O.N. Rewane Vs Festus Sam Okotie-eboh (1960)

LawGlobal-Hub Lead Judgement Report

ADEMOLA, CJF

The respondent in this appeal was declared the duly elected candidate of Warri constituency at the election to the House of Representatives held on 12th December, 1959.

The appellant, who was also a candidate for the constituency, petitioned against the return of the respondent by the Returning Officer for the constituency. It is hardly necessary to enumerate the grounds of his objection; suffice it to say that the petition was heard in the High Court of Warri Judicial Division in the Western Region and dismissed with 2,000 guineas costs by Thomas, J.

The petitioner appealed to this Court from that judgment and order.

Six grounds of appeal were filed. The first two grounds were against the venue where the petition was heard; the third and fourth grounds were appeals on questions of fact and misdirection; the fifth and sixth grounds were against the order as to costs, which grounds I will set out later in this judgment. Shortly before the hearing of the appeal, however, the appellants Counsel filed a notice in this Court, and served a copy on the respondent and/or his Counsel, that he was abandoning grounds 1 to 4 of the grounds of appeal and that grounds 5 and 6 only would be argued.

It will be reasonable to infer that as a result of this precautionary measure, Mr. Mac-Kenna, Q.C., Counsel for the respondent in the Court below, who had also intimated this Court that he would be appearing to argue for the respondent in sup-port of the judgment and order of the Court below, did not come out from England to argue the appeal.

At the hearing of the appeal, Chief Rotimi Williams, Q.C., reiterated his intention to abandon the first four grounds of appeal, and to argue the following two grounds:-

(5) The order as to costs is unreasonable and the learned trial Judge took irrelevant matters into consideration in the award of costs.

(6) Having regard to the maximum amount allowed for an order for security for costs the order as to costs was erroneous and unreasonable.’

Chief Okorodudu, for the respondent, raised a preliminary objection to this two grounds and urged the Court to strike them out on the ground that there are two matters included in each of the grounds, namely ‘unreasonable’ and ‘irrelevant matters,’ each of which should have formed the subject-matter of a separate ground. Also, he argued, the two grounds of appeal were vague. For this contention, Chief Okorodudu relied on Rules 12 (3) and (4) Federal Supreme Court Rules.

As it did not appear to us that there was any due weight in the points raised, we decided to hear the appeal on the two grounds.

Chief Rotimi Williams, arguing the appeal, directed our attention to the record of appeal which indicated that apart from out of pocket expenses, costs were due for six days hearing; on two of the six days the Court sat in the afternoons as well for about 2 hours. Added to this, costs were due in two of the motions preliminary to the hearing. In these two instances, orders for costs to be costs in the Cause were made; in two other motions preliminary to the hearing of the case, costs have already been awarded.

We were referred to the learned Judges assessment of costs and the grounds given by him for the award of costs. He gave two reasons:

‘(1)Right of the respondent to defend himself by engaging the best Counsel available to him, and