Division: IN THE HIGH COURT, SEKONDI
Date: 9 DECEMBER 1964
Before: DJABANOR J
JUDGMENT OF DJABANOR J
This is an application by the defendants herein praying this court, (a) to stay these proceedings for a period of one month until previous costs awarded against the plaintiff in a similar action in favour of the defendants be paid, and (b) to order the plaintiff to give sufficient security for the costs of this action.
Counsel made the application under Order 65, r. 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954.1 Order 65 provides in rr. 5 and 6 that:
“5. A plaintiff ordinarily resident out of the jurisdiction may be ordered to give, security for costs, though he may be temporarily resident within the jurisdiction.
6. In actions brought by persons resident out of the jurisdiction, when the plaintiff’s claim is founded on a judgment or order or on a bill of exchange or other negotiable instrument, the power to require the plaintiff to give security for costs shall be in the discretion of the Court or Judge.”
The first part of this rule makes it quite clear that it relates only to actions brought by persons outside the jurisdiction of the court (vide Order 65, r. 5). Not only that, but only when the plaintiff’s claim is founded on a judgment—an order or on a bill of exchange or other negotiable instrument, will the court order the plaintiff—in appropriate cases, to give security for costs. In this case the plaintiff is resident within this jurisdiction, and the subject-matter of the lawsuit is land within this jurisdiction. I think that as in this case where the subject-matter of the action is land within the jurisdiction that is sufficient security for costs that may be awarded in the action. The application for security for costs is therefore dismissed.
As far as the stay of the proceedings pending payment of the costs of the previous action is concerned I think that the court has an inherent jurisdiction to grant it in appropriate cases. There is abundant authority for the proposition that the High Court has an inherent jurisdiction to strike out pleadings or to stay or dismiss proceedings which are an abuse of its process: Metropolitan Bank v. Pooley2 and Reichel v. Magrath,3 are just a few.
The inherent jurisdiction of the court to protect itself from abuse is recognised and extended in Order 25, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954. But the inherent jurisdiction, unlike the jurisdiction under the rules, is not confined to cases where the abuse is manifest from the pleadings, but may be exercised where the facts are proved by affidavit which show an abuse of the process of the court: see the Court of Appeal judgment in Day v. Hill.4
In this case the defendant is praying this court to stay the proceedings herein pending the payment of the previous costs of £G211 12s. due from the plaintiff to the defendants as the result of previous actions involving the subject-matter of this suit. The first defendant supported this application with a detailed affidavit of the facts which the defendants relied upon. This affidavit, which was served on the plaintiff’s counsel, has not been contradicted.
At page 408 of Halsbury’s Laws of England (3rd ed.), Vol. 30, the following passage appears:
“Proceedings may be stayed where a plaintiff having failed in one action commences a second action for the same matter without having paid the costs of the first action (M’Cabe v. Bank of Ireland (1889) 14 App.Cas. 413, H.L.”).
Order 26, r. 4 of our rules also says:
“If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court or a Judge may, if they or he think fit, order a stay of such subsequent action, until such costs shall have been paid.”
Upon the undisputed facts as disclosed in the first defendant’s affidavit, and as also disclosed in the plaintiff’s statement of claim the plaintiff has instituted an action previous to this in respect of this same or part of this land in dispute. In the circumstances I think it right that the plaintiff should first pay the costs incurred in those suits.
In the result I will grant the application and order that that proceedings be stayed until the plaintiff pays the costs of £G211 12s. previously awarded against her in the previous actions, such costs to be paid before 27 January 1965.
The defendants will have the costs of this application of eight guineas.
DECISION
Proceedings stayed.
N.A.Y.
