ANALYSIS OF THE SUPREME COURT’S NEW JURISPRUDENCE OF AWARD OF EXEMPLARY COSTS IN ABUSE OF PROCESS CASES

Abstract

A fundamental principle in civil proceedings is that costs are awarded to indemnify a prevailing party for the expenses in the proceedings. A corollary to this principle is that costs must not be awarded to penalise a party. Application of these two principles establishes a jurisprudence in which appellate courts invariably set aside awards by lower courts where the awards are either so large as to be unexplainable, or are clearly stated to be punitive. On February, 26, 2020, in the most ginormous award of costs made in Nigerian legal history, the Supreme Court penalised two senior counsel for filing applications which the Court found were vexatious, frivolous and a gross abuse of court process. This award created a new jurisprudence of amercement in exemplary costs as cumulative to the traditional remedy of striking-out an abusive proceeding. This paper analysed the purport and effect of this new jurisprudence and its effect on the traditional jurisprudence that restricted response to abuse of process to a striking out of the abusive proceeding. In part 2, the paper set out the basic principle of indemnity as the purpose of costs, and in part 3, analysed the difference between costs on the one hand, and fines and penalties on the other. In part 4, the paper examined the introduction of punishment as a purpose of costs in most rules of court. In part 5, it scrutinised the functus officio rule, the powers of the Supreme Court to correct its judgments, the concept of abuse of court process and the traditional response to an abusive process. This led to part 6 in which the paper interrogated the new jurisprudence of the Supreme Court which makes an order striking out an abusive proceeding cumulative to penal costs against counsel implicated in the abusive proceeding. Thereafter it concluded.