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NO ORDER AS TO COST WHERE RESPONDENT FILED NO BRIEF

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As the respondents filed no brief nor participated at the hearing of the appeal, I make no order as to costs. – Ogundare JSC. Iragunima v. Rivers State (2003)

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AWARD OF COST IS AT COURT’S DISCRETION

Mrs Eno Umo v Mrs Cecilia Udonwa (2012) LPELR-7857 (CA), this Court held as follows per Garba JCA: “On the issue of costs, ordinarily, the assessment and award of costs in a case are left at the discretion of the Court by the relevant rules. For our purposes in the present appeal, Order 31, Rule 6 of the High Court of Cross River State (Civil Procedure) Rules 1987, applicable at the time of suit, provides thus: “6. Subject to the provisions of any applicable law and these Rules, costs, both actual and incidental to all proceeding in the High Court, including the administration of estates and trusts, shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.”

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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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NOTWITHSTANDING FAILURE OF RESPONDENT TO FILE BRIEF, APPELLANT WILL SUCCEED ON HIS OWN BRIEF

This failure will not affect the determination of the appeal. This is because an appellant will succeed on the strength of his case. He can only succeed or fail on his own brief notwithstanding the absence of the Respondent’s Brief. In a catalogue of decided cases, the Appellant courts have held that the failure of a Respondent to file a reply brief is immaterial. See John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 C.A., Onyejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt.463) 704 C.A., Waziri v. Waziri (1998) 1 NWLR (Pt. 533) 322 C.A. and U.B.A. Plc v. Ajileye (1999) l3 NWLR (Pt. 633) 116 C.A. Confirming the effect of failure of Respondent to file a reply Brief, the Supreme Court in Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt.1086) SC 372 per Ogbuagu J.S.C. held: “It has been held that the failure of a Respondent to file a reply Brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the records. In other words, it is not automatic an Appellant must succeed or fail on his own Brief”.

— R.O. Nwodo, JCA. Teleglobe v 21st Century Tech. (2008) – CA/L/694/2006

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BRIEF OF ARGUMENT MAY NOT BE DISCOUNTENACED WHERE THE OTHER PARTY HAS REPLIED TO IT

Notwithstanding the above, it is pertinent to note that the 3rd Respondent, in paragraph 9 of the affidavit in support of the application for extension of time to file the 3rd Respondents brief of argument, averred that Exhibit C attached to the affidavit was the 3rd Respondents brief. Yet, after the grant of the application, the 3rd Respondent proceeded to a file a different brief of argument thereby taking both the Appellant and the Court for a ride. This conduct must be and is viewed with disapproval. The 3rd Respondents Brief filed on 24th November, 2016 would have been discountenanced by this Court for this reason except for the fact that the Appellant has replied to it. As by filing the said reply to that brief, the Appellant had waived his right to have the process struck out or discountenanced by this Court. Accordingly, the objection of the Appellants counsel is hereby discountenanced.

— O.F. Omoleye JCA. Amaechi V. The Governor of Rivers State & Ors. (CA/PH/342/2015, 8 May 2017)

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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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BRIEFS SHOULD BE CONCISE AND DEAL WITH THE ISSUES ARISING

On another look at the whole of the respondent’s brief, it can be seen that the brief is not elegantly written, besidesthis, it is very verbose and full of a lot of repetitions. The trial court’s judgment is only fourteen pages, it is from this that the respondent’s counsel wrote a brief of 62 pages. This no doubt defeats the essence of brief writing. Briefs should be concise and deal with the issues that arose from the appeal and relate to the word “Brief”. It defeats the whole intendment of brief writing if one will spend the whole day or night reading one brief. This can be excusable in a very complicated matter where there are so many appellants with many notices of appeals and also cross-appeals or where many cases are consolidated but not in this case which is a very simple matter.

— Opene JCA. United Bank for Africa (UBA) v. Samuel Igelle Ujor (CA/C/134/99, 20 FEB 2001)

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