Practice and
procedure – Appeal – Hearing
notice – Gazette notice of, –
GazetteG notice of hearing
constitutes notice to whole
world – Hearing in absence of
party and counsel without
gazette notice wrongful – Court
of Appeal Rules 1962 (LI 218) r
3(1).
Costs –Successful applicant –
Principles for award.
The plaintiff who lost his
action in the High Court
appealed successfully to the
Court of Appeal. The defendants
applied to set aside the
judgment of the Court of Appeal
on the ground that the cause
list was neither posted on the
notice board nor gazetted as
required by the Court of Appeal
Rules 1962 (LI 218) rule 3.
Counsel for the plaintiff
maintained that the cause list
was duly gazetted and insisted
on an adjournment in order to
verify from the registry. On the
adjourned date, it was confirmed
that the hearing notice was not
gazetted. The court therefore
granted the application to set
aside the judgment but awarded
costs of ¢50,000 against the
plaintiff. The plaintiff then
applied for review of the award
of costs.
Held:
(1) Award of costs was
discretionary, to be exercised
judicially, according to reason
and justice and not sentiment or
sensibility. An award would be
interfered with only where it
violated some principle of law.
The onus lay on the aggrieved
party to establish that the
discretion was wrongfully
exercised. It was a settled
practice of the courts that
except in special circumstances,
a successful litigant ought to
receive his costs. On the facts,
no legitimate reason was
assigned by the applicant to
deny the respondents their
costs. Afeke v Agble
[1987-88] 2 GLR 572, Eid v
Eid [1979] GLR 290, CA,
Guardian Assurance Co Ltd v
Agbemasu [1972] 2 GLR 337,
CA, Asibey III v Ayisi
[1973] 1 GLR 102, Ritter v
Godfrey [1920] 2 KB 47, CA,
Poku v Frimpong [1972] 1
GLR 230 referred to.
(2) Factors that the court
rightly took into consideration
were that the matter was
adjourned to enable the
plaintiff ascertain whether the
hearing notice was gazetted, a
matter which he ought to have
investigated before coming to
court; the defendants who
resided in Akim Oda suffered an
adjournment when the application
could have been disposed of on
the same day; the plaintiff did
not object to the award of costs
in the first place; by all
indications, the plaintiff had
lost the motion to set aside the
judgment. The costs awarded
served also to bring home to
litigants, like the plaintiff,
that if they relied on matters
that did not support their case
and lost in result, the
successful party would be
compensated in costs. In the
circumstances, no exceptional
circumstances were established
for review of the award of costs
and the application would be
dismissed with costs.
(3) The law and practice were
well settled that if a hearing
notice were published in the
Gazette, that would constitute
notice to the whole world. The
motion to set aside the judgment
in favour of the plaintiff in
the Court of Appeal was granted
because the hearing notice was
not gazetted, which invalidated
the hearing of the appeal in the
absence of the respondents and
their counsel.
Cases referred to:
Afeke v Agble
[1987-88] 2 GLR 572, CA.
Asibey III v Ayisi
[1973] 1 GLR 102, CA.
Eid v Eid
[1979] GLR 290, CA.
Guardian Assurance Co Ltd v
Agbemasu
[1972] 2 GLR 337, CA.
Poku v Frimpong
[1972] 1 GLR 230, CA.
Ritter v Godfrey
[1920] 2 KB 47, CA.
RULING on application to the
Court of Appeal for review of
costs awarded against the
applicant.
James Ahenkorah
for the applicant.
Oduro
for the respondent.
BROBBEY JA.
The plaintiff instituted an
action against the defendants in
the High Court. The plaintiff
lost the action. He appealed
against the judgment to the
Court of Appeal. The appeal was
heard in this court and judgment
entered in favour of the
plaintiff-appellant. The
defendants-respondents applied
to set aside that judgment.
Indeed, the judgment was set
aside on 17 November 1993. Costs
of 50,000 cedis were awarded to
the defendants-respondents. The
plaintiff-appellant then applied
to this court to have the costs
set aside. In this ruling, the
plaintiff-appellant will be
referred to as the applicant the
defendants-respondents will be
referred to as the respondents.
