Civil Case No. 01 of 1999
DENIS VIRA
Respondent/Defendant
JUDGMENT
This appeal was brought by the appellant/plaintiff seeking costs that there be no order
to costs made in the Magistras wrong
in facts and law and should be varied. It is not
ot
the final decision on the substantive matter that is appealed but only
costs. Costs is not
a substantive matter but a branch that arises out and connected to the proceeding where
the parties
or a party has to pay the price for being represented in Court. And
representation in Court is a choice by the parties themselves.
Costs is not automatic but by way of application to the Court for the Court to exercise
its discretion on whether to award cost
or not. That is to say it depends entirely on a
Judge or Magistrate whether to award or not. Awarding costs does not necessarily
means
that a successful party is always entitled to costs. As the Court can also order a
successful party to pay costs
to an unsuccessful party.
In our jurisdiction, under Order 65 of the High Court Civil Procedure Rules 1964 allows
a judge to exercise as a discretion to
award costs or not. Likewise, in the
Magistrate’s Court, Order 32 give power to the Court to make orders as to costs.
Costs under Order 32 includes expenses incurred by either parties. So both a judge and a
magistrate has discretionary power
either to award costs or not respectively, and mostly
at the end of the case as a separate and connected matter with the substantive
cause.
The counsel for the appellant advances that in the Originating Summons paragraph 3 they
seek costs in the suit. He also advances
that they applied for costs in the
Magistrate’s Court and that was in itself a material factors to justify awarding
costs to the plaintiff as the successful party. And further he advances that there were no
reasons in the judgment why costs
was not awarded to the appellant.
The respondent did not appear today to defend the appeal. The record of the Court shows
that a Notice of Hearing was served on
him and he refuses to sign and receive the Notice.
I accept this as very good service for him to appear and defend and he cannot
come later
to say that he was not given the right to defend the appeal. And therefore the appeal
proceed in his absence.
This is what I have to say, where an application for cost is made to the Court, the
Court must decide the matter as a matter
of discretion whether to grant cost or not. And
the application itself it must be supported by material factors by the applicant
and if
opposed by the Respondent than it must also supported with material factors. If material
factors placed before the
Court by both parties then the Court must exercise its
discretion whether to grant cost or not.
The judgment of the magistrate did not show that cost was a matter that she also
deliberated on. If this is so then there were
no material facts put forward by the
respondent as the basis for her to exercise that discretion in not awarding costs. However
if she had heard arguments from either side then this should be reflected in the judgment
itself. If she did then that
would be an exercise of discretion and an Appeal Court would
not readily interfere with that exercise of discretion. The Supreme
Court can only
interfere with the exercise of discretion of a magistrate if :-
- The magistrate acted arbitrarily and not judicially; or
- Exercise his discretion against a successful party on irrelevant grounds; or
- Without any material fact at all.
The minutes of the Magistrate shows that the plaintiff counsel advances in his
submission for costs to the plaintiff as the successful
party. No record to show that the
defendant objected to costs. As it was open to the defendant to oppose and supported with
material facts. Not only that but the defendant must also show some further grounds for
the Court to rely on to exercise
its discretion to refuse costs to the appellant as the
successful plaintiff. It is important to say where a successful plaintiff
has proceeded
with his claim with no misconduct or no omission or negligent on his part and the Court
finds in his favour
then he must be awarded his costs to compensate him for the losses
that he suffered in getting judgment in his favour.
In this case I find that there were no material facts put forward by the
respondent/defendant before the Court for the Court
to exercise its discretion on in not
awarding costs to the plaintiff. And therefore that discretion was wrongly exercised and
amounts to a ground to allow the appeal on that ground. And I allow the appeal on costs
only. And in allowing the appeal
on cost I now exercise the same power of the court to
either order cost or not. I find that the order for cost as seek under
paragraph 3 of the
writ of summons is sufficient material to support the application for cost. Not only that
but as the
order was in favour of the plaintiff than that is a ground relied upon for the
plaintiff to be allowed to have his cost in the
magistrate court and also cost of this
appeal. Therefore in the exercise of my discretion I order costs including the appeal
costs against the defendant to be taxed or agreed.
p>Dated at Port Virt Vila, this 9th day of March 2000.
Reggett MARUM MBE
Judge
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