IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: THURSDAY 7th MAY 2020
SUIT NO. NICN/LA/619/2018
REV. ANTHONY OLUGBENGA OSINOWO CLAIMANT/RESPONDENT
LAGOS STATE POLYTECHNIC DEFENDANT/APPLICANT
IC UWA with O Edobiawerie and MD Hammed appear for the Claimant/Respondent,
OS SOWEMIMO SAN, with EA Adesina and Olusola Coker appear for the Defendant/Applicant.
On 7th of December 2018 the Claimant filed this suit via the General Form of Complaint, together with the Statement of Fact, list of Claimant’s witnesses, the Claimant’s witness on oath, verifying affidavit, list of documents all dated the same 7th of December 2018 and copies of the documents to be relied on by Claimant. The Claimant claims against the defendant as follows:
A. A Declaration that the Claimant is entitled to the full payment of his pension on basis of the July 2009 salary increment in the Defendant.
B. A declaration that it is wrong and illegal for the Defendant to stop the payment of the pension of the Claimant when it did so in June 2016.
C. An Order directing the Defendant to pay the Claimant the sum of 5,597,490.80 being the balance outstanding on the gratuity of the Claimant based on the July 2009 salary increase in the Defendant.
D. An Order directing the Defendant to pay the Claimant the sum 1,719,913.02 which is the difference between the sum of 240,441.30 which the Claimant is entitled to per month and the sum of 117,560.37 which the Defendant paid to the Claimant per month from December 2010 to January 2012.
E. An Order directing the Defendant to pay the Claimant the sum of 3,606,619.50 being his pension for 15 month i.e. June to August 2017 which was withheld by the Defendant.
F. An Order directing the Defendant to pay the Claimant the balance of his pension in sum of 182,110.21 from September 2017 until judgment.
G. An Oder directing the Defendant to pay the Claimant the sum of 240,441.30 monthly from the Day of Judgment for the rest of his life.
H. An Order directing the Defendant to pay the Claimant the sum of 750,000.00 being cost of litigation in this suit.
I. Interest in the sum in (c,d,f and h) above at the rate of 21% per annum from 31/10/2018 till judgment and thereafter at the rate of 10% per annum until the final liquidation.
J. An Order of Perpetual injunction restraining the Defendant from stopping or withholding or otherwise tampering with the Claimant’s pension and gratuity (entitlement).
In response to the Claims, Defendant filed its statement of Defence on 8th of March 2019 and a Notice of Preliminary Objection on 15th March 2019. The claimant was duly served with all defence processes. On 29th October 2019, the Claimant filed a Notice of Discontinuance dated 24th October 2019. The matter came up for trial on the 12th of December 2019 whereupon the fact of the Notice of Discontinuance was brought to the attention of the Court. Before further action was taken on the notice, Learned Silk, Counsel for the Defendant sought to address the Court on cost against the Claimant. The Defendant thereupon brought this application seeking for an order for costs indemnifying the Defendant against legal cost incurred in relation to these proceedings. The application is brought on the following grounds:
1. By Order 55 Rule 5 of the National Industrial Court (Civil Procedure) Rules 2017,
costs is to be awarded on an indemnity basis.
2. The parties in the case are represented by chambers of Senior Advocates.
3. The Defendant had been put to substantial expenses at the instance of the Claimant.
Costs follow the event.
4. Order 55 Rule 8 of the National Industrial Court (Civil Procedure) Rules 2017,
provides for taxation of costs.
5. The Defendant in asking for costs had requested for N1,000,000.00 (One million Naira
only) as reflective of what was charged as the professional fees for the brief.
6. The Claimant’s lawyers themselves had estimated for legal cost at N750,000.00
(Seven Hundred and Fifty Thousand Naira only).
7. An effective justice system is hinged on a cost effective and viable system of legal
The application is supported by a 12 paragraph affidavit deposed to by one Ibrahim Hammed and a Written Address. The deponent averred that it was Defendant’s Statement of Defence and Notice of Preliminary objection that pre-empted Claimant’s Notice of Discontinuance; after the parties had joined issues. The deponent stated that the Defendant/Applicant had engaged the services of Counsel, and it will be exposed to huge financial losses if the Claimant is allowed to discontinue this action without indemnifying it with respect to costs for the time and expenses, including counsel’s fees. The Applicant attached a Bill of Charges to the application as exhibit 1. The deponent stated that Counsel has appeared four times in the matter and filed various processes; and noted that the Claimant himself sought N750,000.00 as his own cost of litigation.
In their written submission, the Defendant/Applicant raised one issue for determination; whether the Defendant is not entitled to be fully indemnified for its legal cost.
In arguing this issue, Learned Senior Counsel referred to Order 55 Rule 5 of the Rules of this Court which provides that costs are to be awarded to indemnify the successful party who has been put to the expense of engaging counsel to defend an action and that several cases has shown that the cost should cover legal representation. He relied on Moshood Adelakun v Nurudeen Oruku (2006) 11 NWLR Part 992, page 625 particularly at page 650 para, Master Holdings (Nig) Ltd v Okefiena (2011) 6 NWLR (Pt.1244) p. 514 at 540-541 and Garba v. Ilori (2002) 14 NWLR (part 786) p.78 at page 103; and submits that the discontinuance cannot deprive the Defendant/Applicant of the costs incurred in relation to the present proceedings. They argue that Order 55 Rule 8 empowers the court in the event that it is impracticable to determine summarily the amount of costs to be awarded, to refer it for taxation in accordance with Order 55, Rule 8 of the Rules of the Court.
