[1949] EACA 8

### COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar). and AINLEY, J. (Uganda)

## DEVRAM NANJI DATTANI, Appellant (Original Defendant) υ

# HARIDAS KALIDAS DAWDA, Respondent (Original Plaintiff) Civil Appeal No. 11 of 1949

### (Appeal from decision of H. M. High Court of Uganda)

Practice—Appeal against costs—Uganda Civil Procedure Ordinance, section 27 (1)—When a successful defendant may be deprived of his costs.

The facts appear sufficiently from the judgments.

Held (20-4-49).—That a successful defendant, who after all is brought into Court against his will, can only be deprived of his costs when it is shown that his conduct, either prior to or during the course of the action, has led to litigation which but for his own conduct might have been averted.

Appeal allowed.

Dictum of Lord Atkinson in *Donald Campbell v. Pollak* (1927) A. C. 732 cited.

James for the appellant.

$R. K.$ Shah for the respondent.

SIR JOHN GRAY, C. J.—The plaintiff in this case took out a summons under Order XXXIII of the Uganda Civil Procedure Rules. The defendant obtained leave to defend and filed a written statement. Thereafter the plaintiff filed an amended plaint. When the case came on for trial at Jinja on 30th November, 1948, the counsel for the defendant raised the preliminary objection that the amended plaint disclosed no cause of action. The learned Chief Justice upheld, the objection and rejected the plaint under Order XI, rule II $(a)$ , of the Civil Procedure Rules. At the same time he made an order depriving the successful defendant of his costs; by making this order as to costs the learned Chief Justice said: $-$

"I feel that the defendant, when served with the amended plaint, should." have filed a defence, or, alternatively, if (as Mr. James assures me is the case) the defendant was prepared to rely on his original defence, he must be taken to have been willing that the case go to trial on these pleadings. The defendant has allowed the case to go for trial. Advocates have come from Kampala to Jinja to-day with no notice that Mr. James would take this point ... I consider that Mr. James should have raised this point either in a fresh defence to the amended plaint or by a separate motion before action."

The defendant now appeals against the order depriving him of his costs.

As said by Lord Atkinson in Donald Campbell v. Pollak (1927) A. C. 732 at p. 813: "It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts ... If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of the sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his discretion in that instance".

As I gather from the judgment of the learned Chief Justice, his order was made upon the grounds that the taking by defendant's counsel of this objection without previous notice at the trial has led to the incurring of unnecessary costs. With very great respect I feel myself unable to agree with the inference which he has drawn from the facts. The defendant could not have taken his objection until the amended plaint was served upon him. If, thereafter, he had filed an amended written statement the action would have reached the trial stage, as it actually did. If defendant had filed a motion before action, the issue as to whether or not the plaint disclosed a cause of action would have had to be tried and the consequential costs would have been incurred. In the circumstances it would appear to me that the defendant's conduct in this case has not led to unnecessary litigation with the costs incidental thereto.

From the decisions, which were cited to us during the hearing of the appeal, it appears to me to be clear that a successful defendant, who after all is brought into court against his will, can only be deprived of his costs when it is shown that his conduct, either prior to or during the course of the action, has led to litigation, which but for his own conduct might have been averted. Here there is no evidence of such conduct on the part of the present defendant.

I am therefore of the opinion that the order of the learned Chief Justice depriving the defendant of his costs should be set aside and in lieu thereof I would grant the defendant his costs in the court below as well as the costs of this appeal.

Sir Barclay Nihill, C. J.—I agree with the judgment delivered by my brother the learned Chief Justice of Zanzibar, and have nothing to add.

AINLEY, J.-In this case the learned Chief Justice of Uganda upon an application of the defendant, now the appellant, made upon the day fixed for trial of the action, rejected the plaint under Order VII, rule 11, of the Civil Procedure Rules, upon the grounds that it did not disclose a cause of action, and dismissed the action. The event was therefore very clearly in the defendant's favour, but the learned Chief Justice deprived the appellant of his costs, and it is against the order depriving him of his costs that the appellant appeals.

Now it is provided by section 27, sub-section (1), of the Civil Procedure Ordinance of Uganda "that the costs of any action ... shall follow the event unless the Court or Judge shall for good reason otherwise order", and it is upon the question as to whether a good reason existed for depriving the appellant of his costs that this appeal turns. Now the case law of England, India and Uganda provides many examples of "good" reasons for depriving a successful litigant of his costs, but where a litigant has succeeded because his opponent has failed to show a cause of action, it seems plain that serious misconduct in the course of the action alone can deprive him of the normal results of his success.

It would seem that in the present case the learned Chief Justice did hold that the appellant had been guilty of misconduct in not raising the point that the Plaint disclosed no cause of action earlier than he did, and he would further appear to have considered that the appellant's failure in this respect had added to the costs of the action. Mr. Shah, for the respondent, has also argued that his client was prejudiced by the untimeous raising of the point, because he says he was taken by surprise and was unprepared to meet the contentions of the appellant. But this argument does not merit very serious consideration in my opinion. It was quite clearly impossible to argue that the Plaint did disclose a cause of action and whether the respondent was surprised or not, only one decision could have been given as to the sufficiency of the Plaint.

It is upon the question as to whether the learned Chief Justice was right in supposing that the appellant should have raised the point at an earlier stage and was right in supposing that failure to raise the point earlier resulted in a needless increase of costs that the appeal must turn.

As it seems to me the appellant cannot, in the particular circumstances of this case, be charged with impropriety in failing to take his objections earlier. The defective plaint was in fact an amendment of the original plaint to which the defendant had already pleaded, and a subsequent pleading was not required of the defendant either by law or by any rule of practice. Further, with the greatest respect to the learned Chief Justice, I do fail to see how any course other than that adopted by the appellant could have resulted in any saving of costs. If the successful point had been raised by the appellant by some form of notice or pleading prior to the trial day, the issue raised would still have necessitated a hearing before a Judge at Jinja, and it is likely that more, rather than less, costs would have been incurred. Mr. Shah has, however, argued that in such an event he might have obtained leave to amend his defective plaint. To say the least, this is a matter of speculation. But one can scarcely doubt that if the learned Chief Justice had thought that the plaint was curable by amendment, he would have ordered amendment at the hearing which did take place, and we are informed that he was in fact asked to do so, but refused.

To sum up, I can see no misconduct on the part of the appellant here. nor can I see that any conduct of his has resulted in any swelling of costs or in any prejudice to the plaintiff. I would accordingly direct that the order of the learned Chief Justice as to costs be set aside, and that in lieu thereof an order be made granting the appellant his costs in the Court below as well as the costs of this appeal.