[1947] EACA 2

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and THACKER, J. (Kenya)

## THE TRANSPORT LICENSING BOARD, Appellants (Original Respondents)

$\nu$ .

- 1. E. T. MAMUJI. - 2. OMAR BIN ATHMAN,

3. SHEIKH OMAR BIN DAHMAN.

4. E. M. HOLMES,

## 5. THE KENYA BUS SERVICES (MOMBASA), LIMITED.

**Respondents (Original Appellants)**

## Civil Appeal No. 30 of 1946

(Appeal from decision of H. M. Supreme Court of Kenya)

Appeal from T. L. B.'s decision—Costs of successful appellant given against Board -T. L. Ord. 1937, S. 23-C. P. Ord. S. 27 (1).

Certain transporters objected to an application made by the Kenya Bus Service for a road service licence on a certain route being granted by the T. L. B. Without giving the objectors a proper hearing the T. L. B. granted the application of the Kenya Bus Service.

The objectors appealed against the Board's decision and cited the Board as respondents in the appeal. The Board duly appeared in the proceedings and at an early stage obtained the costs of an adjournment from the objectors. The appeal was allowed with costs against the Board.

The Board appealed from the order for costs.

Held (13-2-47).-(1) That as it was the conduct of the Board in failing to carry out their statutory obligations to the objectors that was in question there was a definite lis between the objectors and the Board and consequently the Board was rightly cited as a respondent to the appeal.

(2) That in an appeal against a decision of the T. L. B. the Court has the same powers as in an ordinary civil suit and one of these powers is to make an order for costs.

(3) That the order for costs against the Board was rightly made.

Appeal dismissed.

Cases referred to : Puran Chand Many v. The Members of the Rent Control Board of the Central Province (Civil Case 114/45); Schwentafsky v. Control of Hotels Authority<br>of the Central Province (Civil Case 114/45); Schwentafsky v. Control of Hotels Authority<br>(Civil Case 46/45); Boulter v. The Kent Just 120; Rex v. Woodhouse (1906) 2 K. B. 501.

Phillips, Crown Counsel (Kenya) for the appellants.

Kelly for the Respondents 1-4.

SIR JOSEPH SHERIDAN, C. J.—The respondents in this case were appellants before the Supreme Court in an appeal brought by them against the Transport Licensing Board and the Kenya Bus Services (Mombasa), Ltd. The Appeal was brought under Section 23 of the Transport Licensing Ordinance, 1937, which reads as follows: --

"(1) Any person who-

(a) being an applicant for the grant or variation of a licence, is $(a)$ aggrieved by the decision of the Licensing Authority on the application; or

- (b) having duly made an objection to any such application as aforesaid. being an objection which the Licensing Authority is bound to take into consideration, is aggrieved by the decision of the Licensing Authority thereon: or - (c) being the holder of a licence, is aggrieved by the revocation or $\frac{1}{2}$ suspension thereof.

may within the prescribed time and in the prescribed manner appeal to the Supreme Court.

(2) The case shall be heard by a Judge of the Supreme Court to be assigned by the Chief Justice for the purpose.

(3) In hearing any such appeal such Judge shall have all the powers which may be exercised by a Judge in the hearing of an ordinary civil suit, and may permit any party to appear before him either personally or by advocate."

The respondents right to appeal to the Supreme Court is set out in (1) $(b)$ of the section

As persons who, on the 8th January, 1946, when the Transport Licensing Board granted an application by the Kenya Bus Service for a limited Road Service licence, were providing transport facilities on the Mombasa-Malindi **Road they were entitled to have their objections to the grant of the licence heard.** Mr. Justice Bartley held that they were not given the opportunity of putting forward their objections, the Board intimating that they did not wish to hear the objections. The appeal was allowed for this reason and the Board were directed to hear the application according to law. Against that decision no appeal has been taken, the sole ground of appeal being that an award of costs made in favour of the respondents was wrongly made. With this contention I am unable to agree. Section 23 is so drafted as to give the Judge the same powers as he would have in the hearing of an ordinary civil suit and one of those powers is to make an order for costs. And it has been strenuously argued on behalf of the Board that they should never have been joined as a party and that they never litigated any question before the Supreme Court. It is true, after being represented by Crown Counsel on the 5th April before the merits of the appeal were gone into, when on an order for an adjournment they asked for and obtained an order for costs in their favour, they took no further part in the hearing of the appeal. At the same time they took no steps to have their name removed from the record, this course we are informed being deliberately chosen. As I see it, they were properly on the record and an application to have their name removed must have failed. It was the conduct of the Board in failing to carry out their statutory obligations to the objectors that was in question and consequently in my view they were as rightly joined as are justices in England in proceedings by way of a prerogative writ or as are the Members of a Licensing Court under the Intoxicating Liquor Ordinance or the Members of the Rent Control Board under the Rent Restriction Ordinance. In my opinion it matters not that special provision is made under the former ordinance for the payment of costs out of the Colony's revenue. As I have said Section 23 empowers the Judge to make an order for costs. I can find no substance in the argument that an order for costs must be bad as the Board are a collection of individuals and not a body corporate. That argument would not prevail in England, where proceedings by way of a prerogative writ are taken against the justices. Nor would it prevail in a case against the members of a Licensing Court under the Intoxicating Liquor Ordinance and I find that in a case under the Rent Restriction Ordinance, Puran Chand Many v. The Members of the Rent Control Board of the Central Province, Civil Case 114 of 1945, an order for costs was without question made against the Board, and in Schwentafsky v. Control of Hotels Authority, Civil Case 46/45, an order for costs was made against the Authority consisting of a number of individuals.

