CASE TITLE: ADEOGUN-PHILLIPS v. GATEWAY PORTLAND CEMENT LTD & ANOR (2024) LPELR-62107(CA)
JUDGMENT DATE: 8TH APRIL, 2024
JUSTICES: YARGATA BYENCHIT NIMPAR
GABRIEL OMONIYI KOLAWOLE
BINTA FATIMA ZUBAIRU
DIVISION: IBADAN
PRACTICE AREA: CIVIL PROCEDURE
FACTS:
This appeal borders on civil procedure.
This appeal is against two rulings of the Federal High Court, Abeokuta.
The Asset Management Corporation of Nigeria (AMCON) acquired the loan of the 1st Respondent from Polaris Bank Limited (formerly Skye Bank) and appointed the Appellant as a receiver of the acquired loan. After the Appellant was appointed a receiver, to confirm his appointment, he filed a suit to obtain judicial protection to let him act as a Receiver over the Respondents’ assets. The trial Court made an interim order confirming the Appellant’s appointment. Appellant proceeded to inspect and sell some of the assets of the Respondents without the order of the Court when an action was still pending and had not been finally determined. Dissatisfied by this inspection and sale, the Respondents instituted an action and prayed the trial Court to set aside the Appellant’s sale of the Respondents’ property.
Appellant, upon being served, initially challenged the suit by filing a Preliminary Objection and a Further Affidavit to the Respondents’ suit. The Appellant did not file a Counter Affidavit in defence to the suit but only relied on the Preliminary Objection he filed. After parties adopted their addresses, the case was adjourned for judgment and on the day of judgment, Appellant brought a motion, praying the Court to reopen the case to enable him to file his Counter Affidavit.
The Court heard the Appellant’s motion, dismissed it and ordered the Appellant to pay a cost of N100,000 to the Respondent. Appellant was irked by the Court’s order of cost. He filed a second motion asking the trial Judge to vacate the order and recuse himself from handling the matter on the ground of likelihood of bias against the Appellant.
The application to reopen the case was dismissed for being an abuse of Court process. The second application asking the judge to recuse himself was also dismissed, and the cost of N500,000 was awarded against appellant’s counsel personally. Appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION:
The issues for determination were:
1. “Whether the trial Court was right in dismissing the Appellant’s Motion of 18 February 2020 and awarding the cost of NGN500,000 (Five Hundred Thousand Nigeria) against the Appellant’s Counsel in consequence of filing the said motion.”
2. “Whether the trial Court was right in dismissing the Appellant’s Motion of 29 January 2020 twice?”
3. “Whether the trial Court was right in dismissing the Appellant’s Preliminary Objection of 20 September 2019.”
COUNSEL SUBMISSIONS:
The Appellant argued that an application of recusal from a proceeding can be granted either on the ground of bias or the likelihood of bias. That since the Appellant’s motion filed on the 18th of February 2020 was brought on the ground of likelihood of bias, the Court ought to grant the application after the Appellant was able to prove the existence of the likelihood of bias from the event that happened on the 22nd of January 2020, where the trial Judge asked the Appellant whether the Appellant expected the Respondents to fold their arms while the Appellant was selling off the Respondents’ assets.
It was also submitted that the cost of N500,000 awarded against the Appellant’s counsel in person after dismissing the recusal application was meant to punish the Appellant’s counsel for bringing the application, which the Appellant had the right to file. Also, the Appellant submitted that such a cost aimed at punishing the Appellant’s counsel was an improper exercise of judicial discretion, and the same was in contravention of Order 25(14) of the Federal High Court (Civil Procedure) Rules 2019, which provides justifiable reasons for awarding costs against legal practitioners. The Appellant cited the cases of UBA V. PRIMA IMPEX (NIG) LTD & ORS (2017) LPELR-42015 (CA); REWANE V. OKOTIE-EBOH (1960) SCNLR 461; UBN V. SCPOK (NIG) LTD. (1998) 12 NWLR 578; OGUNMOKUN V. MILAD, OSUN STATE (1999) 3 NWLR 594; ACB PLC & ANOR V. NDOMA-EGBA (2000) LPELR-10532 (CA).
