On whether order of State High Court or Federal High Court on cost alone appealable: An insight into the Court of Appeal laudable decision in Julius Berger PLC V. Ugo

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On whether order of State High Court or Federal High Court on cost alone appealable: An insight into the Court of appeal (Owerri Division) laudable decision in JULIUS BERGER (NIG.)PLC V. UGO [2020]10 NWLR PT.1732 PG. 203-210. Courtesy: Moruff O. Balogun Esq.

 

Summary of facts:
The appellants instituted an action against the respondent at the High Court of Imo State claiming a declaration that the judgment of the High Court in suit No. HOW/581/2007 delivered by Hon. Justice N. B. Ukoha on 26h October 2009 was obtained by fraud: an order setting aside the judgment or, in the alternative, an order setting aside the part of the judgment which awarded to the respondent the sum of N28,516,680.00 as special damages for Nigerian treatment and the sum of 108,000.00 lakh for her overseas treatment for having been obtained by fraud; an order for refund of the sum of N62,924,608.00 deposited in the registry of the Court of Appeal, including interest accrued thereon; and an order awarding special damages to the appellants.

 

The appellants contended that some of the receipts tendered by the respondent as claimant in suit No. HOW/581/2007 were procured by fraud/forgery and that since the receipts were the basis of the trial court’s award of special damages in the respondent’s favour, the damages awarded by the trial court in its judgment should be set aside on ground of fraud.

In reaction to the suit, the respondent filed a notice of preliminary objection challenging, in limine, the jurisdiction of the trial court to adjudicate over the suit on the ground that the suit was based on the issue of fraud/forgery, which had been determined by the Court of Appeal in its interlocutory ruling on 28th March 2013 on an interlocutory application filed by the appellants for leave to adduce further evidence by affidavit evidence in appeal No. CAOW/146/2010. The evidence sought to be adduced were the alleged forged and non-existent receipts relied upon by the respondent at the High Court.

The Court of Appeal in the ruling held that the application was not an abuse of court process, in that the appellants were not litigating again the same issue which had already been litigated upon between the parties upon facts on which a decision had been reached. However, the Court of Appeal held that the evidence sought to be adduced as fresh evidence were at best substitutive evidence and the court had no power to admit such evidence more so when fraud/forgery was not part of the pleadings of the parties at the High Court for adjudication.

The appellants in opposition filed a counter-affidavit to the preliminary objection.
After hearing the parties, the trial court upheld the preliminary objection and held that the appellants suit as constituted was caught up by the doctrine of issue estoppel and was an abuse of the process of the court. The trial court dismissed the suit and awarded cost of N350,000.00 in favour of the respondent.
Dissatisfied, the appellants appealed to the Court of Appeal.

In determining the appeal, the Court of Appeal considered the provisions of section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 and section 14(1) of the Court of Appeal Act, 2004. They respectively state as follows:
Section 241(2)(C) of the Constitution of the Federal Republic of Nigeria, 1999:
“241(2) Nothing in this section shall confer any right of appeal
(C) without the leave of the Federal High Court or a High Court or the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to cost only.
Section 14(1) of the Court of Appeal Act, 2004 401) Where, in the exercise by the High Court of a state or, as the case, may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall with the leave of that court or of the court of appeal lie to the Court of Appeal but no appeal shall lie from any order made ex-parte, or by consent of parties, or relating only as to cost.

Held (Unanimously dismissing the appeal):

On Whether order of State High Court or Federal High Court on cost alone appealable –
By virtue of section 14(1) of the Court of Appeal Act, 2004, where, in the exercise by the High Court of a State or, as the case, may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, with the leave of that court or of the Court of Appeal, lie to the Court of Appeal but no appeal shall lie from any order made ex-parte, or by consent of parties, or relating only as to cost. By virtue of section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999, nothing in the section shall confer any right of appeal without the leave of the Federal High Court or a High Court or the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to cost only. The bar applies where the appeal is as to cost only awarded by the High Court. Thus, where the complaint was one of the grounds of the appeal or issue the appellate court can entertain it.

On When appellate court can interfere with award of costs by trial court:
The issue of cost to be awarded is always at the discretion of the trial court or court making the award and can only be faulted, if it was not exercised judicially and judiciously. In the instant case, there was no reason to disturb the cost awarded by the trial court.

On procedure for setting aside judgment of court obtained by fraud:
A party who seeks to set aside the judgment of court for having been obtained by fraud can do so by either of two ways, namely, by means of appeal against the judgment or by means of a fresh action vide a motion in the same court seeking to set aside the judgment. The party cannot take the two options simultaneously or after the failure of the other.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.


 

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