[1939] EACA 19
The court held that the fact that the respondents' defence was conducted by the Acting Solicitor General does not preclude an award of costs against the appellant. Section 66 of the Liquor Ordinance, 1934, as amended, allows for costs to be taxed and paid by the opposite party when ordered by the court. The Crown's...
Source-derived case information.
- Citation
- [1939] EACA 19
- Parties
- Appellant: Phiroz Beheramjee Mistry; Respondent: The District Commissioner, Nairobi, Messrs. A. C. Tannahill, G. A. Tyson, Dickens and Dr. De Souza, as constituting the Licensing Court, 1937, of the District of Nairobi
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Civil Appeal No. 22 of 1937
- Procedural Posture
- Civil Appeal / Appeal From Decision of H. M. Supreme Court of Kenya
- Outcome
- appeal dismissed; costs awarded to respondents
- Judges
- Francis, J (Uganda), Lane, Ag. J, Law, C.J (Zanzibar)
- Legal Topics
- Costs Awards, Taxation of Costs, Public Officials Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phiroz Beheramjee Mistry
Appellant
The District Commissioner, Nairobi, Messrs. A. C. Tannahill, G. A. Tyson, Dickens and Dr. De Souza, as constituting the Licensing Court, 1937, of the District of Nairobi
Respondent
Procedural Posture
Civil Appeal / Appeal From Decision of H. M. Supreme Court of Kenya
Legal Issues
- 1 Whether respondents are entitled to an award of costs when their defence was conducted by the Legal Department and they incurred no personal expense.
- 2 Whether section 66 of the Liquor Ordinance, 1934, as amended, permits costs to be awarded against the appellant in these circumstances.
Ratio Decidendi
The court held that the fact that the respondents' defence was conducted by the Acting Solicitor General does not preclude an award of costs against the appellant. Section 66 of the Liquor Ordinance, 1934, as amended, allows for costs to be taxed and paid by the opposite party when ordered by the court. The Crown's interest in the proceedings, given the public nature of the licensing court and the legislation involved, justifies the respondents' entitlement to costs. The precedent in Rex v. The Archbishop of Canterbury confirms that public officials represented by Crown counsel are not deprived of costs awards. Therefore, the appellant is ordered to pay the respondents' costs of the appeal.
Court Disposition
appeal dismissed; costs awarded to respondents
Orders
- The appellant shall pay the respondents' costs of this appeal.
Full Case Text
Judgment text and source record
16 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA
## BEFORE SIR CHARLES LAW, C. J. (Zanzibar); FRANCIS, J. (Uganda); and LANE, Ag. J. (Kenya).
## PHIROZ BEHERAMJEE MISTRY, Appellant (Original Plaintiff)
THE DISTRICT COMMISSIONER, NAIROBI, MESSRS. A. C. TANNAHILL, G. A. TYSON, DICKENS AND DR. DE SOUZA, as constituting the Licensing Court, 1937, of the District of Nairobi,
Respondents (Original Defendants)
Civil Appeal No. 22 of 1937
(Appeal from decision of H. M. Supreme Court of Kenya)
Costs-Liquor Ordinance, 1934, section 66-Costs incurred by members of Licensing Court in legal proceedings-Defence conducted by Legal Department on behalf of the Licensing Court.
The defence to this appeal was conducted by the Acting Solicitor General on behalf of the respondents, who were the members of a licensing court. On the appeal being dismissed the appellant argued that no costs should be awarded to the respondents since they had incurred no expense in resisting the appeal.
Held (22-2-38).—That the respondents were entitled to a taxation of their costs and to have the taxed costs paid by the appellant.
Harrison for the appellant.
Wallace, Acting Solicitor General, for the respondents.
RULING.—Section 66 of the Liquor Ordinance, 1934, as amended by section 25 of the Liquor (Amendment) Ordinance, 1935, provides that where costs are incurred by the members of a licensing court in connexion with legal proceedings such costs shall be paid by the treasurer out of the revenue of the Colony, unless the court before which the proceedings are taken orders such costs to be borne by the opposite party.
On behalf of the appellant it is urged that the respondents did not incur any costs in defending this appeal, because the learned Acting. Solicitor General appeared for them. This is no valid reason, however, for not awarding costs against the appellant, for the Crown has the right to appear by counsel in cases where persons in a public capacity are subject to proceedings in which the Crown has an interest, Rex v. The Archbishop of Canterbury, 1903, 1 K. B. 289. It cannot be said that the Crown had no interest in the present appeal, which involved legislation regarding the control of the sale of liquor, and in respect of which, had respondents lost the appeal, an order for the payment of appellant's costs out of the revenue of the Colony might have been made by virtue of the same section 66.
It seems to us, therefore, to employ the language used by the Master of the Rolls in the above case, that all the conditions are present which entitle the respondents to a taxation of their costs, and to have the taxed costs paid by the appellant. Accordingly, we make the order that the appellant pay the respondents' costs of this appeal.
We are given to understand that in the Supreme Court no order as to costs was made by consent. $\sim 1$