The Claimant did not file any process in response. However, Counsel on behalf of Claimant made an oral submission during the hearing of the application, to the effect that a party can withdraw at any time after which no further application can be taken on it. He submits that the application is incompetent. He relied on the case of Emeghara v. Health Management Board of Imo State (1987) 2 NWLR (PT 56) AT 300 and Suffolk Petroleum Service ltd v. Adnan Mansoor Nig Ltd (2019) 2 NWLR (PT 1655).
I have considered the processes filed in this application; and the argument of Counsel. There is only one issue to be determined; which is; whether in the circumstances of this case, the Applicant is entitled to its prayer for cost. It is trite law that cost follows event. The court has unfettered discretion to grant cost against any party as empowered under Order 55 Rule 1. A successful party has a reasonable expectation of being awarded cost against the unsuccessful party by virtue of Order 5 Rule 5. The provisions of the Rules of this Court on cost are clearly spelt out as follows:
Order 55 – Costs
1. In every suit, the costs of the whole suit, and of each particular proceeding therein, and the costs of every proceeding in the Court, shall be at the discretion of the Court as regards the person by whom they are to be paid.
2. The Court may order the successful party, notwithstanding the party’s success in the suit, to pay the costs of any particular proceeding therein.
5. In fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.
The Applicant’s argument is that the Claimant brought them to Court, causing them to expend resources in preparing and filing its defence. The Applicant does not oppose the discountenance of the suit, but contends that they are entitled to be indemnified all the expenses they incurred. The Respondent in opposition referred to the cases of Emeghara v. Health Management Board of Imo State (supra) and Suffolk Petroleum Service ltd v. Adnan Mansoor Nig Ltd (supra) as authorities why the applicant will not be awarded cost after their notice of discontinuance. I have considered the two cases cited by the Claimant/Respondent above, and do not see how they relate with the issue of cost. In the case of Emeghara v. Health Management Board of Imo State (supra), what was in issue was if the court is bound to consider a motion to dismiss a suit before considering the notice of discountenance. In the second case, Suffolk Petroleum Service ltd v. Adnan Mansoor Nig Ltd (Supra), the question was strictly on the payment of solicitor’s fees; whereas this application is for costs indemnifying the Defendant against legal cost incurred in these proceedings; a relief which the Claimant also sought in this suit sought to be discontinued.
I find that the Claimant has not given any reason why this application should not be granted. Case law is replete with instances where the Courts have awarded cost after judgment. The same Order of the Rules of this Court, which enables the Claimant to withdraw or discontinue an action also provides for cost. By Order 61 Rule1(1), where before the date fixed for hearing or judgment, any party to the proceedings desires to discontinue a claim or withdraw any part thereof, such a party shall give notice of discontinuance or withdrawal in writing to the court or the other party. The Court shall upon the discontinuance or withdrawal make such order or orders as may seem just. By Order 61 Rule 2, the Claimant that has so withdrawn or discontinued shall thereupon “pay such defendant’s costs of the action, or if the action be not wholly withdrawn or discontinued, the cost occasioned by the matter so withdrawn or discontinued”. The import of this Rule is clear; thus the Claimant can withdraw or discontinue against the defendant but must pay the defendant any expense incurred. It is not often that Defendants ask for cost after a Claimant has discontinued a suit against them, but where it is demanded, as in this case; then the Court must consider whether it has merit or not. It is not for nothing that the Rules provide for it. See G.M.O.N. & S. Co. Ltd. v. Akputa (2010) 9 NWLR (Pt. 1200)443 S.C, and Nonye Iwunze v. The Federal Republic Of Nigeria,
The Defendant in this case has caused appearance to be entered on its behalf; it has filed its defence processes and a preliminary objection; and it has engaged Counsel. In consideration of all these, I find that there is merit in this application. Further, the Claimant has not shown why it should not be granted. In determining the quantum of cost to award, I refer to the decision of the Court of Appeal in Master Holdings (Nig) Ltd v Okefiena (supra) cited by the Applicant; that:
The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in litigation…
Costs are not imposed as a punishment on the party who pays them nor are they awarded as bonus to the party who received them. The party entitled should only be indemnified for his out of pocket expenses.
With the above in mind, I award a cost of Fifty Thousand Naira (N50,000.00) only, against the Claimant. By Order 61 Rule 7, the appropriate order to be made is one for dismissal. This suit is hereby dismissed.
Ruling is entered accordingly.
Hon. Justice Elizabeth A. Oji PhD
This Ruling NICN/LA/619/2018 applies to the following sister cases separately, as was agreed by Counsel on behalf of parties and adopted during the proceedings:
Hon. Justice Elizabeth A. Oji PhD