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

Dictum

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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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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COUNSEL SHOULD NOT MANUFACTURE FACTS IN COURT

Learned counsel should refrain from manufacturing facts to suit the interest of his client. As a minister in the Temple of Justice, counsel should always be guided by raw facts as disclosed by the evidence before the Court. To be forewarned is to be forearmed, learned counsel should heed to this advice against the future.

– Adamu Jauro, JSC. Enabeli v. State (2021)

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DUTY THE ADVOCATE OWES THE COURT IS SUPERIOR

While the point is conceded that an advocate should be sensitive and loyal to his client’s case, such sensitivity and loyalty should not exceed required boundaries, particularly the duty the advocate owes the court to present the law correctly, even if it is against his client. – Niki Tobi JSC. Okonkwo v. Cooperative Bank (2003)

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WHERE WITNESS DEPOSITION IS SIGNED IN A LAWYER’S OFFICE

Under cross-examination, DW3 admitted that he signed his deposition in the chambers of his counsel. However, there is no evidence before me that DW3 did not present himself before the Commissioner for Oaths to be sworn. The name and signature of the Commissioner for Oaths is on the deposition together with the date it was sworn. There is therefore a presumption of regularity in the statement on oath by virtue of Section 168 of the Evidence Act 2011. See Auta v Olaniyi [2004] 4 NWLR (Pt 863) 394.

— O.A. Obaseki-Osaghea, J. Akinsete v Westerngeco (2014) – NICN/LA/516/2012

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WHERE COUNSEL ABSENT, BRIEF WILL BE DEEMED ADOPTED

The Respondent’s Brief of Argument dated and filed on 3rd November, 2020, which was settled by Adedotun Ishola Osobu Esq, was deemed adopted pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

— A.B. Mohammed, JCA. ITDRLI v NIMC (2021) – CA/IB/291/2020

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COUNSEL (APPEARING FOR HIMSELF) WILL HAVE HIS MISTAKES VISITED ON HIM

In Kotoye v Saraki 1995 NWLR (Pt.395) 256, in circumstances where the party (who is also a legal practitioner) took a decision not to appeal. Uwais J.S.C (as he then was) at Pages 7 and 8 said: “Any act of gambling involves risk taking and no gambler can claim not to be aware of that. When a counsel makes a mistake, such mistake or its consequence should not, in general, be visited on his client who, in most cases is a layman. Can the defendant/applicant who has been or is a legal practitioner be such a client? I certainly think not. There is therefore, no good reason given for the delay bringing this application.”

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