The party entitled should only be indemnified for his out of pocket expenses and be compensated for the true and fair expenses for the litigation. See BUHARI VS OBASANJO (2005) All FWLR (PT 258) 1604; KUKOYI VS ODUFALE (1965) 1 All NLR 300 and OLASOPE VS NATIONAL BANK OF NIGERIA (1985) 3 NWLR (PT 11) 147.

— S.C. Oseji, JCA. ACB v Ajugwo (2011) – CA/E/66/2006

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NATURE OF RELATIONSHIP BETWEEN CLIENT & COUNSEL

The nature of the legal relationship between Counsel and his client, which exists in this case between plaintiff and PW1, his Counsel, is one of an independent contractor and not one of principal and agent. (See Performing Right Society Ltd v. Mitchell &.Booker Palais de Danse Ltd (1924) 1 KB 702 at page 365 per McCardie J). It is not that of master and servant. Counsel is clearly not a servant of his client. It is accepted that where a client gives specific instruction to Counsel, such instruction must be adhered to. Where the nature of the specific instruction is in conflict with the manner of discharging his professional skills and interferes with his control of how to conduct the case of his client, Counsel is entitled to return the brief to his client. Counsel who is in law, the dominis litis is not bound to obey any such instructions. It is in the exercise of his apparent general authority in the discharge of his professional duties to his client, to have complete control how such instructions are to be carried out, and over the conduct of the case.

– Karibi-Whyte, JSC. Afegbai v. A.G Edo State (2001)

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CONVENIENCE OF COUNSEL SHOULD HAVE NO PREEMINENCE OVER THE DICTATE OF THE LAW

The convenience of counsel should have no pre-eminence over the dictate of the law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this court in Okafor v. Nweke should be revisited. It has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession.

— J.A. Fabiyi, JSC. FBN v. Maiwada (2012) – SC.269/2005

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COUNSEL SHOULD DRAW COURT’S ATTENTION TO PREVIOUS DECISION

However, learned Counsel for the Respondent failed to draw the attention of the Court to this previous decision. Clearly, he had a duty in law to do so; see Global Trans. S.A. v. Free Enter. (Nig.) Ltd. (2001) 5 NWLR (Pt.706) 426 where it was stated that it is the duty of Counsel to draw the Court’s attention to previous decision of the Court on the same subject matter.

— I.E. Ekwo, J. Daudu v FIRS (2023) – FHC/ABJ/TA/1/2021

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