The main complaint of the
applicant was that the judgment
in his favour in this court was
set aside because the case was
heard in the absence of the
respondents; they were not
served with hearing notice,
neither was a hearing notice
published in the Gazette. He
argued that none of these
defaults was attributable to the
applicant to have been mulcted
in the costs of ¢50,000. He
prayed that the costs be set
aside because, to quote from
paragraph 10(ii) of his
supporting affidavit: “The award
of costs of 50,000 cedis against
me was manifestly wrong, unjust,
purposeless, baseless, illogical
and unsupportable.”
The law is now well settled that
the award of costs is in the
discretion of the judge or
court. See Afeke v Agble
[1987-88] 2 GLR 572 and Eid v
Eid [1979] GLR 290, CA. In
those cases, it was also held
that the discretion should be
exercised judicially, i.e.
according to reason and justice
and not sentiment and
sensibility: Guardian
Assurance Co Ltd v Agbemasu
[1972] 2 GLR 337, CA. The award
of costs would be interfered
with only where it is shown that
it was illegitimate or violated
some principle of substantive
law: See Asibey III v Ayisi
[1973] 1 GLR 102.
The facts which led to the award
of costs were as follows: The
respondents filed their motion
to set aside the judgment of
this court on 29 July 1993. The
motion was fixed for hearing on
25 October 1993. The hearing
date was later altered to 15
November 1993. Mr James
Ahenkorah who argued the instant
application to set aside the
costs was personally served with
a hearing notice for that motion
on 8 November 1993 at 11.40 a.m.
In the affidavit supporting the
motion to set aside the judgment
of this court, the respondents
deposed that:
“(i) The cause list of this
court for the week when the
appeal was heard was not
displayed on the notice board of
the circuit court in Akim Oda
where the defendant was
resident.
(ii) Searches or enquiries in
the Akim Oda Traditional Council
office and the registry of this
court revealed that that cause
list was not gazetted as
required by LI 218 of 1962, rule
3.”
In his affidavit in opposition
filed on 22 October 1993, the
applicant failed to answer the
specific question whether or not
to his knowledge the hearing
notice was gazetted. Indeed, he
was evasive, in paragraph 3 of
that affidavit, as to whether or
not the cause list was even
posted on the notice board of in
Akim Oda Circuit Court. He
however conceded that the appeal
was heard in the absence of the
respondents and their counsel.
The law and practice are well
settled now, that if the hearing
notice were published in the
Gazette, that would constitute
notice to the whole world. The
applicant could have verified
whether or not the hearing
notice was gazetted and this he
could have done long before the
hearing of the respondents’
motion to set aside the judgment
was called. He took no such
course of action. While that
motion was being argued, the
respondents’ stand was
categorically that the hearing
notice was not gazetted. Counsel
for the applicant, Mr Ahenkorah,
would make no such concession.
Instead, he insisted on the case
being adjourned to enable the
parties to verify from the
Appeal Court registry whether or
not the hearing notice was
gazetted. In view of the stand
taken by the respondents, their
counsel, Mr Oduro, refused to be
a party to any search in the
Court of Appeal registry because
he had already conducted a
search. In the result, the
adjournment was granted at the
exclusive request, and for the
convenience, of Mr Ahenkorah and
his client. At the risk of
repetition, that adjournment was
granted for them to enquire
about a state of facts which
should have been verified and
deposed to in the affidavit in
opposition. Since the
respondents deposed that the
hearing notice was not gazetted
in their affidavit and the
applicant failed to react to the
averment, the motion could have
been granted on the applicant’s
failure to answer the point at
issue. The adjournment was
granted by the court for the
convenience of the applicant, to
do what he should have done
earlier.
On the next return date, Mr
Ahenkorah did not appear in
court. Mr Yeboah held his brief.
Mr Yeboah then informed the
court that their researches at
the registry revealed that the
hearing notice was not gazetted.
The motion was at that point
granted for the simple reason
that the applicant could not
controvert the averment that the
hearing notice was not gazetted
and that rendered improper the
hearing of the appeal in the
absence of the respondents and
their counsel.