The Appellant argued that granting an application to reopen a case that has been adjourned for judgment is well known and permitted by law. It was submitted by the Appellant that the trial Judge was wrong in dismissing the Appellant’s motion filed on January 29, 2020, to reopen his case because the said motion was not abuse of Court process. More so, the Respondents could not prove that the motion was abuse of Court process. The Appellant relied on PDP V. ABUBAKAR (2007) 3 NWLR (PT. 1022) 515 (CA); ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD. & ORS (2007) LPELR-55 (SC); A.G FEDERATION V. ANPP & ORS (2003) LPELR-630 (SC); IGBEKE V. OKADIGBO & ORS (2013) LPELR 20664 (SC); MOMOH & ORS V. ADEDOYIN & ORS (2017) LPELR- 43124 (CA); ALAYA V. ISAAC (2019) LPELR-46881 (CA); AWOYALE V. OGUNBIYI (1985) LPELR-661 (SC).
It was also submitted by the Appellant that after the trial judge dismissed the application to reopen his case with a cost of N100,000, the Court dismissed the same motion again with a cost of N500,000, thereby amounting to double compensation. The Appellant relied on OLOWU & ORS v. ABOLORE & ANOR (1993) LPELR-2603 (SC) and urged this Court to set aside the ruling dismissing his application to reopen his case.
The Respondent argued that the Appellant’s application of 18th February 2020, wherein the Appellant prayed the trial judge to recuse himself from handling the proceedings, was hinged on the likelihood of bias without any proof of the bias alleged by the Appellant and that the Appellant relied on mere suspicion and conjectures, which could not prove the allegations. The Respondent cited WOMILOJU & ORS V. OGINSANYINANIBIRE & ORS (2010) LPELR-3503 (SC); ABIOLA V. FEDERAL REPUBLIC OF NIGERIA (1995) 7 NWLR (PT. 405) 1.
Furthermore, the Respondent submitted that the Court properly exercised its discretion in awarding the cost of N500,000.00 against the Appellant, and that same was awarded in compliance with the guiding principles laid down in Order 25 Rule 2 of the Federal High Court (Civil Procedure) Rules 2019. Also, that the appellate Court will not interfere with the issue of cost where it was properly awarded as in this case. The Respondent relied on the cases of DANGOTE GEN. TEXTILE PRODUCTS LTD. V. HASCON ASSOCIATES NIG. LTD & ANOR (2013) LPELR-20665 (SC); UMEANADU V. A.G ANAMBRA STATE (2008) 9 NWLR (PT. 1091) 175 (SC); LAYINKA & ANOR V. MAKINDE & ORS (2002) LPELR-1770 (SC); AKINBOBOLA V. PLISSON FISCO NIGERIA LTD (1991) 1 NWLR (PT. 167) 270.
DECISION/HELD:
The Court allowed the appeal in part. The decision of the trial Court regarding the two applications were affirmed, save the award of cost of N500, 000, which was reviewed.
RATIO:
DAMAGES – DOUBLE COMPENSATION: What amounts to double compensation
” The law has settled on the issue of double compensation that where cost has been awarded in favour of a successful party in respect of a particular subject, it would amount to double compensation to award another cost in favour the party in respect of the same subject under another heading. See the case of TSOKWA MOTORS (NIG.) LTD. V. U.B.A. PLC. (2008) 2 NWLR (PT. 1071) 347, where it was held as follows: “Where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head. In this case, the Court of Appeal was right in setting aside the award of nominal damages to the appellant, since it amounted to double compensation. [Ezeani v. Ejidike (1964) 1 All NLR 402 referred to.] (P.366, paras. B-C).” Per NIMPAR, J.C.A.
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