The Governor, Eastern Nigeria V Eugene Onyelu & Ors (1965)
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This is an appeal by the Governor of Eastern Nigeria against an order for costs made against him in proceedings on an originating summons taken out by him for the determination of the question who was entitled to £38-8s-0d compensation for lands acquired by him under the Public Lands Acquisition Ordinance. Two sets of claimants appeared at the hearing, and after ordering that the compensation should be divided between them the Chief Justice awarded each set of claimants 50 guineas costs, to be paid by the Governor. Without obtaining leave to appeal the Governor filed a notice of appeal against that part of the judgment which related to costs, and hearing notices were issued for the 7th June, 1965. On the morning of that day the Governor filed a notice of application for leave to appeal, but no notice of application for an extension of time for making such an application. Mr. Anyaegbunam, State Counsel, agreed that he must first apply for an extension of time if he wished to pursue the application for leave to appeal, but he submitted that an appeal lay without leave.
The only provision for appeals from a decision of the High Court of Eastern Nigeria relating to costs is contained in s. 117 of the Constitution of the Federation, since the Regional legislature has not exercised its power of making further provision. Subsection (2)(a) provides that an appeal shall lie as of right from final decisions in any civil proceedings before the High Court sitting at first instance, but paragraph (ii) of the proviso to that subsection excludes from its operation “any order relating only to costs”, and subsection (4)(b) confers a right of appeal with the leave of the High Court or the Supreme Court from such an order. Mr. Anyaegbunam’s submission is that since the judgment as a whole dealt with the question, who was entitled to compensation, as well as containing an order as to costs, the decision appealed from is not “an order relating only to costs”.
There is no power to make an order relating to costs in vacuo and such an order must always be linked to a judgment dealing with the other rights of the parties, but it is still a distinct order. Mr. Anyaegbunam submitted that the interpretation he contended for had been put on the similar wording of s.31 (1)(b) of the Supreme Court of Judicature Act, 1925, in England, but we can find no authority for this, and in our view the submission is not well founded.
We are of the opinion that there is no appeal properly before the Court. An application for an extension of time for applying for leave to appeal has been filed this morning, but it has not been served on the respondents and we shall not entertain it. The appeal is therefore struck out. Since the respondents have not appeared there will be no order as to costs in this Court.
Other Citation: (1965) LCN/1246(SC)