When this court considered the
award of costs the operative
matters taken into account were
obviously the following: (1) The
applicant had one whole week to
research on the factual issue
whether the hearing notice was
gazetted. He failed to do that.
The case was adjourned at his
instance for him to do what he
should have done before coming
to court. In other words, the
applicant was squarely to blame
for the adjournment which was
occasioned on the first day the
motion was called and could have
been disposed of if he had done
what was required of him
timeously. (2) The applicant
knew very well that the
respondents were resident in
Akim Oda and neither he nor his
counsel controverted Mr Oduro’s
assertion while applying for
costs that the adjournment had
kept the respondents in Accra
for three days during which they
waited for the applicant to
verify facts he could have
verified one week earlier. (3)
When the costs were awarded,
neither the applicant nor his
counsel objected to the award.
(4) By all indications, the
applicant lost the motion. By
his counsel throwing in the
towel on the return date, after
his fruitless search at the
Court of Appeal registry, the
applicant had conceded that the
grounds on which he relied in
his affidavit to oppose the
motion to set aside the judgment
could not support his
opposition.
As was rightly stated in
Ritter v Godfrey [1920] 22
KB 47 at pp 52-53, it was a
settled practice of the courts
that in the absence of special
circumstances, a successful
litigant should receive his
costs and that it was necessary
to show some ground for
exercising discretion to deny
him. No legitimate reason has
been urged by the applicant for
this court to deny the
respondents of their costs.
These were the considerations
leading to the award of costs of
50,000 cedis. The costs were
merited and rightly awarded. The
award served the purpose of
bringing home to litigants like
the applicant herein, that if
they were so indolent as to omit
to investigate their facts and
chose to rely on matters that
would not support their case and
lost, the successful party would
have to be compensated.
Knowing that the respondents
were not resident in Accra, the
applicant cannot dispute the
fact that the respondents were
put to expense in waiting in
Accra or travelling to Oda and
back to Accra to conclude the
case, while the applicant
dragged his feet about the
search that he should have
conducted before coming to
court. It was therefore logical
to make the applicant pay for
the expenditure brought about by
his own initial inaction. The
discretion to award costs of
¢50,000 was properly exercised
and will not be interfered with.
As was rightly held in Poku v
Frimpong [1972] 1 GLR 230 at
p 241, CA, the onus was on the
applicant to demonstrate that
the discretion was wrongly
exercised. This he failed to do.
He has not been able to show
that the costs were awarded on
the basis of some matter that
was illegitimate or violated a
principle of substantive law as
the authorities establish. In
effect, the manner in which the
applicant conducted his
opposition to the motion and his
own tardiness in not enquiring
into facts in time gave rise to
the costs. They clearly
justified the amount he was
asked to pay. I therefore find
it rather puzzling that he, the
guilty one, should come back to
court to cause the inadequacies
in his case to be exposed and
read out to him. To describe the
costs awarded as “manifestly
wrong, unjust, purposeless,
baseless, illogical and
unsupportable” is, to say the
least, a mindless choice of
words which cannot be justified
having regard to the facts of
the case. That description of
the basis of the award of the
costs becomes almost
irresponsible when considered in
the light of the fact that the
award was brought about by the
inaction, and indeed indolence,
of the applicant and the grossly
faulty ground on which he sought
to oppose the motion and
protracted the hearing of that
simple motion for two clear
days.
This motion was brought under
the Court of Appeal Rules 1962
(LI 218) rule 33. The
requirement under that rule is
that the applicant should
demonstrate the existence of
“exceptional circumstances.”
Exceptional circumstances in the
instant case should pertain to
the grounds for awarding the
costs. From the foregoing, no
exceptional circumstances have
been shown by the applicant to
warrant a review of the costs in
the interest of justice. I would
dismiss the motion for review
with more costs against the
applicant.
ESSIEM JA.
I agree.
ADJABENG JA.
I also agree.
Application dismissed.
S Kwami Tetteh, Legal
Practitioner
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