To conclude, I agree with the learned Judge and find the order for costs both competent and proper. With regard to the position of the Kenya Bus Services (Mombasa) Ltd., they are still on the record and no agreement by them to waive their claim against the Board for costs could deprive this Court of jurisdiction to make such order affecting them as might be considered proper. The matter, however, is academic on the appeal being dismissed.

I would dismiss the appeal with costs.

SIR G. GRAHAM PAUL, C. J.—This is an appeal by the Transport Licensing Board against an order of the Supreme Court of Kenya at Mombasa by which the appellants were ordered to pay to the respondents costs of proceedings in the Supreme Court.

The proceedings in the Supreme Court arose out of an appeal by the first four respondents against the decision of the Transport Licensing Board in granting a certain licence to the Kenya Bus Services (Mombasa) Ltd., who are the fifth respondent in this appeal. The first four respondents were objectors to the grant of this Licence and their appeal to the Supreme Court was taken under Section 23 of the Transport Licensing Ordinance, 1937, which is in the following terms: —

"23. (1) Any person who-

- (a) being an applicant for the grant or variation of a licence, is aggrieved by the decision of the Licensing Authority on the application; or - (b) having duly made an objection to any such application as aforesaid, being an objection which the Licensing Authority is bound to take into consideration, is aggrieved by the decision of the Licensing Authority thereon; or - (c) being the holder of a licence, is aggrieved by the revocation or $(c)$ suspension thereof,

may within the prescribed time and in the prescribed manner appeal to the Supreme Court.

(2) The case shall be heard by a Judge of the Supreme Court to be assigned by the Chief Justice for the purpose.

(3) In hearing any such appeal such Judge shall have all the powers which may be exercised by a Judge in the hearing of an ordinary civil suit, and may permit any party to appear before him either personally or by advocate."

The Transport Licensing Board was cited in the appeal as a respondent—the Kenya Bus Services (Mombasa) Ltd., being the other respondent. The Board duly appeared in the proceedings before the Judge who heard the appeal, by Crown Counsel acting on their behalf. At an early stage of the proceedings there was an adjournment of the proceedings granted at the request of one of the present respondents. Crown Counsel appearing for the Transport Licensing Board thereupon asked for, and obtained, an order against the first four present respondents for the costs of the adjournment. That order still stands, and there is no suggestion that it should be set aside.

The learned Judge eventually gave judgment in favour of the first four present respondents who were the appellants before him, and as regards costs the judgment of the learned Judge was as follows: -

"As regards costs the Board is a party to these proceedings without objection and it was represented in Court by Crown Counsel on the 5th April although not at the hearing. The expense to which all parties have been put is due to the action of the Board and in my view the Board should pay the costs.

I allow costs of the appellants and second respondent against the Board."

$\overline{\phantom{a}}$

$\overline{1}$

$\mathfrak{r}$

Only from that order for costs does the Transport Board appeal to this Court and the material ground of their appeal is: -

"3. The learned Judge had no power to order the above-named appellant to pay the costs of the above-named respondents, or any of them, and the said Order was contrary to practice and contrary to law.

On the face of the facts that the Board, cited as a respondent, appeared by Crown Counsel in the appeal proceedings without objection to their having been cited as a respondent, and that as such respondent they applied for and obtained an order for the costs of an adjournment, it is difficult to conceive that the Board was not a litigating party in the appeal proceedings. It was only by virtue of their being a litigating party in the proceedings before him that the learned Judge could award them costs in the proceedings, as he did. We were informed by Crown Counsel appearing before us for the Transport Board that the question whether an application should be made to the learned Judge to strike the Board out of the proceedings was carefully considered and it was decided deliberately not to make any such application so the Transport Board deliberately remained a party to the proceedings before the Judge to the very end of the proceedings.

Under Section 23 (3) of the Transport Licensing Ordinance the Judge had "all the powers which may be exercised by a Judge in the hearing of an ordinary civil suit". In order to see what powers the Judge had in this connexion it is of course necessary to refer to the Civil Procedure Ordinance and Rules. Nothing could be clearer than Section 27 (1) of the Civil Procedure Ordinance which is in the following terms: -

"27. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court or Judge and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid.

The fact that the Court or Judge has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

Provided that the costs of any action, cause or other matter or issue shall follow the event unless the Court or Judge shall for good reason otherwise order."

Against the obvious conclusion on this statement of fact and law that the learned Judge was acting within his powers in ordering the Transport Board to pay costs appellants' counsel has quoted among others the following English cases: -

> Boulter v. The Kent Justices (1897) A. C. 556. Regina v. The Staffordshire Justices (1898) 2 Q. B. 231.

