By Femi Falana SAN

On February 26, 2020, the Supreme Court of Nigeria ordered Aare Afe Babalola SAN and Chief Wole Olanipekun SAN to pay total costs of N60 million. At the material time, I criticized the award of the costs on the ground that the Court lacked the vires to order costs to be paid by legal practitioners. I equally challenged the legal validity of the costs as both senior lawyers were not afforded the opportunity to defend themselves in accordance with section 36 of the Constitution. Notwithstanding the criticism that greeted the award of the costs, the Court has continued to slam punitive costs on many other legal practitioners for filing appeals that are considered frivolous and vexatious by the Justices of the apex court.

The recent order of the Court for payment of a cost of N40 million by Chief Mike Ozekhome SAN has reopened the debate on the legality of costs payable personally by legal practitioners. Having read the proceedings of the Court in the case, I had opined that due process was not adhered to by the Court. I also demanded an urgent amendment of the Supreme Court Act and Rules to empower the Justices of the Court to order counsel to pay costs in appropriate cases. Interestingly, some of the colleagues who are opposed to my position have argued that the Justices of the Supreme Court have the inherent power to impose costs on legal practitioners in order to end the abuse of the process of the Court.

However, I have had cause to review the Supreme Court Rules 1985 and several Practice Directions issued by successive Chief Justices of Nigeria from 2008 to 2012. The review has confirmed that the apex court has, since June 2012, been empowered to order counsel to pay costs. Specifically, by the combined effect of section 236 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Rule 2 of Order 10 of the Supreme Court Rules, 1999 (as amended), and in accordance with the provisions of Order 8 Rule 19 of the said Rules, the Chief Justice of Nigeria, Honourable Justice Dahiru Musdapha (of blessed memory) issued Practice Directions Order 10 Rule 10 of the Supreme Court 2011 thus:

“With effect from 1st June 2012, the costs to be awarded by the Supreme Court of Nigeria in a civil appeal and an application in a civil appeal are hereby fixed at the minimum as follows :

Cost to a successful party in a civil appeal — N100,000.00

Costs for delaying the hearing of a civil appeal by a party on the day the appeal has been fixed for hearing — N 50,000.00.

Costs in an application in a civil appeal being heard in Open Court— N30,000.00

Provided that in an appropriate ease, costs may be ordered to be payable by a legal practitioner personally.”

In view of the foregoing, it is undoubtedly clear that the Supreme Court of Nigeria has the *vires* to order the payment of costs by legal practitioners in appropriate cases. However, since the amount of costs payable by legal practitioners has not been fixed by the Chief Justice, the Court has the discretion to impose any amount of costs that it may deem fit. But like every discretion, it has to be exercised judicially and judiciously by the Court. Therefore, on account of the perilous state of the national economy, the Court should review the award of excessively punitive costs imposed on lawyers. Apart from a few prosperous senior lawyers, the majority of legal practitioners in the county are not in a position to pay costs of N30 million of N40 million.

Furthermore, the Court should always afford lawyers the opportunity to make representation before costs are imposed on them. If the application for payment of costs is made by a lawyer representing any of the parties, the colleague accused of abuse of the process of the court should be given the opportunity to react. At the same time, if the Court decides to award costs, due process should be observed in the interest of justice.

FEMI FALANA, SAN, FCI Arb

December 11, 2023.