Tetteh Worbi & Ors V. Adamali Asamanyuah & Ors (1955) – consolidated

LawGlobal Hub Judgment Report – West African Court of Appeal

Costs—Discretion—General Procedure Rules, Order 7, rule 3, paragraph 2—Trial Judge deciding on costs under a misapprehension offact.
Appeals in Civil Cases—Costs in Court below—Intervention by Court of Appeal.

Facts

The above rule confers on the trial Court44 full power to award and apportion
costs in any manner it may deem just”.
“The Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the Judge ought not to exercise it against the successful party except for some reason connected with the case ”: per Viscount Cave, L.C., in Donald Campbell & Co. v. Pollak (1927), A.C. 811.

The two cases were begun in the Native Court; they were transferred to the Land Court, where they were consolidated. In the first the appellants were the plaintiffs; they lost their claim for damages against the first respondent but obtained a declaration of title by customary law.

The persons numbered as respondents 2, 3, and 4, were the plaintiffs in the second case; they were nonsuited. The judgment in the consolidated suits made no order as to costs for anyone. The plaintiffs in the first case appealed; the only point really pursued was that of costs.

The proceedings began with an action by appellant No. 1 as plaintiff in the first case suing respondent No. 1 as the defendant for damages for trespass on land; later, defendants No. 2, No. 3 and No. 4 were joined in the first case; at the same time plaintiff No. 2 was joined, and the Native Court made an order to add a claim for declaration of ownership to the land; but the Registrar of that Court omitted to amend the plaintiff’s writ, with the result that the fact that the plaintiffs had already made this additional claim was overlooked.

When the cases came up for hearing in the Land Court, counsel for the plaintiffs in the first case applied for leave to amend the writ in the Native Court by adding a claim for a declaration of title, and leave was granted. The trial Judge refused to give the said plaintiffs any costs on the ground that theirs was a belated attempt to set up absolute ownership.

It was plain that he had been under a misapprehension as to the true state of affairs, though he had the record of the proceedings in the Native Court, and reference to it would have disclosed that the said plaintiffs had, quite early in the case in that Court, obtained leave to amend their writ and add that claim.

Held

It could not be said that the trial Judge had exercised his discretion judicially, and his order as to costs would be replaced by an order granting the plaintiffs in the first case costs against the defendants other than No. 1 in certain ratios less the costs attributable to the issue of trespass between the plaintiffs and the first defendant.

Appeal on costs allowed.