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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The order of the Court directing the personal attendance of the appellants is an interference with their liberty as provided under Section 35 of the Constitution 1999 (as amended) when there is no law or rules of Court expressly authorizing the infringement.
– Chima Centus Nweze, J.S.C. Independent National Electoral Commission & Anor v. Ejike Oguebego & Ors (2017)
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.”
I am however of the opinion that the second complaint of 1st respondent against paragraph 129 of the petition, that it also deserves to be struck out for petitioners’ failure to join Hon. Adejoh, Chairman of Olamaboro L.G.A. of Kogi State accused by them of having led thugs at gun point to force Electoral officers in named polling units in Olamaboro L.G.A. of Kogi State to declare concluded elections in the said units cancelled, is well made. The petitioners’ response that not only was no relief claimed by them against Hon. Adejoh, he did not even participate’ in the election neither was he returned so he is not a person contemplated by section 133 of the Electoral Act 2022 to be joined to an election petition, is not a valid response. Section of 133 of the Electoral Act 2022 only deals with the issue of which contestant of an election ought to be joined in an election petition by a co-contestant. It has nothing to do with the issue of joining of third parties against whom allegations of electoral infraction are made by petitioners as in this case. Such persons must be joined to the petition if the court is not to be exposed to the risk of infringing their fundamental right to fair hearing guaranteed by the Constitution. It is also of no moment that no relief was claimed against such persons in the petition; what is important is that allegations of electoral malpractice, which will require the court to make findings, including condemnation of their alleged conduct where necessary, are made in the petition. Support for that position can be found in NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 at 583 where Muntaka-Coomassie, J.S.C., after reproducing the provisions of the then newly enacted section 144(2) of the Electoral Act 2006 (in pari materia with section 133(2) of the Electoral Act 2022) and confirming that that provision had done away with the old regime of the Electoral Act 2002 that required petitioners to join all relevant Electoral Officers of INEC that conducted an impugned election, in addition to INEC itself, spoke thus at page 583: “Unless the conduct of a party who is not an agent of the Commission is in question, it will then be necessary to join such party as a necessary party to the petition in order to afford such party a fair hearing.” (Italics mine) As regards the consequence of failure to join such necessary parties on the petition itself, His Lordship again said as follows: “However, where such a party is not made a party, it will not result into the whole petition being struck out, but the particular allegation against such party is liable to be struck out.” That is the fate of paragraph 129 of the petition where allegations of electoral malpractice were made by the Petitioners against Hon. Adejoh yet he was not cited in the petition. Incidentally, this is also one of the main reasons the Supreme Court gave in dismissing the appeal of the petitioners in the Ondo State Governorship case of Eyitayo Jegede & Another v. I.N.E.C. & Ors (2021) LPELR-55481 (SC) where allegations were made by the Petitioners in that case against the then National Caretaker Committee Chairman of the present 3rd Respondent, APC, Governor Mai Mala Buni of Yobe State, yet he was not joined to the petition by the Petitioners.
— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)
I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for mistakes of his counsel. But in my opinion, the Court will not regard this as a universal talisman, the waiver of which will act as a panacea in all cases, the Courts must be satisfied not only that the allegation of the … of Counsel is true and genuine but also it is availing having regard to the circumstances of the particular case.
– I.M.M. Saulawa JCA. Owhor v. Obodo (2020) – CA/PH/448/2017
This Court had, per Ikongbeh, JCA in the case of UZOMA v OKORIE (2000) 15 NWLR (612) 882 at 893, held that: “Matters such as the number of years it takes to conclude a case, the number of adjournments, processes that had to be filed and the transportation of counsel to and from the Court are such that the Court may take into consideration when fixing the amount of costs and Court may not need to expressly state so. Thus … the fact that the reasoning of the trial Court on the matter was not recorded did not necessarily make the decision on costs arbitrary.” See also CITIBANK Nig Ltd. v. Ikediashi (2014) LPELR22447; Total Engineering Services Team Inc. v. Chevron (2010) LPELR5032 (CA); Emori v. Egwu (2016) LPELR-40123 (CA).
In the instant case there is no averment that the authority of plaintiff’s Counsel to conduct the case on his behalf was withdrawn at any stage or limited by any general or specific instruction. Counsel to plaintiff therefore had throughout the conduct of the case general and apparent authority to conduct the case of the plaintiff in his discretion within his professional skill and in the best interest of the plaintiff. The consent of Counsel in the negotiation for settlement of the dispute out of court was with the consent of plaintiff. There was no averment that Counsel and the defendants were not ad idem, both in the terms of agreement to settle out of court and in entering the consent judgment in court. Plaintiff was therefore bound by whatever results from such negotiations.
– Karibi-Whyte, JSC. Afegbai v. A.G Edo State (2001)
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