Local Government Board v. Arlidge (1915) A. C. 120.

I have read these cases with care. They are to some extent dependent for their decision on special provisions of English Statutes which do not apply to Kenya, but there are general observations of great weight and authority contained in the judgments of the distinguished Judges who sat in these cases and it appears to me it is more upon these general observations than on the actual decisions that counsel for the appellants in this case relies.

I find it unnecessary to quote the opinions of the English Judges. It is enough I think to say that I accept with respect the general views expressed in these opinions and I agree that they would apply with great force to an appeal against the decision of the Transport Board on the question whether it was right to grant or refuse the particular licence in question. In cases raising such an issue on the English authorities quoted, I think the general proposition emerges that there is no *lis* between the objectors and the applicant or between the objectors and the Board. But in my view the judgment appealed against here shows quite clearly that this case is quite outside that doctrine of the English authorities.

In his judgment the learned Judge says: "By consent this court has only considered one ground of appeal, i.e. that the Transport Licensing Board failed to investigate the objections before granting the application". The investigation of that question by a court to my mind clearly does involve a definite lis between the objectors and the Transport Board. If that particular ground of appeal were founded on fact—and there is no appeal taken against the finding of the learned Judge that this ground was founded on fact-it would form a good ground for the issue of a prerogative writ at the instance of the objectors concerned against the Board. It makes no difference to my mind that the objectors in this case, instead of following the English procedure by prerogative writ, have taken advantage as they were entitled to do of the simpler procedure locally provided by Section 23 of the Transport Licensing Ordinance, and this particular issue raised by the objectors in their memorandum of appeal to the Supreme Court did constitute a lis to which the Transport Board was properly cited, and did in fact appear, as a litigating party. I am strengthened in this view by the decision and the opinions expressed in the case of *Rex v. Woodhouse* (1906) 2 K. B. 501.

Once it has been accepted—as in this case in my view it must be accepted that the appeal to the Supreme Court directly raised an issue in litigation, a definite lis between the objectors who appealed to the Supreme Court and the Transport Board, it is clear that the Board was rightly cited as a respondent. Indeed the Supreme Court would rightly have refused to decide such an issue without having the Board before it as a party. It was deliberately decided by the Board and its legal advisers not to apply to the Judge to strike out the Board with costs to date as a party wrongly cited as a respondent. In such circumstances I find it impossible to hold that the Board was not in the position of an ordinary litigating party in the appeal proceedings to whom the provisions of the Civil Procedure Ordinance as to costs applied.

It has been said in argument, though not specifically in the memorandum of appeal, that the order of costs against the Board was wrong because the Board is not a corporate body. It is true that it is not a corporate body. It is simply a collection of persons officially appointed by the Governor to carry out the duties prescribed by the Ordinance in the same way as licensing justices in England are appointed to carry out the duties prescribed by the relevant English legislation. So long as they carry out their duties in good faith the members of the Board are protected by Section 3 (17) from any personal liability. The Justices in England are similarly protected by statute. If the Board fails to carry out its official duty to particular citizens—e.g. objectors—those citizens have their remedy either by the English procedure of a Writ of Certiorari or Mandamus or by the simpler *ad hoc* remedy given by Section 23 of the Transport Licensing Ordinance. Rex v. Woodhouse is an authority for a costs order against the Justices as such, and to my mind it is equally an authority for a costs order against the Board as such.

It is true that the Transport Board, relying apparently on the other respondent in the proceedings before the Judge, The Kenya Bus Services (Mombasa) Ltd., to fight its battles, did not trouble to be represented by counsel at the actual trial of the issue (hearing of evidence, etc.) but that makes no difference. Where one defendant or respondent leaves it to another defendant or respondent to contest the issue on his behalf he does not thereby prevent the Court giving final judgment against him, including a costs' order.

There are two subsidiary matters in this appeal to which I would like to refer. In the first place it is said in the memorandum of appeal that this costs order was "contrary to practice". This is not so, for an examination of the few appeals, which have been taken under Section 23 shows that the practice has

been for the Board to appear as respondent in such appeals by Crown Counsel representing the Board, and for the Board to be treated as an ordinary litigant in the matter of costs.

The other matter relates to the position of The Kenya Bus Services (Mombasa) Ltd., in this appeal. It cannot be too clearly stated that where an appeal is before this Court and an appellant desires to withdraw the appeal as against one or more of these several respondents that can be done only with leave of this Court obtained by way of motion on notice to all parties supported by affidavit. In this case had such an application been made to this Court it would probably have been refused as the whole question of costs was raised before this Court and it is at least conceivable that this Court might have wished to consider making a costs' order against The Kenya Bus Services (Mombasa) Ltd., as the other respondent in the proceedings in the Court below.

For the reasons I have given I would dismiss the appeal with costs to the first four respondents against the appellants.

THACKER, J.-I agree with the judgments of the learned President and of the learned Chief Justice of Tanganyika and have nothing to add.